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Cri Appeal No.995 of 2019.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.995 OF 2019Dnyanoba s/o. Yashwant Ankade,Age : 33 years, Occ. Convict No.C-11442,Through Superintendent of Central Prison,Nashik Road, Nashik..AppellantVs.The State of Maharashtra..Respondent----Ms.Nima R. Suryawanshi, Advocate for appellantMr.A.D.Wange, APP for respondent---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. DATE : JULY 22, 2024 JUDGMENT (PER R.G.AVACHAT, J.) :- The challenge in this appeal is to the judgment and order ofconviction and consequential sentence dated 07.11.2017, passed bylearned Addl. Sessions Judge, Kandhar, Dist. Nanded, in Sessions CaseNo.44 of 2014. Vide the impugned order, the appellant was convictedfor the offence punishable under Section 302 of Indian Penal Code andtherefore, sentenced to suffer imprisonment for life and to pay a fine ofRs.1,000/- with default stipulation. 2Cri Appeal No.995 of 20192.The facts, in brief, giving rise to the present appeal areas follows:- The appellant and Prabhakar (deceased) were realbrothers. Seventeen Gunthas land was standing in the name oftheir mother. All the three would reside separately from each other.On 04.09.2014 by 07.30 p.m., quarrel ensued between the appellantand his wife on one hand and Prabhakar (deceased) on the other, atShivaji Chowk, Daithana, Tq.Kandhar. The appellant assaulted on theribs of Prabhakar 2-3 knife blows. PW 1 – Meerabai, widow ofdeceased Prabhakar, had rushed to the crime scene on hearingquarrel between the two. Her daughter, Bhagyashri (PW 6), had alsoaccompanied her. Meerabai and others rushed Prabhakar to thePrimary Health Centre, Kandhar. Unfortunately, Prabhakar passedaway. She, therefore, lodged the First Information Report (FIR)(Exh.16) with Kandhar Police Station, alleging the appellant and hiswife to have killed Prabhakar in furtherance of their commonintention. 3.Inquest and post-mortem examination on the mortalremains of deceased Prabhakar were held. The crime scenepanchnama (Exh.37.) was drawn. The appellant was arrested. Hiswife - Ranjana (since acquitted) too was arrested. The clothes on 3Cri Appeal No.995 of 2019the person of the appellant and that of the deceased at the materialtime were seized. The appellant made disclosure statementpursuant to which, knife came to be seized under panchnama(Exh.33). Statements of the persons acquainted with the facts andcircumstances of the case were recorded. All the seized articleswere sent to the Forensic Science Laboratory, Aurangabad, foranalysis and report. On completion of the investigation, chargesheet was filed against the appellant and his wife.4.The case was assigned to learned Addl. Sessions Judge,Kandhar (trial court) for trial in accordance with law. The trial courtframed Charge (Exh.10). The appellant and his wife Ranjana pleadednot guilty. Their defence was of false implication. To bring home theCharge, the prosecution examined eight witnesses and produced inevidence certain documents. The trial court, on appreciation of theevidence in the case, acquitted Ranjana. The appellant wasconvicted for the offence punishable under Section 302 of IndianPenal Code and therefore, sentenced, as stated above.5.Learned counsel appointed to represent the appellantwould submit that PW 1 – Meerabai was widow of deceasedPrabhakar. She was interested witness. The incident took place at a 4Cri Appeal No.995 of 2019public place. No independent witness was examined. There is greatvariance between the evidence of PW 1 – Meerabai and herdaughter, PW 6 – Bhagyashri. Ranjana, wife of the appellant, wasacquitted on the same evidence. PW 1 - Meerabai admitted thatRanjana had delivered a child just 10 days before the allegedincident. Same rules out Ranjana's presence at the crime scene.The mother of appellant and deceased too was not examined. Panchwitness to the seizure of clothes and the alleged disclosurestatement was from Kandhar. The distance between Daithana andKandhar was not less than 45 kms. The parental house of PW 1 -Meerabai was at Kandhar. As such, PW 7 (panch witness) therefore,was very much interested in the outcome of the case. No services oflocal person were availed. Learned counsel took us through theimpugned judgment and particularly, paragraph nos.13 to 15thereof, to indicate that the evidence of PW 6 - Bhagyashri was notrelied on. The trial court found the evidence of PW 1 – Meerabai andPW 6 – Bhagyashri to be little corroborative with each other. Learnedcounsel also brought to our notice the admission given by PW 1 –Meerabai that when she rushed to the crime-scene, she saw herhusband lying on concrete slab of roadside gutter. According tolearned counsel, there was no eye-witness to the incident. Shewould further submit that the trial court, based on such evidence, 5Cri Appeal No.995 of 2019ought to have acquitted the appellant as well, since on the sameevidence, his wife (Ranjana) was acquitted. She, therefore, urged forallowing of the appeal. 