High Court
Legal Reasoning
APEAL-526-21.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 526 OF 2021Rajesh @ Raju Babu Bhore (Bhangarwala)Age: 44 years, Occu.: Business,R/o Chikhalikala, Tq. Multai,Dist. Baitul (MP)At Present Vijay Nagar,In the house of Baban Rathod,Garkheda Area, Aurangabad..APPELLANTVERSUS1. State of Maharashtra Through Police Inspector, Mukundwadi Police Station, Aurangabad2. Nilofar Shaikh Sadik Age: 29 years, Occu.: Household, R/o Misarwadi/Aratinagar, House No.5 in Galli No.1, Aurangabad ..RESPONDENTS....Mr. S.S. Jadhav, Advocate for appellant (appointed)Mrs. S.N. Deshmukh, A.P.P. for respondent no.1 – StateMr. Darshan Sahuji, Advocate h/f Mr. Pramod Gaikwad, Advocate forrespondent no.2 (appointed)....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJRESERVED ON : 03rd SEPTEMBER, 2024PRONOUNCED ON : 30th SEPTEMBER, 2024JUDGMENT ( R.G. AVACHAT, J. ) :1.The appellant has been convicted for the offence punishableunder Section 302 of the Indian Penal Code, and therefore, sentenced tosuffer imprisonment for life and fine of Rs.20,000/- with default stipulation.He is, therefore, before us in this appeal.1 / 14 APEAL-526-21.odt2.The facts giving rise to the present appeal are as follows :-Shaikh Sadiq (deceased) was the elder brother of Shaikh Shahed(PW 1). Sadiq would run a garage (Sana Auto Garage) at Vijay Nagar,Garkheda Area, Aurangabad. The appellant would sit in front of the garageand harass women passing by the garage. Therefore, on 03rd October, 2016by 08:30 p.m., Sadiq had reasoned with him. The appellant thereafter wenthome and returned armed with a knife. He was accompanied by his wife.Sadiq, therefore, went towards him. Some talk took place between the two.The appellant assaulted on the ribs of Sadiq with the knife.3.It is also the case of prosecution that the deceased had called hisbrother – Shaikh Shahed (PW 1) before that. It appears that he (deceased)had thought that something amiss would happen. Naeem Painter and Altafwere also at the garage. They were the friends of the deceased.4.Sadiq was rushed to Ghati hospital. He was declared dead onadmission. Inquest (Exh.33) and postmortem examination took place on themortal remains of Sadiq. PW 1 – Shahed lodged the F.I.R. (Exh.26) atMukundwadi Police Station by 05:00 in the morning on 04th October, 2016,claiming therein the appellant to have killed his brother on account of thereason stated above.5.Crime, vide C.R. No. 278 of 2016 was registered. Crime scenepanchanama (Exh.40 & 41) was drawn twice. During drawing of the firstcrime scene panchanama (Exh.40), a bent knife was recovered from the2 / 14
Legal Reasoning
APEAL-526-21.odtcrime scene, besides some earth was taken charge of. The appellant wasarrested. He made a disclosure statement (Exh.42) pursuant to which a shirton his person at the material time came to be seized from his residence. Theshirt was stained with blood. All the articles were sent to R.F.S.L.,Aurangabad. Statements of the persons acquainted with the facts andcircumstances of the case were recorded. Upon completion of investigation,the charge-sheet came to be filed against the appellant.6.The Court of Additional Session, Aurangabad (‘trial Court’) framedthe charge (Exh.4). The appellant pleaded not guilty. His defence was offalse implication.7.To bring home the charge, prosecution examined eight witnessesand produced in evidence certain documents. On appreciation of the same,the trial Court passed the order impugned in this appeal.8.Learned counsel for the appellant would submit that the F.I.R.(Exh.26) was lodged about nine hours after the incident. The informant wasallegedly present at the crime scene. He did not explain the reason for delayin lodging of the F.I.R., either in the F.I.R. itself or in his evidence before thetrial Court. He was, therefore, nothing but a planted witness. Those two,who carried the deceased on motorbike to Ghati hospital, have not beenexamined. Clothes on their person must have been stained with blood of thedeceased. Those were not seized. The Medico-Legal Case (‘MLC’) report(Exh.65) is silent to state the name of the assailant. It records one Shaikh3 / 14 APEAL-526-21.odtSadiq Shaikh Sajjad was admitted to the hospital by one Shaikh MustafimShaikh Imam. He was not examined as