Criminal Appeal No. 650 of 2019 · The High Court
Case Details
2024:BHC-AUG:18383-DB Cri.Appeal No.650/2019:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.650 OF 20191)Digambar s/o Rama AchalkhambeAge 61 years, Occu. Labour2)Shivaji s/o Digambar AchalkhambeAge 26 years, Occu. LabourBoth R/o Chinchgavan,Tq. Hadgaon, Dist. Nanded(At present both the appellants are in Aurangabad Central Prison,District Aurangabad)… APPELLANTS(Orig. Accused nos.1 & 2)VERSUSThe State of Maharashtra through Police Station Mantha,Tq. Hadgaon, Dist. Nanded(Notice to the respondent to be servedthrough the Public Prosecutor, High Court of Bombay, Bench at Aurangabad)… RESPONDENT.......Mr. Vishal Chavan, Advocate holding for Mr. Devang Deshmukh, Advocate for appellantMr. V.K. Kotecha, A.P.P. for respondent....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 8th August 2024Date of pronouncing judgment : 19th August 2024JUDGMENT (PER R.G. AVACHAT, J.) :
Facts
Cri.Appeal No.650/2019:: 2 :: The challenge in this appeal is to a judgment andorder of conviction and consequential sentence dated27/2/2019, passed by learned Additional Sessions Judge-3,Nanded in Sessions Case, No.17/2016. Vide impugnedjudgment and order, the appellants were convicted for theoffence punishable under Section 302 read with Section 34 ofthe Indian Penal Code and therefore, sentenced to sufferimprisonment for life and fine with default stipulation. Alongwith the appellants, there was one more accused before theTrial Court. She was Panchphulabai, wife of appellant No.1Digambar Achalkhambe. Although she was charged with theoffence punishable under Section 302 read with Section 34 ofthe Indian Penal Code, the Trial Court acquitted her of the saidcharge. She was, however, convicted for the offencepunishable under Section 323 of the Indian Penal Code andsentenced to suffer rigorous imprisonment for 2 months andfine with default stipulation. She did not prefer appeal againsther conviction, nor the State has preferred appeal against heracquittal of the offence punishable under Section 302 read withSection 34 of the Indian Penal Code.2.In short, the case of the prosecution was asunder :-
Legal Reasoning
Cri.Appeal No.650/2019:: 22 ::has already been referred to hereinabove. According to her,both the appellants and Panchphulabai had come together toher house. They picked up quarrel with her husband. Shefurther testified that Panchphulabai gave dagger to appellantShivaji and handed over sickle to Digambar. She(Panchphulabai) then asked both of them to assault Raghoji.She too assaulted him. She asked both the appellants not toleave Raghoji alive. In our view, this piece of evidencesuggests that P.W.6 Sarjabai had implicated all the familymembers of the appellants in the crime in question. True, theincident, as has been stated by her in her evidence, mighthave taken place. We have hesitation to observe, suchincident “must” have taken place because Sarjabai did notcome forward to lodge report with police. She had been to theCivil Hospital on the following day, whereat the Police Stationwas. It is only 2 days after her husband Raghoji breathed hislast, her statement was recorded by investigating officer. Assuch, she reported the Police 8 days after the incident. Shetoo did not offer any explanation of giving delayed statement.P.W.8 Sk. Rafiq since did not stand by the prosecution, wassubjected to a cross-examination by learned A.P.P. in-chargeof the case. It was suggested to him that, the houses of theappellants and that of the deceased were in front of his house. Cri.Appeal No.650/2019:: 23 ::He would run a Pan Stall. It was specifically suggested to himby the prosecution itself that, Panchphulabai (one of theconvicts) had come to his shop running and her brother-in-law(deceased Raghoji) was following and abusing her as well. Itwas also suggested to him that, he had subsided the quarrelbetween Raghoji and Panchphulabai. The same indicates thegenesis of the prosecution case to have been suppressed byP.W.6 Sarjabai. In this factual backdrop and the fact of theF.I.R. to have been lodged 6 days after the alleged incident, byan informant who was not an eye witness, and the statementof