Bombay High Court
Anil Kallappa Parshetty vs At The Instance Of Vishrambag on 20 December, 2012
Bench: V.M. Kanade, P. D. Kode
1 apeal1092-04
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1092 OF 2004
1. Anil Kallappa Parshetty,
Age 24 years, Occupation: Labour,
2. Manoj Kallappa Parshetty,
Age 20 years, Occupation: Business,
Both residents of Vadar Colony,
Behind Sarvoday High School,
Sangli, dist. Sangli.
(At present Lodged in District
Prison, Sangli) .. APPELLANTS
(Orig Accused
Nos. 1 & 2)
.. Versus ..
The State of Maharashtra
(At the instance of Vishrambag
Police Station, Tal. Miraj,
Dist. Sangli. .. RESPONDENT
Mr. Kedar Patil i/b Mr. Sudatta Patil, learned Advocate for Appellants.
Mr. P.S. Hingorani, learned A.P.P. for Respondent State.
CORAM : V.M. KANADE AND
P.D.KODE, JJ.
DATED : DECEMBER 20, 2012
1of 29
2 apeal1092-04
ORAL JUDGMENT ( Per P.D. Kode, J.)
1. By the present appeal, the appellants/original accused nos. 1
and 2 at Sessions Case No. 73/2004 have assailed the judgment and
order dated 23.08.2004 passed by the learned 5th Additional Sessions
Judge, Sangli, convicting them for in furtherance of their common
intention on 28th December, 2003 having committing murder of one
Rakesh Annappa Vadar - brother of first informant PW-1 Dilip Vadar
and sentencing each of them to undergo imprisonment for life and to pay
a fine of Rs.1000/- and in default of payment of fine to suffer R.I. for two
months.
2. The said prosecution has arisen out of the charge sheet
submitted by PW10 P.S.I. Prakash Gaikwad of Police Station
Vishrambag, Miraj, Dist. Sangli as a result of investigation of Crime No.
212/2003 registered upon first information report Exh.28 lodged by
PW1 on 28th December, 2003 at 22.45 hours regarding murder of his
brother Rakesh. At the conclusion of the investigation of the said crime
PW-10 had charge-sheeted both the appellants and acquitted original
accused No.3 Raju Vandeo Savant @ Vadar at trial and juvenile offender
Shankar Shetti Vadar for said murder.
2of 29
3 apeal1092-04
3. According to the prosecution, PW-1 along with his wife, his
deceased brother, his wife and their parents were residing at Sarvodaya
Chowk, Vadar Colony, Sangli, while his elder brother Raju was residing
separately. Both of them were carrying out the business of Centering
material.
3.1 The appellants along with their father Kallappa Parshetti and
brother Kiran were residing at the rear side of the house of PW-1.
Ashwini aged 16 years, sole daughter of Kallappa and sister of the
appellant had burnt herself about 8 to 9 years prior to lodging of the first
information report. She had burnt herself due to opposition of her
parents and brothers for her love affair with deceased. Since then the
appellants and Kiran were enraged with deceased Rakesh and animosity
was prevailing in between them. Both the parties were not on talking
terms. About 2 years prior to the incident, deceased had appraised PW-1
that people had sounded him that enraged brothers of Ashwini were to
kill him by keeping look out. PW-1 had then advised deceased to be
cautious from them.
3.2 On 28.12.2003 at about 8.15 p.m., PW-1 while returning to
his house from new railway station after reaching near Yogesh Niwas
saw crowd in front of house of Smt.Kallavva Jadhav. PW-1 went nearby
3of 29
4 apeal1092-04
and found that his brother Rakesh Vadar was lying in pool of blood.
Raju Vadar - elder brother of PW-1 by then also reached said spot.
Rakesh had sustained grievous injury on head. PW-1 from the persons
present at the spot and having witnessed the incident i.e. Neelabai
Vadar, PW-4 Raju Vadar, one Sanjay and Narayan Vadar gathered that
appellant Nos.1 and 2 and two unknown persons assaulted Rakesh on
head by sickle and sword and ran away.
3.3
PW-1 and Raju removed Rakesh by rickshaw to Mission
Hospital at Miraj. The doctors after examining Rakesh informed that he
was dead. PW-1 lodged report Exh.28 with Vishrambag Police Station
accusing that appellant Nos.1 and 2 and two unknown persons have
murdered Rakesh by assaulting with sickle and sword on head, hands
and legs. PW-11 ASI Khandare after recording the said report registered
the crime against the appellants and two unknown persons. He had
earlier made station diary entry No.36 at Exh.54 regarding the message
received from clerk Gaikwad of Mission Hospital that Rakesh Vadar was
brought in dead condition to the said hospital.
