High Court
Legal Reasoning
Criminal Appeal No.1149/2019:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.1149 OF 2019Ganesh s/o Laxman Puri,Age 37 years, Occu. Agril.,R/o Kasari, Tq. Ashti,District Beed… APPELLANTVERSUSThe State of Maharashtra Through Police Inspector,Ashti Police StationTq. Ashti, District Beed(Copy to be served on Public Prosecutor, High Court of Judicature of Bombay,Bench at Aurangabad) … RESPONDENT.......Mr. Dhananjay M. Shinde, Advocate for appellant (appointed)Mrs. Uma S. Bhosle, A.P.P. for respondent – State ....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 10th April, 2024Date of pronouncing judgment : 29th April, 2024JUDGMENT (PER R.G. AVACHAT, J.) 1.The challenge in this appeal is to a judgment andorder of conviction, dated 23/9/2019, passed by the learnedAdditional Sessions Judge, Beed in Sessions Case, Criminal Appeal No.1149/2019:: 2 ::No.77/2018. Vide impugned judgment and order, the appellantwas convicted for the offence punishable under Section 302 ofthe Indian Penal Code and, therefore, sentenced to sufferimprisonment for life and pay a fine of Rs.1000/- with defaultstipulation. The appellant’s wife was also prosecuted alongwith him for offence punishable under Section 302 read withSection 34 of the Indian Penal Code. She has been acquitted.Neither the State nor the victim has preferred appeal againstacquittal.2.The facts giving rise to the present appeal are asfollows :-The F.I.R. (Exh.46) was lodged by father-in-law ofShivaji (deceased). It has been averred in the F.I.R. that,Sunita, widow of the deceased was one of the daughters of theinformant (P.W.1 Buwasaheb). Sunita had married Shivaji(deceased). On 9/5/2018, P.W.1 Buwasaheb (informant) wasin his field at Kasari. He learnt from his brother Sopan that, his(P.W.1’s) son-in-law Shivaji has been murdered. He, therefore,rushed to the field of his son-in-law Shivaji (deceased). Henoticed Shivaji to have suffered bleeding injuries. His body wascovered. Sunita (P.W.2), daughter of P.W.1 Buwasaheb Criminal Appeal No.1149/2019:: 3 ::informed him that Shivaji had purchased a Jersi cow from theappellant for Rs.57,000/-. Rs.2000/- were remained to be paid.The appellant had, therefore, been to their residence to make ademand of remaining amount. There had been some quarrel.The appellant had, therefore, threatened to kill Shivaji. Sunita(P.W.2) had seen the appellant and his wife passing from infront of her house on motorbike and proceeding towards herfield. She had, therefore, suspected something amiss. Shefollowed the appellant in a four-wheeler of her neighbour NitinShinde. When she reached her field, she saw the appellantassaulting Shivaji with a sharp weapon. Astik (P.W.4), servantof Shivaji was present in the field. Sunita (P[.W.2) intervened torescue her husband. The appellant pushed her and left onmotorbike. The appellant’s wife (since acquitted) fled towardsother side. Based on the F.I.R. (Exh.46), a crime vide C.R.No.148/2018 was registered. A scene of offence panchanama(Exh.51) was drawn. Inquest (Exh.69) was conducted. Mortalremains of the deceased were subjected to autopsy. Postmortem report is at Exh.75. The appellant and his wife werearrested. Statements of persons acquainted with the facts andcircumstances of the case were recorded. Upon completion ofthe investigation, the appellant was proceeded against by filinga Charge Sheet. Criminal Appeal No.1149/2019:: 4 ::3.The case was committed to the Court of Sessions(Trial Court). The Trial Court framed the charge (Exh.12)against both the accused for offence under Section 302 readwith Section 34 of the Indian Penal Code. 4.The prosecution examined 11 witnesses andproduced in evidence certain documents. On appreciation ofthe evidence in the case, the Trial Court convicted the appellantas stated above. The appellant’s wife was acquitted.5.Heard learned counsel appointed to represent theappellant. He would submit that, the witnesses examined onbehalf of the prosecution were all interested. Nitin Shinde, inwhose four-wheeler the widow of the deceased reached herfield, has not been examined. Learned counsel also brought toour notice that there were agricultural fields of some otherpersons adjoining the field in which the incident took place. Theincident allegedly took place by 2.00 p.m. The owners and theirfarm-labourers were engaged in agricultural operations in theirrespective fields. According to learned counsel, agriculturaloperations last until dusk. None of the neighbouring landholders has been examined. The F.I.R. is based on hear-say.