eye witness Panchphulabai to have been recorded on the 9thday of the incident, and there being no explanation in thatregard, we have every reason to give the appellants benefit ofdoubt. It is reiterated that the genesis of the prosecution casehas either been suppressed or Panchphulabai came with aconcocted version, implicating father, mother and son(convicts) in the crime in question.36.The C.A. reports (Exhs.81 to 84) pertaining toseizure of sickle and Katti pursuant to so called disclosurestatement made by appellants do not further the prosecutioncase since no blood stain was detected on sickle. Bloodgrouping of stains on other articles was inconclusive. Even
Arguments
Cri.Appeal No.650/2019:: 3 :: Appellant No.1 Digambar is the father of appellantNo.2 Shivaji. They were residing at village Chinchgavan,Taluka Hagaon, District Nanded. Smt. Panchphulabai (wife ofappellant Digambar) had contested Grampanchayat electionunsuccessfully. Raghoji (deceased) was a brother of appellantDigambar. He was residing in the neighbourhood of theappellants along with his wife Sarjabai (P.W.6). 3.It so happened that, on 26/11/2015, at 7.00 p.m.,Smt. Panchphulabai went to the house of her brother-in-lawRaghoji (deceased). She picked up quarrel with her co-sister-Sarjabai (P.W.6) on account of both of them to have beenresponsible for her defeat. Panchphulabai called theappellants to the house of the deceased. She gave two sharpweapons (one each) to the appellants, who, in turn, assaultedRaghoji (deceased). Then they left the place. Sarjabai (P.W.6)informed her son, P.W.4 Haridas on phone. He rushed to hishouse. He talked to his father who told him the appellants tohave picked up quarrel over election issue. He also told himthe appellants to have assaulted him with sharp weapons likesickle and Katti. He further told him that, Panchphulabaiassaulted Sarjabai (P.W.6) with fist and kick blows. He toowas assaulted by her. Cri.Appeal No.650/2019:: 4 ::4.P.W.4 Haridas first took his father to Primary HealthCentre at Baradshevala on his motorbike. One Bandu Gavale(P.W.5) had accompanied him. His father then was shifted toCivil Hospital, Hadgaon. Then on the advice of doctor, hisfather was admitted to Civil Hospital, Nanded. Raghoji,however, succumbed to the injuries by 3.30 p.m. on30/11/2015.5.Inquest (Exh.32) and autopsy (Exh.51) wereconducted on the mortal remains of Raghoji. The mortalremains were then consigned to flames (funeral) on 1/12/2015.P.W.4 Haridas then approached Manatha Police Station andlodged F.I.R. (Exh.43).6.Based on the said F.I.R., a crime vide C.R.No.55/2015 was registered against the appellants andPanchphulabai for offence punishable under Section 302 readwith Section 34 of the Indian Penal Code. A crime scenepanchanama (Exh.30) was drawn. The appellants werearrested. Clothes on the person of the deceased were seized.The appellants too delivered their clothes. Both the appellantsmade disclosure statements, pursuant to which a sickle andKatti came to be recovered from their residence. Seizure Cri.Appeal No.650/2019:: 5 ::panchanamas to that effect were drawn in presence ofpanchas. Statements of persons acquainted with the facts andcircumstances of the case were recorded. All the seizedarticles and blood sample of the deceased were sent toForensic Science Laboratory, Nanded for analysis and report.Upon completion of the investigation, charge sheet was filedbefore the Court of learned Judicial Magistrate, First Class,Hadgaon. The case, in turn, was committed to the court ofSessions. It was assigned to the Court of learned additionalSessions Judge-3, Nanded (Trial Court) for trial in accordancewith law.7.The Trial Court framed the Charge (Exh.16). Theappellants pleaded not guilty. Their defence was of falseimplication. According to them, the deceased had criminalantecedents. Number of crimes were registered against him.The deceased was addicted to alcohol. He came drunk to thevillage and abused the villagers. Some of the villagers,therefore, assaulted him. He thereby died. 8.To bring home the charge, the prosecutionexamined 12 witnesses and produced in evidence certaindocuments. On appreciation of the evidence adduced in