Criminal Appeal No. 667 of 2016 · The High Court
Case Details
2024:BHC-AUG:27811-DB Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.667 OF 2016Abdul Sayed s/o Abdul KarimAge 29 years, Occu. Driver,R/o Bazar Chowk, Behind Police Station,Himayat Nagar, Taluka Himayat Nagbar,District Nanded(At present the appellant is in Nanded District Prison, NandedTaluka and District : Nanded)… APPELLANT(Orig. Accused No.2)VERSUS1)The State of Maharashtrathrough the Police Station,Himayatnagar, Tq. Himayatnagar,District Nanded.(Notice to the respondent to be servedthrough the Public Prosecutor, High Court of Bombay, Bench at Aurangabad)2)Raju @ Rajiv s/o Vishwanath Hanwate,Age 36 years, Occu. Not known,R/o Ambedkar Chowk, Himayatnagar,Tq. Himayatnagar, Dist. Nanded … RESPONDENTS.......Mr. Rajendra Deshmukh, Senior Advocate with Mr. Vishal Chavan & D.R. Deshmukh, Advocate for appellant Mrs. Dr. Kalpalata Patil Bharaswadkar, A.P.P. for R.No.1. Mr. A.D. Soman, Advocate for R.No.2 (appointed)....… Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 2 ::WITHCRIMINAL APPEAL NO.113 OF 2017The State of Maharashtrathrough Police Station, Himayatnagar,Tq. Himayatnagar, District Nanded.…APPELLANTVERSUS[1)Abdul Karim Abdul Wahed,Age 65 years, Occu. Business.]2)Abdul Sayed Abdul Karim,Age 26 years, Occ. Driver.[3)Abdul Riyaz Abdul Karim,Age 31 years, Occu. Business,][4)Abdul Wahed Abdul Karim,Age 30 years, Occu. Driver.]5)Abdul Wajid Abdul Karim,Age 35 years, Occu. Business.[6)Abdul Javed Abdul Karim,Age 24 years, Occ. Business.]7)Abdul Salim Abdul Karim,Age 42 years, Occ. Business[8)Abdul Imran @ Ibrahim @ ImmuAbdul Bari, Age 19 years,Occu. Education. ][9)Abdul Baki Abdul Karim,Age 38 years, Occu. Business.]All R/o Himayatnagar,Tq. Himayatnagar, Dist. Nanded.
Legal Reasoning
Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 13 ::month before the incident, she had requested original accusedNo.1 to allow her to shift the shop to her newly constructedpremises. He and all other family members were opposed tothe same. The same indicates that, there was some tacitunderstanding between Nirmalabai and the appellant andother family members. There is no evidence to indicate thatNirmalabai had taken the premises of the appellant on rent.Desire of Nirmalabai to quit the premises must have beentaken as a happy moment for the appellant and his familymembers since without going for eviction suit they would havegot vacant possession of the premises occupied by her. Therecitals of Exh.75 and the evidence of P.W.5 Baban indicatesor lead us to infer that though the licence was held byNirmalabai, the shop was run by the appellant and his familymembers. Allowing her to shift the shop to her own premisesand operate therefrom was necessarily a financial loss to theappellant and his family. In our view, therefore, this is a motivebehind the crime.15.P.W.1 Raju testified that, one month before theincident, Nirmalabai had informed original accused No.1 that Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 14 ::she wanted to shift the fair price shop to her newly constructedpremises. A dispute thereafter arose between both of them.He further deposed that, prior to 15/10/2012, Nirmalabaideposited the amount by Challan towards price of foodgrainsto be distributed to the cardholders. On 15 October, he alongwith his cousin brother Satish, friend Sk. Jabi accompaniedNirmalabai to the Government godown. The Godown Keepermade an entry to that effect in the record. Meantime, originalaccused No.1 and accused No.9 came there on motorcycle.After having realised Nirmalabai was about to take away thefoodgrains to her own premises, they picked up quarrel withher. Meanwhile, other accused namely Javed, Wajed andImran came there in a Scorpio. She was manhandled, abusedand assaulted as well. She was given a threat to her life.True, the evidence that the original accused gave threat to herlife was an improvement over his F.I.R. and the report of theincident lodged by Nirmalabai. His evidence further disclosedthat they directly went to the Police Station from the godown.The Police Officer Meshram was present. He was reluctant torecord the report. Therefore, they telephoned one social Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 15 ::worker, namely Subhash Darwande. He came to the PoliceStation. Thereafter it was P.W.7 Anandsingh Chavan, whorecorded the report lodged by Nirmalabai. The report is atExh.75. It has been admitted in evidence. The gist of the saidreport pertain to the incident that took place at the GovernmentGodown by 1.00 