4. The appellants pleaded not guilty to the charge Exh.15 for
offence under section 302 read with 34 of I.P.C. framed against them
4of 29
5 apeal1092-04
and acquitted accused No.3 by the Court of Sessions after the case was
committed to the said Court.
5. The prosecution, in addition to earlier referred 4 witnesses,
additionally examined eye witnesses PW-6 Santosh Vadar and PW-8
Ashok Vadar and so also panch PW-2 Bhosale for memorandum and
discovery panchanama vide Exhs.30 and 31 respectively regarding
statement made by appellant No.1 on 29 th May, 2003 leading to
discovery and seizure of a sword stained with blood/mud at places and
concealed in the dirty water in a drainage below Dagdi Bridge near
Suyog Steel, panch PW-3 Bapu Velhal regarding seizure of T-Shirt and
black colour pant on the person of appellant No.2 under panchnama
Exh.33; PW-5 Dr.Shailaja Kundale, regarding postmortem examination
of the corpse of deceased at General Hospital, Miraj, preparing P.M.
Notes Exh.41 and receiving C.A. Report Exh.43 in respect of viscera;
panch PW-7 Deepak Chavan - regarding seizure of blood stained khaki
open shirt and blue colour track on the person of appellant No.1 and a
white banian and blue colour track on the person of appellant No.2 on
29th December, 2003 under panchnama Exh.47; PW-9 Dr.Sudhir
Kadam, working as a Casuality Medical Officer on 28th October, 2003 at
Vaneless Hospital, Miraj, who had examined the deceased when brought
to the said hospital and his medical papers Exhs.50 and 51. The reliance
5of 29
6 apeal1092-04
was also placed by the prosecution upon other documentary evidence
which was prepared during the course of investigation.
6. The defence of the appellants was that of total denial and
false implication. Appellant No.1 claimed that PW-6 Santosh Vadar
deposed against him as there was a quarrel in between mother of
appellant No.1 and mother of the said witness on the count of money
borrowed by her. While appellant No.2 claimed that PW-4 Raju Mane
being friend of the deceased has deposed against him. PW-6 Santosh
Vadar and PW-7 Deepak and PW-8 Ashok has given evidence against him
due to themselves being members of the gang formed by the deceased.
However, none of the appellant examined any witness in support of his
defence.
7. Mr.Kedar Patil, the learned counsel for the appellants by
meticulously taking us through the record of the case and particularly
that of eye witnesses, i.e., PW-4, PW-6 and PW-8 assailed the judgment
and the order passed by the Trial Court by urging that there exists no
cogent evidence on the record establishing guilt of the appellants. It is
the crux of his submission that the Trial Court after rightly discarding
evidence of PW-6 and PW-8 manifestly erred in resting the conviction
upon the sole evidence of PW-4. According to him, the evidence of PW-4
6of 29
7 apeal1092-04
and PW-8 has effect of destroying the evidence of each other and thus
warranting to discard the evidence of both the witnesses. He further
urged that even in the evidence of PW-4 hardly any evidence has
surfaced to the effect of any active role was played by appellant No.2 in
causing an injury to the deceased, muchless, injuries resulting into his
death. Thus, he contended that the appellants deserve to be acquitted or
at least deserve to be given benefit of doubt by allowing the appeal
preferred by them and setting aside the order of conviction and sentence
passed by the Trial Court.
8. Mr. P.S. Higorani, in his turn, supported the judgment and
order of conviction and sentence passed by the Trial Court. He
submitted that the Trial Court has given cogent reasons in the judgment.
He submitted that considering the evidence of PW-4 and PW-8 in proper
perspective, the submission that their evidence has self destroying effect
or excluding the presence of each other deserves no credence. It was
urged that guilt of the appellants is duly established by cogent evidence.
The appeal deserves to be dismissed.
9. Thoughtful considerations were given to the submissions
advanced by both the parties and the record and proceeding was
carefully examined to ascertain the merit of the submissions canvassed.