a witness. The MLC further recordsthat the incident of fighting took place. The preliminary report of the crime(Exh.66) does not contain full name of the appellant. It only records nameas, “Raju Bhangarwala”. Learned counsel would further submit that bloodgroup of the appellant and the deceased was same. The police official, whocarried the seized articles to R.F.S.L., Aurangabad, has not been examined.The C.A. reports (Exh.82 to 85) would, therefore, not further the prosecutioncase. According to him, no explanation is offered for drawing second spotpanchanama.He would further submit that the Test Identification Parade (‘T.I.Parade’) was held two months after the arrest of the appellant. Theinvestigating officer did not take precautions to keep the appellant in veilwhile producing before the Court and taking back to jail. The samehappened in day time. The identification by PW 1 – Shahed of the appellantin the T.I. Parade, therefore, lost its efficacy. According to him, the otherwitness, who claimed to have seen the incident, was not summoned toidentify the appellant in the T.I. Parade. His evidence as to identification ofthe appellant before the Court for the first time would be of littleconsequence. Learned counsel ultimately urged for allowing the appeal.9.Learned A.P.P. would, on the other hand, submit that the case isbased on eye witness account. The F.I.R. (Exh.26) was lodged within hoursof the incident. On the crime scene itself the weapon of assault was found.4 / 14 APEAL-526-21.odtThe C.A. report (Exh.83) indicates it to be stained with blood. Since theevidence of the witnesses were recorded some days after the incident, minorinconsistencies therein was bound to occur. According to her, no witnesswas expected to have photographic memory. When the incident took placein the presence of family members and close relatives, they would alone bethe most natural witnesses. Their evidence cannot be discarded on theground that they were either interested or chance witnesses. Learned A.P.P.has, therefore, relied on the judgment of the Apex Court in case of ThotiManohar Vs. State of A.P., 2012 Cri.L.J. 3492. She then took us throughthe entire evidence on record to submit the offence to have been dulyproved. According to her, this Court has, therefore, no reason to interferewith the order impugned herein. She, therefore, urged for dismissal of theappeal.10.Considered the submissions advanced. Perused the evidence onrecord and the order impugned herein. Let us now advert thereto andappreciate the same.11.PW 8 – Dr. Ganesh conducted autopsy on the mortal remains ofSadiq. He noticed following injuries on the person of the deceased :-“1.Stab wound of size 1.7 cm. X 0.4 cm, cavity deep, ellipticalshared, obliquely placed, over the left side of chest, 3 cm medial toanterior axillary line and 6 cm below and left to left nipple, in intercostal space between 5th to 6th rib with fracture of 5th rib, and withacute angles on both sides. The margins are reddish, curved, clean-cutand regular with blood infiltration seen.5 / 14 APEAL-526-21.odtOn exploration : direction of wound from left to right and lateral tomedial and below upwards Track of wound - subcutaneous tissue - intercostal space between 5th to 6th rib - pleura - anterior border of lowerlobe of left lung - pericardium - anterio-lateral wall of left ventricle nearapex - left ventricular cavity.Track of wound is blood infiltrated.2.Incised wound of size 1 cm x 0.2 cm, tissue deep, obliquelyplaced, over abdomen, 10 cm above umbilicus and 2 cm left to midlineand with acute angles on both sides. The margins are reddish, curve,clear-cut and regular with blood infiltration seen.3.Stab wound of size 2 cm x 1 cm, muscle deep, elliptical shaped,obliquely placed, over postero-medial aspect of right forearm 12 cmabove wrist joint, with acute angles on both sides. The margins arereddish, curved, clean-cut and regular with blood infiltration seen.4.Stab wound of size 1.2 cm x 0.3 cm, muscle deep, ellipticalshaped, obliquely placed, over medial aspect of right forearm 12 cmbelow medial epicondyle, with acute angles on both side. The marginsare reddish, curved, clean-cut and regular with blood infiltration seen.5.Graze abrasion of size 8 cm x 7 cm present over dorsal aspect ofdistal 1/3rd