High Court
Facts
APEAL-446-18.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 446 OF 20181. Datta Manohar Jamadar Age: 34 years, Occu.: Labour, R/o Dapka, Tq. Omerga, Dist. Osmanabad2. Manohar Sattappa Jamadar (Abated as per order dt. 20/12/2023)3. Balaji Manohar Jamadar Age: 24 years, Occu.: Education, R/o Dapka, Tq. Omerga, Dist. Osmanabad4. Digambar Manohar Jamadar Age: 32 years, Occu.: Mechanic, R/o Dapka, Tq. Omerga, Dist. Osmanabad5. Vimalbai Manohar Jamadar Age: 54 years, Occu.: Household, R/o Dapka, Tq. Omerga, Dist. Osmanabad6. Anusaya Datta Ghate Age: 29 years, Occu.: Household, R/o Naldurg, Tq. Tuljapur, Dist. Osmanabad..APPELLANTSVERSUSState of Maharashtra..RESPONDENT....Mr. S.N. Patne, Advocate for appellantsMr. S.D. Ghayal, Addl.P.P. for respondent - State....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 18th SEPTEMBER, 2024PRONOUNCED ON : 17th OCTOBER, 20241 / 22 APEAL-446-18.odtJUDGMENT ( PER : R.G. AVACHAT,J. ) :1.The appellants before us in this appeal are the members of oneand the same family, meaning thereby the parents and their four sons,challenging the judgment and order dated 14th May, 2018 passed by theCourt of Additional Session, Omerga (‘trial Court’) in Sessions Case, No. 25of 2014, whereby they have been convicted and consequently sentenced, asfollows :-Section (I.P.C.)SentenceFine (Rs.)In default302 r/w 149Life Imprisonment3,000/- eachS.I. for two months143R.I. for six months1,000/- eachS.I. for one month147R.I. for two years1,000/- eachS.I. for one month148R.I. for three years1,000/- eachS.I. for one month323 r/w 149R.I. for one year1,000/- eachS.I. for one month506 r/w 149R.I. for one year1,000/- eachS.I. for one monthPending the appeal, Appellant No.2 – Manohar passed away.The appeal, therefore, stood abated against him.2.Manohar (deceased appellant) was the elder brother-in-law of PW2 – Laxmibai (informant). Manik (deceased) was Manohar’s real brother.They have two more brothers, Ashok and Tukaram. Partition of the ancestralagricultural land had already been effected and each brother was cultivatingthe land of his share. There was, however a well in common.On 08th January, 2014, Laxmibai and Manik returned to theirhouse by little past 08:00 p.m. after having worked in their field. Laxmibai2 / 22 APEAL-446-18.odtwas engaged in cooking. Manik was said to be in the house. Their childrenwere studying. Appellant – Datta came in front of their house and questionedas to why he did not allow him to take water of the well on that day. Maniktried to reason with him and even asked to take water on the next day. Dattadid not listen. He entered the house and dragged Manik out of the house.All the appellants came together immediately and started abusing Manik andeven beat him up with fist and kick blows. PW 2 – Laxmibai intervened torescue her husband. She too was not spared. Manohar (deceasedappellant) gave a stick blow on her head. Datta assaulted on the stomach ofManik with a knife. While appellant – Digambar inflicted on the head ofManik an axe blow. On hearing the commotion, village Sarpanch and otherscame. They subsided the quarrel. Both, Manik and Laxmibai were takenfirst to Sub-District Hospital, Omerga and then shifted to Civil Hospital,Solapur. In the early morning of 09th January, 2014, Manik breath his last.3.In the Sub-District Hospital, Omerga, Laxmibai gave herstatement-cum-F.I.R. (Exh.56). Based on the same, a crime vide C.R. No.13 of 2014 was registered. On demise of Manik, Section 302 of the I.P.C.came to be invoked. Soon after the quarrel, somebody had informed theconcerned police station. Crime scene panchanama (Exh.66) was drawn.Articles like axe handle, axe blade, bamboo stick, blood mixed earth werecollected and seized in the presence of panchas. The appellants werearrested. Clothes on their person were seized. Inquest was conducted. Themortal remains of Manik was subjected to autopsy. Clothes on his person3 / 22
Legal Reasoning
