Criminal Appeal No. 197 of 2021 · The High Court
Case Details
2024:BHC-AUG:24341-DB Cri.Appeal No.197/2021:: 1 ::CORRECTED JUDGMENTIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.197 OF 20211)Raisoddin alias Guddu s/oMohammad Amiroddin, Age 35 years, Occ. Agriculture,R/o Qadrabad Plot, Ashraf Corner,Parbhani, Taluka & District Parbhani2)Raufabegum alias Gauribi w/oMohd. Amiroddin, Age 70 years,Occu. Agriculture & Household,R/o as above.3)Akbarouddin s/o Mohd. Amiroddin,Age 42 years, Occ. Agriculture,R/o as above.(At present the Appellants/ accused are in Aurangabad Central Prison,Harsool, Aurangabad, Taluka and District Aurangabad) … APPELLANTS(Orig. Accused No.1, 3 & 4)VERSUS1.The State of Maharashtra through the Police Station Officer,Police Station, New Mondha,Parbhani, Taluka & District Parbhani(Notice to the respondent be servedthrough the Public Prosecutor, High Court of Bombay, Bench at Aurangabad) … RESPONDENT.......Mr. Rajendra Deshmukh, Senior Counsel with Mr. Vishal Chavan, Jay Veer, i/bMr. Devang Deshmukh, Advocate for appellants Mrs. Uma S. Bhosle, A.P.P. for respondent – State, assisted byMr. Quadri Tabrezuddin Rahimuddin, Advocate for complainant....… Cri.Appeal No.197/2021:: 2 :: CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 3rd September, 2024.Date of pronouncing judgment : 1st October, 2024.JUDGMENT (PER R.G. AVACHAT, J.) : The judgment and order of conviction andconsequential sentenced passed by Additional SessionsJudge-4 Parbhani (Trial Court) on 18/2/2021 in Sessions Case,No.41/2016 is under challenge in this appeal. 2.The appellants before us are a mother and her twosons. Her husband too was one of the accused in the saidSessions Case. He died pending the trial. The trial, therefore,stood abated against him. The appellants No.1 to 3 have been convicted forthe offence punishable under Section 302 of the Indian PenalCode and sentenced to suffer imprisonment for life and to payfine of Rs.10,000/- (Rupees ten thousand), in default ofpayment of fine, to undergo R.I. for 2 years. The appellantsNo.1 to 3 are also convicted for the offence punishable underSection 307 of the Indian Penal Code and sentenced to sufferrigorous imprisonment for seven years and to pay fine of Cri.Appeal No.197/2021:: 3 ::Rs.5000/- (Rupees five thousand), in default to undergo R.I. forone year. The appellant No.1 Raisoddin has also beenconvicted for contravention of Section 4 r/w Section 25 of theIndian Arms Act and sentenced to suffer rigorous imprisonmentfor one year and to pay fine of Rs.2000/- (Rupees twothousand), in default to undergo R.I. for one month. All the substantive sentences have been directedto run concurrently.The appellants have been acquitted of the offencepunishable under Section 504 of the Indian Penal Code.Whereas the appellant No.2 Raufabegum @ Gauribi andappellant No.3 Akbaroddin have been acquitted of the offencepunishable under Section 4 r/w 25 of the Indian Arms Act. 3. The case of the prosecution, in brief, was asfollows :-Raufabegum @ Gauribi (appellant No.2)(hereinafter referred to as Gauribi) is the sister of P.W.4 Sk.
Facts
Cri.Appeal No.197/2021:: 4 ::Masiyoddin. There are agricultural lands, Gut Nos.250 and255, situated within the limits of city of Parbhani. A civil suitand revenue proceedings were pending between the family ofappellants on one hand and P.W.4 Masiyoddin and others onthe other. Admittedly, all of them have share in both the lands.Land Gut No.255 was converted into N.A. assessment. Theland Gut No.250 has N.A. potential.4.Raisoddin (appellant No.1) is the son of appellantNo.2 Gauribi, who is maternal aunt of P.W.3 Sk. Khijar. Theincident took place by little past 6.00 p.m. on 13/12/2015 onthe land Gut No.250. About half an hour therebefore, P.W.3Khijar had asked A/1 Raisoddin to give him back the PVCpipes temporarily given by him to A/1. A/1, in turn, asked himfirst to pay money/ cost of the fodder supplied to P.W.3 Khijarand then he would return the PVC pipes. P.W.3 Khijar told himthe fodder money to have already been paid by his father. Aquarrel was said to have ensued between the two. A/1Raisoddin went back hurling abuses to P.W.3 Khijar.5.After a while i.e. 6.30 p.m., the appellants andMohd. Amiroddin, then accused No.2 (since deceased), cametogether to a buffalo shed of P.W.3 Khijar. A/1 was holding a Cri.Appeal No.197/2021:: 5 ::knife (Khanjir). Amiroddin (since deceased) was holding asword. A/3 Gauribi was having an iron pipe. Azharoddin(deceased) convinced them not to abuse. Thereupon A/3pierced Khanjir in the stomach of Azharoddin. A/2 Gauribiassaulted on Azhar’s head with iron pipe from behind. Khijar’sfather intervened to rescue his son Azhar. Amiroddin (sincedeceased) assaulted him with a sword. A/3 Akbarouddin beatup the father of Khijar with kicks and fist blows.6.P.W.3 Khijar rushed the injured to a GovernmentHospital. Azhar was declared dead. Khijar’s father wasshifted to Nanded as his condition was critical. P.W.3 Khijarthen approached Mondha Police Station and lodged the FirstInformation (F.I.R. Exh.77).7.A crime vide C.R. No.279/2016 for the offencespunishable under Sections 302, 307, 504 read with Section 34of the Indian Penal Code and Section 4 read with 25 of theArms Act was registered against the appellants and Amiroddin(since deceased). The A/1 Raisoddin and Amiroddin (sincedeceased) made disclosure statements, pursuant to which aknife, sword and iron pipe came to be recovered from twodifferent places in the presence of panchas. Clothes on the Cri.Appeal No.197/2021:: 6 ::person of the deceased at the time of the incident and that ofthe appellants and injured were seized under differentpanchanamas. Services of a sniffer dog were availed. Fromthe crime scene a pair of Chappal, some earth and earthmixed with blood came to be seized. Statements of personsacquainted with the facts and circumstances of the case wererecorded. Upon completion of the investigation, a chargesheet was filed against all the four.8.The Trial Court framed the Charge (Exh.209). Theappellants pleaded not guilty. The defence of A/1 was that, by5.00 p.m. on the given day, he was watering the crop in thefield. Azhar and Masiyoddin assaulted him with a spade. Hesuffered grievous injury to his right thumb and index finger.The injury was sutured with 8 stitches. He then returned homeand went to hospital for treatment. Police forcibly arrested himin the hospital. During suggestion to some of the prosecutionwitnesses, a defence was put up that the injured wereassaulted by someone else in the village.9.To bring home the charge, the prosecutionexamined 19 witnesses and produced in evidence certaindocuments. After appreciation of the evidence in the case, the Cri.Appeal No.197/2021:: 7 ::Trial Court convicted and consequently sentenced theappellants as stated above. 