7of 29
8 apeal1092-04
10. Now, firstly, considering the aspect of Rakesh having met
homicidal death, we find that the said aspect is duly established by the
prosecution apart from the same being not disputed on behalf of the
appellants. Notably, even leaving aside the evidence of eyewitnesses
namely, PW4 Raju, PW6 Santosh and PW8 Ashok, said facet is duly
established from unshattered evidence of PW1 and medical evidence of
Doctors PW-9 and PW-5 and the admitted document inquest
panchanama Exh.24. The unshattered part of evidence of PW-1 amongst
others duly establishes that on the day in question he has found his
brother Rakesh lying in pool of blood in front of the house belonging to
Kallavva Jadhav with grievous injuries on the head. It further establishes
that he along with his other brother Raju had taken Rakesh to the
Mission Hospital at Miraj and at the said place after examining, doctors
had declared that he was dead. Though PW1 was extensively cross-
examined on behalf of the appellants at the trial, we do not find anything
brought on record during the cross-examination rendering said part of
his evidence unacceptable. The evidence of PW1 is also found duly
corroborated by the matters stated in the first information report Exh.28,
promptly lodged by him. The same is also found corroborated by the
matters stated in the admitted document inquest panchanama Exh.24
and particularly the injuries on the corpse described therein.
8of 29
9 apeal1092-04
11. The reference to the evidence of PW-9 Dr. Sudhir who had
examined Rakesh on the day of incident at about 9 p.m. while on duty
at Causality Department reveals that after the said patient brought to the
hospital by his brother PW-1 Dilip was found dead, he had sent the
corpse for postmortem examination. PW-9 during his evidence produced
certificate of cause of death Exh.50 issued by him and the admission
paper Exh.51. He vouched regarding contents of the said papers. His
evidence considered along with the said papers reveals that there were 7-
8 injuries on corpse i.e. as recorded in detail in medical paper Exh.51.
The perusal of the cross-examination of PW9 nowhere reveals that the
fact of the said patient having sustained such injuries was
shattered/muchless challenged on behalf of the appellants.
12. The reference to the evidence of PW-5 Dr. Shailaja reveals
that on 29.12.2003, while on duty at Government Medical Hospital,
Miraj she had performed post mortem examination on the corpse of
Rakesh and she had given cause of death as due to shock due to multiple
incised injuries. She deposed of then having preserved viscera for
chemical analysis and after receipt of the said report Exh.43, she had
given final cause of death as "due to shock due to multiple incised
injuries with evidence of alcohol consumption". She has vouched for the
contents of such a certificate Exh.44 given by her. Curiously enough
9of 29
10 apeal1092-04
during the cross-examination of PW-5, it was brought on the record that
injuries Nos. 1 to 4 mentioned in Column No.17 of the postmortem
report were of grievous nature and all the said injuries were on head
and they were sufficient to cause instant death. It was also brought on
record that injuries Nos. 7,8 and 9 described in the said column were
possible by hard and blunt object like stick. It was also brought on
record that the deceased must have taken a meal 4 to 5 hours prior to his
death. Significantly enough PW-5 ruled out the possibility of an alcohol
being cause of the said death. She also ruled out the possibility that due
to excessive alcohol the deceased having met with death and he was
assaulted thereafter. Thus considering the said evidence it can be safely
said, without any dilation that the evidence of PW-1 considered along
with said medical evidence and so also similar matters regarding nature
of injuries sustained by the deceased as revealed from the admitted
document inquest panchanama, leads to the conclusion of deceased
having met with homicidal death.
13. Now, considering the moot question whether the appellants or
anybody from them was responsible for causing the injuries which had
resulted in the death of Rakesh, it is necessary to scrutinize the evidence
of the eye witnesses adduced at the trial. In the said process, firstly
considering evidence of PW-4, the same reveals that on the relevant day
10of 29
11 apeal1092-04
at about 7.45 p.m. while going to Sarvoday Chowk, he had noticed the
appellants, acquitted accused No.3 and one Shankar Vadar were
standing near Ashirwad Building. It reveals that after reaching Sarvoday
Chowk he has seen deceased talking with rickshaw driver near Nagesh
Pan Shop.