p.m. on 15/10/2012. True, P.W.2 Gautamgave admission that after discussion, a report was lodged. Wefind nothing wrong therein. Since the incident took place at theGovernment Godown and deceased Nirmalabai being a lady,it was but natural for her to discuss amongst the persons whowere with her at the time of the incident and lodged the report.It was in fact not treated as F.I.R. A station diary entry(Exh.167) thereof was made. 16.The aforesaid evidence of P.W.1 Raju and Exh.7gets corroborated by the evidence of P.W.7 AnandsinghChavan, we do not propose to reproduce his evidence in toto.Suffice it to say, his examination-in-chief is consistent with theevidence of P.W.1 Raju and the contents of Exh.75. Asregards the incident that took place at the GovernmentGodown, P.W.7’s evidence indicates that, he, therefore, went Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 16 ::to the house of original accused No.1. His sons had gone toNanded. The office of Executive Magistrate was closed. Hemeant to say that, he wanted to initiate chapter case. Sinceother male members were not there, he prepared notice underSection149 of the Cr.P.C. and served it on original accusedNo.1. The said notice finds place at Exh.165.17.The aforesaid evidence further gets reinforced bythe evidence of P.W.6 Hanuman Meshram, who testified that,Nirmalabai and other had come to the Police Station at therelevant time on 15 October and lodged report (Exh.75). Weare conscious of the fact that it is the quality of the evidenceand not plurality thereof that matters. The fact is, however,that, all the aforesaid witnesses are consistent with the incidentthat took place at the Government Godown. There is onemore witness in that regard. He is none other than a GodownKeeper, P.W.5 Baban. He testified that, on 15 October,Nirmalabai visited the godown by 12.00 noon. One Raju wasin her company besides two other persons. He producedpermit and recorded the quantity of grains which she wanted tolift/ take. He went on to testify that, in the meanwhile, original Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 17 ::accused No.1 Abdul Karim came there. He informed her thattill that time he was managing the business from his house andhow she could take the grains from the godown to her ownhouse. He said her, “You have become too smart”, exchangeof words took place between the two. P.W.5 Baban went on tostate that, he then went into the godown to attend to otherlicence holders. On his return, he was told by Nirmalabai thatAbdul Karim assaulted her with kicks and fist blows. She wasasking others to accompany her to the Police Station forlodging the complaint. She and others then left the godown.18.P.W.5 Baban is an independent witness. From hisevidence and from the evidence referred to hereinabove, thefact that Nirmalabai had been to the godown by 12.00 noon on15 October to fetch the foodgrains had been duly proved.Abdul Karim and others came there. They manhandled,abused and even beat up, has also been reinforced by theevidence of P.W.1 Raju and P.W.5 Baban, and the contents ofExh.75, which is under signature of deceased Nirmalabai.This incident is a prelude to the main offence. Exh.75 wouldbe admissible in evidence under Section 32(1) of the Evidence Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 18 ::Act, i.e. when the statement is made by a person as to thecause of his death, or as to any of the circumstances of thetransaction which resulted in his death, in cases in which thecause of that person’s death comes into question. 19. The evidence of P.W.1 Raju further disclosed that,on the same day, after a while, the Godown Keeper madethem a call and asked them to take away the foodgrains thesame day. He was, however, informed that no vehicle wasavailable and they would be visiting the Godown tomorrow i.e.on the next day. He asked them to come by 12.00 noon andtake away the foodgrains.20.In view of the incident that took place at thegodown on 15 October, it was but natural for Nirmalabai andP.W.1 Raju to first go to the Police Station and seek policeprotection to fetch the foodgrains. P.W.1 Raju testified that, heaccompanied Nirmalabai to the Police Station. He telephonedhis two friends to come to the Police Station. They requestedP.W.7 Chavan to accompany them to the Godown so that theycould fetch foodgrains and carry the same safe. On return, Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 19 ::P.W.7 Chavan told him that he had been to the house oforiginal accused No.1 and even godown as well. He toldaccused No.1 had assured