High Court
Legal Reasoning
Cri. Appeal Nos.936.2018 and 626 of 2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.936 OF 20181)Prakash s/o. Harichandra Bhujang,Age 32 years, Occ. Labour,r/o. Nandalgaon, Tq. Paithan,Dist. Aurangabad2)Amol s/o. Raghunath Chabukswar (Deleted - appellant no.2 has Age 32 years, Occ. Labour, filed separate appeal) r/o. Nandalgaon, Tq. Paithan, Aurangabad ..AppellantsVs.1)The State of Maharashtra,Through Police Inspector,Bidkin Police Station,Tq. Paithan, Dist.Aurangabad2)Radhabai Annasaheb Bansode,Age:41 years, Occ. Agri.,r/o. Village Nandalgaon,Tq. Paithan, Dist. Aurangabad..RespondentsANDCRIMINAL APPEAL NO.626 OF 2023Amol s/o. Raghunath Chabukswar,Age : 35 years, Occ. Labour,r/o. Nandalgaon, Tq. Paithan,Dist. AurangabadAt Present : Mahatma Phule Nagar,Bhavsinghpura, Aurangabad..AppellantVs.
Legal Reasoning
2Cri. Appeal Nos.936.2018 and 626 of 20231)The State of Maharashtra,Through Police Inspector,Bidkin Police Station,Tq. Paithan, Dist.Aurangabad2)Radhabai Annasaheb Bansode,Age:41 years, Occ. Agri.,r/o. Village Nandalgaon,Tq. Paithan, Dist. Aurangabad..Respondents----Mr.M.R.Khutwad, Advocate for appellant in Cri. Appeal No.936 of2018Mr.M.M.Parghane, Advocate for appellant in Cri. Appeal No.626 of2023Ms.V.S.Choudhary, APP for respondent no.1 in both appeals---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : MARCH 12, 2024 PRONOUNCED ON : MARCH 14, 2024JUDGMENT (PER R.G.AVACHAT, J.) :-Both the appeals are being decided by this commonjudgment and order, since the challenge therein is to the judgmentof conviction and order of consequential sentence passed by learnedAddl. Sessions Judge, Aurangabad, on 25.10.2018 in Sessions CaseNo.509 of 2011. Vide the impugned judgment and order, theappellants herein have been convicted for the offences punishableunder Sections 302 and 324 read with Section 34 of Indian PenalCode. The details thereof are given below:- 3Cri. Appeal Nos.936.2018 and 626 of 2023Sections Sentence Fine 302 r/w. 34 of I.P.C.R.I. for life Fine of Rs.25,000/-, indefault, to suffer R.I.for one year324 r/w. 34 of I.P.C.R.I. for one yearFine of Rs.5,000/-, indefault, to suffer R.I.for one yearThe substantive sentences are directed to runconcurrently. The appellants are, therefore, before us in theseappeals.2.The facts, as are disclosed from the police papers(charge sheet), are as follows.PW 2 – Radhabai (informant) and her husbandAnnasaheb (deceased) would reside together along with theirchildren at village Nandalgaon, Tq. Paithan, Dist. Aurangabad. It was31.08.2011, the informant and her husband were on their way backhome from their agricultural field on their motorbike. It was about01.00 p.m., they were passing from in front of a grocery shop ofPrabhakar Shinde. Both the appellants and Syed Nisar and SyedHabib (acquitted accused) intercepted the duo. They picked up 4Cri. Appeal Nos.936.2018 and 626 of 2023quarrel with the informant and her husband Annasaheb (deceased)over tap-water and agricultural field as well. The appellant – Amolassaulted husband of the informant, Annasaheb (deceased), on hishead and face with fighter, while the appellant – Prakash beat up theinformant’s husband Annasaheb with stick. The other accused toobeat up the duo with fists and kicks. The nearby residents witnessedthe incident. Dhondiram, brother-in-law of the informant, first,brought them to Primary Health Centre at Bidkin. Then, they wereshifted to GHATI Hospital, Aurangabad. For better treatment,Annasaheb was shifted to City Care Hospital, Aurangabad. He,unfortunately, succumbed to the injuries by 02.00 p.m. on01.09.2011. The informant, thereafter, lodged report against theaforesaid four persons, alleging them to have committed murder ofher husband and assaulted herself and her son Ganesh (PW 8).3.The crime, vide C.R. No.I-0 of 2011 was initiallyregistered with Osmanpura Police Station, Aurangabad. Since crimetook place within the limits of Bidkin Police Station, same wastransferred to it for investigation. The scene of offence panchnamawas drawn. Inquest panchnama (Exh.43) too was conducted. Bothinjured were medically screened. Autopsy was conducted on themortal remains of Annasaheb. The appellants were arrested. 5Cri. Appeal Nos.936.2018 and 626 of 2023A fighter and a stick came to be recovered pursuant to the disclosurestatements made by both the appellants, respectively. Thestatements of the persons acquainted with the facts andcircumstances of the case were recorded. Upon completion of theinvestigation, charge sheet was laid. The Judicial Magistrate, FirstClass, Court No.2, Paithan, committed the case the Court of Sessions.It was, in turn, assigned to the court of learned Addl. Sessions Judge,Aurangabad (trial court) for trial in accordance with law. 4.The trial court framed Charge (Exh.9) against all fouraccused persons. They pleaded not guilty. Their defence was offalse implication. 