6.Learned APP would, on the other hand, submit it to be anopen and shut case. PW 2 – Gangaram was nephew of bothappellant and deceased. His evidence indicates that quarrel ensuedbetween the two. He identified the appellant by his voice. It washe, who rushed the appellant to the hospital in his auto-rickshaw.PW 1 – Meerabai’s evidence cannot be brushed aside. The appellantmade disclosure statement, pursuant to which the knife used incommission of the crime was recovered on his arrest. The bloodstained clothes on his person at the material time were seized. TheC.A. reports reinforce the prosecution case. He, therefore, urged fordismissal of the appeal.7.Considered the submissions advanced. Perused theevidence on record. Let us advert thereto and appreciate the same.8.The appellant and Prabhakar (deceased) were realbrothers. Seventeen Gunthas of land was standing in the name oftheir mother. Quarrel was said to have ensued between the two, 6Cri Appeal No.995 of 2019preceding the incident, at Shivaji Chowk, Daithana. The evidence onrecord indicates that the house of the deceased was in the nearby ofthe crime-scene. On hearing quarrel, PW 1 – Meerabai rushed to thecrime-scene.9.It is not in dispute that Prabhakar was seen lying on theconcrete slab at the roadside at Shivaji Chowk. PW 3 –Chandrakant, Medical Officer, conducted post mortem. It is in hisevidence that he noticed following injuries:- “01.Stab injury present over left lateral chest upperpart of 2nd intercostal space situated .5 cm behindanterior axillary live, obliquely placed with lowerangle posteriorly of size 4x2 cm. x cavity deepmargins clean cut reddish with both angles acute.Stab injuries directed medially, upwards andbackwards. Stab pierces through skin subcutaneoustissues, intercostal muscles, parietal pleura of leftlung, pierces through upper lobe of left lung throughlateral surface and coming out to superior surface,then pierces through parietal pleuro of left lung apex,then subclavian vessels. Entire wound track infiltratedwith blood and about 1.5 litre of liquid and clottedblood in left chest cavity.2.Stab injury present over left chest 9thintercostal region of sub-costal margins vertical withupper angle acute of size 2.9 cm x 1.2 cm x cavitydeep. Situated in mid claviculor line, margins cleancut reddish, it is directed backwards and medially. Itpierces through skin-subcutaneous tissue muscles ofchest wall anterior-intercostal mussel-parietal pleuraof left lung, left dome of diaphragm entering intoabdominal cavity-pieces through fundus of stomachand entering into stomach cavity, entire wound trackis infiltrated with blood. 7Cri Appeal No.995 of 20193.Contusion on left shoulder superiorly of size2cm x 1 cm oblique and reddish.4.Contusion on right shoulder posteriorly ofsize .5 x .3 cm. oblique and reddish.5.Abrasion on right side of back lower and midarea of size 6.8 cm. x 1.2 cm. oblique and reddish.All these injuries are ante-mortem.In his opinion, the deceased died of stab injury. Although it wassuggested by the defence that the deceased died due to fall on thebuilding material, like iron-rod etc., the crime-scene panchnamarules out the same. The Medical Officer (PW 3) being anindependent witness has no reason to opine the deceased to havedied of stab injury.10.The question is, whether the appellant is author of thecrime. PW 1 – Meerabai, widow of deceased Prabhakar, testified thatthere was dispute between her husband and the appellant overagricultural land. At the material time, she was present in her house.She heard noise of the quarrel between her husband and theappellant, emanating from Shivaji Chowk. She, therefore, rushed tothe place along with her daughter PW 6 – Bhagyashri. She claimedto have witnessed the appellant to have given knife blow to herhusband – Prabhakar. She started shouting. Persons from thenearby, gathered. She rushed her husband to the Public Health 8Cri Appeal No.995 of 2019Centre, Kandhar, for treatment. Then, she went to the police station.It was midnight. She lodged the FIR (Exh.16). During her cross-examination, she testified that it was 07.30 p.m., when the incidenttook place. Darkness had descended. She saw her husband lying onthe portion of concrete road at the spot. On either side of the road,there were outlets for passing drainage water. She gave vitaladmission that when she reached along with her daughter at thecrime-scene, she noticed her husband lying on the road. She,however, denied that the contents in the FIR were narrated by herbrother and she simply signed below the same. 11.PW 6 – Bhagyashri was daughter of deceased –Prabhakar and PW 1 – Meerabai. She was 16 years of age at therelevant time. It is in her evidence that she had accompanied hermother to Shivaji Chowk on hearing quarrel between her father andthe appellant. It is in her evidence that the appellant asked his wife(since acquitted) to hand over him a stick to assault the deceased.She, however, gave him knife. The appellant then gave 2-3 blowsthereof.12.True, there is great variance between the evidence ofPW 1 – Meerabai and PW 6 – Bhagyashri. Admittedly, the wife of the 9Cri Appeal No.995 of 2019appellant had delivered a child just ten days before the incident. Itwas suggested to PW 1 – Meerabai that she had been to her parentalhouse for delivery. Although she denied the same, on appreciation ofthe evidence in the case, the trial court acquitted the appellant’swife. Neither the State nor the legal representative of the deceased– Prabhakar preferred appeal against her