APEAL-446-18.odt34.On appreciation of the evidence, we are unable to agree with theconclusion of the trial Court that all the appellants had formed an unlawfulassemble, common object of which was to commit murder of Manik andcause grievous injuries to his family members, PW 2 – Laxmibai and others.On re-appreciation of the evidence on record, we find that there was quarrelbetween the two brothers and their family members as well. The appellants,therefore, could be said to have formed unlawful assembly with the commonobject to cause hurt. There is nothing to indicate that all the appellants,except Datta, were in the know that Datta was going to inflict a knife blow tothe deceased, which ultimately proved fatal. It was a single blow. The samewas inflicted during the quarrel. Appellant – Digambar was said to haveassaulted on the head of the deceased with an axe. But the said injury wassaid to have been caused with a hard and blunt object. We take it that it wascaused with a stick. Although it was a vital part of body of the deceased,there is nothing further to indicate appellant – Digambar to have given himfurther blows to translate his intention into action i.e. committing murder.35.For all the aforesaid reasons, we are not at one with theconclusion recorded by the trial Court regarding convicting the appellants forthe offence punishable under Section 302 read with Section 149 of the I.P.C.In our view, appellant – Datta, due to whose assault the deceased died,could be said to have committed culpable homicide not amounting to murderfalling under Part I of Section 304 of the I.P.C. Exception 4 of Section 300 ofthe I.P.C. comes to his rescue, which reads thus :-19 / 22 APEAL-446-18.odt“Culpable homicide is not murder if it is committed withoutpremeditation in a sudden fight in the heat of passion upon a suddenquarrel and without the offender having taken undue advantage oracted in a cruel or unusual manner.”36.Appellant – Digambar could be said to have voluntarily causedhurt to the deceased with a dangerous weapon like handle of an axe. Hewould, therefore, be said to have committed an offfence punishable underSection 324 read with Section 149 of the I.P.C. So far as assault on PW 2 –Laxmibai is concerned, the concerned appellant (Manohar) is no more. Herevidence is not wholly reliable. Had rest of the appellants beaten her up withfist and kick blows, number of injures would have been noticed on herperson.37.In view of above, we are inclined to partly allow the appeal settingaside the entire impugned order of conviction and consequential sentencesand substituted it in terms of following order :-ORDER(I)Criminal appeal is partly allowed.(II)Impugned judgment and order dated 14th May, 2018passed by the Court Addition Session, Omerga inSessions Case No. 25 of 2014 thereby convicting theappellants for the offences punishable under Sections302, 323 and 506 r/w 149 of the Indian Penal Code, ishereby set aside.(III)All the appellants are acquitted thereof.20 / 22 APEAL-446-18.odt(IV)Appellant – Datta Manohar Jamadar is convicted for theoffence punishable under Section 304 Part I of the IndianPenal Code, and therefore, sentenced to sufferimprisonment for ten years and pay fine of Rs.1,000/-(Rupees One Thousand), in default of payment of fine, toundergo rigorous imprisonment for six months.(V)Appellant - Digambar Manohar Jamadar is convicted forthe offence punishable under Section 324 of the IndianPenal Code, and therefore, sentenced to suffer rigorousimprisonment for three year and pay fine of Rs.500/-(Rupees Five Hundred).(VI)All the appellants are convicted for the offencepunishable under Section 143 of the Indian Penal Codeand thereby sentenced to suffer rigorous imprisonmentfor six months with fine of Rs.500/- (Rupees FiveHundred) each.(VII)All the appellants are convicted for the offencespunishable under Sections 147 and 148 of the IndianPenal Code and thereby sentenced to suffer rigorousimprisonment for nine months with fine of Rs.500/-(Rupees Five Hundred) each.(VIII)All the substantive sentences to run concurrently.(IX)It appears that appellants Datta Manohar Jamadar andDigambar Manohar Jamadar have been behind the barsfor little over ten years and as such have served theentire sentence. They, therefore, be released forthwith, ifnot required in any other case.21 / 22 APEAL-446-18.odt(X)So far as appellants Balaji Manohar Jamadar, VimalbaiManohar Jamadar and Anusaya Datta Ghate areconcerned, they are on bail. They found to have servedthe entire sentence, and therefore, need not surrenderback to jail. Their bail bonds stand cancelled.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD22 / 22
Arguments