5.To establish the charge, the prosecution examinedfourteen witnesses and produced in evidence certain documents. Onappreciation of the evidence in the case, the trial court acquittedoriginal accused nos.1 and 4 namely, Syed Nisar and Syed Habib. Itconvicted the appellants herein, as stated above. Neither the Statenor the victim preferred appeal against the acquittal.6.Heard learned counsel for the respective parties.7.Learned counsel for the appellants would submit thatthere is delay of over 18 hours in lodging of the FIR. The informant 6Cri. Appeal Nos.936.2018 and 626 of 2023and her son Ganesh were conscious oriented all along. One of themcould have lodged the FIR at the earliest. Prabhakar Shinde, in frontof whose shop, the incident took place, has not been examined. Thedeceased was alcoholic. He and his wife were proceeding onmotorbike. The motorbike met with an accident (slipped), as aresult of which, they suffered injuries. Our attention was adverted tothe oral evidence of the witnesses vis-a-vis the FIR and the policestatements, to bring on record the material omissions, amountingcontradictions. According to learned counsel, the fighter recoveredpursuant to the disclosure statement, did not bear blood stains.Although a blood stained stick was recovered, the the C.A. report inthat regard is inconclusive. Both learned counsel would submit thatthe evidence of the prosecution inspire no confidence to sustain theconviction of the appellants. They, therefore, urged for allowing theappeals.8.Learned APP, would, on the other hand, submit that theFIR has been lodged promptly. The husband of the informant sufferedserious injuries. It was her duty first to attend her husband. Shewas a rustic woman. Her evidence is consistent with the avermentsin the FIR. After having realised the mistake, she immediately gave asupplementary statement. The eye witnesses are none other than 7Cri. Appeal Nos.936.2018 and 626 of 2023the injured witnesses. Their evidence stands on higher pedestal.Pursuant to the disclosure statements made by both the appellants,a fighter and a stick came to be recovered. The C.A. report indicatesthe stick to have borne human blood. According to learned APP, it isduty of the Court to sift grain from the chaff. She relied on the ApexCourt judgment in the case of Mani @ Udattu Man & ors. Vs.State Rep. by Inspector of Police, 2009 GoJuris (SC) 305,wherein, it has been observed as under :-“Criminal Trial – Rule of evidence – Doctrine of falsusin uno falsus in omnibus – Charges of murder --Appreciation of evidence – Duty of Court – It has toseparate grain from the chaff – If it can be done, anaccused can be convicted notwithstanding that theevidence has been found to be deficient, or to be notwholly credible – Falsity of material particular wouldnot ruin it from beginning to end – Said doctrine hasno application in India – It is merely a rule of caution– All that it amounts to, is that in such case testimonymay be disregarded, not that it must be disregarded –It merely involves question of weight of evidencewhich a court may apply in a given set ofcircumstances, but it is not what may be called amandatory rule of evidence.”9.Considered the submissions advanced. Perused theevidence on record. Let us advert thereto and appreciate the same.10.The deceased – Annasaheb was first rushed to BidkinRural Hospital. He was then shifted to City Care Hospital, 8Cri. Appeal Nos.936.2018 and 626 of 2023Aurangabad. PW 5 – Dr. Yogesh had attended the deceased in CityCare Hospital. He tendered in evidence Medico-Legal Certificate(MLC) (Exh.65) and Registration cum Administration Form (Exh.67).The history given in MLC (Exh.65), is assault by two persons in thevillage. Annasaheb succumbed to the injuries. He was shifted toGHATI Hospital. PW 9 – Dr. Nitin conducted autopsy on his person.He noticed following injuries on the person of the deceased:-“Clause No.17 E/o. Stitched would over left sideof forehead of size 3.5 c.m. with 6 stitches,obliquity placed.2)E/o. Contusion over left eye on uppereyelid and periorbital area with bluish purplediscoloration.3)E/o. Stitched would over left lower eyelidof size 3 x 0.2 c.m. with 4 stitches, horizontallyplaced and bluish purple discoloration.4)E/o. Stitched would over left cheek, 2 c.m.below left eye lid, of size 3 c.m. horizontallyplaced with 4 stitches.5)E/o. Stitched would below left nostril ofsize 3.5 c.m. with 7 stitches, horizontally placed.6)E/o. Contusion over left angle of mouthwith blackish purple discoloration.7)E/o. Contused swelling over left foreheadof size 8 x 6 c.m. with blackish purplediscoloration. 