10.Heard. Learned Senior Advocate representing theappellants would submit that, it was a month of December.Sunset by little past 5.00 p.m. The incident took place in acattle shed on the field. The crime scene panchanama and theevidence of the prosecution witnesses did not disclose thatthere was electricity. The learned Senior Advocate meant tosay that, it was dark and the victims were, therefore, unable toidentify the assailants. He would further submit that,admittedly a civil dispute was pending before the Civil Courtand revenue authorities as well. The lands in dispute haveN.A. potential. The appellants have share in those lands.Only with a view to deprive them of their rightful claim, a falseF.I.R. has been lodged against one and all the members of thesame family. He would further submit that, A/1 was in factassaulted by Azhar and Masiyoddin with a spade. He broughtto our notice a photograph indicating his right hand below thewrist was completely bandaged. It was therefore, difficult forhim to hold a Khanjir in the very hand and make assaulttherewith. Admittedly, he was not lefty. He would furthersubmit that, the father of A/1 was 70 plus. He was a patient of Cri.Appeal No.197/2021:: 8 ::Asthma. He used to be brought before the Trial Court liftinghim by 2/3 persons. It was just impossible for him to make anassault with a sword. A criminal case was also instituted by A/1 against those who assaulted him with a spade. The sameresulted into acquittal. Unfortunately, no appeal has beenpreferred thereagainst.11.Learned Senior Advocate has also placed onrecord a written notes of his submissions. According to him, apair of Chappal, Namaz-Cap was seized from the crime scene.No investigation was made in that regard to prove that the capbelonged to A/1. The evidence of the witnesses to the spotand seizure panchanama are not consistent with each other.Admittedly, P.W.3 Khijar (informant) did not understandMarathi. In his cross-examination, he was called upon to readthe F.I.R. He could not. No police official has been examinedwho recorded the F.I.R., which is in Marathi. When the injuredhad suffered serious bleeding injuries, it is surprising thatP.W.3 Khijar who carried them to the hospital did not getclothes on his person stained with blood. The prosecutionfailed to explain the injuries on the person of A/1. All theprosecution material witnesses are relations of each other.The so called independent witness- P.W.6 Kamlakar was
Legal Reasoning
Cri.Appeal No.197/2021:: 14 ::witness is giving a truthful and honest account of theoccurrence witnessed by him.XIII.A former statement though seeminglyinconsistent with the evidence need not necessarily besufficient to amount to contradiction. Unless theformer statement has the potency to discredit the laterstatement, even if the later statement is at variancewith the former to some extent it would not be helpfulto contradict that witness.[See Bharwada Bhoginbhai Hirjibhai v. State ofGujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753, LeelaRam v. State of Haryana, AIR 1999 SC 3717, andTahsildar Singh v. State of UP, AIR 1959 SC 1012]29. There is nothing palpable or glaring in theevidence of the two eye-witnesses on the basis ofwhich we can take the view that they are not true orreliable eye-witnesses. Few contradictions in the formof omissions here or there is not sufficient to discardthe entire evidence of the eye-witnesses.30. In the aforesaid context, we may refer to adecision of this Court in the case of State of U.P. v.Anil Singh, AIR 1988 SC 1998, wherein in para 15, itis observed thus :“15. It is also our experience that invariably thewitnesses add embroidery to prosecution story,perhaps for the fear of being disbelieved. Butthat is no ground to throw the case overboard, iftrue, in the main. If there is a ring of truth in themain, the case should not be rejected. It is theduty of the court to cull out the nuggets of truthfrom the evidence unless there is reason tobelieve that the inconsistencies or falsehood areso glaring as utterly to destroy confidence in thewitnesses It is necessary to remember that aJudge does not preside over a criminal trialmerely to see that no innocent man is punished. Cri.Appeal No.197/2021:: 15 ::A Judge also presides to see that a guilty mandoes not escape. One is as important as the other.Both are public duties which the Judge has toperform.”31. The medical evidence on record furthercorroborates the ocular version of the eye witnesses.The PW-6 Dr. Shivaji Vishnu Kachare (Exh. 25) in hisevidence has deposed that the cause of death is due tothe head injury. The expert witness has also deposedthat all the injuries were in the nature of ContusedLacerated Wound & could have been caused by aweapon like hammer.32. The chemical analysis report (Exh.10) of theforensic science laboratory indicates that there werestains of human blood on the hammer matching withthe blood group of the deceased i.e. ‘A’ group.”14.The learned A.P.P. meant to say that, whileappreciating the evidence of a witness, the approach must bewhether the evidence of a witness read as a whole, appears tohave a ring of truth. She brought our attention to Point No. (I)to (XIII) quoted in para 27 of the judgment relied on. Accordingto her, minor discrepancy on trivial matters not touching thecore of the case and not going to the root of the matter shouldnot ordinarily permit rejection of the evidence as a whole. Shewould further submit that, the medical evidence on recordcorroborates the ocular version. The C.A. reports reinforce theprosecution case. She