him that he would not create anyhurdle to allow Nirmalabai to fetch foodgrains. He, therefore,did not accompany them.21.P.W.7 Chavan testified on the same lines. Hisevidence indicate that, up to 10.30 a.m., Nirmalabai, P.W.1Raju and others two were at the Police Station. During theirpresence, he had received a phone call of accused No.1.Accused No.1 realised presence of the trio at the PoliceStation. P.W.7 Chavan even informed original accused No.1that Nirmalabai left the Police Station for godown. Thisindicates the appellant and others, if any, got inkling thatNirmalabai was proceeding to the godown to fetch foodgrains.Admittedly, P.W.7 Chavan and another Police Officer wereplaced under suspension for having not assisted Nirmalabai inthe matter. According to him, one Sandeep Palshikar wasapproached and he had given assurance to giveunderstanding to appellant and his family members. Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 20 ::22.As such, the evidence so far referred to aboveundoubtedly indicate that, on the previous day i.e. on 15October 2012, some of the original accused had abused andmanhandled Nirmalabai at the godown. She, therefore, wentto the Police Station and lodged the report (Exh.75). Shewanted to run the fair price shop on her own in her newlyconstructed premises. It was not necessary for theinvestigating officer to find whether she has any amplepremises to run the shop. The reason therefor was, she was alicence holder, entitled to run the shop from whatever premisesshe would be pleased to. The evidence further disclosed that,by little past 10.30, Nirmalabai, P.W.1 Raju, P.W.2 Gautam andone another left the Police Station for godown. They wereproceeding on foot. There is presumption under Section 114(f)that the common course of business has been followed inparticular case. 23.The aforesaid evidence indicates that, Nirmalabaialong with P.W.1 Raju and P.W.2 Gautam and two othersproceeded towards godown on foot. The appellant’s family Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 21 ::members had come to know the same from P.W.7 Chavan.While they were on their way to godown, a red colour tractorcame from opposite side. It left its right track. It was taken tothe wrong side. It knocked down Nirmalabai. She thereby fellin a ditch. From the evidence referred to hereinabove, it isamply proved that, P.W.1 Raju was in the company ofNirmalabai that time. He testified that the respondents weresitting on the tractor by the side of the appellant, who was atthe wheel of the tractor and knocked down Nirmalabai. Hefurther testified that, other acquitted accused came there onmotorbikes and Scorpio and all of them lifted Nirmalabai andthrown her on the road. This piece of evidence of P.W.1 Raju isexaggerated one. In India, the principle “falsus in uno falsus inomnibus” is not applicable. We are also conscious of the factthat, now-a-days a tendency is there that when two or threemembers of the family are involved, one or two are addedthereto to teach the family a lesson. We have, therefore, to siftthe grain from the chaff. While the respondents No.2 and 3were sitting by the side of the appellant, it cannot be presumedthat they had shared common intention or were aware that the Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 22 ::appellant was going to knock down Nirmalabai with a dash ofa tractor. Both of them, therefore, cannot be said to haveshared common intention with the appellant. It is true that, theC.A. reports (Exhs.62 and 63) indicate the blood group of thedeceased was “B”. This blood group was ascertained from theclothes on her person at the time of the incident. There is nochallenge thereto. The evidence of P.W.1 Raju gets reinforcedthat these respondents lifted Nirmalabai from the ditch. He(P.W.1) lied that the other respondents and these two thrownNirmalabai on the road, in the F.I.R. he has stated that theykept/ placed Nirmalabai at the road side. There is a vastdifference between placing a person at the road side andthrowing her away. This is a material omission amounting tocontradiction. The same indicates that P.W.1 Raju also wantedto implicate the two respondents in the crime in question.What has been stated by him in the F.I.R. is to be relied on andhis evidence and the evidence of P.W.2 Gautam that therespondents and others, after picking Nirmalabai from theditch, threw her on the road has to be discarded. The act ofthe respondents placing Nirmalabai by the road side can in no Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 23 ::way be termed