thecase, the Trial Court convicted the appellants and Cri.Appeal No.650/2019:: 6 ::Panchphulabai as stated above.9.Heard. Learned Advocate for the appellantssubmitted that, the F.I.R. was lodged 6 days after the incident.There was Police Outpost at village Baradshevala and PoliceStation at Hadgaon as well. He would further submit that,there was Police Chowki at Civil Hospital, Nanded. A policeofficer happened to be there on duty round the clock, still thematter was not reported to police for 6 days. The F.I.R. isbased on hearsay. The case is based on sole eye witnessaccount of Sarjabai. Her statement was recorded 9 days afterthe incident and 2-3 days after registration of the crime. TheC.A. reports do not further the prosecution case. The learnedAdvocate took us through the evidence of each and everywitness to submit that the prosecution evidence fell short tobring home the charge beyond reasonable doubt. He,therefore, urged for allowing the appeal.10.The learned A.P.P. would, on the other hand,submit that, the appellant Digambar was real brother of thedeceased. The incident took place between the familymembers. The priority was to give medical assistance andbest treatment to the injured. The F.I.R. was lodged within 24hours of passing away of Raghoji. P.W.4 Haridas and P.W.6 Cri.Appeal No.650/2019:: 7 ::Sarjabai have no reason to falsely implicate the appellants andsave real culprits. He would further submit that, pursuant tothe disclosure statement made by both the appellants,weapons used in commission of the crime have been seized.One of the weapons seized borne blood stains. The samecorroborates the prosecution case. The learned A.P.P. thentook us through the entire evidence on record and the reasonsgiven by the Trial Court to ultimately urge for dismissal of theappeal.11.Considered the submissions advanced. Perusedthe evidence on record. Let us appreciate the same.12.P.W.1 Sandeep, then Talathi of the villageChinchgavan is a witness to the crime scene panchanama(Exh.30). It was drawn on 2/12/2015. it is in his evidence thatthe police seized the blood stained soil and simple soil fromthe crime scene in his presence. 13.P.W.2 Ashok is a witness to the inquestpanchanama (Exh.32). His evidence indicates that, deceasedRaghoji had suffered injuries to his head, chest and left sideribs. P.W.3 Vishal is a panch witness to seizure panchanamaof seizure of Katti. Cri.Appeal No.650/2019:: 8 ::14.P.W.4 Haridas (informant), son of the deceasedtestified that, at 8.45 p.m. on 26/11/2015, he was at villagePardi Makta. He received a phone call, informing him thequarrel to have taken place between the appellants and hisparents. He was further informed that, his father was injured.He then made a phone call at his residence. The call wasreceived by his mother. She informed him the father to havesuffered grievous injury. He, therefore, immediately rushed tohis house at Chinchgavan. He saw his father lying in a seriouscondition. He talked to his father. Thereupon, father told himthat by 7.00 in the evening, he was sitting in the courtyard.The appellants and Panchphulabai came there and questionedhim as to why he did not vote in the Grampanchayat elections.On that count, the appellants and Panchphulabai assaultedhim. He further informed that, the appellant Digambarassaulted on his head with a sickle and appellant Shivajiassaulted on his stomach with Katti. While Panchphulabaiassaulted him with fist and kick blows. He also informed himthat, Panchphulabai instigated the appellants to assault himand not to keep him alive. He was further informed that, hismother had intervened to rescue him. Bandu Gavale (P.W.5)was present in his house. Cri.Appeal No.650/2019:: 9 ::15.It is further in his evidence that, he and Bandu(P.W.5) took his father on the motorcycle to Baradshevala.Since the Medical Officer was not present there, he along withhis maternal cousin Dilip Bhalerao took his father to CivilHospital, Hadgaon. The Medical Officer there treated him. Onthe doctor’s advice, his father was shifted to Civil Hospital,Nanded on the following day. He also underwent stomachoperation. His father unfortunately died by 3.30 p.m. on 30,during treatment. It