of left foot and all toes, reddish.”In his opinion the deceased died of hemorrhagic shock due tostab injuries. The postmortem report under his signature is at Exhibit 80.General questions were put to him. It was suggested to him that all theinjuries suffered by the deceased were possible by fall on a sharp object. Tothis question the medical officer gave a nod.12.When there is an eye witness account suggesting the appellant tohave assaulted the deceased, we find him (deceased) to have met with ahomicidal death. Let us now turn to the other evidence on record.13.PW 1 – Shahed was the younger brother of the deceased. Hisevidence indicates that the deceased had made him a phone call by 08:30p.m. on 03rd October, 2016. He was at Shivajinagar rickshaw stand. The6 / 14
Decision
APEAL-526-21.odtdeceased had called him to his garage. He accordingly went there.According to him, Naeem Painter and Altaf Shaikh were present at thegarage. On his query, the deceased asked him to wait. During his interactionwith Naeem Painter and Altaf Shaikh he learnt that one Raju Bhangarwala(appellant) used to tease and harass the people including women passing bythe garage. The deceased had, therefore, reasoned with him. The appellantwas thereafter sent home.Evidence of PW 1 further indicates that the appellant alongwithhis wife was seen coming towards the garage. Sadiq, therefore, wenttowards them. Some talk took place between the appellant and thedeceased. In a while, the deceased raised shouts. He, Naeem and Altaf,therefore, rushed to Sadiq. He saw the appellant was armed with a knife. Itwas found that he had stabbed the deceased. As a result, the deceased hadfallen down. He (PW 1 – Shahed) snatched the knife from the appellant andbend it to avoid further assault. He then threw the knife on the spot. He thenwent to bring the auto-rickshaw. In the meanwhile, Naeem and Altaf tookSadiq to Ghati hospital on their motorbike. He followed them in an auto-rickshaw. The doctor declared Sadiq dead on admission. He thenapproached the police station and lodged the F.I.R. (Exh.26).14.During his cross-examination it has been brought on record thathe had no occasion to meet the appellant prior to the incident. The samesuggests the defence advocate impliedly admit the appellant to have been atthe crime scene and met the appellant. He (PW 1 – Shahed) was not in the7 / 14 APEAL-526-21.odtknow of the appellant. On his reaching to the garage, Sadiq simply askedhim to wait. No further talk between the two took place. Then distancebetween Jawahar Nagar Police Station, Mukundwadi Police Station from thescene of offence was brought on record. It has also been brought on recordthat Kranti Chowk Police Station is on the way to Ghati hospital. He admittedthat a police chowki was there in the premises of Ghati hospital. True, thesame suggests PW 1 – Shahed to have not approached either these policestations or the police chowki in the premises of Ghati hospital, no sooner hereached Ghati hospital. In our view, it was his first priority to see his brotheris extended the medical treatment to save his life. It has also been broughton record that the shops in the nearby of the garage were closed. Lights ofthe shops were also off. His evidence further indicates that street lights wereglowing.15.A vital suggestion was given to PW 1 – Shahed in the followingform :-“It is correct that only on hearing the shouts of the deceased Ilearnt that something happened.”The same undoubtedly goes a long way to infer PW 1 – Shahedwas present nearby the crime scene. Postmortem examination took place inthe morning. Till receiving the dead body, he was there. Last rites wereperformed five hours after receipt of the dead body. Until then he was busyin those rituals. He did not relate the incident to anyone, except to hisrelatives and friends. He admitted that Naeem Painter and Altaf Shaikh were8 / 14 APEAL-526-21.odthis friends. It has been brought on record in his cross-examination that untillodging of the F.I.R., he was only knowing the name of the appellant as ‘RajuBhangarwala’. He did not know his full name. Close reading of the entireevidence on record and police papers would indicate the appellant to havenever denied to have been known as ‘Raju Bhangarwala’. In the charge(Exh.4) itself