9Cri. Appeal Nos.936.2018 and 626 of 2023Clause No.18 – E/o. Fracture at nasal septumand multiple facial bones.Clause 19 – E/o. Scalp hematoma on left front-temporal region of size 15 x 10 c.m., dark red incolour.2)E/o.Contusion over right frontal region ofsize 8 x 6c.m. dark red in colour.3)E/o. Multiple fracture of facial bonesfracture margins irregular and blood infiltrated.4)Meninges – Intact,5)Brain – Pale and edematous.6)E/o. Subarachnoid hemorrhage over leftcerebral hemisphere.In his opinion, Annasaheb died of “shock and hemorrhage due tomultiple injuries”. The post mortem report to that effect is atExh.130.11.Then, we have evidence of PW 6 – Dr. Sanjay, MedicalOfficer, Rural Hospital, Beed. He had examined PW 2 – Radhabai(informant). He noticed following injuries on her person:-“I)Contusion over left forearm size 2 c.m. x 3c.m. weapon used hard and blunt. Probable ageof injury within 24 hours. Nature of injurysimple.II)Contusion over left leg posterior aspectsize 2 c.m. x 3 c.m., weapon used hard and blunt.Probable age of injury within 24 hours. Natureof injury simple. 10Cri. Appeal Nos.936.2018 and 626 of 2023Her injury certificate (Exh.77) suggests her to have suffered twocontusions, simple in nature. Those injuries were said to have beencaused by a hard and blunt object within 24 hours beforeexamination.12.Then, there is evidence of PW 11 – Dr. Archana. She hadexamined Ganesh (PW 8). The injury certificate (Exh.145) indicateshim to have suffered two contusions, simple in nature. He had givenhistory of assault on his hand with wooden stick. 13.Now, the question is, whether the appellants herein arethe authors of death of Annasaheb and injuries of the informant –Radhabai and Ganesh.14.PW 1 – Bharat was Home Guard engaged in maintenanceof law and order on account of the festivals, like Pola and RamjanEid. His evidence indicates that on 31.08.2011, he was attached toBidkin Police Station. Annasaheb (deceased), his wife Radhabai andtheir son Ganesh had come to the police station. All of them wereinjured. On the direction of the police station officer, he took them toBidkin Rural Hospital. The Medical Officer there, referred them toGHATI Hospital Aurangabad. This witness was not cross-examined. 11Cri. Appeal Nos.936.2018 and 626 of 202315.PW 2 – Radhabai, widow of deceased, testified that by01.00 p.m., on 31.08.2011, she along with her husband (deceasedAnnasaheb) were returning home on their motorbike. While theywere passing from in front of grocery shop of one Prabhakar Shinde,the appellants herein intercepted them. The appellant Prakashassaulted Annasaheb on his face and head with fighter. Theappellant Amol assaulted her with stick. Appellant Prakash assaultedGanesh with stick. On hearing cries, her nephew Bhimrao (PW 3)arrived. He took them first to Bidkin Rural Hospital. They wereshifted to GHATI Hospital, Aurangabd. It is further in her evidencethat Annasaheb’s health was critical and therefore, he was rushed toCity Care Hospital, Aurangabad. Unfortunately, Annasaheb breathedhis last after about 15 hours of the incident. There was, therefore,delay in lodging of the FIR. We do not find the delay to have beenused to lodge an afterthought FIR.16.On the same lines, there is evidence of PW 3 – Bhimraoand PW 8 – Ganesh. Admittedly, Ganesh reached the scene ofoffence after the appellants were allegedly assaulted.17.These three witnesses were subjected to cross-examination by learned APP in-charge of the case. They wereconfronted to their police statements. The reason is obvious. In the 12Cri. Appeal Nos.936.2018 and 626 of 2023FIR and in their police statements, all these three witnesses hadimplicated original accused nos.1 and 4 namely, Syed Nisar andSyed Habib to be the assailants along with the appellants before thiscourt. These three witnesses, however, in their substantive evidence,testified that both of them (original accused nos. 1 and 4) were notat all present at the crime scene. Moreover, in the FIR, PW 2 –Radhabai attributed Amol to have assaulted with fighter, whereas, inher substantive evidence before the court, she attributed himassault with stick. In the FIR, she had attributed Prakash to haveassaulted with stick but in her substantive evidence, he is alleged tohave assaulted with fighter. Learned APP adverted our attention tothe informant’s supplementary statement, correcting her mistake inthe FIR. It is not known, was it really a mistake or intentional,attributing respective appellants with assault by weapons like fighterand stick. Admittedly, the incident took place in front of the groceryshop of Prabhakar Shinde. He has not been examined in the case.18.We are conscious of the legal position: unmeritedacquittal is injustice. We are also conscious of the fact that whentruth and falsity are intermingled, the same are to be disengagedfrom each other to ensure truth to prevail. The facts in some casesare so presented that it is just difficult to disengage grain from the 13Cri. Appeal Nos.936.2018 and 626 of 2023chaff. The same