is further in his evidence that, on thefollowing day, the inquest was conducted besides autopsy. Hethen received the dead body of his father. The last rites on themortal remains of his father were performed. He thenapproached Manatha Police Station and lodged the report(Exh.43).16.He was subjected to a searching cross-examination. It is in his evidence that, one Rafiq phoned himon 26/11/2015 little past 9.30 p.m. The distance betweenPardi and Chinchgavan was 26 Kms. He directly went toChinchgavan. None of the villagers had gathered at the placewhere the incident took place. Even after when he went there,no one came/ arrived thereat. While they took his father ininjured condition to hospital on motorbike, clothes on his Cri.Appeal No.650/2019:: 10 ::person did not stain with blood. Police did not ask him to givehis clothes or the clothes of Bandu and Dilip who hadaccompanied him to take father to hospital.17.It is further in his evidence that, his father wasresiding at Pardi Makta. He has a house at that village. All ofhis family members along with him were staying thereat. Hewas then suggested that his father had a criminal past andmany crimes were registered against him. Details of some ofthe alleged crimes registered against his father were put to himin his cross-examination. Neither he denied the same nor didhe admit it. He claimed ignorance about each and everyincident relating to which the crimes were registered againsthis father. It is further in his evidence that, the appellantDigambar was provided a house in a Gharkul Scheme. Heconstructed additional rooms to the house received in thescheme. He denied that his father, under the influence ofliquor, went to village Chinchgavan and he abused to thevillagers. Villagers, therefore, assaulted his father. He evendenied that his mother was not at Chinchgavan. His evidencefurther indicates that, 15 days before the incident,Grampanchayat elections were held in the village. He did notcast vote in the election as his name was not in the voters list. Cri.Appeal No.650/2019:: 11 ::He claimed ignorance about Panchphulabai to have contestedelection. He could not state by what margin of votes she wasdefeated. The funeral took place at Pardi Makta. He evenclaimed ignorance about his father to have been addicted toliquor. He denied to have been angry with the appellants sincethey did not save his father while villagers were assaulting him.He admitted that, prior to the incident in question, no quarrelever took place between the appellants on one hand and hisfather on the other. He admitted that there was a PoliceChowki near the hospital at Baradshevala. He went on toadmit that there is police station at Hadgaon and PoliceChowki at Civil Hospital, Nanded.18.P.W.5 Bandu, who according to to the prosecution,had accompanied P.W.4 Haridas to take his father to thehospital did not stand by the prosecution. It is in his evidencethat, Sarjabai had come to his residence by 8.00 in the eveningof 26/11/2015 as there was quarrel going on. According tohim, Raghoji (deceased) was resting on the cot while he wentto his house. In his cross-examination, he admitted to beunaware of names of persons who killed Raghoji.19.P.W.6 Sarjabai (widow of the deceased) testifiedthat, appellant Digambar is her brother-in-law while Cri.Appeal No.650/2019:: 12 ::Panchphulabai is wife of Digambar and appellant Shivaji istheir son. She further testified that, prior to the incident,Panchphulabai was defeated in the election and on that count,she used to quarrel with them. She further stated that, on26/11/2015, i.e. on the day of the incident, herself and herhusband were at home, sitting in courtyard of their house. Shestated that, the incident took place at 7.00 p.m. approximately.At that time, accused Panchphulabai came there and startedabusing her and her husband due to which dispute arosebetween them. Thereafter Panchphulabai called her husbandi.e. accused Digambar and son, accused Shivaji. AccusedPanchphulabai gave dagger in the hand of Shivaji and sickle inthe hand of accused Digambar and told to kill Raghoji.Thereafter all the accused assaulted her husband. She tried torescue the quarrel, however, Panchphulabai