acquittal.13.During cross-examination of PW 1 – Meerabai, it wassuggested to her as under:-“……. It is not true to say that after makingassault by knife on my husband accused leftthe knife on the spot………..”The aforesaid suggestion goes a long way to infer that the defenceAdvocate admitted the appellant to have assaulted the deceasedand then left the knife at the crime-scene itself. Such suggestionhas to be presumed to have given on instructions by the appellant.14.The evidence of PW 1 – Meerabai appears to be diceysince, in her examination-in-chief, she claimed to have witnessed theincident; while, in the cross-examination, she admitted to havereached the crime-scene and saw her husband lying on the road. 10Cri Appeal No.995 of 2019PW 2 – Gangaram was, admittedly, nephew of both appellant anddeceased. It is in his evidence that his grocery shop was at ShivajiChowk. There was dispute between the appellant and the deceased.He heard quarrel between both of them and therefore, rushed to thecrime-scene. He saw that the deceased to have blood stains on hisperson. The deceased was lying on the ground. He, therefore,rushed him to P.H.C., Kandhar, in his auto-rickshaw.In his cross-examination, nothing useful for the defence could be elicited. Hebeing nephew of both appellant and deceased, his evidence assumesgreater importance, although no independent witness was examined.He identified the assailant (appellant) based on his voice.15.PW 5 – Namdeo is witness to the inquest panchnama(Exh.36) and spot panchnama (Exh.37). He did not stand by theprosecution. PW 4 – Vidyadhar, police constable, had carried theseized articles, to the F.S.L., Aurangabad, on 10.09.2014.16.PW 7 - Jagannath was witness to the variouspanchnamas. The first panchnama (Exh.31) drawn on 05.09.2014,pertains to seizure of the blood stained clothes of the appellant. It isin his evidence that on the next day, i.e. on 06.09.2014 by 10.00a.m., the appellant made disclosure statement in his presence. The 11Cri Appeal No.995 of 2019appellant stated that the weapon used by him in commission of thecrime was concealed at one place and he would take out the same.The disclosure statement was recorded vide (Exh.32). He then tookthe police and the panchas to a place at Guttewadi Pati and then, toone field. He removed soil and took out a big knife. It was seizedunder panchnama (Exh.33). This witness is also panch to the seizureof the blood stained clothes on the person of the deceased.Panchnama to that effect is at Exh.34. In his cross-examination, he testified to have beenresident of Kandhar. PW 1 – Meerabai’s parental house is at Kandhar.Learned counsel for the appellant would, therefore, submit that hewas very much interested witness. Admittedly, the police stationwas at Kandhar. It was, therefore, but natural for the InvestigatingOfficer to avail services of a person who was resident of Kandhar.There is nothing further to indicate PW 7 – Jagannath to have anyinterest in the outcome of the prosecution.17.PW 8 – Angad did investigation of the crime. Hisevidence indicates that he drew crime-scene panchnama (Exh.37)and inquest panchnama (Exh.36) as well. He seized the clothes ofboth appellant and deceased. His evidence further indicates thatpursuant to the disclosure statement made by the appellant, the 12Cri Appeal No.995 of 2019knife was seized. He sent the seized articles to the F.S.L.,Aurangabad, through police constable.The C.A. reports (Exh.38 to41) indicate the blood group of the deceased was “AB”. Same wasnoticed on the seized dagger (knife). The clothes on the person ofthe appellant too were stained with blood. The CA reports reinforcethe prosecution case.18.Appreciation of the aforesaid evidence indicates that thequarrel between the appellant and his brother (deceased Prabhakar)took place at Shivaji Chowk on 04.09.2014 by 07.30 p.m. It wassuggested on behalf of the appellant that after having given knifeblow by him, the knife was left at the crime-scene itself. PW 2 –Gangaram, nephew of both appellant and the deceased, had hisgrocery shop at Shivaji Chowk. He heard quarrel between theappellant and deceased. He identified the appellant by his voice. He,therefore, rushed to the crime-scene. He rushed Prabhakar to theP.H.C., Kandhar, in his auto-rickshaw. The post mortem reportindicates that there were 2-3 stab injuries. The same indicates thatthe appellant had intended to eliminate his brother (Prabhakar).Non-filing of appeal against acquittal of wife of the appellant isinsignificant in the facts and circumstances of the case, since we donot propose to conclude PW 1 – Meerabai and her daughter PW 6 – 13Cri Appeal No.995 of 2019Bhagyashri to have witnessed the incident. PW 1 – Meerabai rushedthe crime-scene on hearing noise and then, she accompanied herhusband to the P.H.C., Kandhar. The FIR was lodged within hours ofthe incident.19.We found the trial court to have not committed any errorin convicting the appellant. We too find the evidence on recordproved the appellant to have committed murder of his brotherPrabhakar. We, therefore, do not see any reason to interfere with theorder of conviction and consequential sentence.20.In the result, the appeal fails. The same is dismissed.[NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.] KBP