to be an incriminating act. Had they reallyintended to kill her, they would have assaulted her while shewas in the ditch itself. The finding of blood of the blood groupof the deceased on the clothes of the respondents is due totheir act of lifting the deceased from the ditch and placing herat the road side. That cannot be taken as an incriminatingcircumstance.24.Both P.W.1 Raju and P.W.2 Gautam testified in onevoice that the appellant took the tractor reverse and ran theback side wheel of the tractor over the head of the deceasedtwice. The evidence of P.W.1 Raju indicates that the tractordid not bear the number plate.25.P.W.2 Gautam testified consistent with theevidence of P.W.1 Raju. According to him, he was summonedby P.W.1 to the Police Station. He, therefore, went there andthereafter accompanied them for proceeding towards godown.According to him, after the incident, he left the place. Thelearned Senior Advocate took exception to the conduct ofP.W.2 Gautam. According to him, had he really been there, he Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 24 ::ought to have continued to be there and reported the policefrom his cell phone. It is only in the evening he went to thePolice Station in response to the police call and gave astatement. The learned Senior Advocate meant to say thatP.W.2’s presence at the crime scene was doubtful. We are notin agreement with the learned Senior Advocate. P.W.1 Rajuwas all along consistent about having called his friendsincluding P.W.2. His presence at the police station was madeout by P.W.7 Constable Chavan. It was but natural for themthat while proceeding, P.W.2 Gautam was following P.W.1 Rajuand Nirmalabai. According to P.W.2 Gautam, he and anotherwere following Nirmalabai and P.W.1 Raju. The gap betweenthem was not more than 25 ft. It was but natural that motherand son duo would be together while others were strangers tothe mother, would necessarily keep themselves behind. 26.Had P.W.1 Raju really not witnessed the incident,he could not have narrated in the F.I.R. the colour of the tractorand the fact that the tractor did not bear the number plate. Heeven could not have stated that the respondents lifted her fromthe ditch. His presence at the crime scene is thus made out. In Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 25 ::response to his phone call, police arrived at the crime scene.Learned Senior Advocate heavily relies on the informationgiven by P.W.1 Raju on phone. A station diary entry to thateffect finds place at Exh.168, which reads thus : " ययववळळरयजजववशवनयथहयनवतवयययचयफफनआलयकक मयझययआतययलयटटकरनवउडववलवआहववतळमरनपडलळआहव. अशळमयवहतळवमळयलळ. सदरमयवहतळवमळतयच आमहळPC 487 यययनयफफनलयवजनकळववलवव घटनयसथळकडवजयणययससययवगतलवमहणजनननद.” 27.The station diary entry regarding Nirmalabai’spresence at the police station to seek help finds place atExh.167. The learned Senior Advocate wanted to make muchcapital of Exh.168, wherein P.W.1 Raju appears to havereported that he learnt his aunt (adoptive mother) had beenknocked down by a tractor. The learned Senior Advocatestresses on the line that P.W.1 Raju informed the police tohave learnt about the incident. Our attention to the cross-examination of P.W.1 Raju in that regard was also drawn, whotoo testified that P.W.1 Raju accordingly informed the police.The same suggests P.W.2’s presence with P.W.1 Raju.Immediately after this stray admission, both the witnesses hadcategorically denied that they were not in the company of Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 26 ::Nirmalabai to proceed towards the godown. We have alreadyobserved above that, Nirmalabai was unmarried lady. P.W.1Raju used to be with her all along to assist her. His presenceat the Police Station about half an hour before the incident hasalready been made out by the evidence of P.W.7 Chavan. Hisevidence further indicates that, Nirmalabai, P.W.1 Raju andother two unknown persons left the Police Station for godownand thereafter within 15 minutes the incident took place. BothP.W.1 Raju and P.W.2 Gautam immediately thereafter deniedto have not seen the incident and they were giving falseevidence. At the cost of repetition, it is stated that, had P.W.1Raju not witnessed the incident, he could not have reported inthe F.I.R. the colour of the tractor. The fact that it wasunnumbered, the further fact that the respondents liftedNirmalabai from the ditch. In response to his phone call, oneP.C. rushed to the crime scene and took him to the PoliceStation. Necessarily, on the suggestion of the defence itself,half an hour was spent in