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Cri Appeal No.431.2020.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.431 OF 2020 Bhaskar s/o. Tarachand Pawar,Age : 36 years, Occ. Nil,r/o. Mhasane, Tq.Parner,Dist. Ahmednagar..AppellantVs.The State of Maharashtra,Through Police Station Officer,Police Station, Supa, Dist.Ahmednagar..Respondent----Mr.S.S.Thombre, Advocate for appellantMrs.S.N.Deshmukh, APP for respondent---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON:JUNE 12, 2024 PRONOUNCED ON: JULY 09, 2024JUDGMENT (PER R.G.AVACHAT, J.) :- The challenge in this appeal is to the judgment and order ofconviction and consequential sentence dated 06.03.2020, passed bylearned Addl. Sessions Judge, Ahmednagar, in Sessions Case No.359 of2016. Vide the impugned order, the appellant was convicted for theoffence punishable under Section 302 of Indian Penal Code andtherefore, sentenced to suffer imprisonment for life and to pay a fine ofRs.10,000/- with default stipulation. 2Cri Appeal No.431.202002.The facts, giving rise to the present appeal, are asfollows:-PW 1 – Dilip (informant) was resident of village Mhasane,Tq.Parner, Dist. Ahmednagar. He was residing along with his parents,wife and three daughters. His brother – Dattatraya along with hisfamily, would reside with him. The appellant with his father andsibling would also reside at the very village. On 11.05.2016, childrenof the appellant and his sibling had pranked with the father of theinformant, pelting stones at him. There was no flare up of thematter. On the following day, Vishwanath (deceased), father of theinformant, was proceeding down side on the road from infront of theappellant’s house. The appellant along with his father, brother Nana,sister Aruna and son-in-law Santosh came together. The appellantassaulted Vishwanath on his head with axe; Nana assaulted himwith stick; Aruna assaulted on the face of Vishwanath with stone;while Santosh gave him (Vishwanath) fisticuffs. The incident waswitnessed by Ku. Mayuri, daughter of the informant. She was just 10years of age that time. Her father – informant had gone to the fieldof one Shankar Zarekar for laying of pipeline. She went to the saidfield to inform about the said incident. He rushed to the crime scenealong with his daughter Mayuri. Within minutes of his reaching,Vishwanath breathed his last. 3Cri Appeal No.431.202003.Mortal remains of Vishwanath was removed to hospital.Inquest (Exh.65) and autopsy were conducted. Clothes on his personwere seized (Exh.69). The informant lodged First Information Report(FIR)(Exh.44) at Supa Police Station by 10.30 p.m. on the given day.Crime vide C.R. No.I-65 of 2016 came to be registered for theoffences punishable under Sections 302, 143, 147 and 148 r/w. 149of Indian Penal Code. Crime-scene panchnama was drawn (Exh.68).Statements of the persons acquainted with the facts andcircumstances of the case were recorded. The accused werearrested. Clothes on their persons were seized under panchnama(Exhs.70 and 75). The appellant made disclosure statement(Exh.57), pursuant to which an axe and a stick came to be seizedfrom the godown of one Sk. Irfan. On completion of investigation,charge sheet was filed before the court of Judicial Magistrate, FirstClass, Parner. The case was committed to Court of Session. The case,in turn, came to be assigned to the court of learned Addl. SessionsJudge, Ahmednagar (trial court), for trial in accordance with law.04.The trial Court framed Charge (Exh.32) for the offencespunishable under Sections 302 r/w. 149, 143, 147 and 148 of IndianPenal Code. The the accused pleaded not guilty. Their defence wasof false implication. To establish the Charge, the prosecution 4Cri Appeal No.431.2020examined five witnesses and produced in evidence certaindocuments. The trial Court, on appreciation of the evidence in thecase, convicted the appellant, as stated above and acquitted rest ofthe accused. Neither the State nor the victim preferred appealagainst acquittal. 05.Heard learned counsel for the parties.06.Learned counsel for the appellant would submit that thecase is based on the sole eye-witness account. There is nothing toindicate that PW 2 – Ku. Mayuri had really witnessed the incident.The incident took place at a crowded place. The work of laying ofconcrete road was in progress. None of the independent witnesseshas been examined. The informant was habitual to alcoholconsumption. Even, when he gave evidence before the Court, he wasunder influence of liquor. Based on the vary evidence, i.e. of PW 2 –Ku. Mayuri, co-accused have been acquitted. There is no additionalevidence so as to connect the appellant with the crime in question.The alleged disclosure statement and recovery of axe and stickpursuant thereto, is false and fabricated evidence. He, therefore,urged for allowing of the appeal. 