Legal Reasoning
Criminal Appeal No.1149/2019:: 5 ::It was the defence of the appellant before the Trial Court that,widow of the deceased had illicit relationship with Astik, theirservant. The deceased was a hurdle in their relationship. Hewas, therefore, done to death by none other than his widow. Itis also brought to our notice that there were two groups in thevillage. In the Village Panchayat elections, Atmaram wasdefeated. Santosh became Sarpanch of the village. Theappellant and the deceased belong to the rival groups. Thedeceased was done to death out of village politics. The learnedcounsel would further submit that, there was delay of 4 hours inlodging of the F.I.R. He would further submit that, even a hour’sdelay, in the facts and circumstances of the case, may provefatal to the prosecution. It is not known as to how the wife ofthe appellant was allowed to leave the crime scene. Thetransaction of sale of a cow was complete. Almost entireamount had been received by the appellant. The appellant didnot have a motive to do away with Shivaji. Our attention wasalso sought to be adverted to the statement of certain witnessesrecorded under Section 164 of the Criminal Procedure Code(Cr.P.C.). Learned counsel for the appellant was, however,candid enough to concede that omissions/ contradictions instatement under Section 164 of Cr.P.C. have not been dulybrought on record as is required to be done in terms of Section Criminal Appeal No.1149/2019:: 6 ::145 of the Evidence Act. According to the learned counsel, thecase is based on interested witnesses. No independentwitness, though available, has been examined. There was nomotive for the appellant to commit murder of Shivaji. He,therefore, ultimately urged for allowing the appeal, since theprosecution failed to establish the guilt of the appellant beyondreasonable doubt.6.Learned A.P.P. for the State would, on the otherhand, read out the evidence of the relevant witnesses examinedon behalf of the prosecution and reiterated the reasons given bythe Trial Court in support of the impugned judgment and order. 7.Considered the submissions advanced. Perusedthe evidence on record. Also gone through the judgmentimpugned herein. Let us appreciate the same.8.Admittedly, Shivaji met with homicidal death.P.W.10 Dr. Krushna conducted the autopsy. He noticed thefollowing incised wounds on the person of the deceased.1)Right side angle of mouth 3 x 2 x 0.5 cm.2)Right side of neck just below mandible (horizontally) about3 x 2 x 1 cm. Criminal Appeal No.1149/2019:: 7 ::3)Right anterior side of the chest just lateral to the sturnemof size 4 x 4 x 4 cm.4)right hypochondrium (abdomen) 4 x 3 x 2 cm.approximately. According to him, all the injuries, in the ordinarycourse of nature, were sufficient to cause death. In his view,the cause of death was – haemorrhagic shock due to stab injuryto abdomen and chest. The post mortem report is at Exh.75.9.Learned counsel for the appellant would submit that,the doctor who conducted the post mortem examination, did notspecify the time of death. The deceased had taken meal sometime before the incident. The learned counsel, therefore, meantto say that, the F.I.R. was lodged afterthought and duedeliberations with the relations of the deceased. The postmortem report is silent to indicate whether semi-digested foodwas found in the body. The rigour mortis was partly developed.Close reading of the cross-examination of the Medical Officerindicates that no question in this regard i.e. state of food particlefound in the body of the deceased were put to him.10.The F.I.R. was lodged by P.W.1 Buwasaheb, fatherof Sunita (widow of deceased Shivaji). His evidence indicates
Decision
Criminal Appeal No.1149/2019:: 8 ::that, on 9/5/2018, he was present in his field. He received aphone call of his brother Sopan by 2.00 p.m., informing theappellant to have killed his son-in-law, Shivaji. He, therefore,went to the farmhouse. His relations had already gatheredthere. He enquired with Sunita about the incident. She relatedhim that, the previous day the appellant had come to the farmhouse (Vasti). Astik (P.W.4), who was engaged by thedeceased for farm labouring on annual remuneration, waspresent. Appellant abused her and also threatened to killShivaji. She further related him that the appellant had againcome to the farm house in the morning of the fateful day i.e. 9thof May. According to him, the deceased had purchased a JarsiCow for Rs.57,000/- from