Abdul Rauf Abdul Razzak vs Abdul Qayyum Abdul Wahed Sab And ...
2017 Latest Caselaw 5310 Bom

                                      1                          Cri.Al-307-13-J


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                 CRIMINAL APPEAL NO. 307 OF 2013

 Abdul Rauf s/o. Abdul Razzak,
 Age 45 years, Occupation : Agri.,
 R/o. Sewdi (Bajirao), Sonkhed,
 Taluka: Loha, District: Nanded.                          ...APPELLANT
                                                         (Ori. Complainant)
          Versus

 1) Abdul Qayyum s/o. Abdul Wahed Sab,
    Age: 60 years, Occupation : Agri.,
    R/o. Shevadi Bajirao, Tq. Sonkhed,
    District: Nanded.

 2) Abdul Ansar s/o. Abdul Qayyum,
    Age 19 years, Occupation : Agri.,
    R/o. Shevadi Bajirao, Tq. Sonkhed,
    District: Nanded.

 3) Abdul Jabbar s/o. Abdul Qayyum,
    Age 22 years, Occupation : Agri.,
    R/o. Shevadi, Tq. Sonkhed,
    District: Nanded.

 4) The State of Maharashtra                       ...RESPONDENTS
                                                  (Respondents No. 1 to 3
                                                   are original accused.)
                                  .....
 Mr. Y.M. Khan, Advocate for appellant- Absent.
 Mr. B.S. Kudale, Advocate for Respondents No. 1 to 3.
 Mr. S.G. Karlekar, APP for Respondent No.4 - State.
                                  .....
                               CORAM : S.S. SHINDE AND
                                         K.K. SONAWANE, JJ.

RESERVED ON : 10th FEBRUARY, 2017.

PRONOUNCED ON : 1st AUGUST, 2017.

JUDGMENT : (PER: K.K. SONAWANE, J.)

1. Being dissatisfied with the judgment and order of acquittal of

respondents No. 1 to 3 - original accused in Sessions Case No. 12 of

2008, passed by the learned Ad-hoc Additional Sessions Judge,

Kandhar, District Nanded, dated 17-11-2008, the first informant of the

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crime, namely, Abdul Rauf Abdul Razzak preferred the present appeal

to redress his grievance.

2. It appears from the record that, initially appellant Abdul Rauf

filed the Criminal Revision Petition No. 08 of 2008 against the

impugned judgment and order of learned trial Court acquitting the

respondent-original accused in Sessions Case No. 12 of 2008. But,

during the course of hearing of Revision Petition by invoking remedy

under section 401 of the Criminal Procedure Code (for short "Cr.P.C."),

Revision Petition of the appellants came to be treated as petition of

appeal and proceeded to deal with the same accordingly. In such

circumstances, appeal is admitted. Heard finally, with consent of

learned counsel for the parties appeared in present matter.

3. The facts which led to prosecution of respondent Nos. 1 to 3

(hereinafter called as "accused" for the sake of brevity) are in brief as

under :-

That, the victim Abdul Razzak Abdul Khader and victim Abdul

Majeed Abdul Razzak, both were the father and elder brother of first

informant Abdul Rauf Abdul Razzak, r/o. Shevadi Bajirao, Tahsil Loha,

Dist. Nanded. The Abdul Majeed is the another brother of first

informant Abdul Rauf and all are eking livelihood by doing agricultural

work. There were agricultural lands belonging to father Abdul Razzak

and brother Abdul Majeed located within the vicinity of village Shevdi

Bajirao tahsil Loha District Nanded. The accused Qayyum is cousin

uncle of the first informant Abdul Rauf. Accused Abdul Ansar and Abdul

Jabbar are the sons of Abdul Qayyum. The agricultural lands of the

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accused were located abutting to the land of Abdul Razzak and Abdul

Majeed and since last ten years there was dispute in between the

family of accused and first informant on account of boundary line of the

agricultural land. The accused always made endeavour to encroach

upon the land of victim by causing damage to the boundary line. The

dispute pertains to the boundary line was amicably settled time and

again with the intervention of villagers, but, there was no change in the

behaviour of accused.