pushed her. Shefurther stated that, accused Digambar assaulted on the headof her husband and accused Shivaji assaulted Raghoji on hisstomach. Thereafter all the accused went away from the spot.She thereafter shifted her husband on cot in her house. Shereceived phone from her son Haridas (P.W.4). She narratedthe incident to Haridas and asked him to come earliest.Thereafter, she went to the house of Bandu Gavale (P.W.5) tocall him. Accordingly he came. Thereafter she informed him Cri.Appeal No.650/2019:: 13 ::about the incident. Thereafter her son came and inquired withher and Raghoji about the incident. Haridas (P.W.4) andBandu Gavale (P.W.5) took her husband to hospital onmotorbike. After 4 days of the incident, her husband Raghojidied in the hospital. Last rites on her husband took place atPardi. 20.During her cross-examination, she could not statehow many persons were there in the fray in theGrampanchayat elections. She even claimed ignorance as towho was contesting against Panchphulabai. She could notstate how many votes Panchphulabai had secured and withwhat margin of votes she was defeated. According to her,name of Haridas (her son) was in the voters list of villagePardi. It is further in her evidence that, she was not examinedin the hospital. On the following day, she went to NandedHospital. She did not lodge the report with the police.According to her, her Saree was not stained with blood whileshe put her husband on the cot. Her statement was recordedby police on 3/12/2015. She was confronted with the same.According to her, she had stated to the police that,Panchphulabai had come to her house by 7.00 p.m. andabused her and her husband. She stated to the police that, Cri.Appeal No.650/2019:: 14 ::Panchphulabai called the appellants. She, however, stated tohave put her husband on the cot. She narrated the incident toBandu. When she was confronted with her police statement,she could not assign any reason as to why these facts did notfind in her statement. She denied that her husband wasalcoholic. She admitted that, her brother-in-law would resideadjacent to her house. Wife of one Gangaram resides withhim. She used to reside with his son at Pardi. She denied thatshe was not present at Chinchgavan and no incident tookplace in her presence. 21.P.W.7 Dr. Maroti conducted autopsy on the mortalremains of Raghoji. His evidence will be referred to a littlelater. According to him, the deceased died of Septicemia in anoperated case of stab injury to chest and abdomen. The postmortem report is at Exh.51. 22.P.W.8 Sk. Rafiq did not stand by the prosecution.Though he was cross-examined by learned A.P.P., nothinghelpful for the prosecution could be elicited. In his cross-examination by the defence advocate, he claimed to haveheard that many cases were registered against the deceased.According to him, the deceased and his son were residing atvillage Pardi. Cri.Appeal No.650/2019:: 15 ::23.P.W.9 Ramesh was a photographer who snappedphotographs of the appellants taking out the articles Katti andsickle from their residence.24.P.W.10 Jamil was Assistant Sub Inspector ofPolice. He carried the muddemal articles and deposited withForensic Science Laboratory, Nanded. He referred to theoffice copy of the forwarding letter (Exh.59).25.P.W.11 Revannath was Assistant Police Inspector.He did the investigation of the crime. According to him, boththe appellants produced their clothes which were on theirperson at the time of commission of the crime. He seizedthose clothes under panchanama (Exh.69). It was he whoconducted inquest (Exh.32). It was he who delivered the deadbody to P.R.4 Haridas. He referred to a document to thateffect which is at Exh.63. It is further in his evidence that,Haridas (P.W.4) had come to the police station and lodged thereport. It was recorded on Computer. He then signed thesame. It is further in his evidence that, he then registered thecrime. 