also relied on para 13 of the judgment Cri.Appeal No.197/2021:: 16 ::delivered by the very Court in case wherein A/1 was the victimand deceased Azhar and P.W.4 Masiyoddin were the accused.She also placed on record copy of evidence of that case. Itneeds no mention that, evidence of one case cannot be read inthe other that too for the first time in appeal.15.The learned Advocate representing the victimmade similar submissions and placed on record written notesof his arguments along with the following authorities :-(1)Pattu Rajan Vs. The State of Tamil Nadu2019 2 ACR 1087(2)Joy Devaraj Vs. State of Kerala2024 0 Supreme (SC) 537(3)Sanjay Puran Bagde & anr. Vs. The State of Maharashtra [ 2022 7 Supreme 755 ](4)Sudha Renukaiah & ors. Vs. State of A.P.2017 4 Supreme 275(5)Amar Singh Vs. Balwinder Singh & ors.2003 1 Supreme 353(6)Nand Kumar Vs. State of Chhattisgarh2015 1 Suypreme 616(7)Prahalad Patel Vs. State of Madhya Pradesh2011 2 Supreme 210(8)Rakesh & another Vs. State of Madhya Pradesh2011 6 Supreme 630(9)Kartik Malhar Vs. State of Bihar Cri.Appeal No.197/2021:: 17 ::1995 0 Supreme (SC) 1152(10)Omkar Singh Vs. Jaiprakash Narain Singh & anr.2022 2 Supreme 637(11)State of Karnataka Vs. K. Yarappa Reddy1999 8 Supreme 49616. We have perused the above authorities. The notesof arguments is a summary of the evidence of prosecutionwitnesses. According to learned Advocate, in case of a faultyinvestigation, if any, the rest of the evidence must bescrutinized independently. Criminal justice should not be madethe casualty for the wrongs committed by the investigatingofficers in the case. He then took us to Section 34 of theIndian Penal Code to indicate each and every appellants whoshared common intention and even if one of them has played alittle role, he would equally be liable to be punished andsentenced provided for the main offence. No one can dispute the legal proposition in thatregard. 17.So far as regards other judgments relied on by thelearned Advocate are concerned, in our view, there can hardlybe a precedent in criminal cases which are mainly decided on Cri.Appeal No.197/2021:: 18 ::facts obtainable therein. We are also conscious of the fact thatit is the quality and not quantity of that matter. Conviction canbe based on the evidence of a solitary witness. There is,however, a rider that such a witness should be of sterlingquality. Without detaining us to the submissions advanced bythe learned Advocates, we propose to advert to the evidenceon record and appreciate the same.18.P.W.1 Nilesh and P.W.2 Devraj are the panchas tothe crime scene panchanama (Exh.55). The same was drawnfrom 2.45 p.m. to 6.00 p.m. on 14/12/2015. The learnedSenior Advocate for the appellants referred to the saidpanchanama to bring to our notice that there is nothing toindicate availability of electric supply. The reading of thepanchanama indicates it to be a place at a cattle shed. Threeshe buffaloes were tethered. There was a pool of blood. Achocolate colour Chappal pair was found on the spot. Thesame was seized besides seizure of earth and blood mixedearth. Evidence of both the panchas and the police officerSudhakar Jagtap (P.W.18) who drew the same suggest thearticles seized were sealed on the spot and brought to thepolice station. Cri.Appeal No.197/2021:: 19 ::19.P.W.9 Dr. Rahul conducted the autopsy on themortal remains of Azhar. He noticed injuries at front side onright hypocondyle region of Azhar, his small and large intestinecame out of abdomen. Due to said injury 13 cm. small andlarge intestine came out. Second injury was at right chest 5cm. from nipple right side over the sternum (middle portion ofchest). The size of injury was 3 cm. long, 1 cm. wide and 2cm. deep. Third injury was on right 3 x 1 cm. Fourth injury wasright shoulder of 4 x 1 cm. P.W.9 Dr. Rahul also noticed some injuries on backof deceased Azhar. Those were (1) mid scapular region on vertebral column having 2 cmlong, 1 cm wide and 5 cm deep horizontal towards leg.(2)Second injury was below right shoulder 4 cm long, 1 cmwide and 5 cm deep.(3)Third injury was left shoulder 3 x 1 cm.(4)Next injury was on base of neck on right side abovesterno clavicular angle 5 x 2 cm. 20.According to him, he could not explain whether theinjuries were ante mortem or post mortem as no space was Cri.Appeal No.197/2021:: 20 ::available in the report and due to some heavy work, he forgotto mention the same. We have no reason to disbelieve hisclaim. In his opinion, the deceased died of “Cardio respiratoryarrest due to hypovolmic shock due to multiple stab injurieswith lung rupture.” The post mortem report is at Exh.125.21.During his cross-examination, it has been broughton record that, the post mortem report did not bear OutwardNumber. It also did not bear endorsement of the Civil Surgeonasking him to do the post mortem examination. There iscorrection in the date from 13 to 14 in Column No.4. The postmortem report is silent that he collected (sealed) and handedover clothes of the deceased to a responsible police officer.Rest of the questions were general and in the nature ofmedical literature.22.P.W.9 Dr. Rahul is an independent witness. Hisevidence lead us to agree with his conclusion i.e. the cause ofdeath of deceased Azhar.23.P.W.11 Dr. Sonali examined P.W.4 Masiyoddin on13/12/2015. She was a Casualty Medical Officer on duty thattime. She noticed two stab injuries. First was on left abdomen Cri.Appeal No.197/2021:: 21 ::of size 6 x 5 x 5 cm., it was grievous in nature. Second injurywas on left chest of size 3 x 2 x 6 cm., it was grievous innature. Both the injuries were on vital part, caused by sharpobject within six hours. She issued the injury certificate (Exh.134). Thesame corresponds with her oral evidence in examination-in-chief regarding the injuries on the person of P.W.4 Masiyoddin.According to her, the Medico Legal Certificates are silent torecord history. She explained that had the injured given thehistory, she would have recorded the same. She furtheradmitted that, on the same day she examined A/1 Raisoddin.He had suffered incise and grievous wound, those were alsocaused by sharp object. Age thereof was within 6 hours andeven may be within 1 hour. She issued