the appellant. Only Rs.2000/- wereremained to be paid. The deceased, on return to his house inthe village, told Sunita to have paid the appellant amount in thepresence of P.W.4 Astik. It is further in his evidence that,deceased Shivaji then left his house with a tiffin by 1.00 p.m.Sunita further related him that he saw the appellant and his wifeproceeding on a motorbike towards her field. Since theappellant had come there for killing Shivaji, she immediatelyasked her neighbour Nitin Shinde to take her to her field in hisvehicle. She accordingly went there. P.W.4 Astik was present.She further related the informant (P.W.1) Buwasaheb that the Criminal Appeal No.1149/2019:: 9 ::appellant stabbed her husband with sharp weapon. While sheintervened, he pushed her away and fled on motorbike. Theevidence of the informant further indicates that, while the postmortem examination was under way, he lodged the F.I.R.(Exh.46).11.True, the informant is not an eye witness. Helodged the F.I.R. based on what was related to him by hisdaughter Sunita (widow of the deceased). It is also true that,the F.I.R. came to be lodged about 5 hours after the incident.One must understand that the informant is none other than thefather-in-law of the deceased. The dead body was required tobe shifted to the hospital. He must have been required to bearound his daughter to console her. In the facts andcircumstances of the case, we are, therefore, not of the viewthat the delay in lodging of the F.I.R. is fatal to the prosecution.P.W.1 Buwasaheb was put up the questions indicating thedefence of the appellant. It was suggested to him that, theincident was a fallout of a village politics. He stoutly denied.He also denied that it was his daughter Sunita and her servantP.W.4 Astik to have committed murder of Shivaji. True, cross-examination of this witness indicates that while he reached thescene of offence, people had already gathered, including Criminal Appeal No.1149/2019:: 10 ::neighbouring land-holders. True, none of them has beenexamined. The question is, whether, based on the evidenceadduced by the prosecution the offence was made out.12.P.W.2 Sunita, widow of the deceased, testified that,her husband Shivaji (deceased) owned 17 mammals (cows andshe buffaloes). Those cattle were kept in a shed on a field nearNarwade Vasti. She used to reside in a village along with herhusband Shivaji and 3 children. The distance between herhouse and the field was of not more than 1 ½ km. She wouldalso frequently visit the field for agricultural operations. Astik(P.W.4) was engaged as an agricultural labourer on annualremuneration basis.13.It is further in her evidence that, her husband hadpurchased a Jarsi Cow from the appellant for Rs.57,000/-.Rs.2000/- were remained to be paid. On the previous day,Shivaji was in her field. P.W.4 Astik was also there. Theappellant came to her field and questioned about whereaboutsof Shivaji (deceased). While the appellant did not see Shivajiaround, he started abusing Shivaji. He even talked Shivaji on acell phone of P.W.4 Astik. It is true that CDRs have not beenplaced on record. It is further in her evidence that, the appellant Criminal Appeal No.1149/2019:: 11 ::abused her husband and even threatened him of direconsequences. Her evidence further indicates that, while herhusband returned home, she narrated him the morning incidentand asked him to pay the outstanding amount. Her husbandassured to pay the same.14.It is further in her evidence that, on the fateful dayi.e. on 9/5/2018, Shivaji (deceased) returned home afterdelivering milk at Ashti. It was about 10.30 a.m. The appellantwent to farm house. Her husband paid him the remainingamount. He questioned the appellant as to why did he abusehis wife (P.W.2 Sunita) for Rs.2000/- only. Her evidence furtherindicates that, her husband asked the appellant that there wasno longer transaction remained to be completed and he shouldnot visit the field again. Shivaji slapped the appellant twice.Then he went away. It is further in her evidence that, herhusband related all these things while he came back to him by12.30 noon. He then went back to the field with tiffin.15.It is further in her evidence that, at about 1.30 p.m.she saw the appellant and his wife proceeding towards her fieldon motorbike. The appellant shouted that he would not spareShiva. She, therefore, requested her neighbour Nitin to take to Criminal Appeal No.1149/2019:: 12 ::her field