26.During his cross-examination, he admitted to havenot received a letter from the hospital. He learnt by 7.00 a.m. Cri.Appeal No.650/2019:: 16 ::about the death of Raghoji. He was present at Manatha PoliceStation. He rushed to the hospital. Relatives of the deceasedwere present in the hospital. He had a talk with the relatives.The relatives told him about the death and even took himcloser to the dead body. He was at the hospital for about 2hours. By that time, post mortem was not conducted. He didnot collect medical papers relating to the treatment on Raghojibefore his (Raghoji) admission to Civil Hospital, Nanded.27.P.W.12 Mohan was successor of P.W.11 toinvestigate the crime. It is in his evidence that, both theappellants expressed their desire to make a disclosurestatement. He, therefore, secured presence of panchwitnesses. P.W.3 Vishal was one of them. According to him,appellant Digambar made a disclosure statement andthereafter appellant Shivaji gave similar statement, pursuant towhich he along with panchas and the appellants went to theirhouse. Appellant Digambar took out Katti from beneathDevghar while appellant Shivaji took out sickle from behindTelevision in the house. He seized those articles under thepanchanama. The disclosure statement made by appellantDigambar and consequential seizure of Katti are at Exhs.37and 38 while while the disclosure statement made by appellant Cri.Appeal No.650/2019:: 17 ::Shivaji and consequential seizure of sickle are at Exhs.39 and40. 28.P.W.3 Vishal was a teacher serving with AdarshVidyalaya, Manatha. It was 5/12/2015 he went to the PoliceStation by 1.00 p.m. Both the appellants were present. Sincethe witness was not supporting the prosecution, the learnedA.P.P. cross-examined him. In the cross-examinationundertaken by the learned A.P.P., P.W.3 Vishal gave hisevidence consistent with the prosecution case. It is in hisevidence that, appellant Shivaji made a disclosure statementthat he concealed Katti at his residence and he will take it out.His statement was accordingly recorded vide Exh.36. ThenShivaji took them to his residence and took out Katti. It wasseized under panchanama (Exh.37). The witness referred tothe same. It is further in his evidence that, appellant Digambarmade a disclosure statement to have concealed sickle at hisresidence and he would take it out. His disclosure statementtoo was recorded (Exh.36). Then he took them to hisresidence and took out the same from behind a TV Set. Samewas seized under panchanama (Exh.39). 29.In his cross-examination, he testified that at thepolice station the police informed him that they were to prepare Cri.Appeal No.650/2019:: 18 ::panchanamas of weapons. Both the appellants were present.It took 20 to 25 minutes to prepare the first panchanama.Equal time was required for second panchanama. He had noacquaintance with the appellants before the panchanamaswere drawn. He denied to have signed the panchanamas atPolice Station at the behest of police. According to him, it wasa house comprising of 4 rooms. He, however, could not givethe boundaries of the house he visited along with appellantsand the police. 30.Aforesaid is the evidence adduced by theprosecution in the case. Let us appreciate the same to findwhether the appellants are the authors of the crime.31.P.W.7 Dr. Maroti conducted autopsy on the mortalremains of deceased Raghoji. He noticed 5 injuries on theperson of the deceased. In his opinion, Raghoji died ofSepticemia in an operated case of stab injury to chest andabdomen. Admittedly, the deceased suffered injuries on theevening of 26/11/2015. He breathed his last on 1/12/2015.The incident is said to have taken place in the courtyard of thehouse of informant, P.W.4 Haridas (son of deceased). Helodged the F.I.R. (Exh.43) by 7.00 in the evening on 1/12/2015.Admittedly, he is not an eye witness to the incident. According Cri.Appeal No.650/2019:: 19 ::to him, he rushed to the village Chinchgavhan on receipt of aphone call. He saw his fathered injured. He talked to him. Hisfather related him that the appellants and Panchphulabaipicked up quarrel with him over his non-voting in the election.Admittedly, the Village Panchayat elections had taken place 15days before the alleged incident. Panchphulabai was one ofthe candidates in the fray. She was defeated. Both, P.W.4Haridas and his mother P.W.6 Sarjabai even did not know whohad contested against Panchphulabai in the said election andwith what