recording the F.I.R. The F.I.R. isregistered by 12.00 noon i.e. within an hour of the incident. Allthese facts go long way to indicate that P.W.1 Raju and P.W.2 Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 27 ::Gautam did not part company of Nirmalabai. After they left thePolice Station, their presence with her has to be assumed inview of the previous day’s incident and proved as well.28.The incident cannot be said to be an accident likehit and run. The crime scene panchanama (Exh.113) indicatesthe tyre marks. The panchanama has not been takenexception to. The tractor was seized from the house of theappellant and his family members within three hours afterregistration of the crime. The seizure panchanama (Exh.115)indicates that it was a red colour tractor bearing no numberplate. The panchanama indicates that the rear right side wheelhad blood on it. The investigating officer (P.W.10) cut the tyreand took the piece stained with blood. It was sent to FSL. TheC.A. report (Exh.62) indicates the tyre of the tractor wasstained with human blood. All these facts go a long way toindicate that the tractor involved in this crime was none otherthan which was seized by the investigating officer. Admittedly,the family of the appellant owns the tractor. Pending trial, theytook the custody of the tractor on supratnama. The AssistantMotor Vehicle Inspector Goraknath Kolhe (P.W.9) was Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 28 ::examined. His evidence indicates that he examined thevehicle to find no mechanical defect with it. This fact furtherreinforces that it was not an accident but intentional runningover the tractor on the head of Nirmalabai.29.We need not refer to the evidence of otherwitnesses since the same were not referred during thesubmissions made by learned Advocates. It is true that, cross-examination of both P.W.1 Raju and P.W.2 Gautam indicatesthat they have made a lot of improvements in theirexamination-in-chief, number of paragraphs have beenadverted to. We are in agreement with the learned Advocatethat both the witnesses have stated much more over andabove their F.I.R. and police statements. We have closelyperused the same. We do not propose to reproduce the same.It is the part of record. If we propose to reproduce the same inthe judgment, it would become very bulky. Thoseimprovements in no way could be termed to be materialomissions amounting to contradictions so as to disbelieve theirevidence. Whatever material omissions were there, havealready been referred to hereinabove. F.I.R. is not an Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 29 ::encyclopaedia.30.In short, appreciation of the evidence referred tohereinabove lead us to conclude that Nirmalabai was holding alicence to run a fair price shop. The fair price shop was beingrun from the premises of the appellant and his familymembers. The premises was not taken on rent. The evidenceon record indicates that the shop was being run by theappellant and his family members for not less than 5 years.Necessarily Nirmalabai was given a lumpsum amount inconsideration thereof. A month before she breathed her last,she had expressed her desire to original accused No.1 thatshe wanted to run the shop from her own premises, meaningthereby she wished to run the shop on her own. P.W.1 Rajuwas taken in adoption by her. He would reside with her. Thesame suggests that, both of them were going to operate theshop from Nirmalabai’s premises. On the given day, she hadbeen to the godown to fetch foodgrains. The evidence ofGodown Keeper vouch for the same. That time, originalaccused No.1 and others opposed her, abused and even beather up. She had, therefore, no option but to approach the Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 30 ::Police Station. She lodged the report of the said incident videExh.75. As per the understanding between Nirmalabai and theGodown Keeper, the foodgrains were to be fetched on thefollowing day. In view of the previous day’s incident, she wasapprehensive that the appellant and his family members wouldcome to the Godown and restrain her from fetching thefoodgrains. Her fear turned out to be true. With a view tosecure police help for fetching foodgrains, she along withP.W.1 Raju and P.W.2 Gautam went to the Police Station first.P.W.7 Chavan, Head Constable dealt them with. During thatinteraction, he had received phone call of accused No.1. Heinformed him that Nirmalabai and others have come. He toldthem to have asked the original accused not to disturb her. Hetold her that accused No.1 had