the certificate threemonths after examination of Raisoddin. She had no difficultyto issue the same immediately. The injury certificate ofMasiyoddin indicates that he was referred to Nanded forfurther treatment. Both Azhar and Masiyoddin were brought tothe hospital by Fasiyoddin. Cri.Appeal No.197/2021:: 22 ::24.P.W.12 Dr. Sayed Qadri was a Veterinary Doctor.He examined she buffaloes on 15 December. He found injuryto her udder.25.The prosecution appears to have not examined anyMedical Officer from Civil Hospital, Nanded, whereinMasiyoddin was admitted. No medical papers of hisexamination at the said hospital have also been produced andadmitted in evidence.26.Let us now turn to the ocular evidence. It is in theevidence of P.W.3 Khijar (informant) that a month before theincident, he had given 40 PVC pipes to A/1 Raisoddin forwatering his wheat crop. By 5.30 p.m. on 13/12/2015, heasked Raisoddin to give back his PVC pipes. He (A/1)thereupon made a demand of cost of fodder supplied. Khijar,in turn, informed him the same to have already been paid byhis father. Appellant Raisoddin thereupon went back afterabusing him (Khijar). It is further in his evidence that, by 6.30 p.m. all theappellants along with Amiroddin (since deceased) cametogether. A/1 Raisoddin was armed with a knife (Khanjir). Cri.Appeal No.197/2021:: 23 ::Amiroddin (since deceased) was holding a sword. A/3 Gauribiwas having iron pipe. They started abusing him (Khijar) andhis family members. His brother Azhar (deceased) tried toreason with them. A/1 Raisoddin thereupon assaulted on thestomach of Azhar with knife (Khanjir). A/3 Gauribi inflictedblow on his head with iron pipe. When his father intervened torescue Azhar, A/2 Amiroddin thrusted sword in his stomach.A/3 Akbar beat up Masiyoddin with kicks and fist blows. Hecalled autorickshaw and took his brother and father toGovernment Hospital. The Medical Officer there declaredAzhar dead. His father was shifted to Civil Hospital, Nanded.He then went to Mondha Police Station and lodged F.I.R.(Exh.77). He identified the articles knife, sword and iron pipeshown to him before the Court. According to him, he saw theincident in the electric light, at buffalo shed.27.He was subjected to a searching cross-examination. A family tree (genealogy) was first brought onrecord. Then it has also been brought on record that lands GutNos.250 and 255 were inherited property from forefathers.The appellants too were in possession of some portion in boththe lands. The lands had N.A. potential. Even a lay-out ofplots was drawn in land Gut No.250. Cri.Appeal No.197/2021:: 24 ::28.It has further been brought on record that, he tookeducation in Urdu medium school. In examination-in-chief, hestated to have lodged the F.I.R. in Marathi language. Headmitted in the cross-examination that he did not understandMarathi words since he took education in Urdu. He went on toadmit that he always converse in Hindi or Urdu. He was thencalled upon to read out the F.I.R., which is in Marathi. Headmitted that, he could not read the contents of the F.I.R.because of it being in Marathi language. According to him, hecould have read the F.I.R. if it were in Urdu language.29.It has further been brought on record that theappellants did not have their Akhada on the land. They live atQadrabad Plot. Qadrabad is towards West of Parbhani city.While land Gut No.250 was to the East of Parbhani city.Before reaching Civil Hospital, none of them approachedMondha Police Station or Nanalpeth Police Station which wereon the way to Civil Hospital. According to him, police did notseize his clothes since those were not stained with blood. Theclothes of the injured were only stained with blood. He wenton to admit that there was police outpost in front of CasualtyWard on the premises of Civil Hospital, Parbhani. The Cri.Appeal No.197/2021:: 25 ::information is given at the Police Outpost. He volunteered tostate that, he had been there but it was not accepted. He,however, admitted that, his F.I.R. is silent to state the same.He went on to admit that, Fasiyoddin was his uncle. He waspresent outside the Court. He had accompanied him to theCourt on each and every date. It was further in his evidencethat, he did have a cell phone with him while the incident tookplace. He did not inform his relatives about the incident. Hisfather was unconscious. He admitted that, none of theappellants were left handed (lefty). He admitted that, his reportto the police is silent to state therein that he saw the incident inelectric light at cattle shed. He did not state the police theexact abusive words hurled by the appellants. He deniedappellant Rsisoddin’s right hand had suffered incised woundon the given day. 30.P.W.4 Masiyoddin testified on the lines of theevidence of P.W.3 Khijar. We, therefore, do not reproduce hisevidence in examination-in-chief. His evidence suggests that,he intervened to rescue his son Azhar. Amiroddin (sincedeceased) thrusted sword in his stomach. His intestineprotruded. According to him, A/3 Akbar caught hold of him andbeat with fists and kicks. He became unconscious. Appellant Cri.Appeal No.197/2021:: 26 ::Gauribi is his real sister. His evidence further disclose that hispolice statement was first time recorded at Civil Hospital,Nanded on 25 December i.e. 12 days after the incident.31.He too was subjected to a searching cross-examination. He admitted to have filed a civil suit againstAmiroddin (since deceased) and his own father. He neverused wrist watch. According to him, Kamlakar (P.W.6) told himabout the time of the incident. According to him, he gainedsomewhat consciousness two days after the incident. He wenton to admit that, Shafiyoddin informed him about the incident.He denied to have not been in the know of the incident until 25December and therefore, did not give statement to police. Hewas suggested that some quarrel took place in the village andtherein he suffered the injury. He admitted that, the quarreltook place between appellant Raisoddin and his son by 5.30p.m. He, however, denied that, Raisoddin sustained injury inthe said incident. He denied to have assaulted appellantRaisoddin with a spade.32.P.W.5 Sharifoddin is not an eye