in the bracket he has been named as ‘Bhangarwala’. The name‘Rajesh @ Raju’ has also been mentioned in the charge. The plea of notguilty of charge (Exh.5) bears his name as ‘Rajesh @ Raju s/o Babu Bhoire(Bhangarwala)’. Had the appellant really not been known as ‘Bhangarwala’,he would have objected to record the same. Accordingly, he came to knowthe name of the appellant from his friends. PW 1 – Shahed denied to havehad seen the appellant post his arrest in the police station and before he wasbrought to the Court for remand. He denied the photographs of the appellantwas published in the daily. He denied to have been to the police stationbefore leaving for participating in the T.I. Parade. According to him, thosewho carried the deceased on motorbike, must have clothes on their personbeen stained with blood of the deceased. He denied to have not witnessedthe incident in question.16.PW 2 – Mustkin is a witness to the inquest panchanama (Exh.33).It was drawn by 08:00 in the morning on 04th October, 2016. The dead bodywas identified by PW 1 – Shahed. It has been recorded in column no.16 thatthe deceased was assaulted with a knife and died of the injuries sufferedthereby. True, the name of the appellant does not figure therein. We do not9 / 14 APEAL-526-21.odtfind it necessary to have name of the suspect mentioned in the inquestpanchanama. There is column no.10 regarding how the deceased sufferedinjuries. It has been mentioned therein that ^^vkjksihus ekjgk.k dsY;kus**. Crimewas registered little past 05:00 in the morning.17.PW 3 – Ajij was a witness to multiple panchanamas. First one iscrime scene panchanama (Exh.40) drawn in his presence. It is in hisevidence that a bent knife was found at the crime scene. The police seizedthe same alongwith some soil from the crime scene. He was a panchwitness to second crime scene panchanama (Exh.41) (does not know as towhy it was drawn again).He is a witness to another panchanama (Exh.42). His evidenceindicates that at Mukundwadi Police Station one person was in the custody ofpolice. He told his name as ‘Rajesh Bhangarwala’. He identified him in theCourt. He made a statement that he would take out the clothes which wereon his person by the time of the incident. His statement was recorded(Exh.42). He then took the panchas and the police to his residence and tookout a shirt from below the cot. It was seized under panchanama (Exh.43).He admitted that articles seized from the crime scene and from the house ofthe appellant were not sealed by using seal or wax.18.First crime scene panchanama (Exh.40) was drawn from 06:50a.m. to 07:30 a.m. on 04th October, 2016, while the second (Exh.41) wasdrawn little past 04:00 p.m. on 05th October, 2016. True, the alleged10 / 14 APEAL-526-21.odtdisclosure statement (Exh. 42) made by the appellant and recovery of theblood stained shirt under panchanama (Exh.43) indicate that the appellantmade a statement at Pundaliknagar Police Station, while according to PW 3– Ajij, the disclosure statement was recorded at Mukundwadi Police Station.For more than one reason we propose to discard the alleged disclosurestatement made by the appellant and the recovery of a blood stained shirt. Areference to the other reason would be made a little later.19.PW 4 – Syed Naeem was another eye witness to the incident. Hisevidence discloses that he was present at the garage of Sadiq (deceased) atVijay Nagar. His friend Altaf had come there. There was one shutter inclosed condition. One person was sitting there (he meant to say theappellant). He was teasing women who were passing by the garage. Sadiqhad asked that person not to be there. He, therefore, started abusing Sadiq.Then he picked up two stones. Altaf then went near to that person andconvinced him. He again started abusing Sadiq and said he would teach himlesson. He thereafter left that place. Thereafter PW 1 – Shahed came there.After that the said person came back alongwith one lady. Sadiq (deceased)went closer to convince them. He (PW 4 – Naeem) heard cries of Sadiq.He, Altaf and Shahed, therefore rushed towards Sadiq. The said person wasarmed with a knife. Sadiq had received blows on his ribs with the knife. Hehad fallen on the ground. PW 1 - Shahed took out the knife and bend it.According to him, Shahed and Altaf