APEAL-446-18.odttoo were taken charge of. Statements of the persons acquainted with thefacts and circumstances of the case were recorded. The seized articles wereforwarded to R.F.S.L., Aurangabad for analysis and report. On completion ofinvestigation, charge-sheet was filed.4.The trial Court framed the charge (Exh.4) for various offences.The appellants pleaded not guilty. Their defence was of false implication.According to them, Manik (deceased) was heavily addicted to liquor. Therewas raised platform in the nearby of his house. People would gather there toconsume liquor. Due to heavy drink, he was not in his senses. He fell fromthe said platform on a pointed object like broken liquor bottles and sufferedinjuries to his stomach. He succumbed to the injuries.5.To bring home the charge, the prosecution examined ninewitnesses and produced in evidence certain documents. On appreciation ofthe evidence in the case, the trial Court convicted and consequentlysentenced the appellants as stated above.6.Learned counsel for the appellants would submit that admittedlyrelations between Manik (deceased) and his brother – Manohar (deceasedappellant) were not good. Manik was addicted to liquor. The materialwitnesses examined in the case are all family members of the deceased. Anindependent witness – PW 6 - Vishal testified there was quarrel betweensome of the appellants and family members of Manik (deceased). He was4 / 22 APEAL-446-18.odtcategorical to state that Manik and Laxmibai were found lying at a bridgenear the raised platform nearby their house. PW 9 - Ramhari, InvestigatingOfficer did not draw panchanama of that situs. Appellant – Balaji toosuffered injuries on the very day. He was examined on 09:00 p.m. on thesame day. Learned counsel then took us through the inconsistency in themedical certificates of both, Manik (deceased) and Laxmibai and the injuriesnoticed in the postmortem report (Exh.50). He meant to say that with a viewto falsely implicate one and all the family members of Manohar (deceasedappellant), the medical officer, who conducted the postmortem, added twomore injuries in the postmortem report, which the deceased in fact had notsuffered. According to learned counsel, two of the appellants, viz. Datta andDigambar are behind the bars for little over ten years. Even the femalemembers have not been spared in falsely implicating in the crime in question.He, therefore, urged for allowing the appeal.7.Learned Addl.P.P. would, on the other hand, submit thatpostmortem report (Exh.50) indicates the deceased to have suffered threeinjuries. One of the three injuries proved fatal. PW 1 – Dr. Rode, MedicalOfficer ruled out the said injury to have been caused by fall. The F.I.R.(Exh.56) was lodged within an hour of the incident. The informant too wasassaulted on her head. She was an injured eye witness. Her evidencecarries more weight when no independent witness was available. When thevictim herself gave evidence against the appellants, there would be noreason for her to spare the real culprits and falsely implicate the appellants.5 / 22 APEAL-446-18.odtHe took us through the evidence of each and every witness on record toultimately urge for dismissal of the appeal. According to him, the injurycertificate of appellant - Balaji (Exh.93) was obtained in June 2014 i.e. sixmonths after the incident. The same indicates to have been obtained tomake out a false defence. He would further submit that an independentwitness was examined. He had witnessed some of the incident. The samefortifies the case of the prosecution. The medical evidence is consistent withthe ocular evidence. He, therefore, urged for dismissal of the appeal.8.Considered the submissions advanced. Perused the evidence onrecord. Also perused the judgment impugned herein. Let us now advertthereto and appreciate the same.9.PW 1 – Dr. Rode was on duty at Civil Hospital, Solapur on 09thJanuary, 2014. His evidence discloses that he conducted postmortemexamination of the mortal remains of Manik by 09:00 in the morning on thatday. On examination, he noticed following injuries to the deceased :-External Injuries :-1.5 cm. sutured contused incised wound over left aspect of foreheaddirecting antero posteriorly 5 cm away from midline towards leftside.2.2x1x1 cm incised wound over center of upper lip directingvertically.3.4x2 cm incised wound of boat shape over left hypochondirum (leftside of stomach below ribs) region directing obliquely with lateralend directing upwards. The said injury was oozing of blood. Soalso, yellowish issue was protecting. All the said three injuries areante mortem.6 / 22 APEAL-446-18.odtInternal Injuries :-In the head region, under scalp hamatoma over left aspect of forehead.No damage to the brain. In the abdomen region, penetrating injury toleft hydrochloride part of the abdomen and all the muscular layers ofabdomen penetrating, cavity deep penetration, intra peritonealhemorrhage 500 gms blood clots.Cavity – congested. In the cavity, free