assured him that there wouldbe no obstruction. He, instead of accompanying her, askedthem to directly go to the godown. He then testified that, theyleft the Police Station for godown by little past 10.30.Nirmalabai, P.W.1 Raju and P.W.2 Gautam proceeded towardsgodown on foot. Within 15 to 30 minutes, a tractor driven byappellant came from opposite side. The tractor did not have Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 31 ::any mechanical defect that time. The crime scenepanchanama indicates that the deceased was at the extremeleft side of the road. The tractor driver (appellant) took thetractor to the opposite side and knocked her down. When shewas removed from the ditch and placed on the road, he ranover the tractor on her head twice. P.W.1’s evidence in thatregard is reinforced by the F.I.R. (Exh.76) and thecircumstantial evidence that the tractor was seized within threehours thereafter. It was red colour. It was seized from thepremises of the appellant and his brothers. The tractor did notbear number plate. The crime scene panchanama indicatesthe rear right wheel had human blood on it. The tyre piecewas cut and sent to the C.A. The C.A. report indicates thetractor borne human blood. The respondent had necessarilybeen at the crime scene. They lifted Nirmalabai from the ditchand placed on the road. Thereby clothes on their person gotstained with the blood of the deceased. C.A. report (Exh.62)reinforce the same. 31.In view of the above, we find no merit in the appealagainst conviction. The Trial Court has rightly convicted the
Arguments
Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 3 ::10)Raju @ Rajiv s/o Vishwanath Hanwate,Age 36 years, Occ. Not Known,R/o Ambedkar Chowk, Himayatnagar,Tq. Himayatnagar, Dist. Nanded…RESPONDENTS(No.1 to 9 Orig. AccusedNo.10 Orig. Informant)Application seeking leave to appeal refused as against R.Nos.1, 3, 4, 6, 8 & 9Criminal Appeal admitted only as against respondents No.5 & 7.......Mrs. Dr. Kalpalata Patil Bharaswadkar, A.P.P. for appellantMr. Rajendra Deshmukh, Senior Advocate with Mr.Vishal Chavan & D.R.Deshmukh, Advocate for R.No.5 & 7Mr. A.D. Soman, Advocate for R.No.10....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.DATE : 21st November, 2024JUDGMENT (PER : R.G. AVACHAT, J.) :Both these appeals, one by the convict, and theother by the State against acquittal, are taken up togethersince the challenge therein is to a judgment and order ofconviction and consequential sentence and acquittal of someof the original accused as well, passed by the Court ofAdditional Sessions Judge, Bhokar in Special (Atrocity) Case,No.2/2013. Nine accused were proceeded against by filing the Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 4 ::charge sheet for offence of committing murder of oneNirmalabai by running tractor over her person. They were alsoprosecuted for certain offences under the Scheduled Castesand Scheduled Tribes (Prevention of Atrocities) Act, 1989.2.The prosecution, to bring home the charge,examined 14 witnesses and produced in evidence certaindocuments. The Trial Court, on appreciation of the same,convicted the original accused No.2 (hereinafter referred to asthe appellant) (Criminal Appeal No.667/2016) for offencepunishable under Section 302 of the Indian Penal Code andsentenced him to suffer imprisonment for life and to pay fine ofRs.5000/-, in default to suffer further R.I. for 2 months. TheTrial Court, at the same time, acquitted the appellant and restof the accused namely accused No.2 to 9 of all the otheroffences they were charged with. The State, therefore,preferred an application for grant of leave to prefer appealagainst acquittal. This Court, vide order dated 14/3/2017,allowed the said application partly, granting leave to appealagainst acquittal of original accused No.5 and 7 (for short therespondents). Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 5 ::3.Long and short of the prosecution case, as can begathered from the evidence on record, was :-4. Nirmalabai was unmarried lady of 50 years old atthe relevant time. She had two sisters and one brother. Shewould hold a licence to run a fair price shop. For few years,she had run the said shop from the premises of the originalaccused (including the appellant and the respondents herein).What could be gathered from the evidence on record was that,actually the shop was being run by the original accused. Itappears that, Nirmalabai was paid a lumpsum amount permonth. A month before the fateful day, i.e. 16/10/2012,Nirmalabai expressed her desire to original accused