14. In the material part of the evidence PW-4 deposed that at
about 8.10 p.m. he was returning from Sarvoday Chowk to his house
and then the appellants were standing under Umber Tree just opposite to
Ashirwad Building. He deposed that after reaching near the house of
Leelabai Vadar, he heard hue and cry and hence turned back. It reveals
that appellant No.2 was telling appellant No.1 loudly to finish Rakesh
Vadar. He deposed that Rakesh Vadar was lying on the road in front of
house belonging to Kallavva Jadhav. He deposed that appellant No.1
assaulted four times with sword on the head of Rakesh Vadar. He
deposed that appellant No.1 ran away with sword in his hand which was
blood stained. He deposed that appellant No.1 ran away by the road in
front of house belonging to Leelabai Vadar and just near from him. He
deposed that appellant No.2 ran away by the rear side "galli" towards his
house. PW-4 thereafter deposed regarding further events occurred i.e.
PW-1 and Raju Vadar - brothers of the victim coming at said place,
himself having told of the appellants having assaulted Rakesh and
11of 29
12 apeal1092-04
removal of Rakesh to the hospital by them in a rickshaw.
15. PW-4 was extensively cross-examined on behalf of the
appellants. However, during the said cross-examination we do not find
any significant material was brought on the record except himself being
externed from Mumbai, having no knowledge regarding the love affair
between the sister of the appellants and the deceased and "himself
having not seen as to whether any other person or persons were standing
near the road side when he was going to Sarvoday Chowk" and
insignificant omission of having not told the police that at 8.10 p.m. he
was returning to his house from Sarvoday Chowk. It was also brought
on the record that the spot was about 20 to 30 feet from the spot at
which he had heard hue and cry while he was near the house of Leelabai
Vadar. PW-4 admitted that after passing the turn near the house of
Leelabai Vadar, it is not possible to see the happenings at the rear side
and himself having not rushed towards the spot of incident after he
heard hue and cry. It was also brought on the record that he had not
made any shouting and stopped at the spot and had not gone to the
house of Rakesh Vadar to tell the incident to his family members nor to
the police station. It was suggested that he had not told the police that
brothers of Rakesh had been to the spot and he had told them that the
appellants had assaulted Rakesh.
12of 29
13 apeal1092-04
16. After perusal of the reasoning given by the Trial Court in
paragraph Nos.16 and 17 of the judgment, we find that all the aforesaid
facets were duly taken into consideration including that of his claim of
having told PW-1 of the appellants assaulted Rakesh, for coming to the
conclusion that the same does not affect his testimony. We do not find
any infirmity in the reasoning given by the Trial Court. The learned
counsel for the appellants tried to make the capital of the admission
given by PW-4 that there is a turn near the house of Leelabai Vadar and
after passing the turn it is not possible to see the happenings on the rear
side to canvass that PW-4 could not have seen the incident as he further
admitted that he had not rushed towards the spot of the incident. We
find no substance in said submission as the evidence of PW-4 with
certainty does not reveal that he had passed the turn and thereafter
heard hue and cry. Needless to add that his evidence only reveals that
he was near the house of Leelabai Vadar. Similarly, the further answer
elicited during the cross-examination that he has not rushed towards the
spot is also not sufficient to accept the submission canvassed that he
could not have seen the incident or the further submission canvassed
that the said answer shows his unnatural conduct also appears to be
devoid of merit, because the said submissions are made with the
presupposition that he had passed the turn and from the said place he
could not have seen the incident. Such position being not brought out
13of 29
14 apeal1092-04
during the cross-examination, it is difficult to accept submission
canvassed.
17. The position regarding the further submission canvassed that
the conduct of PW-4 is unnatural or contrary to the claim of having
witnessed the incident is also not different. We are unable to accept the
said submission as PW-4 being at a spot from which the incident was
visible, there was no worthy reason for him to rush to the spot to observe
the happening and particularly when the assailant was armed with lethal
weapons like sword and was assaulting the deceased. The answer given
by PW-4 being to the effect that he had not rushed to the spot and the
position being not brought on record that from the said place he had
returned to his house and the omission brought regarding matters told
by him to PW-1 being of insignificant nature, we do not find any fault in
his conduct of either not going to the house of deceased or to the police
station for informing about the incident. It is difficult to visualize that in
event of brothers of the deceased having arrived at the spot there would
have been any such necessity. Thus, after careful scrutiny of the
evidence of PW-4, we do not find any embellishment in his evidence for
not accepting the same regarding part of the incident witnessed by him
and consequently we do not find that any error was committed by the
Trial Court in accepting the same.