in his four-wheeler. He obliged. True, he has not beenexamined even by the investigating officer. Her evidencefurther indicates that, while she went to the field, she saw theappellant assaulting her husband with a sharp weapon. Theappellant’s wife had held legs of her husband. She raisedshouts. P.W.4 Astik was present. He was scared. It is furtherin her evidence that, when she raised shouts, the appellant fledon motorbike leaving behind one Chappal (footwear). Sheeven tried to catch-hold of the appellant. He pushed her. Herevidence further indicates that the wife of the appellant fled indifferent direction.16.Here, the learned advocate was right in submittingthat, in response to the shouts, neighbours must have gathered.Still none of them has been examined. 17.Evidence of P.W.2 Sunita further indicates that, shetook her husband’s head on her lap. Her Saree got stained withblood. Her relations arrived. Her father too came. Shenarrated him the entire incident.18.While she was subjected to a searching cross-examination, she could not give registration number of the four- Criminal Appeal No.1149/2019:: 13 ::wheeler in which her neighbour Nitin had driven her to her field.She denied the suggestion that she had illicit relationship withP.W.4 Astik and both of them have committed murder of Shivajisince there used to be frequent quarrels between her and herhusband (deceased) over her relationship with P.W.4 Astik.She was also suggested that there was Grampanchayatelection 2-3 months before the incident. A member of a rivalgroup became the village Sarpanch. She was furthersuggested that, the incident was a fallout of a political dispute.19.It needs to be mentioned here itself that, meresuggesting one’s defence is a different thing and making out adefence even on preponderance of probabilities is a different.There is a wide gap between the two. Except mere suggestion,there was nothing to accept the contention of the appellant.Even in his statement under Section 313 Cr.P.C., the appellanthas simple come with a case that since he is a resident ofanother village, he was named as an accused. No one wouldbuy such a defence.20.P.W.3 Rajabhau is a witness to the scene of offencepanchanama (Exh.51). He is a public servant. His cross-examination indicates, nothing fruitful could be brought on Criminal Appeal No.1149/2019:: 14 ::record in the defence of the appellant. On the contrary, thescene of offence panchanama reinforces the evidnece of P.W.2Sunita that one Chappal (footwear) was seized from the sceneof offence. It was in her evidence that it was of the appellant,who left it behind as he fled hurriedly. True, there is noevidence to suggest that the very Chappal (footwear) was thatof the appellant. The fact, however, remains that, there isnothing to shatter the evidence of P.W.2 Sunita. Referring tothe scene of offence panchanama, it was submitted by thelearned defence counsel that, the scene of offence was justadjacent to a road. The panchanama indicates that there werehouses of neighbouring land-holders. True, none of them hasbeen examined.21.P.W.4 Astik was admittedly engaged by thedeceased for agricultural operations on yearly remunerationbasis. It is in his evidence that, on the fateful day, he waspresent in the field. The appellant came there and made ademand of Rs.2000/-. The deceased paid the appellantRs.2000/- that were outstanding towards cost of a Jersi Cow.His evidence further indicates that, he then asked the appellantas to why did he abuse his wife on the previous day. Thedeceased had slapped the appellant twice and asked him not to Criminal Appeal No.1149/2019:: 15 ::come again. The appellant then went away. His evidencefurther indicates that, the appellant then went to his house andreturned with a tiffin by 12.30 noon. The evidence of P.W.4Astik further indicates that, the appellant along with his wifecame to the field on a motorbike. The appellant’s wife held legsof the deceased and the appellant gave him blows with Gupti/Kukri. It is further in his evidence that, while he tried tointervene, the appellant threatened him. His evidence furtherindicates that, P.W.2 Sunita immediately arrived to the field.She too witnessed the incident. Then she tried to catch-hold ofthe appellant. He pushed her and fled on the motorbike. Whilehis wife went to a stand side. His evidence further indicatesthat, previous day, the appellant had been to the field. He waspresent. The appellant abused