No.1Abdul Karim, that since her nephew/ adopted son (P.W.1 Raju)was then grown-up, she therefore be allowed to shift the shopto her newly constructed premises. Allowing her to do so wasnecessarily a financial loss to the family of the originalaccused. They were, therefore, opposed to her proposal.5.On 15/10/2012, she had been to a Government Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 6 ::godown, wherein foodgrains were stored, to fetch foodgrainsfor distribution to the cardholders attached to her shop. Someof the original accused were present at the godown. Theyopposed her from taking the foodgrains. She was manhandledand even assaulted as well. P.W.1 Raju (her adopted son)used to be always with her with a view to assist her in everymatter. It was like, she used to be in his shadow or vice versa.They, therefore, returned and went to the Himayatnagar PoliceStation and lodged the report (Exh.75) against some of theoriginal accused.6.While they were on their way home, they receiveda call from Godown Keeper Hanuman Meshram (P.W.6),asking them come the very day and take away the foodgrains.They informed him that, by that time they did not have a truckto carry the foodgrains and they would come tomorrow (nextday) by 12.00 noon.7.In view of the earlier day’s incidence at thegodown, Nirmalabai, P.W.1 Raju along with his two friends firstwent to the Police Station. P.H.C. Shri Chavan (P.W.7) was Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 7 ::present there. They requested him to accompany him as aprotection to take the foodgrains and carry to the house ofNirmalabai. While they were there, original accused No.1made a phone call to P.W.7 Chavan and got to knowNirmalabai and others were there. P.W.7 Chavan informedthem that he did talk to original accused No.1 and he assuredto create no hindrance in taking foodgrains. Nirmalabai, P.W.1Raju and two others, therefore, left the Police Station by littlepast 10.30 a.m. for godown. They were proceeding on foot.On the way, a red colour tractor bearing no number plate camefrom opposite side. Nirmalabai and others were proceedingkeeping the left side of the road. The tractor suddenly came tothe wrong side and knocked down Nirmalabai. She therebyfell in a roadside ditch. The respondent Nos.2 and 7 were inthe company of the appellant, who was driving the tractor. Itwas the case of the prosecution before the Trial Court that allother respondents gathered on motorbikes and in a four-wheeler as well. All of them lifted Nirmalabai from the ditch andthrown on the road. The appellant again started the tractorand ran over the same on the head of Nirmalabai. Her head Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 8 ::was crushed thereby. All the culprits thereafter fled. P.W.1Raju gave information to the concerned Police Station on cellphone. Police arrived in no time. She was taken to theHospital. He lodged the report of the incident (first informationreport) Exh.76). A crime vide C.R. No.94/2012 for offencespunishable under Sections 302, 143, 147, 148, 149 of theIndian Penal Code and Sections 3(1)(x), 3(2)(v) of theScheduled Castes and Scheduled Tribes (Prevention ofAtrocities) Act, 1989 was registered by 12.00 noon against theaccused at Police Station, Himayatnagar.8.The investigation was entrusted with P.W.10Yeshwant Solanke. The appellant and the respondents werearrested. The crime scene panchanama was drawn. Inquestand autopsy on the mortal remains were conducted. Clotheson the person of the deceased and that of the appellant andthe respondents and others were seized. A search of thepremises wherein fair price shop was run, was made. Somedocuments were seized therefrom. All the articles were sent toRegional Forensic Science Laboratory, Aurangabad. Thestatements of persons acquainted with the facts and Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 9 ::circumstances of the case were recorded. Since Nirmalabaibelonged to Scheduled Caste, and some of the accused hadhurled abuses over her caste, the provisions of the AtrocitiesAct were invoked. On completion of the investigation, a chargesheet was filed. The Trial Court framed the Charge (Exh.10).All the then accused pleaded not guilty. Their defence was offalse implication. According to them, Nirmalabai met with avehicular accident and died therein.9.As stated above, the Trial Court convicted theappellant and acquitted rest of the accused on appreciation ofthe evidence in the case.10.Heard. Learned Senior Advocate representing theappellant and the respondents would submit