14of 29
15 apeal1092-04
18. Now considering the evidence of next eye witness i.e. PW-6
Santosh Vadar, we find that the Trial Court duly considered his evidence
in light of criticism advanced thereon, in paragraph Nos.18 to 24 and
after taking into consideration the material contradiction regarding the
place at which the incident occurred i.e. upon the road in front of house
of Kallavva or on the middle road and the witness having made
improvement at trial of same having occurred upon the road in front of
house of Kallavva by improving his original claim of incident having
occurred on middle road, the Trial Court found it unsafe to rely upon his
evidence. After considering the reasoning given thereon we are unable
to find any fault within it, as the same is apparently based upon the
evidence surfaced at the trial or more particularly the vital improvement
made at the trial by PW-6. Hence, we do not propose to recite the
evidence of PW-6 or to make threadbare dilation thereon.
19. Now considering the evidence of last eye witness PW-8, it
shows that in the initial part of deposition PW-8 deposed regarding the
motive for the crime in question. He deposed about the love affair
existing in between deceased and sister Ashwini of the appellants 10
years prior to an occurrence of the incident, objection to the love affair
by the family members of the appellants. Ashwini having committed
suicide, appellants getting annoyed due to the same, quarrels ensuing in
15of 29
16 apeal1092-04
between appellant No.1 and deceased Rakesh.
20. PW-8, during the further part of his deposition deposed that
as usual he had been to Nagesh Pan Shop in Servoday Chowk after
returning to house at 6.30 p.m. He deposed about deceased and his
labourers talking at some distance away from the Pan Shop. He
deposed, the appellants, acquitted accused No.3 and Shankar Vadar
standing near Ashirwad Building. All the said evidence is apparently in
consonance with the evidence given by PW-4. Additionally, he deposed
of appellant No.2 being to the said place within 5 to 10 minutes.
21. PW-8 further deposed that he returned to house at about 7.45
p.m., his daughter was fetching water from public water tap, he was
standing in the courtyard of his house. He deposed that deceased
Rakesh was going by the road near his house at about 8.15 p.m. He
deposed that the appellants then were standing under Umber Tree, they
rushed towards Rakesh. Appellant No.1 made the attack with sword on
Rakesh. Rakesh began running away but fell down on the road near
house of Kallavva Jadhav. Appellant No.2 told appellant No.1 "to finish
Rakesh Vadar" and appellant No.1 again made 3 to 4 attacks with sword
on Rakesh and ran away. Appellant No.2 also ran away. Some persons
16of 29
17 apeal1092-04
gathered at the spot. PW-1 and Raju - brothers of Rakesh also came at
the spot and removed Rakesh to hospital in a rickshaw.
22. Now the answers elicited in the cross-examination reveal that
his statement was recorded on 6th January, 2004 and he has not
disclosed about the incident to anybody else till recording of his
statement by police. He was searchingly cross-examined about the
topography, however, we do not find anything elicited therein rendering
his evidence unbelievable. He deposed that nobody passed from the
road situated in front of his house before Rakesh. The rest of the cross-
examination reveals of himself having denied the suggestions given to
him.
23. The learned counsel for the appellants, by laying a stress upon
the isolated admission given by PW-8 that nobody passed from the road
in front of his house before Rakesh vehemently contended that his said
admission excludes the claim of PW-4 of having passed away from the
said road before Rakesh and in turn renders testimony of PW-4
unreliable. We are unable to accept the said submission as perusal of the
evidence of PW-8 does not give such impression inasmuch as the same is
wholly silent regarding the duration for which PW-8 was standing on the
road. The same does not exclude the possibility of PW-4 having passed
17of 29
18 apeal1092-04
earlier. In the said context, we find elaborate reasoning given by the
Trial Court in paragraph No.25 onwards.
24. The said reasoning amongst others reveal that the Trial Court
declined to discard the evidence of PW-4 on the said count but had not
placed reliance upon the evidence of PW-8 on the count of his statement
being recorded after about a week after the incident. The said reasoning
reveals that the trial court discarded similar submission as canvassed
before us that in event of discarding evidence of PW-8, it would be
unsafe to rely upon the evidence of PW-4.
25. We find that the trial Court has negatived the said submission
for cogent reasons which amongst others reveal that the evidence of PW-
4 is well corroborated from the other material on record and particularly,
the account of incident given by him by the medical evidence on record.
After carefully considering the evidence of PW-5 who had performed the
postmortem and particularly the injuries noted by her during the
external examination recorded in Column No.17 and the internal
damage in Column No.21, we do not find any infirmity in said cogent
reasoning given. We may add that at criminal trials it is not the quantity
but the quality matters and there is no rule of law that conviction cannot
18of 29
19 apeal1092-04
be fastened on the basis of the testimony of sole eye witness inspiring
confidence.