blood clots 400 gms.Kidenys – Left kidney incised wound, vertically 10 cm oedematouspale, 120 gms. Right kidney congested 110 gms.10.He had preserved viscera. He placed on record viscera reportduring his evidence. The said report indicates the viscera contains 103 ml.ethyl alcohol per 100 gms. The blood group of the deceased was ‘O’. In hisopinion, Injury No.3 was sufficient in the ordinary course of nature to causedeath. Injury No.1 was possible by sharp as well as blunt side of the sharpweapon like an axe. Injury No.2 was also possible by sharp object like knife,but was not possible by blunt side of sharp object like an axe.11.His evidence further discloses that on 25th January, 2014 i.e. aftersixteen days of the incident, the investigating officer had forwarded to him theseized articles viz. knife, axe, sweater, banian for examination and to solicithis opinion whether the injuries were possible by weapons therein such asknife and axe.12.During his cross-examination, it was categorically suggested tohim that he added two more injuries in the postmortem report (Exh.50), whenthe deceased in fact had not suffered those injuries (Injury Nos. 1 and 2).7 / 22 APEAL-446-18.odtAccording to him, the deceased would have survived, had he received thetreatment immediately, provided there was not loss of much blood.13.PW 4 – Dr. Yashwant is a Medical Officer at Sub-District Hospital,Omerga. He testified that on 08th January, 2014 he was on emergency duty.By 08:30 p.m on the said day, a patient by name Manik Koli was brought byhis family members. There was history of stab injury on the very day by07:45 p.m. at village Dapka. He examined the said patient. The patient wasin shock. Stab injuries on the abdomen, at left lumbar region. The samemight have been caused by a sharp pointed weapon like knife. The injurywas fresh. The same was life threatening injury. He, therefore, referred thepatient to Civil Hospital, Solapur. He had brought with him MLC registerbefore the trial Court. He issued the MLC certificate (Exh.79).14.He further testified that at the same time he examined one ladypatient, Laxmibai. She had given history of assault with a stick by 07:35 p.m.He examined her and found following injuries :-“Abrasion/laceration/contusion towards left side femoral region calfadm. 1.5 cm. by 0.5 cm.”The injury was fresh and simple and might have caused by bluntobject. He issued medical certificate (Exh.80).15.During his cross-examination, he testified that at the same time heexamined appellant – Balaji and found the following injuries on his person :- 8 / 22 APEAL-446-18.odt“CLW left forear 4 x 1.5 cm., muscle tone.”The said injury might have been caused due to a sharp object. Itwas fresh injury. He issued medical certificate (Exh.93). He denied thedefence suggestion that injury suffered by Manik might have been possibleby fall on sharp object.16.PW 3 – Subhash was a witness to the crime scene panchanama(Exh.66). According to him, the panchanama was drawn in his presence onthe following day. The place was in front of the house of PW 2 – Laxmibai(informant). The police seized bangle pieces, a blade of axe, a woodenhandle of axe, blood mixed soil, etc.17.The very person appears to be a panch to other variouspanchanamas, such as arrest panchanamas of appellants – Datta, Manohar,Balaji and Digambar (Exh.117 to 120). According to him, police seizedclothes on the persons of those four in his presence.18.He was again a witness to a disclosure statement made byappellant – Datta on the following day i.e. on 10th January, 2014. Accordingto him, Datta gave a disclosure statement that he would take out the knifehidden in a trashed leaves wall of his hut. His statement was recorded videExhibit 71. He then took the police and panchas to his hut and took out theknife. The police seized the same under panchanama Exhibit 72.9 / 22 APEAL-446-18.odt19.During his cross-examination he testified that there was smallbridge at a distance of fifty feet from the house of Manik (deceased). Nopanchanama of the place nearby the said bridge was drawn. He made avital statement to the effect that the police disclosed to the accused that heshould state the truth, otherwise he would obtain his police custody remand.20.PW 2 – Laxmibai lodged the F.I.R. (Exh.56). She testified that on08th January, 2014, she and Manik returned to their house by little past 08:00p.m. after having worked in their field. She was engaged in cooking. Herhusband, Manik was in the house. Their children were studying. Appellant –Datta came in