5Cri Appeal No.431.202007.Learned APP would, on the other hand, submit that noparticular number of witnesses are required to bring home thecharge. PW 2 – Ku. Mayuri was innocent 10 years old school-goinggirl. Those were days of summer vacation. She was home. At therelevant time, she was present just outside of the house of Sk. Irfan.She saw the appellant to have assaulted her grandfather with axe.Her mother was not home. Being a ten years old girl, it was butnatural for her to go to her father and inform the incident. There isnothing unnatural about she did not raise hue and cry and seekassistance of the persons present around. Our attention was invitedto the defences raised by the appellant. The first defence is that thedeceased died in a motor vehicle accident. The tempo involved inthe alleged accident was very much stationary there. According tolearned APP, a person would not file a case of murder, if it was acase of accident because legal representatives of the deceased weregoing to miss the claim for compensation on account of deathoccurred in the motor vehicle accident. The another defence wasthat the informant had borrowed a sum of Rs.50,000/- from thefather of the appellant and with a view to avoid repayment, a falsecase was filed. On the same lines, suggestion was given to anotherwitness but it pertains to Rs.25,000/- only. According to learned APP,a false defence gives a missing link. She reiterated the reasons 6Cri Appeal No.431.2020given by the trial court and ultimately, urged for dismissal of theappeal. 08.Considered the submissions advanced. Perused theevidence on record. Let us advert thereto and appreciate the same.09.PW 4 – Dr. Manisha conducted autopsy on the mortalremains of deceased Vishwanath. The post mortem examinationreport (Exh.62) submitted by her indicates the deceased died of“cardio-respiratory arrest due to head injury”. The deceased hadsuffered single injury as under:-C.L. wound at right side skull -frontal and parietal region According to PW 4 – Dr. Manisha, said injury was possible with a blowof axe. It is further in her evidence that had the deceased beenassaulted with stick, stone and fisticuffs, other injuries might havebeen noticed on his person. Although the defence of death in motorvehicle accident has been raised, we find nothing to infer the same.Based on the evidence of PW 4 – Dr.Manisha, we conclude thedeceased to have met with homicidal death. The question is,whether the appellant is author thereof. 7Cri Appeal No.431.202010.The informant (PW 1 – Dilip) lodged the FIR (Exh.44). Heis not an eye-witness to the accident. On the fateful day, i.e. on12.05.2016, he had been to the field of Shankar Zarekar for laying ofpipeline. It is in his evidence that his daughter, PW 2 – Ku.Mayuricame to him and informed the appellant and four others (sinceacquitted) to have assaulted his father Vishwanath (deceased) withaxe, stick and fisticuffs. He, therefore, rushed to the crime scene.Either before his reaching or soon after he reached the crime scene,his father breathed his last. It was about 05.00 p.m. It is veryunfortunate that a person assaulted with axe in the morning, wasallowed to be at the crime scene itself for hours. The neighbors andvillagers need to be blamed. Be that as it may.11.The informant (PW 1 – Dilip) being not an eye-witness tothe incident, his evidence would only be relevant so as to set thecriminal law into motion by filing FIR. His evidence is nothing butwhat was related to him by his daughter (PW 2 - Mayuri). Headmitted in his cross-examination that he daily consume alcohol.Even, when he gave evidence before the Court, he was underinfluence of liquor. According to him, unless he consume alcoholeveryday, he was unable to carry his daily pursuits. As per hisevidence, on the previous day, the grandchildren of original accused 8Cri Appeal No.431.2020no.1 had pranked his father (deceased Vishwanath). Quarrel wassubsided on the day itself. Said incident is stated to be the motivefor committing murder of his father. His father was little over 60years of age. He would wander in the village. He would do no work.He would sleep under any of the trees in the village. What has beenstated by the informant in his examination-in-chief about the assaultmade by the appellant and acquitted four accused, was related tohim by his daughter – Ku.Mayuri. 12.We, therefore, need to advert to the evidence of PW 2 –Ku.Mayuri. She was just 10 years of age when the incident tookplace. She was in 6th standard. Since it was the month of May, shehad summer vacation. It is in her evidence that while she waspresent adjacent the house of Irfan Shaikh, the appellant assaultedher grandfather with axe. Others namely, Aruna, Santosh, Nana andTarachand (since acquitted) assaulted her grandfather with kick andfist blows. Her grandfather fell down. She was frightened and wentto tell her father, who was away in the field of Shankar Zarekar forlaying of pipeline. She related him the incident. Both of themreturned to the crime scene. Her grandfather had passed awaybefore they reached. 