26. In the instant case, we find that the Trial Court has recorded
cogent reasons regarding medical evidence affording corroboration to
the evidence of PW-4 and so also the other circumstances. We also find
that the Trial Court has given the reasoning based upon the record,
regarding disparity occurring in between four injuries noted by PW-9 in
admission paper Exh.51 and PW-5 in postmortem note Exh.41. The Trial
Court has also observed of there being no conflict in the medical
evidence and the ocular account and explained discrepancies in
paragraphs Nos.38 and 39 of the judgment. We find all the said
reasoning being cogent and based upon the evidence surfaced at the
trial. Similarly, we also find that the trial Court has rightly negatived the
submission that in the present case non-showing of sword seized at the
behest of appellant No.1 to PW-5 and PW-9 cannot be said to be fatal, as
held in the decisions relied on behalf of the appellants. We also find that
the trial Court has meticulously considered the decisions relied on behalf
of the appellants before the trial Court and given cogent reasoning for
not accepting the submission canvassed. Thus, we are unable to
persuade ourselves that there exist any fault in the said reasoning or any
19of 29
20 apeal1092-04
error was committed by the trial Court in accepting the evidence of PW-4
and basing the conviction upon it.
27. Now, the reference to the evidence of PW-2 and the relevant
part of the evidence of PW-10 reveals that as a sequel to the statement
leading to the discovery of the sword made by appellant No.1 on 29th
December, 2003 as recorded in panchanama Exh.30 and thereafter
appellant No.1 leading to PW-2, co-panch and PW-10 to the place below
the Dagdi bridge near Suyog Steel, appellant No.1 had taken out sword
stained with blood from drainage and the same was seized by the police
under panchanama Exh.32. Similarly, the relevant part of the evidence
of PW-2 also reveals that the police has seized the clothes on the person
of the appellants. Similarly, through the evidence of PW-3 and the
evidence of PW-10, the prosecution has established that the articles as
stated in panchanama Exh.33 were seized from spot of offence. The
evidence of PW-10 also reveals that the relevant articles were sent to the
Chemical Analyzer. After careful scrutiny of all the said evidence, we do
not find any infirmity in said evidence, except the evidence pertaining to
discovery and seizure at the behest of appellant No.1, for not accepting
that such facets were established by said evidence. However, with
regard to the evidence pertaining to discovery, we find that the trial
Court has rightly rejected the same in view of the same being not
20of 29
21 apeal1092-04
supported by the evidence of independent witness due to evidence of
PW-2 not inspiring any confidence. Now, reference to C.A. report reveals
that the articles sent to C.A. were found containing human blood except
the plain earth collected from the spot. Hence, even excluding the
sword, the other articles containing human blood upon it is definitely a
circumstance corroborating the evidence of PW-4 and assuring the
truthfulness of the prosecution case.
28.
The learned counsel for the appellants tried to canvass that
the investigation in the present case was not proper one. It was urged
that, it is apparent from the statement of PW-8 being recorded at belated
stage and/or the other independent witnesses from the vicinity of the
spot were not examined by the investigating agency and ultimately by
the prosecution. It was urged that the same reveals that one sided story
was tried to be placed before the Court. It was urged, hence the
appellants are entitled for benefit of doubt due to conviction being rested
upon the evidence of single witness. We are unable to agree with the said
submission, as it is fairly settled legal position that the follies of an
investigating officer by itself cannot be said to be detrimental to the
prosecution and/or the accused being entitled to derive benefit due to
follies of investigating officer same unless and until it is shown that the
said faulty investigation has caused prejudice to the accused and the
21of 29
22 apeal1092-04
same has occasioned into the failure of justice. No such eventuality
having occurred being pointed to us by pointing out a particular facet,
we do not find any force in the said submission.
29. In the same context, we add that merely because one accused
person is acquitted at trial by ipso facto would not be a factor for
inferring tainted or a faulty investigation. In the instant case, the first
information report was lodged by a person who was not eye witness to
the crime and the same being lodged on the basis of information received
by him and hence crime being initially registered against two known and
unknown persons and due to the same, inspite of recovery of one
weapon at the behest of appellant No.1, the investigating officer seeking
the remand for recovery of further weapons would not establish that the
investigation was faulty and/or tainted. The same is the case regarding
the statement of PW-8 being not recorded earlier. Needless to add, that
even in the aforesaid context our attention was not drawn to any
particular facet brought on record during the cross-examination of the
investigating officer justifying such submission.