witness to theincident. He claimed to have joined the injured and P.W.3Khijar while they were on way to hospital in autorickshaw. He, Cri.Appeal No.197/2021:: 27 ::however, admitted to have not himself reported the matter tothe police.33.P.W.6 Kamlakar’s evidence is to the effect that hehad been to the cattle shed (crime scene) to buy milk. It waslittle past 6.00 p.m. He saw the incident. He reiterated theincident as has been given in evidence by the informant –P.W.3 Khijar. Therefore, we do not reproduce the same. 34.He is a witness to the panchanama of seizure ofclothes of appellant Raisuddin. According to him, the clotheswere seized in his presence under panchanama (Exh.108). Itwas drawn on 14 i.e. next day of the incident. It is further in hisevidence that, again on the following day, he was summonedto the Police Station and in his presence clothes of Masiyoddinwhich were brought from the hospital, were seized underpanchanama (Exh.109).35.In the cross-examination, he admitted to have notintervened to subside the quarrel. When he had been to thePolice Station on 14 and 15 i.e. on the next day of the incident,he on his own did not relate the police to have witnessed theincident. Same happened on 15 i.e. on the second day after Cri.Appeal No.197/2021:: 28 ::the incident. His evidence further indicates that it was only on18 December i.e. 5 days after the incident his police statementwas recorded.36.We here itself discard the evidence of P.W.6Kamlakar as regards what has been deposed to by him as aneye witness account. His conduct is grossly unnatural. Ontwo consecutive days immediately next after the incident, hehad been to the Police Station and acted as a panch witness,still he did not relate the police about having witnessed theincident. Even on 18 i.e. on the day on which his policestatement was recorded, he went to the Police Statement andgave statement only after police summoned him and notvisiting the Police Station on his own. It is reiterated that,these facts rendered him unreliable witness.37.P.W.7 Sayyed Sardar is a witness to the inquestpanchanama (Exh.116). We do not propose to dilate much onhis evidence. P.W.8 Kazi Gaffroddin is a witness to variouspanchanamas (Exh.119 to 122) relating to seizure of clothes ofAmiroddin, Akbaroddin, Gauribi and Raisoddin. His evidenceis silent to indicate that the clothes were seized after removingthem from the body of respective persons. According to him, Cri.Appeal No.197/2021:: 29 ::police asked him to put signature on the panchanamas relatingto seizure of clothes. The same indicates that, clothes werethere already available and simply packed in his presence.The evidence of this witness, therefore, does not carry muchrelevance to further the prosecution case.38.The evidence of P.W. 10 Jivan is not referred tosince his evidence simply pertains to drawing of sketch of thecrime scene 3-4 days after the incident. He was a revenueofficer at the relevant time. P.W.13 Kailash is a panch witnessto two disclosure statements, one made by A/1 Raisoddin andsecond made by Amiroddin (since deceased). We do notpropose to refer to his evidence in relation to the disclosurestatement made by the deceased accused.It is in his evidence that, on 17 December, he wentto Mondha Police Station. Appellant Raisoddin stated in hispresence to have kept a knife in bushes in the Jayakwadi areaof Parbhani. He also told that he would take them to that placeand take out the knife. His statement was accordinglyrecorded. It is at Exh.141. His evidence further indicates that,accordingly, he along with other panch, police officials andappellant Raisoddin went to area known as Kalyan Mandapam Cri.Appeal No.197/2021:: 30 ::at Jayakwadi area. The vehicle was stopped there. Theappellant led them to a place of bushes. He took out a knifetherefrom. It was seized under seizure panchanama Exh.141.According to him, a slip containing his signature was affixed.39.In his cross-examination, he testified that, he wasnot issued a letter by police for availing his services as panchwitness. He denied that no such thing that the appellant gavea disclosure statement and then took out a knife from the saidplace did happen. 40.P.W.14 Sushil was a photographer, who hadsnapped the photos of the fact that A/1 Raisoddin was takingout knife from the bushes he referred to those photographs onrecord. In his cross-examination, however, he gave a vitaladmission that no panchanama was drawn in his presence.41. As such, his evidence runs counter to the evidenceof P.W.13 who claimed that a seizure panchanama was drawnin his presence. Admittedly, P.W.14 Sushil was in theircompany. While the A/1 Raisoddin made a disclosurestatement and led them to that very place. P.W.15 Sandip wasanother photographer who snapped photographs of the dead Cri.Appeal No.197/2021:: 31 ::body. While P.W.16 Narayan was the then Police Constablewho carried the seized articles to FSL, Aurangabad on29/12/2015 along with a forwarding letter (Exh.150). P.W.17Rajendra is Head Constable who had brought the clothes ofdeceased Azhar from the Medical Officer to the Police Stationand delivered them to investigating officer, P.I. Jagtap. P.W.19Nivrutti was a Police Havaldar. His evidence pertains to snifferdog activities. According to this witness, on 17/12/2015 by1.15 p.m. a sniffer dog was summoned. A pair of Chappal wasremoved from a packet. The dog sniffed the Chappal and thenclimbed on the person of A/1 Raisoddin who was made tostand along with 6-7 other dummies.42.In our view, this witness, instead of helping thepolice, indicates that, the footwear was not in sealed condition.There is also no evidence to indicate that, after it was availedfor sniffer dog activity, the same was again sealed and thensent to FSL, Aurangabad. Be that as it may.43.P.W.18 Sudhakar Jagtap did the investigation of thecrime. We do not propose to reiterate his evidence since whatactivities he did or got done have already been brought on Cri.Appeal No.197/2021:: 32 ::record through the evidence of panch witnesses and MedicalOfficers.44.The C.A. reports (Exh.169 to 175) pertain to theseized articles, blood groups of the appellants, deceased andinjured. The blood group of deceased Amiroddin (accused)was “A”. Exh.169 indicates blood group of Mohd. Akbar was“A” while blood group of Mohd. Amiroddin was “AB”. 