9Cri Appeal No.431.202013.PW 2 – Ku.Mayuri was subjected to searching cross-examination. Her school hours were brought on record. However,since the day of incident was 12th May, being summer vacation,necessarily, she was in the village. Her evidence is, however, silentto state, as to her reason to be present outside the house of IrfanShaikh. She even did not give time of the incident. We canunderstand her plight. She did not raise cries or urge for help nor didshe rush to her grandfather who fell down due to blow on his head.The question is, whether, based on the sole evidence of PW 2 –Ku.Mayuri, the conviction can be sustained. 14.Admittedly, the incident took place during day-time(morning) at a crowded place. A tempo was stationary at the crimescene. It is also in the evidence of Ku.Mayuri that the work of layingof concrete road was in progress, meaning thereby, the workersengaged in the said work were very much present there. PW 5 -Siddheshwar was the Investigating Officer. He admitted that exceptMayuri, no person came forward claiming to have had witnessed theincident. True, in view of Section 134 of the Indian Evidence Act, noparticular number of witnesses are required to prove a fact.15.As such, the case is based on the evidence of the onlywitness Ku. Mayuri (PW 2). According to her evidence before the trial 10Cri Appeal No.431.2020court, the deceased was assaulted by the appellant and four of hisfamily members. The Medical Officer, who conducted autopsy,noticed only head injury on the person of the deceased. The MedicalOfficer was categorical to state that had the deceased beenassaulted with stick or any other article, injury marks thereof mighthave noticed. When the informant testified that Aruna assaulted onthe face of the deceased with stone and Nana with stick, there wouldhave been more than one injury on the person of the deceased. Thetrial court based on the very evidence, acquitted four others. Samesuggests, it did not rely fully on the evidence of Ku. Mayuri.16.Learned APP adverted our attention to the evidence ofPW 5 – Siddheshwar, Investigating Officer, and PW 3 - Mohan, inwhose presence, the appellant allegedly made disclosure statement(Exh.56) and then led all of them to a godown near the house of IrfanShaikh. He took out therefrom an axe and a stick. According tolearned APP, this is the corroborative evidence. The allegeddisclosure statement and recovery of those two articles is dated17.05.2016. There is evidence to indicate that the InvestigatingOfficer (PW 5) wrote a letter to the Medical Officer (PW 4 –Dr.Manisha) on 14.05.2016 itself, informing that the axe used forcommitting the crime was seized. He forwarded the letter to the 11Cri Appeal No.431.2020Medical Officer to solicit her opinion, as to whether the injurysuffered by the deceased was possible with said axe. This evidenceindicates that the Investigating Officer was not true to his oath. Hefabricated the evidence. We, therefore, do not propose to rely on thedisclosure statement, allegedly made by the appellant and recoveryof articles- Axe and stick. Even, the so called eye witness, PW 2 – Ku.Mayuri, do not state whether the accused have had wielded stick.17.The prosecution failed to make out that Ku. Mayuri wasreally present just outside the house of Sk. Irfan and witnessed theincident. The medical evidence does not corroborate her oralevidence about the assault to have been mounted by five accused.Based on her very evidence, four others have been acquitted. Assuch, the evidence of Ku. Mayuri could not be said to be that of asterling quality to rely on it, to sustain the conviction of lifeimprisonment for offence under Section 302 of Indian Penal Code.18.It is reiterated that the incident took place at a crowdedplace. It took place in the morning. Independent witnesses werevery much available. No one has been examined. The evidence ofKu.Mayuri might be true but for sustaining conviction, we mustobserve that her evidence must be true. On appreciation of theentire evidence on record, we are unable to observe accordingly. As
Decision
12Cri Appeal No.431.2020such, the prosecution could be said to have failed to bring home thecharge beyond reasonable doubt. Needless to mention, a falsedefence, in the facts and circumstances of the case, would not cometo the help of the prosecution.19.In the result, the appeal succeeds. Hence, the followingorder:-(i)The Criminal Appeal is allowed.(ii)The order of conviction and consequential sentencedated 06.03.2020, passed by learned Addl. Sessions Judge,Ahmednagar, in Sessions Case No.359 of 2016, for the offencepunishable under Section 302 of Indian Penal Code, is set aside. Theappellant is acquitted of the said offence.(iii)The appellant be released forthwith, if not required in anyother case.(iv)Fine amount deposited by the appellant, if any, berefunded to him. [NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.]KBP