took Sadiq to Ghati hospital on themotorbike. He identified the appellant before the Court as the said person,11 / 14 APEAL-526-21.odtwho assaulted Sadiq with knife. According to him, there was light of publiclamp post.20.This witness was subjected to a searching cross-examination.True, there is some inconsistency between his evidence and evidence of PW1 – Shahed. According to this witness, it was PW 1 – Shahed and Altaf, whotook Sadiq to Ghati hospital on motorbike. While PW 1 – Shahed testifiedthat Altaf and Sameer took Sadiq to Ghati hospital on motorbike. In our view,this inconsistency is the result on account of evidence to have been recordedafter little over one and half year of the incident. He admitted to have hadgood relations with Sadiq. The same was, however missing in this policestatement. We, however do not find it to be a material omission. Hisfriendship with the deceased is writ large, based on the evidence of the factthat he was present at Sadiq’s garage. He denied to have not seen theincident. According to him, the other shops in the nearby were closed. Hecould not tell what talk took place between Sadiq and the appellant. Only onhearing shouts of Sadiq, he realised something to have happened. It hasfurther been brought on record that when he rushed to the spot, Sadiq hadsuffered injury. He admitted to have not been to the police station. Heclaimed to have lifted Sadiq when he was in injured condition. He deniedthat clothes on his person were stained with blood.21.Again a vital piece of evidence that goes against the appellant hasbeen brought on record during cross-examination of this witness, which12 / 14 APEAL-526-21.odtreads as under :-“After the incident, I did saw the accused for the first time today in the court.”The same suggests implied admission that this witness had seenthe appellant at the time of the incident and thereafter before the Court onlywhen he gave his evidence. True, this witness was not summoned to identifythe appellant in the T.I. Parade.22.PW 5 – Meena was the Nayab Tahasildar-cum-ExecutiveMagistrate. She held T.I. Parade two months after the incident. TheInvestigating Officer admitted in his evidence that the appellant was not keptin veil until T.I. Parade was held. The appellant was removed from jail to theCourt and back and even to other places during day time. We, therefore, donot propose to rely on the evidence in respect of the T.I. Parade. Needlessto mention, the T.I. Parade is not the substantive piece of evidence. It is onlyin aid for the prosecution to further its investigation. We also do not proposeto rely on the C.A. reports relating to the seized articles viz. knife and shirt onthe person of the appellant at the relevant time, since those were not seizedwith seal and wax when taken charge of. The crime was investigated by twopolice officials. The subsequent investigating officer admitted that thosearticles were in the custody of the first investigating officer (PW 6) until hetook over the investigation. Moreover, the blood group of both, the appellantand the deceased, was found to be common.13 / 14 APEAL-526-21.odt23.The fact, however remains that the evidence of PW 1 and PW 4,whose presence at the crime scene has been admitted by the defence duringtheir cross-examination, lead us to conclude that it was the appellant andnone else, who committed murder of Sadiq. Although these witnesses werenot knowing name of the appellant. After all, what is in the name, whenperson was the same. He even did not deny he was Rajesh @ RajuBhangarwala. He was seen assaulting the deceased and later on identifiedin a substantive evidence by PW 1 and PW 4 before the Court duringrecording of their evidence. In spite of the T.I. Parade to have beendiscarded by us, it is reported that the evidence of PW 1 and PW 4 broughthome the charge. The trial Court had, therefore, rightly convicted theappellant. We find no reason to interfere with the impugned order ofconviction and consequential sentence. The appeal, therefore, fails.24.Before parting with this judgment, we acknowledge the ableassistance given by Mr. Satej S. Jadhav, learned counsel, appointed torepresent the appellant.25.In the result, criminal appeal is dismissed.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD14 / 14