45.The blood group of both Raisoddin and Masiyoddinis “A”. the blood detected on knife and sword was human.The blood group of the blood found on knife was “A” group.No blood group on the iron pipe could be determined as theresult was inconclusive.46.It is, however, not known as to why all the seizedarticles were sent to FSL on 29 December i.e. 16 days afterthe incident. In what condition those were kept at the PoliceStation is not known. We have every reason to observe sincea pair of Chappal was removed on 17 December, there is noevidence to indicate that it was again sealed in the presence ofpanchas. Be that as it may, since the case is based on eyewitness account. Cri.Appeal No.197/2021:: 33 ::APPRECIATION :47.Appellant Gauribi is the real sister of P.W.4Masiyoddin. Deceased Azhar was Masiyoddin’s son. Thecrime scene panchanama (Exh.55) indicates the incident tookplace in a cattle shed on the land Gut No.250. True, theincident took place little past 6.00 p.m. As it was December,sun set earlier. It is a case of inflicting injuries with weaponsthat too by known persons. It, therefore, cannot be observedthat the injured, and so called eye witness could not seeassailants due to darkness. The cause of death of Azhar was“Cardio respiratory arrest due to hypovolmic shock due tomultiple stab injuries with lung rupture.” While injury certificateof Masiyoddin (Exh.134) indicate him to have suffered stabinjury in his left abdomen and another stab injury at his leftchest. Both the injuries were grievous in nature and causedwith sharp object. The age thereof was within 6 hours. Hewas examined by 7.00 p.m. on 13 December itself. It is true,at the same time A/1 Raisoddin was examined by the verydoctor, P.W.11 Dr. Sonali. She noticed him to have sufferedincised and grievous wound caused with sharp object. Theage of the said injury was even within 6 to 1 hour. Thephotograph referred by learned Senior Advocate indicate his Cri.Appeal No.197/2021:: 34 ::right hand below wrist was in bandage. He meant to say that,it was, therefore, difficult for A/1 Raisoddin to hold knife andinflict blow therewith. No such questions were put to thedoctor, who examined A/1 Raisoddin. It is also not the case ofthe defence that A/1 Raisoddin suffered the injury in the veryincident for making out a case of right of private defence or thecase that prosecution to have failed to explain the injury on hisperson. It was his case that, deceased Azhar and P.W.4Masiyoddin had assaulted him with a spade by 5.30 p.m. i.e.the same day before the offence in question. Both of themwere prosecuted as well. They have been acquitted of thecharge. There is no appeal against acquittal. Be that as itmay. It is not at all the case of the appellants that A/1Raisoddin suffered the said injury in the incident in question soas to make out a case under any of the exceptions to Section300 of Indian Penal Code.48.The case is based on two eye witnesses. First isthe informant Khijar (P.W.3). He claimed to have been presentat the cattle shed when the incident took place. In the veryincident, his real brother died. His father too suffered grievousinjury. It should have been natural on his part to intervene inthe incident to save his father and real brother as well. Had all Cri.Appeal No.197/2021:: 35 ::the appellants and the deceased accused really been therearmed with respective weapons, there was no reason for themto spare the informant Khijar as well. He did not suffer even ascratch. The incident took place little past 6.00 p.m. Heclaimed to have accompanied the injured to the hospital. He,however, did not report the matter to the Police Outpost on thepremises of the Civil Hospital. The F.I.R. has been lodged by2.00 a.m. i.e. 8 hours after the incident. There is one morestartling fact. The informant P.W.3 Khijar did not understandMarathi. He would converse only in Hindi or Urdu. Accordingto him, he gave the information in Marathi language. When hewas called upon to read out the F.I.R. (Exh.77), he expressedhis inability to read it out. The police officer who recorded theF.I.R. has not been examined. As such, there is nothing toindicate that the F.I.R. records that it was read over to him as itis (i.e. in Marathi) and he affirmed it to be true and correct.Moreover, both the injured had suffered grievous injuries.There was pool of blood at the crime scene. Then it’s difficultto believe his case that when he took both the injured tohospital in autorickshaw, not a drop of blood fell on his clothes.49.It is not that no incident as has been alleged, didtake place. There is now-a-days tendency to implicate each Cri.Appeal No.197/2021:: 36 ::and every person of the family in the offence. Admittedly aquarrel between A/1 raisoddin and informant P.W.3 Khijar hadtaken place half an hour before the incident. A/1 has suffereda grievous injury. True, we have already observed above thatin the facts and circumstances of the case it was not for theprosecution to explain the same. the fact, however, remainsthat, the prosecution witnesses are not coming clean. They arehiding some facts.50.Admittedly, the residential house of the appellantswas not on the land. It was at Qadrabad Plot area, i.e. to theWest of Parbhani city. While the land Gut No.250, where theincident took place, was at the other end. The incident inquestion took place within half an hour post earlier incident.There is nothing to indicate that lady appellant Gauribi hadalready been on the field along with her another son A/3Akbaroddin. The appellant Gauribi was alleged to haveassaulted Azharoddin on his head with an iron pipe. The postmortem examination report indicates the deceased to have notsuffered any injury to his head. As such, the medical evidencerules out assault by appellant Gauribi with iron pipe. The pipewas not recovered at her instance. She is not alleged to haveplayed any other role in the crime in question. In our view, her Cri.Appeal No.197/2021:: 37 ::presence at the crime scene even is very much doubtful, moreso, on the ground of evidence of P.W.3 Khijar. The