front of their house and questioned Manik as to why he did notallow him to take water of the well on that day. Manik tried to reason withhim and even asked to take water on the next day. However, Datta did notlisten. He entered the house and dragged Manik out of the house. All theappellants came together immediately and started abusing Manik and evenbeat him up with fist and kick blows. She intervened to rescue Manik. Shetoo was not spared. Manoher (deceased appellant) gave a stick blow on herhead. Datta assaulted on the stomach of Manik with a knife. While appellant– Digambar inflicted on the head of Manik an axe blow. On hearing thecommotion, village Sarpanch and others came. They subsided the quarrel.She herself and Manik were taken first to Sub-District Hospital, Omerga andthen shifted to Civil Hospital, Solapur. She further testified that police hadcome to her in the hospital and recorded her statement. She referredthereto, F.I.R. (Exh.56).10 / 22 APEAL-446-18.odt21.She was subjected to a searching cross-examination. Sheadmitted that she is an accused in Sessions Case No. 31 of 2015 institutedat the instance of appellant – Balaji. She denied Balaji to have sufferedinjuries on that day. She denied that her husband – Manik (deceased) wasaddicted to liquor. She even denied that on the given day he was underinfluence of liquor. Her brother-in-law – Ashok, Tukaram and Manohar(deceased appellant) would reside adjacent to each other. She could notstate names of the persons gathered at the spot of the incident on hearingcommotion. According to her, her son, PW 5 – Santosh intervened in thequarrel. Others did not. According to her, Santosh too suffered muffleinjuries. Santosh too visited Sub-District Hospital, Omerga. He wasexamined there. It was she herself, Santosh and her brother-in-law –Tukaram, who took Manik to the hospital in an auto-rickshaw. She wasconfronted with her F.I.R. (Exh.56) to bring on record omission therein thatshe did not state to police, appellant – Datta to have entered her house.According to her, she had stated accordingly. The police officer, whorecorded the same, however testified that it was not so stated. As such,omission amounting to contradiction has been brought on record. She wassuggested that Manik (deceased) had attempted to assault appellant – Balajiwith an axe. Manik was under the influence of liquor. He went at the bridgeand fell down. As a result, he suffered injury. She denied these suggestions.22.PW 7 – Vilas was the Assistant Police Inspector attached toOmerga Police Station at the relevant time. On receiving information about11 / 22 APEAL-446-18.odtthe incident and particularly admission of two injured in the Sub-DistrictHospital, Omerga, he went there. On examination of Laxmibai by themedical officer there, he recorded her statement-cum-F.I.R. (Exh.56).23.PW 5 – Santosh testified in consonance with the evidence of hermother, PW 2 – Laxmibai (informant). According to him, appellant – Dattacame in front of his house and asked his father as to why he (Datta) was notallowed to take water of the common well. Datta dragged his father out ofthe house. Thereafter other appellants immediately arrived there. All ofthem beat up his father with fist and kick blows. He was in the house thattime. He alongwith his mother and sister, therefore, came out of the house tosave his father. All the appellants abused them. According to him, Manohar(deceased appellant), Datta and Anusaya beat him with stick, fist and kickblows. Appellant – Vimalbai caught hairs of his sister – Pooja and slappedon her face. While appellants – Digambar, Balaji and Anusaya beat up Poojawith stick. Thereafter, all the appellants beat up his mother. Then all of themcaught hold of his father. The male appellants said, “vkt ;kyk [kYykl d#”(Let us kill him today). Thereafter, appellant – Digambar assaulted on thehead of Manik with an axe. Appellant – Datta stabbed on the stomach ofManik with a knife. On hearing commotion, other persons gathered there.His father and mother were rushed to Sub-District Hospital, Omerga. He hadaccompanied them. He identified the articles shown to him before the Court.24.During his cross-examination he admitted that a criminal case ispending against him before the Juvenile Justice Board, for assaulting12 / 22 APEAL-446-18.odtappellant – Balaji. It was Balaji’s case that he (Santosh) and his parentsassaulted him. Balaji suffered left forearm injury. He denied that his fatherwas under influence of liquor. He denied that his father was addict