that, both the socalled eye witnesses had in fact not seen the incident. Theyreached the accident spot later on. It was doubtful as towhether P.W.2 Gautam was really there. P.W.1 informed thePolice Station to have learnt a tractor to have bumpedNirmalabai. All the station diary entries relied on by theprosecution were fabricated. The F.I.R. was ante-dated. All Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 10 ::the witnesses examined in the case belonged to one and thesame caste/ community. In spite of the fact that the incidenttook place at day time and at a place which happened to bebusy with traffic and surrounded by habitat, no independentwitness was examined. The learned Senior Advocate took usthrough the evidence of both, P.W.1 Raju and P.W.2 Gautamand adverted our attention to their cross-examination tosuggest that almost entire examination-in-chief of both of themwas improvement over their F.I.R. and police statementrespectively. According to learned Senior Advocate, theinvestigation was tainted and malafide. He did not draw apanchanama to find whether Nirmalabai had reallyconstructed a new house so as to shift the fair price shop fromthe premises of the appellant to her own. He submits that, itwas P.W.1 Raju who wanted to grab the fair price shop. Hewas the son of brother of deceased Nirmalabai. He was saidto be taken in adoption. He wanted to immediately inherit thefair price shop licence. It is he who might have played somemischief. According to the learned Senior Advocate, howcome the investigating officer disclosed the tractor number Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 11 ::while it was unnumbered. The appellant’s tractor was seizedfrom his residence. The F.I.R. was ante-dated. Satish andSandeep have not been examined. According to learnedSenior Advocate, the prosecution failed to bring home thecharge beyond reasonable doubt. He, therefore, urged forallowing the appeal.11.On the question of appeal against acquittal, thelearned Senior Advocate would submit that, all other malemembers were away in Nanded. All the family members havebeen falsely implicated. By virtue of acquittal of therespondents, presumption of their innocence has beenreinforced. They could not be said to have shared commonintention to commit murder of Nirmalabai. He, therefore,urged for dismissal of the State’s appeal.12.The learned A.P.P. and the learned Advocate forthe respondent/ intervener took us through the evidence onrecord. They would submit that, P.W.1 Raju used to be in thecompany of the deceased all along. The previous day’sincident speaks in volumes. It was a prelude. The F.I.R. was Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 12 ::registered within an hour of the incident. The clothes on theperson of the respondents were stained with blood of thedeceased. The same indicates their involvement in the crimein question. Both the learned Advocates took us through theevidence on record to urge for dismissal of the appellant’sappeal and allowing the State’s appeal.13.Considered the submissions advanced. Perusedthe evidence on record. Also perused the judgment impugnedherein. Let us advert to the evidence on record and appreciatethe same.14.Admittedly, Nirmalabai (deceased) was unmarried.She had two sisters and a brother. P.W.1 Raju was herbrother’s son. About two months before she breathed her last,she had taken P.W.1 Raju in adoption. P.W.1 Raju was around25 years of age. His evidence indicates that, he was residingalong with Nirmalabai in her house at Ambedkar Nagar, at thetown– Himayatnagar. It is also an admitted fact thatNirmalabai held a licence to run a fair price shop. She wouldoperate the shop from the premises of the original accused. A
Decision
Cri.Appeal No.667/2016 withCri.Appeal No.113/2017:: 32 ::appellant. We are at one with the finding recorded by the TrialCourt.32.So far as regards appeal against acquittal isconcerned, we have already observed that although thepresence of the respondents with the appellant was made out,there is nothing to indicate that they had shared commonintention with him to commit murder of Nirmalabai. Their act oflifting her from the ditch and placing her at the roadside cannotbe termed to be incriminating for the reasons statedhereinabove itself. When two view are possible, the one whichfavours the respondents (acquitted accused) must prevail. Inview of the same, the State’s appeal against acquittal too isliable to be dismissed.33.In the result, both the appeals stand dismissed.(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-