30. The learned counsel for the appellants, in support of the
submission canvassed, placed reliance upon the following decisions :-
22of 29
23 apeal1092-04
(1) Motilal & Anr. v. State of Rajasthan, reported
in AIR 2009 Supreme Court 2790
(2) Lakhwinder Singh and others v State of
Punjab, reported in 2003 Cri.L.J.3058
(3) Kishore Chand v. State of Himachal Pradesh,
reported in 1991 Supreme Court Cases
(Cri.)172
(4) Jandel Singh v. State of Madhya Pradesh,
reported in 2003 Cri.LJ. 3528
(5) Ganesh Bhavan Patel v. State of Maharashtra,
reported in AIR 1979 Supreme Court 135
Ashraf Hussain Shah v. State of Maharashtra,
reported in 1996 Cri.L.J. 3147
(7) Deoraj Deju Suvarna v. State of Maharashtra,
reported in 1994 Cri.L.J. 3602
(8) Shivlal and Anr. v. State of Chattisgarh,
reported in 2012 Cri.L.J. 616
(9) Takdir Samsuddin Sheikh v. State of Gujarat
& Anr., reported in 2012 Cri.L.J.621
(10) Subhash Chand v. State of Rajasthan, reported
in 2002 Supreme Court Cases (Cri.) 256.
(11) Devinder v. State of Haryana, reported in
1996 Cri.L.J.4461
(12) Sanju alias Sanjay Singh Sengar v. State of
Madhya Pradesh, reported in 2002 Cri.L.J.
(13) Ezhil and others v. State of Tamil Nadu,
reported in 2002 Cri.L.J.2799
23of 29
24 apeal1092-04
(14) Amar Singh and others v. State of Punjab,
reported in 1987 Cri.L.J. 706
(15) Shivaji Dayanu Patil v. State of Maharashtra,
reported in 1989 Cri.L.J. 2074
31. Though after careful perusal of the said decisions we find that
no dispute can be entertained about the legal prepositions profounded by
the said decisions or the decision arrived in each of the said case in facts
and circumstances involved therein, we do not find the same being of
any useful assistance to the appellants in the instant case in which facts
situation is not akin with the facts situation in the decisions pointed.
Hence, without indulging in making threadbare dilation regarding every
decision, we only say that the decision in cases of Motilal (supra),
Ashraf Hussain (supra), Shivlal & anr. (supra) being on the point of
delay in lodging F.I.R. is not of any assistance to the appellants in the
present case wherein F.I.R. has been lodged promptly by PW-1. With
regard to the decision in cases of Lakhwinder Singh (supra), and
Ganesh Bhavan (supra) being regarding delay in recording the
statement of an eyewitness and the said aspect being already taken into
consideration while discarding the evidence of PW-8 would not warrant
detailed dilation about proposition founded by the said decision.
Similarly, the facts and circumstances of the decision in the case of
Kishore Chand (supra) involving appreciation of a circumstantial
24of 29
25 apeal1092-04
evidence and so also the decision in cases of Jandel Singh (supra),
Deoraj Deju (supra), Devinder (supra), Sanju alias Sanjay Singh
Sengar (supra), Ezhil & ors. (supra), Amar Singh (supra) and Shivaji
Dayanu Patil (supra) being altogether different, would not warrant
dilation about the same. Since the principles regarding appreciation of
the evidence of sole eyewitness as stated in decision in the case of Takdir
Samsuddin Sheikh (supra) being already taken into consideration while
appreciating the evidence of PW-4 would not warrant dilation about the
said decision and the said aspect. Same is the case regarding the
principle of appreciation of evidence regarding recovery of incriminating
material as stated in the decision in the case of Subhash Chand (supra).
32. The learned counsel for the appellants had lastly urged that
even accepting the evidence of PW-4, the same does not reveal that
appellant No.2 had assaulted the deceased. It was urged that the same
does not show that appellant No.2 was armed with any weapon. It was
urged that even injuries on the person of deceased does not indicate that
he was assaulted by number of persons. It was contended that hence the
conviction of appellant No.2 on the basis of Section 34 of I.P.C. for an
offence of murder is wholly improper and as such the same deserves to
be quashed and set aside.