thereof.He further denied that Manik tried to assault Balaji with an axe. He furtherdenied that Manik being heavily drunk, fell on his own near the bridge.According to him, his mother did not suffer any bleeding injury. Nobody fromthe neighbourhood was present while the incident was on. He intervened inthe quarrel. The rest of the questions were in the nature of defence of theappellants.25.PW 6 – Vishal was the resident of the village, Dapka. Hedeposed that the incident took place little past 08:00 p.m. on 08th January,2014. On hearing commotion, he came out of his house. He saw quarrelbetween PW 2 – Laxmibai, PW 5 – Santosh and Pooja on one hand andappellants – Datta, Digambar, Manohar and Digambar’s mother on the other.They were abusing and beating Santosh and Pooja. He intervened to settlethe quarrel. People gathered. He went on to testify that about twenty feetaway from that place there was a bridge whereat Manik, husbant ofLaxmibai, was lying injured. According to him, the injured were rushed to thehospital.During his cross-examination he denied that it was not possiblefor him to state who abused who.13 / 22 APEAL-446-18.odt26.PW 8 - Ghuge, was the Police Officer, who conducted inquest(Exh.108). It is he, who delivered the dead body of Manik to his widow –Laxmibai. His evidence does not further the prosecution case.27.PW 9 – Ramhari, did investigation of the crime. According to him,he drew the crime scene panchanama (Exh.66), arrested the appellants,seized clothes on their person, obtained opinion of the Medical Officer byforwarding articles seized, etc. Since the evidence of this witness was in thenature of steps to be taken during investigation and the same has alreadybeen reflected in the evidence of all other witnesses referred to herein above,we do not propose to refer to his further evidence in extenso. He wassuggested to have threatened appellant - Datta to obtain his thumbimpression or signature on the false memorandum and seizure panchanama.28.The appellants examined a defence witness. He is DW 1 –Tukaram, brother of Manik (deceased) and Manohar (deceased appellant) aswell. He testified that his brother – Manik was addicted to liquor. Theincident took place by 08:30 p.m. on 08th January, 2014. His grandsoninformed him that Manik was lying by the side of the bridge. He, therefore,went there. The crowd had already gathered. He brought Manik to hishouse.He was subjected to cross-examination by learned A.P.P. Theprosecution version was put to him in the cross-examination. He denied thesame.14 / 22 APEAL-446-18.odtAppreciation :-29.Aforesaid is the evidence in the case. The postmortem report(Exh.50) indicates Manik died of stab injury (single injury). The same wassaid to have been caused by appellant – Datta. Two more injuries were saidto have been noticed during postmortem examination. It was specificallysuggested to PW 1 – Dr. Rode that he added those two injuries at theinstance of family members of the deceased. He was bound to deny the saidsuggestion. The fact, however is that within minutes of the incident both, PW2 – Laxmibai and Manik (deceased) were brought to Sub-District Hospital,Omerga. It was PW 4 – Dr. Yashwant, who examined both of them andissued medical certificates. The injury certificate of the deceased issued byhim on the very day of the incident finds place at Exhibit 79. He noticed onlyone injury in the nature of stab to abdomen (left lumber region). He,therefore, referred the injured to Civil Hospital, Solapur. It is surprising as tohow the first two injuries shown in the postmortem report went unnoticed bythis medical officer, who too is an independent and uninterested witness.There is injury certificate of PW 2 – Laxmibai. According to her, Manohar(deceased appellant) had hit on her head with a stick. The injury certificateof PW 2 – Laxmibai issued by PW 4 – Dr. Yashwant is on record at Exhibit80. The said injury is in the nature of abrasion/laceration on left sidetemporal region. It was simple in nature and caused with blunt object.30.PW 4 – Dr. Yashwant had examined appellant – Balaji at thesame time by which he examined Manik (deceased) and PW 2 – Laxmibai.15 / 22 APEAL-446-18.odtHe noticed CLW. He issued injury certificate (Exh.93) indicating Balaji tohave suffered injury on the same day.31.The prosecution witnesses viz. PW 2 – Laxmibai and PW 5 –Santosh are the relations of the deceased and claimed to be victims as well.It is true that evidence of injured witness carries much weight. They are,however relations of the deceased. It