P.W.2 Sunita and even theappellant took his cell phone and talked to Shivaji (deceased).22.True, P.W.4 Astik was subjected to a searchingcross-examination and confronted with his police statement andthe statement recorded under Section 164 Cr.P.C. Both ofthese statements are silent to narrate both the incidents namelythe incident that took place the previous day and happenings atthe scene of offence. His statement under Section 164 Cr.P.C.,however, is consistent with his evidence that a man and a Criminal Appeal No.1149/2019:: 16 ::woman came on a motorbike. The man stabbed his masterwith a sharp weapon. Although there are material omissionsamounting to contradictions, he was admittedly a farm labourerengaged by the deceased on yearly remuneration basis. Hispresence in the field is not disputed. It was even suggestedthat Shivaji was murdered by him and Shivaji’s wife (P.W.2Sunita) since he was emotionally involved with her. He flatlydenied the same.23.P.W.5 Santosh is a witness to the recovery of amotorbike pursuant to the disclosure statement (Exh.59 & 60)made by the appellant. P.W.7 Ashok was a P.S.O., Ashti PoliceStation at the relevant time. He recorded the F.I.R. (Exh.46) asper narration of P.W.1 Buwasaheb P.W.8 Bibishan is a witnessto the inquest panchanama (Exh.55). While P.W.9 Gahinath isa witness to the panchanama of the seizure of blood stainedSaree from the widow of the deceased. Panchanama to thateffect is at Exh.71.24.P.W.6 Pandurang had carried the muddemal articlesto Forensic Science Laboratory. While P.W.11 Sayyed Shoukatwas the investigating officer. Criminal Appeal No.1149/2019:: 17 ::25.While appreciating the entire evidence on record, itappears that the investigating officer did not do his job well. Hedid not examine Nitin Shinde who carried P.W.2 Sunita in hisfour-wheeler to the field. The fact, however, remains that, theevidence of P.W.2 Sunita has not been shattered in her cross-examination. She is an eye witness to the incident. Herevidence before the Court got reinforced by her two previousstatements, one made to her father immediately on his arrival tothe scene of offence and another one being her statementunder Section 164 Cr.P.C. (Exh.49). Her evidence to someextent gets reinforced by the evidence of P.W.4 Astik, who tooclaimed to have had witnessed the incident. The evidence ofP.W.2 Sunita indicates that, there was a cow purchasedtransaction between the appellant and her husband. It was forRs.57,000/-. Rs.2000/- was remained to be paid to theappellant. He had, therefore, been to the filed on the previousday. He abused her and her husband (deceased). Herevidence further indicates that the appellant had met herhusband. Her husband had told her just about an hour beforethe incident that he paid Rs.2000/- to the appellant and evenslapped him twice. The appellant had threatened him. Whatwas stated by the deceased to P.W.2 Sunita, his wife would berelevant under Section 32(1) of the Evidence Act as the Criminal Appeal No.1149/2019:: 18 ::circumstances of the transaction which resulted in his death. 26.We are conscious of the fact that the appellant is notexpected to lead any defence evidence or examine himself as awitness in his defence. His defence under Section 313 of theCr.P.C. suggests that he has simply been implicated becausehe is resident of some other village. His other two defencesintroduced during cross-examination of the prosecutionwitnesses to the effect that the incident is a fallout of politicaldispute of Grampanchayat election and illicit relationshipbetween P.W.4 Astik and widow of the deceased, only remainedas suggestion. Nothing further was brought on record to inferthe same even on the preponderance of probabilities. The TrialCourt has rightly observed that, P.W.2 Sunita had no reason tofalsely implicate an innocent person and spare the actualculprit. The Trial Court has also observed that the appellantwas arrested a month after the incident at village Daund. Weare in complete agreement with the reasons given by the TrialCourt in support of the impugned judgment and order. We findno reason to take a different view.27.Before parting with the judgment, we mustacknowledge able assistance given by learned Advocate Mr. Criminal Appeal No.1149/2019:: 19 ::D.M. Shinde for the appellant.28.With this, the appeal stands disposed of with thefollowing order : The Criminal Appeal stands dismissed.(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-