statementof other injured P.W.4 Masiyoddin was admittedly recorded 15days after the incident in spite of he having been consciousoriented earlier. He himself has admitted to have been toldabout the incident by Sharifoddin. Sharifoddin was not an eyewitness. Had the entire family, namely the appellants and thedeceased Amiroddin (since deceased) had prearrangedmeeting to eliminate one and all of the family members ofGauribi’s brother Masiyoddin, all of them would have comearmed with deadly weapons. Admittedly, A/4 did not have anyweapon in his hand. He is alleged to have assaulteddeceased Azhar with fist and kick blows. The injury certificaterules out blunt trauma or any other such injury as a result ofassault made by him. True, there being no independent eyewitness available and the evidence of injured witness carriesgreater weight, here is a case of a dispute between the twoparties over agricultural land located at prime place. Both thelands have N.A. potential. Possibility of involving appellantGauribi and her another son (A/3 Akbaroddin) with an ulteriormotive cannot be ruled out. To that extent, we are not relyingon the evidence of P.W.4 Masiyoddin. Even we accept theevidence of P.W.3 Khijar, his evidence too is not relied on so Cri.Appeal No.197/2021:: 38 ::far as against these two appellants. In our view, theprosecution has failed to bring home the charge against thembeyond reasonable doubt. Based on such quality of evidence,the Trial Court ought not to have convicted both of them withthe aid of Section 34 of the Indian Penal Code.51.So far as regards A/1 Raisoddin is concerned, werely on the evidence of P.W.4 Masiyoddin. He has committedmurder of his cousin Azhar. The Trial Court has, therefore,rightly sentenced him to imprisonment for life. It is not thecase of the prosecution that A/1 Raisoddin has assaultedP.W.4 Masiyoddin, his maternal uncle. He was assaulted bythe accused Amiroddin (since deceased). The injuries were onthe vital part of P.W.4 Masiyoddin. Therefore, it could be saidthat it was a bid on his life as well. Since A/1 Raisoddin is wasconvicted for other offence with the aid of Section 34 of theIndian Penal Code, and admittedly he even not touched theperson of P.W.4 Masiyoddin, on whose life it was a bid, wepropose to interfere with the quantum of sentence imposedagainst A/1 Raisoddin in that regard. We, however, do not findto interfere with the conviction of the A/1 Raisoddin for theoffence under Section 4 r/w 25 of the Arms Act. Cri.Appeal No.197/2021:: 39 ::52.For the reasons given hereinabove, the appealpartly succeeds. Hence the order : O R D E R(i)The Criminal Appeal is partly allowed.(ii)Conviction of the appellant No.2 Raufabegum aliasGauribi w/o Mohd. Amorouddin and appellant No.3Akbarouddin s/o Mohd. Amirouddin, recorded by learnedAdditional Sessions Judge-4, Parbhani in Sessions CaseNo.41/2016 vide order dated 18/2/2021 set aside. Both ofthem are acquitted of the offences punishable under Sections302 and 307 of the Indian Penal Code. Fine amount, if paid,be returned to them.(iii)Conviction of appellant No.1 Raisoddin alias Guddu s/oMohammad Amiroddin for offences punishable under Sections302 of the Indian Penal Code and under Section 4 read withSection 25 of the Arms Act is maintained. However, the orderdirecting him to undergo R.I. for two years in default ofpayment of fine of Rs.10,000/- for offence punishable undersection 302 of the Indian Penal Code is reduced to threemonths. Cri.Appeal No.197/2021:: 40 ::(iv)Conviction of the appellant No.1 for the offencepunishable under Section 307 of the Indian Penal Code ismaintained. However, the sentence of imprisonment isreduced to rigorous imprisonment for one year and to pay fineof Rs.1000/- (Rupees one thousand), in default to suffer S.I. forone month. (v)Conviction of the appellant No.1 for the contravention ofSection 4 of Arms Act, punishable under Section 25 of theIndian Arms Act and the consequential sentence and fine withdefault stipulation is maintained. (vi)Clause (7) of the operative order regarding substantialsentences to run concurrently stands unaltered.(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-
Arguments
Cri.Appeal No.197/2021:: 9 ::unreliable. Turning to the medical evidence on record, hewould submit that, certain standard procedure was notfollowed by the concerned Medical Officer while preparing postmortem notes. Panch to the inquest panchanama was aGovernment servant. The panchanama was drawn onSunday, a holiday. His presence to the said panchanama wastherefore doubtful. The panchanamas on record appear tohave been forged. So far as regards injuries to she buffalo areconcerned, nothing was brought on record that the buffalobelonged to the informant and she really suffered injury duringthe incident. P.W.11 Dr. Sonali had examined A/1 Raisoddinand injured Masiyoddin same time. 12.Learned Senior Advocate would further submit that,photographs were snapped of the incident indicating A/1 wastaking out a knife. The photographer, however, admitted that,no panchanama was drawn in his presence (when the Chappalpair was used, availing services of a sniffer dog, 4 days hadalready been passed post his seizure). The same suggeststhe articles taken charge from the crime scene were neitherseized before they were sent to Forensic Science Laboratory,Aurangabad. According to the learned Senior Advocate, theevidence on record fell short to bring home the charge beyond Cri.Appeal No.197/2021:: 10 ::reasonable doubt. He, therefore, urged for allowing theappeal.13.The learned A.P.P. and the learned Advocate whoassisted the learned A.P.P. would, on the other hand, submitthat the case was based on evidence of an injured eyewitness. Evidence of an injured witness stands on higherfooting. The victims have no reason to falsely implicate theappellants, sparing the actual culprits. She took us through theevidence on record and also relied on the case of ShahajaAlias Shahajan ismail Mohd. Shaikh Vs. State ofMaharashtra (AIR OnLine 2022 SC 1011) and particularlyparas 25, 26, 27, 29 to 32, which read :-“25. It appears from the evidence on record, moreparticularly the evidence of the PW-1 NandlalRamnihor Mishra (Exh. 