is also true that victims do notimplicate innocent persons sparing real culprits. The tendency is, however togive exaggerated version and implicate one and all the members of family.In the case in hand, the appellants are none other than the parents and theirfour children. No one of their family has been spared. When PW 5 –Santosh claimed to have suffered injury and visited hospital, his injurycertificate is not on record. His sister – Pooja too was said to have sufferedbeating. She was not examined nor her injury certificate has been producedin evidence. Had all the appellants really assaulted PW 2 – Laxmibai with fistand kick blows, there would have been number of injuries on her person.Both, PW 2 – Laxmibai and PW 5 – Santosh have also gave a false evidenceas regards Manik (deceased) to have been teetotaller.32.PW 1 – Dr. Rode, had preserved viscera. He tendered inevidence viscera report indicating 103 ml of ethyl alcohol per 100 gm wasfound in the blood of the deceased. The same falsifies the claim of thewitnesses, who deposed that the deceased was not addicted to liquor. Onthe same day appellant – Balaji suffered injury, might not be serious one.16 / 22 APEAL-446-18.odtHis injury certificate (Exh.93) is on record. PW 2- Laxmibai, PW 5 – Santoshand Manik (deceased) were, therefore, charged with an offence of attempt tocommit murder. What has happened with the said case is not known. Samesuggests the prosecution has not disclosed either genesis of the case orexaggerated version. It is said, “When war breaks out, truth is the firstcasualty”. Evidence of PW 6 - Vishal is not of much importance since he didnot witness appellant – Datta to have stabbed on the stomach of thedeceased with a knife and appellant – Digambar assaulted on the head ofthe deceased with an axe. His evidence simply indicates that there wasquarrel between the members of two families, wherein Manik (deceased)was not present. According to him, Manik (deceased) was lying near abridge which was small distance away from the place of quarrel. Theprosecution did not declare this witness to have not been supporting it.33.When the prosecution comes with a case of appellant – Digambarto have assaulted on the head of the deceased with an axe, it is generallypresumed that the assault is made with the sharp side of the blade of theaxe. The injury noticed on the head of the deceased was said to have beencaused by hard and blunt object like handle of the axe. True, during thecrime scene panchanama (Exh.66), axe handle, stick and blade of the axewere separately seized. The injury is simple in nature. It is, however notknown as to why PW 9 - Ramhari, Investigating Officer, kept these articleswith the police station until 28th January, 2014 i.e. for twenty (20) days andnot sent immediately to R.F.S.L. The evidence of PW 1 – Dr. Rode indicates17 / 22 APEAL-446-18.odtthat those articles were sent to him by PW 9 - Ramhari, Investigating Officeron 25th January, 2014 to solicit his opinion as to whether the injuries sufferedby the deceased were possible with those articles. The evidence of PW 1 –Dr.Rode is silent to state that while those articles were sent to him, thosewere in sealed condition. There is no evidence at all to indicate who carriedthose articles in sealed condition to PW 1 - Dr.Rode, who opened the seal, ifany, and again packed and sealed them. Had appellants – Datta andDigambar intended to eliminate Manik, they would have rained further blowsof knife and axe or axe handle on him. The evidence on record indicates thata quarrel took place between some of the family members of both thebrothers, wherein appellant – Datta stabbed Manik (deceased), as a result ofwhich Manik breath his last. Same time appellant – Balaji suffered injuries.We have already observed that the prosecution witnesses were interestedand economical with truth as well. Two of the appellants, viz. Datta andDigambar are behind the bars for little over ten years. We are conscious ofthe fact that one person has lost his life. The fact is, however that thedeceased, his wife – PW 2 Laxmibai and son – PW 5 Santosh are alsobeing prosecuted for attempting to commit murder of appellant – Balaji. It isreiterated that what has happened with the said case is not known. PW 6 -Vishal’s evidence only indicates that female appellants had a quarrel withPW 2 – Laxmibai and PW 5 – Santosh. Possibility of manhandling eachother could not be ruled out. The one, who assaulted PW 2 – Laxmibai onher head with a stick, is passed away pending the appeal.18 / 22