is the case herein. The aforesaid three witnesses,in the FIR and the police statements, attributed accused nos.1 to 4to have been involved in such a serious offence of murder. Both ofthem gave them clean-chit during substantive evidence of thesewitnesses. It is, therefore, just difficult to rely on the testimony ofthese witnesses, more so, when the appellant – Prakash wasattributed with a fighter-blow in the police papers and in thesubstantial evidence, he is attributed with assault with stick. Sameis the case about appellant – Amol. He was, in fact, alleged to haveassaulted with stick. Then, fighter was placed in his hands.19.Moreover, cross-examination of PW 2 – Radhabaisuggests that admittedly, they were on motorbike. It might be thatas a result of accident, both of them fell from the motorbike. Sheadmitted that they had sustained injury even after falling from bike.The deceased was trapped under the motorbike, i.e. the motorbikewas on his person. PW 3 – Bhimrao stated in his cross-examinationthat while he reached at the crime-scene, he saw the motorbike onthe person of Annasaheb. It was PW 3 – Bhimrao, who removed themotorbike. The same suggests that the deceased even might havesuffered injuries as a result of fall from the motorbike. 20.While the deceased was admitted in City Care Hospital,Aurangabad, the MLC (Exh.65) records history as “assault by two 14Cri. Appeal Nos.936.2018 and 626 of 2023village-boys”. The Medical Officer – Dr. Yogesh (PW 5) was examinedin that regard. Furthermore, Ganesh (PW 8) admitted in cross-examination that after having come to the court to lead evidence, hewas read over his police statement. His mother (PW 2 – Radhabai)accompanied him to the court. Before he gave evidence, it wasdecided between him and Radhabai that they should give evidenceagainst two persons only (appellants herein)21.Omissions amounting contradictions in the FIR and policestatements of both these witnesses, have been brought on recordthrough the evidence of the Investigating Officer and PW 7 - Shahaji,who recorded the FIR. True, the crime was initially registered atOsmanpura Police Station. Since it took place within the limits ofBidkin Police Station, same was transferred to it for investigation.22.It is true that pursuant to the disclosure statementsmade by both the appellants, fighter and stick came to be recoveredunder panchnama (Exhs.160 to 163). Admittedly, the fighter did notbear blood stains. Such recovery is, therefore, of no consequence tofurther the case of the prosecution. So far as regards recovery of thestick is concerned, the C.A. report relating to blood stains thereon, isinconclusive as regards grouping of blood. 15Cri. Appeal Nos.936.2018 and 626 of 202323.All the aforesaid three material witnesses werecategorical to state that there was no prior enmity between theappellants and the deceased or any of his family members. Theincident took place all of a sudden. These witnesses haveconsciously given clean-chit to original accused nos.1 and 4, whowere said to have been involved in the crime. The evidence furtherindicates that both deceased and his wife fell from the motorbike.The deceased was trapped under the motorbike. The appellant –Prakash was alleged to have assaulted with fighter. However, in thesubstantive evidence, he is alleged to have assaulted with stick.Same is the case about appellant – Amol. It is not known as to why,Ganesh did not lodge the report of the incident immediately, whenhe was with his parents, although we have observed above that PW2 – Radhabai had reason to lodge the report fifteen hours after theincident, since her husband was critical. Be that as it may.24.Close scrutiny of the evidence on record lead us toobserve that the evidence of the material witnesses namely, PW 2 –Radhabai, PW 3 – Bhimrao and PW 8 – Ganesh do not inspireconfidence to sustain the conviction of the appellants for the seriousoffence of murder. 16Cri. Appeal Nos.936.2018 and 626 of 202325.Both the appellants are, therefore, required to beextended benefit of doubt. We are, therefore, not at one with thefindings recorded by the trial court. Interference with the impugnedorder of conviction and consequential sentence is, therefore,warranted.26.In the result, the appeals succeed. Hence, the followingorder:-(i)Both the appeals are allowed.(ii)The order of conviction and consequential sentencedated 25.10.2018, passed by learned Addl. Sessions Judge,Aurangabad, in Sessions Case No.509 of 2011, for the offencespunishable under Sections 302 and 324 read with Section 34 ofIndian Penal Code, is hereby set aside. The appellants are acquittedof the said offences.(iii)The appellants be released forthwith, if not required inany other offence.(iv)Fine amount paid by the appellants, if any, be refundedto them. [NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP