High Court
Facts
APEAL-576-21.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 576 OF 2021Bablu @ Abdul Maheboobsab SayyedAge: 34 years, Occu.: Labour,R/o Malwati Road, Latur,Tq. & Dist. Latur..APPELLANTVERSUSState of MaharashtraThrough Police Inspector,Gandhi Chowk Police Station,Latur, Tq. & Dist. Latur..RESPONDENT....Mr. P.P. More, Advocate for appellantMrs. S.D. Ghayal, Addl.P.P. for respondent - State....CORAM : R.G. AVACHAT AND NEERAJ P. DHOTE, JJ.RESERVED ON : 13th FEBRUARY, 2025PRONOUNCED ON : 24th FEBRUARY, 2025JUDGMENT ( PER : R.G. AVACHAT, J. ) :1.The challenge in this appeal is to the judgment of conviction andorder of consequential sentence dated 21st September, 2021 passed by theCourt of Additional Sessions Judge-2, Latur (‘trial Court’) in Sessions Case,No. 65 of 2019. The appellant was the accused in the said case. He hasbeen convicted for the offence punishable under Section 302 of the IndianPenal Code (‘I.P.C.’), and therefore, sentenced to suffer imprisonment for lifeand to pay fine of Rs.10,000/- with default stipulation.2.The facts in brief, giving rise to the prosecution case, are asfollows :-1 / 13 APEAL-576-21.odtThe appellant is the resident of Latur. Lakhan (deceased) wasone of his friends. Lakhan was debaucherous. He had illicit relationship withthe wife of the appellant. In spite of having been reasoned with, Lakhancontinued to keep the relationship. The appellant, therefore, called him to hisworkplace by 03:00 p.m. on 12th April, 2019. Lakhan accordingly went to theappellant’s place. The appellant had already brought acidic liquid in one potand splashed it on the person of Lakhan. Their two more friends were there.Drops of the acidic liquid also fell on their person. Lakhan started runningaway. The appellant chased him and assaulted on his back and stomachwith the knife blows. The appellant then fled.3.Lakhan was rushed to Government Hospital, Latur. On thefollowing day he was shifted to Vivekanand Hospital. He, however breath hislat. Lakhan’s brother, PW 2 - Prashant lodged the First Information Report(‘F.I.R.’) (Exh.36) with Gandhi Chowk Police Station, Latur.4.A crime, vide C.R. No. 163 of 2019 was registered. The appellantwas arrested. Crime scene panchanama (Exh.27) was drawn. The containerof acidic liquid and other articles were seized from the crime scene. Inquestand autopsy were conducted before registration of crime itself. Clothes onthe person of both, the deceased and the appellant, were seized. The CCTVfootage available at the shop in the vicinity of the crime scene were obtained.Transcript thereof was prepared in the presence of panchas. Pursuant to thedisclosure statement made by the appellant, a knife came to be recovered.2 / 13
Legal Reasoning
APEAL-576-21.odt15.PW 2 - Prashant was not at or around the crime scene. He wasinformed by PW 3 - Rajendra. He, therefore, rushed to GovernmentHospital, Latur. On the next day i.e. 13th April, 2019, he shifted Lakhan toVivekanand Hospital, Latur. However, he died by 10:45 a.m. that day. Hethereafter lodged the F.I.R. (Exh.36).16.Since this witness is not an eye witness to the crime, his evidenceonly establishes the fact that the appellant and the deceased were friends.The appellant would suspect the deceased to have extra-marital relationshipwith his wife. Over the said issue, quarrel had ensued between the two. Theappellant had even assaulted Lakhan with a knife five days before theincident. In our view, since both were friends and worked out a consensus inmeeting, no police report of that incident was lodged.17.PW 3 – Rajendra was the maternal uncle of the deceased. Heclaimed to have had come to Latur from Killari on the fateful day andaccompanied the deceased to the place of the appellant. He testified that heremained by the side of one stationary auto-rickshaw. The appellantsplashed acidic liquid on the person of Lakhan. Sensing danger, Lakhanstarted running away. The appellant chased him and stabbed with knife. Heand two others rushed Lakhan to Government Hospital, Latur. He theninformed the matter to PW 2 – Prashant (informant) on cell phone.8 / 13 APEAL-576-21.odt18.Presence of this witness at the crime scene has been seriouslydoubted by the defence. Those, who were admittedly there viz. PW 4 –Manoj and Sameer, did not vouch for the presence of this witness. Lakhanhad suffered grievous bleeding injuries. This witness claimed to have rushedhim to the hospital in a small tempo (NksVk gkFkh). Still clothes on his person didnot get stained with the blood of the deceased. To top it, this witnessreturned to his village in the evening without informing the matter to police.The Investigating Officer recorded his statement 10/12 days after theincident. We, therefore, do not propose to rely on the evidence of thiswitness.19.The material witness in this case is PW 4 – Manoj. He tried to runwith hare and hunt with the hound. He testified that the incident took placeby 03:00 p.m. on 12th April, 2019 at Scrap Market, Latur. Lakhan had calledhim to Royal Garment. Shaikh Sameer was with him besides GausuddinShaikh. There was quarrel between the appellant and Lakhan. The appellantsplashed water like liquid on the person of Lakhan. Lakhan thereby startedrunning. He was followed by the appellant and Sameer. They crossed theroad. Lakhan suffered injury and he took him to the hospital. He furthertestified that drops of the said liquid also fell on his person. He, howeverdenied that the appellant was armed with a knife.Learned A.P.P., therefore, cross-examined him. He admitted thatwhen Lakhan was chased, Bablu (appellant) was armed with a knife. Hehimself suffered inflammation due to fall of the liquid on his person. When he9 / 13 APEAL-576-21.odtreached near Rehamat Steel, crowed had gathered. Lakhan was lying in apool of blood. He denied that Lakhan to have told him of having assaulted bythe appellant. He admitted to have rushed Lakhan to the hospital in hisvehicle.20.During cross-examination by the defence advocate, he testified tohave been illiterate. According to him, police had called him to the policestation repeatedly for 2-3 days only for the reason that he had rushed theinjured to the hospital without informing them. He admitted that Lakhan usedto sit in the office as Manager and his (PW 4 – Manoj) job was to delivergoods. He admitted that on the fateful day he had gone outside inconnection with delivery of goods. In the crowd, Sameer was the knownperson. A suggestion admitting him and Sameer to have rushed Lakhan tothe hospital was put to him. He further admitted that police had read overhim the statement while he was to give statement before the JudicialMagistrate. According to him, the deceased used to watch pornography oncell phone.21.In our view, the fate of this case is based on the evidence of thiswitness. His presence at the crime scene and then taking the injured to thehospital has been proved. He also testified that the appellant splashed acidicliquid on the person of Lakhan. Some drops thereof also fell on his person.Presence of this witness at the crime scene gets reinforced by his injurycertificate (Exh.64). PW 9 – Dr. Anuradha had examined him and Sammeron 14th April, 2019. Sameer’s injury certificate is at Exhibit 65. These injury10 / 13 APEAL-576-21.odtcertificates indicate both of them to have suffered burn injuries /inflammation. The nature of injuries were simple. The said medical officerwas suggested in his cross-examination that the injuries on the person ofboth of them were not totally healed when she examined them. The samereinforces the case of the prosecution that the burns suffered by them wereof recent past and that too by the time the appellant assaulted Lakhan.22.True, this witness testified that the appellant had called him to thepolice station 2-3 times. No such questions were put to the investigatingofficer. This witness was partially won over. The record indicates that hispolice statement was recorded immediately on the following day of theincident, necessarily on the day on which the F.I.R. was lodged.23.Testimony of this witness proves that a quarrel took placebetween the appellant and the deceased. The appellant splashed acidicliquid on the person of Lakhan. Some drops thereof fell on the person of himand Sameer. Both, he (PW 4 – Manoj) and Sameer suffered burns thereby.The appellant was armed with a knife. Admittedly, 4-5 days prior, a scufflehad occurred between the appellant and the deceased. There is consistentevidence as regards the appellant to have grudge against the deceasedsince he felt the deceased to have extra marital affair with his wife. He wasseen armed with a knife (PW 4 – Manoj). On proof of these facts, aninescapable conclusion is drawn that the appellant, and none else, assaultedthe deceased with the knife blows and immediately fled.11 / 13 APEAL-576-21.odt24.True, there is delay in lodging of the F.I.R. We, however do notfind the delay to have been misused to implicate the appellant sparing thereal culprit. No sooner PW 2 – Prashant informed of the incident, he rushedto the hospital. Since Lakhan’s condition was critical, he shifted him toVivekanand Hospital on the following morning, however Lakhan died by10:45 a.m. same day. Then postmortem, etc. followed. The case of theappellant that the real brother (Ram) of the deceased had killed Lakhan is afar fetched defence. The deceased was said to be debaucherous. It hascome on record that Ram was the real brother of Lakhan. Lakhan hadbrought Ram to Latur alongwith his wife. They were staying in one premises.Ram’s wife committed suicide by setting ablaze. There is, however nothingto indicate that she committed such act after Ram to have seen her incompromising position with Lakhan. The said alleged incident took placeway back in 2011, however present incident took place eight yearsthereafter.25.So far as CCTV footage is concerned, we discard the same sinceit was not played before the trial Court, nor the eye witnesses were calledupon to identify therefrom the appellant to have been seen assaultingLakhan. We also do not propose to rely on the evidence of PW 6 - Bharat,the vendor of the acidic liquid, since no test identification parade was held toidentify the appellant as the person to have been to his shop to buy suchliquid.12 / 13
Arguments
APEAL-576-21.odtAll the seized articles were submitted to R.F.S.L., Nanded. Statements ofthe persons acquainted with the facts and circumstances of the case wererecorded. Upon completion of investigation, the charge-sheet was filed.5.The trial Court framed the charge (Exh.11). The appellant pleadednot guilty. His defence was that the deceased was a womaniser. He hadeven illicit relationship with the wife of his real brother (Ram). When thebrother realised the same, his wife committed suicide by setting her ablaze.Therefore, he (Ram) and his associates committed Lakha’s murder.6.To bring home the charge, prosecution examined twelvewitnesses and produced in evidence certain documents. On appreciation ofthe evidence in the case, the trial Court passed the impugned judgment andorder. The appellant was acquitted of the offence under Section 326-A of theI.P.C. There is no appeal against his acquittal.7.Learned counsel for the appellant would submit that the F.I.R.(Exh.35) was lodged twenty-four hours after the incident. The samesuggests brother and relations of the deceased thought over the matter andfalsely implicated the appellant. The F.I.R. (Exh.35) lodged by the realbrother of the deceased was hit by hearsay. The informant was not an eyewitness. Statement of PW 3 - Rajendra, so called eye witness, was recorded10/12 days after the incident. He was maternal uncle of the deceased.Being a close relative, he allowed himself to be planted as an eye witness.3 / 13 APEAL-576-21.odtHis presence at the crime scene has not been made out from the evidence ofother witnesses. Had he really been at the crime scene and rushed Lakhanto the hospital, clothes on his person would have been stained with the bloodof Lakhan. Nothing of that sort had happened. Even the acidic liquid did notfall on his person. He even did not know the topography of the city of Latur.The same is evident from his cross-examination. On the evidence of anothereye witness, PW 4 – Manoj, learned counsel would submit that his statementwas recorded three days after the incident. The police had suspected hisrole in the crime. He was, therefore, detained by the police. His statement,therefore, could not be termed to be voluntarily made. This witness neithersupported the prosecution nor the defence. His evidence is, therefore, notreliable. There was no other corroborative evidence to rely on the evidenceof this witness. Another witness, PW 5 - Vinod too turned hostile. AlthoughPW 6 – Bharat testified that the appellant had purchased acidic liquid fromhim, the Investigating Officer did not conducted test identification parade.Although the CCTV footage were collected and transcript thereof wasprepared and referred to in the evidence by the Investigating Officer, it was inthe nature of secondary evidence. Neither Section 65-B certificate has beenproved, nor the CCTV footage was played before the trial Court. The CCTVfootage was not shown to the eye witnesses during the trial for identificationof the culprit. The CCTV footage, therefore, lost its efficacy.8.On the question of recovery of knife, learned counsel wouldsubmit that the place wherefrom it was seized, was an open and accessible4 / 13 APEAL-576-21.odtto all. The Investigating Officer had related the panchas that the appellantwas going to take out the knife. The alleged disclosure statement andrecovery of knife pursuant thereto, would therefore, not be relevant underSection 27 of the Evidence Act. The C.A. reports do not further theprosecution case. Learned counsel, therefore, urged for allowing the appeal.9.Learned Add.P.P. would, on the other hand, submit that theappellant had a strong motive to commit the offence in question. Headverted our attention to the postmortem report (Exh.56). An injury on thethigh of the deceased was caused by the appellant with a knife few daysbefore the incident. The said incident had specifically been admitted in otherwords by the appellant. The evidence of the informant, thus gets reinforced.On the question of delay in lodging of the F.I.R., learned Addl.P.P. wouldsubmit that the relations were engaged in securing best of the treatment toLakhan. He was shifted to two hospitals. It was only after his demise theF.I.R. came to be lodged, promptly. PW 3 - Rajendra was an eye witness tothe incident. Although his statement was recorded 10/12 days after theincident, this witness had gone to his village on the evening of the fateful day.No questions were put to the Investigating Officer in that regard. As such,the Investigating Officer lost the opportunity to explain the delay in recordingof his statement. Learned Addl.P.P. then strongly relied on the evidence ofPW 4 – Manoj. Although this witness had faultered in some respect, hisevidence has been corroborated by his own injury certificate (Exh.64) whichindicates that drops of the acidic liquid, splashed by the appellant, fell on his5 / 13 APEAL-576-21.odtperson. He suffered burns thereby. Same suggests PW 4 – Manoj was verymuch present at the crime scene. The appellant admitted him to have rushedLakhan to the hospital. Learned Addl.P.P. then adverted our attention to theC.A. report regarding the articles seized from the crime scene revealingabsence of the acidic substance thereon. He would further submit thatpursuant to the disclosure statement, a knife came to be seized at the behestof the appellant. Then he would further submit that the CCTV footage in theform of its transcript, prepared in the presence of the panchas, was producedin evidence. Reading thereof indicates the appellant was seen assaulting thedeceased. Learned Addl.P.P., therefore, urged for dismissal of the appellant.10.Considered the submissions advanced. Perused the judgmentimpugned herein and the evidence on record. Let us turn thereto andappreciate the same.11.Admittedly, Lakhan died of hemorrhagic shock due to stabinjuries. The postmortem report (Exh.56) proved by the evidence of PW 8 –Dr. Rishikesh indicates Lakhan to have had suffered ten injuries. Injury No.9was somewhat old. The fact that Lakhan met with homicidal death was notin dispute. The question is whether the appellant is the author of the crime.12.PW 1 – Vijaykumar is a witness to the crime scene panchanama(Exh.27). The crime spot is in the Scrap Market at Latur. Admittedly, in thatvicinity the appellant had his workplace. Exhibit 30 is the inquest, while6 / 13 APEAL-576-21.odtExhibit 31 is the panchanama regarding seizure of the clothes of thedeceased.13.PW 2 – Prashant was the younger brother of deceased – Lakhan.He testified that Lakhan was a Manager with Maharashtra-Andhra TransportCompany. His office was located at the Scrap Market, at Latur. Theappellant was his friend. Five days prior to the incident, the appellant hadassaulted Lakhan with a sickle. Lakhan thereby had suffered injury to histhigh. The reason for assault was the appellant suspecting Lakhan to haveextra-marital relationship with his wife. He further testified that a day afterthe said incident, he alongwith his mother and other relations held a meetingwith the appellant to reason with him. The appellant had assured that he willnot do Lakhan anything.14.It was suggested to him in the cross-examination that there wasscuffle between the appellant and the deceased 4-5 days before the incident.It was further suggested that Lakhan had suffered injury in the said scuffle.As such, the appellant impliedly admitted the incident of assault by theappellant on the deceased 4-5 days prior to the incident in question. Thesame is reinforced by injury no.9 noted in the postmortem report (Exh.56).Description of the said injury is “5 stitched healing wound on anterio-lateralaspect of lower 1/3 of left thigh, horizontally placed, 6 cm in length and is 9cm above knee joint. Well approximated, no oozing and no gaping, blackishin colour”.7 / 13
Decision
APEAL-576-21.odt26.No particular number of witnesses are required to prove a fact.We find the evidence of PW 4 – Manoj to be cogent and reliable, although hewas partially won over. His presence at the crime scene has been proved byhis injury certificate (Exh.64), since the acidic liquid splashed by the appellanton the person of Lakhan and drops thereof fell on the person of him andSameer as well.27.In view of above, we find the prosecution to have proved thecharge. In the result, appeal fails. Same stands dismissed accordingly.( NEERAJ P. DHOTE, J. )( R.G. AVACHAT, J. ) SSD13 / 13