12), that both, the deceasedand appellant herein were known to him. The PW-1Nandlal knew both as they all used to reside in thesame locality i.e. nearby the Hanuman temple situatedat the Vile Parle railway station. The PW-1 in his oralevidence has talked about the fight that first ensued at10:30 P.M. between the deceased and the appellantsomewhere near the west ticket window of Vile ParleRailway Station. The fight between the two was onaccount of money. It appears that thereafter at about12:00 in the night while the deceased was sleeping,the appellant herein laid an assault on the head of thedeceased with a hammer. The PW-1 Nandlalwitnessed the same on hearing the noise. After theassault was over, the PW-1 is also said to have Cri.Appeal No.197/2021:: 11 ::confronted the appellant herein by asking himwhether he had killed the deceased. We do not findanything improbable in the examination-in-chief ofNandlal (PW-1) more particularly considering a veryscant & deficient cross-examination. We take noticeof the fact that except a minor contradiction in theform of an omission, nothing substantial could beelicited from the cross examination of the PW-1 so asto render his entire evidence doubtful.26. The PW-8 Udaysingh Ramsingh Thakur(Exh.29) is also one of the eye witnesses to theincident. He also knew the deceased as well as theappellant as they all used to work as labourers in thelocality of Vile Parle. So far as the evidence of thePW-8 Udaysingh is concerned the defence has beenable to bring on record a major contradiction in theform of an omission as the PW-8 in his policestatement recorded under Section 161 of the Cr.PChad not stated anything about the appellant inflictingblows with a hammer on the head of the deceased.The PW-8 in his cross-examination stated that he hadno idea as to why the police did not record in hispolice statement the factum of assault with thehammer. However, the PW-8 in his evidence hasdeposed that after the incident the appellant wasconfronted by the PW-1 Nandlal. Some part of theevidence of the PW-8 corroborates the oral testimonyof the PW-1 Nandlal.27. The appreciation of ocular evidence is a hardtask. There is no fixed or straight-jacket formula forappreciation of the ocular evidence. The judiciallyevolved principles for appreciation of ocular evidencein a criminal case can be enumerated as under:I. While appreciating the evidence of a witness,the approach must be whether the evidence of thewitness read as a whole appears to have a ring oftruth. Once that impression is formed, it isundoubtedly necessary for the Court to scrutinize the Cri.Appeal No.197/2021:: 12 ::evidence more particularly keeping in view thedeficiencies, drawbacks and infirmities pointed out inthe evidence as a whole and evaluate them to find outwhether it is against the general tenor of the evidencegiven by the witness and whether the earlierevaluation of the evidence is shaken as to render itunworthy of belief.II. If the Court before whom the witness givesevidence had the opportunity to form the opinionabout the general tenor of evidence given by thewitness, the appellate court which had not this benefitwill have to attach due weight to the appreciation ofevidence by the trial court and unless there arereasons weighty and formidable it would not beproper to reject the evidence on the ground of minorvariations or infirmities in the matter of trivial details.III. When eye-witness is examined at length it isquite possible for him to make some discrepancies.But courts should bear in mind that it is only whendiscrepancies in the evidence of a witness are soincompatible with the credibility of his version thatthe court is justified in jettisoning his evidence.IV. Minor discrepancies on trivial matters nottouching the core of the case, hyper technicalapproach by taking sentences torn out of context hereor there from the evidence, attaching importance tosome technical error committed by the investigatingofficer not going to the root of the matter would notordinarily permit rejection of the evidence as a whole.V. Too serious a view to be adopted on merevariations falling in the narration of an incident (eitheras between the evidence of two witnesses or asbetween two statements of the same witness) is anunrealistic approach for judicial scrutiny.VI. By and large a witness cannot be expected topossess a photographic memory and to recall thedetails of an incident. It is not as if a video tape isreplayed on the mental screen. Cri.Appeal No.197/2021:: 13 ::VII. Ordinarily it so happens that a witness isovertaken by events. The witness could not haveanticipated the occurrence which so often has anelement of surprise. The mental faculties thereforecannot be expected to be attuned to absorb the details.VIII. The powers of observation differ from person toperson. What one may notice, another may not. Anobject or movement might emboss its image on oneperson's mind whereas it might go unnoticed on thepart of another.IX. By and large people cannot accurately recall aconversation and reproduce the very words used bythem or heard by them. They can only recall the mainpurport of the conversation. It is unrealistic to expecta witness to be a human tape recorder.X. In regard to exact time of an incident, or thetime duration of an occurrence, usually, people maketheir estimates by guess work on the spur of themoment at the time of interrogation. And one cannotexpect people to make very precise or reliableestimates in such matters. Again, it depends on thetime-sense of individuals which varies from person toperson.XI. Ordinarily a witness cannot be expected torecall accurately the sequence of events which takeplace in rapid succession or in a short time span. Awitness is liable to get confused, or mixed up wheninterrogated later on.XII. A witness, though wholly truthful, is liable tobe overawed by the court atmosphere and the piercingcross examination by counsel and out of nervousnessmix up facts, get confused regarding sequence ofevents, or fill up details from imagination on the spurof the moment. The subconscious mind of the witnesssometimes so operates on account of the fear oflooking foolish or being disbelieved though the