margin of votes she (Panchphulabai) was defeated.32.According to P.W.4 Haridas, he took his father tothe hospital first at Baradshevala. One Bandu Gavale (P.W.5)had accompanied him to take his father to the hospital onmotorbike. As the doctor was not there, he along with hiscousin Dilip took his father (deceased) to Civil Hospital,Hadgaon. The Medical Officer there treated his father there.On medical advice, the father was then shifted to CivilHospital, Nanded. At all the places namely at Baradshevala,Hadgaon and even on the premises of Civil Hospital, Nanded,there are police station. P.W.4 Haridas lodged the F.I.R. 6days after the alleged incident. Neither in the F.I.R. nor in hissubstantive evidence before the Court, he offered any Cri.Appeal No.650/2019:: 20 ::explanation as to delay in lodging of the F.I.R. (Exh.43). Oneneed not state significance of lodging prompt F.I.R. The objectof insisting upon prompt lodging of F.I.R. is to obtaininformation regarding the circumstances in which the crimewas committed including the names of actual culprits and partplayed by them, the weapon of offence used as also thenames of the witnesses. 33.At the cost of repetition, it is observed that, P.W.4Haridas was admittedly not an eye witness to the incident. Heeven stated that, when he took his injured father to thehospital, clothes on his person did not get stained with blood.Be that as it may. We are conscious of the fact that medicalattention to the injured has to be first priority, but once thefather was admitted to the hospital, P.W.4 Haridas could havelodged the F.I.R. at the earliest i.e. on the next day of thealleged incident. When according to P.W.4 Haridas his fatherhad related him about the incident, then it is not known as towhy no efforts were made to have the father’s statementrecorded at the earliest through an Executive Magistrate or apolice officer. 34.Delay in setting the law into motion by lodging/registration of First Information Report is normally viewed by Cri.Appeal No.650/2019:: 21 ::Courts with suspicion because, there is possibility ofconcoction and embellishment of occurrence. So it becomesnecessary for the prosecution to satisfactorily explain thedelay. It is reiterated that, no explanation has been offered bythe informant, for lodging of the F.I.R. belatedly. Admittedly, noindependent witness has been examined. When P.W.4Haridas reached his house at Chinchgavhan in response to aphone call, not a single villager was present in the courtyard ofhis house, whereat his father was lying in injured condition.Even after his arrival in the village, none of the villagers joinedhim or came to his place. P.W.5 Bandu, who allegedlyaccompanied him to take his father to the hospital, did notstand by the prosecution. P.W.8 Sk. Rafiq was the next doorneighbour of the deceased at village Chinchgavhan. He didnot support the prosecution. According to this witness, numberof criminal cases were registered against the deceased. P.W.4Haridas (informant) was suggested about number of crimes tohave been registered against his father (deceased) with thenames of respective informants/ victims. Instead of denyingthose suggestions, he simply claimed ignorance thereof.35.Admittedly, the case is based on sole eye accountof P.W.6 Sarjabai, widow of deceased Raghoji. Her evidence
Decision
Cri.Appeal No.650/2019:: 24 ::blood group of the deceased could not be ascertained and thesame is the case about the blood group of the appellants.37.For all the aforesaid reasons, we find theprosecution to have failed to bring home the charge beyondreasonable doubt. In the result, benefit thereof needs to beextended to the appellants herein. The appeal, therefore,succeeds. Hence, the order :- O R D E R(i)The Criminal Appeal is allowed.(ii)The order dated 27/2/2019, passed by learned AdditionalSessions Judge-3, Nanded in Sessions Case No.17/2016 ishereby set aside. The appellants are acquitted of the offencepunishable under Section 302 read with Section 34 of theIndian Penal Code. The appellants be set at liberty forthwith ifnot required in any other case. Fine amount, if paid, berefunded to them. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-