25of 29
26 apeal1092-04
33. In the said context, the reference to the Section 34 of I.P.C.
reveals that the same runs as under :
"When a criminal act is done by several persons in
furtherance of the common intention of all, each of such
persons is liable for that act in the same manner as if it
were done by him alone".
Similarly, the reference to the definition of an Act given under
Section 33 runs as under:
""Act". "Omission". - the word "act" denotes as well a series
of acts as a single act, the word "omission" denotes as well
a series of omissions as a single omission".
34. Thus combined reading of both the above referred sections
reveals that a criminal act may include a series of an act. On the said
backdrop, considering the evidence of PW-4 of which major part has
been produced in the earlier part of judgment reveals that on the
relevant day he had seen the appellants and acquitted accused No.3
standing near Aashirwad Building, when at 7.45 p.m., he was going
towards Sarvodaya Chowk. The further part of his evidence reveal that
while returning at about 8.10 p.m., from Sarvoday Chowk to home, he
had seen the appellants standing on the Umber Tree just opposite to
Ashirwad Building. The material part of his evidence after he had heard
hue and cry runs as under:
"I therefore turned back. Accused No.2 Manoj Parshetty was telling
26of 29
27 apeal1092-04
the accused No.1 loudly to finish Rakesh Vadar. Rakesh Vadar
was lying on the road which is in front of house belonging to
Kallava Jadhav. Accused No.1 Anil Parshetty made assaults four
in number by means of sword on head of Rakesh Hadar. Thereafter
accused No.1 ran away with sword in his hand. The sword was
stained with blood. He ran away by the road which is situated in
front of house belonging Leelabai Vadar and just near from me.
Accused No.2 Manoj Parshetty ran away by the rear side galli
towards his house."
35.
Now, considering the earlier part of evidence of PW-4 and
emphasized portion from the further part, it is clear that the act of an
assault upon Rakesh was a planned assault. Such an inference is obvious
as the available evidence of PW-4 does not reveal that the assault had
commenced due to occurring of some event of altercation/quarrel prior
to commencement of the same. The evidence of PW-4 denoting that
earlier he had seen the appellants near Ashirwad Building, deceased in
Chowk and while returning at 8.10 p.m., appellants beneath the Umber
Tree (but without making reference about weapon, if any, in the hand of
appellant No.1), and his attention being drawn to the spot after hue and
cry clearly denotes that it was a pre-planned attack upon the deceased
and force the appellants were waiting beneath the Umber Tree.
27of 29
28 apeal1092-04
36. Now considering the highlighted portion of the evidence of
PW-4 which denotes that when he had witnessed towards the spot he
had seen Rakesh lying and appellant No.2 telling appellant No.1 to finish
Rakesh. It reveals that thereafter appellant No.1 had assaulted four in
number by means of a sword. The further part reveals that appellant No1
had ran away and so also appellant No.2. All the said evidence
considered in proper perceptive denotes that the criminal act in-question
was to assault the Rakesh and to murder him, i.e. to cause him injuries to
cause his death. Same is apparent from the weapon used and the injuries
caused. The presence of appellant No.2 since beginning uptil end and
fleeing away after the assault denotes that the criminal act committed
was outcome of the common intention of both the appellants.
Additionally, the directions given by appellant No.2 to appellant No.1 is
self reflective of his active participation in the said criminal act. In view
of the same, we do not find any merit in the submission canvassed that
as appellant No.2 was not armed with the weapon, nor he had assaulted
Rakesh denotes that he was not entertaining the same intention as that
of appellant No.1. Hence, we are of considered opinion that as the said
criminal act was committed in furtherance of common intention, the case
of appellant No.2 would be covered within the four corners of Section 34
of I.P.C. making him equally liable for the offence of murder irrespective
of fact of himself having not assaulted the victim. Hence, both the
28of 29
29 apeal1092-04
appellants has been rightly held to be guilty for offence under Section
302 r.w. Section 34 of I.P.C.
37. In the aforesaid premises, we do not find any error committed
by the trial Court in accepting the evidence of PW-4 along with the other
evidence for returning to the conclusion that thereby the prosecution has
established that the appellants in furtherance of their common intention
had committed the murder of deceased Rakesh. Hence, we do not find
any merit in the appeal and dismiss the same. However, on the request of
the learned counsel for appellant No.2, who is on bail, two months time
is granted to surrender.
(P.D. KODE, J.) (V.M. KANADE, J.)
29of 29