4. On the unfortunate day of incident, i.e. 02-11-2007, in the

morning hours, first informant Abdul Rauf and his wife were at home.

The father Abdul Razzak was sitting with son Abdul Rauf. At about

8.00 a.m. accused Abdul Qayyum and his son Abdul Ansar arrived in

front of the house of first informant Abdul Rauf and gave threats that

they are going to cause damage to the boundary line of the agricultural

land and in case some one else ventured to interfere in it, they would

chop him. The first informant did not pay heed to the threats of

accused being usual matter. Thereafter, first informant left the home

for going to Kandhar to attend function of "Walima" at the house of

relative Yasinsaheb. The father victim Abdul Razzak and wife

Kamrunissa had to attend the function at Kandhar in the evening.

According to prosecution, the victim Abdul Razzak and Abdul Majeed

both attended the Friday prayer in the Mosque and returned to home.

Abdul Razzak asked daughter-in-law Kamruissa to get ready for going

to Kandhar for "Walima" function at the house of relative Yasinsaheb.

Meanwhile, victim Abdul Razzak and his son Abdul Majeed both

4 Cri.Al-307-13-J

proceeded towards the field to take stock of situation after receiving

threats from the accused to cause damage to the boundary line of the

field. But, they did not return to home, even after quite sometime.

Therefore, daughter-in-law Kamruissa rushed towards the field to see

father-in law Abdul Razzak and brother-in-law Abdul Majeed. She was

aghast on seeing the accused assaulting both, father-in-law and

brother-in-law in brutal manner. The Accused Abdul Qayyum was

armed with Katti whereas Abdul Ansar was having Axe in his hand and

accused Abdul Jabbar was standing with stick near them in the field.

The frantic Kamruissa raised the shouts for help, but accused exhorted

to kill her. The accused Abdul Jabbar attempted to chase her for attack.

But, any how she succeeded to escape from the spot and came running

to home. She asked the nephew Moin to communicate about the

assault to the villagers congregated in the Mosque for prayer. She also

passed on information about the incident on telephone to her husband

at Kandhar. On receipt of information about the incident, he

immediately returned to home in Auto Rickshaw accompanied with

other relatives. They all rushed to the spot and saw that his father

Abdul Rauf and brother Abdul Majeed were lying in the pull of blood in

the field of accused near the plough in injured condition. Both victims

were no more. There were fatal injuries on their throats, face, limbs,

etc. The denizens of the locality also thronged at the spot. Thereafter,

first informant Abdul Rauf visited to Sonkhed Police Station to ventilate

grievance against accused. He blamed the accused for the death of his

father and brother.

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5. Pursuant to FIR of Abdul Rauf, Police of Sonkhed Police Station

registered the Crime No. 63 of 2007 under section 302, 506 of the

Indian Penal Code (for short "IPC") and set the criminal law in motion.

I.O. rushed to scene of occurrence and drawn the panchnama of the

spot. I.O collected earth smeared with blood and simple earth from the

spot of incident. I.O. also recovered pair of plastic chapple, shirt

buttons, etc. from the spot. The dead bodies of both victims were

escorted to the Government Hospital, Nanded for autopsy. Police dealt

with the mortal remains of both victims and drawn inquest panchnama.

The concerned Medical Officer conducted the post mortem on the dead

bodies of victim Abdul Razzak and Abdul Majeed. According to medical

experts, both victims died due to injuries to major vessel with cervical

spine injury. I.O. recorded statements of witnesses acquainted with

the facts of case. I.O. apprehended the accused for the sake of

investigation. During custodial interrogation accused shown willingness

to produce weapons of the crime. I.O. recorded memorandum

panchnama of accused and visited to the respective sites at the

instance of accused. I.O. recovered weapons Katti, Axe and Sticks at

the behest of respective accused and drawn recovery panchnamas

under section 27 of the Evidence Act independently. The cloths of

accused and deceased were seized in presence of panchas. The seized

muddemal were referred to forensic laboratory for C.A. analysis. I.O.

collected relevant papers i.e. sketch map of the spot, post mortem

report, C.A. report, etc. and after completion of investigation, I.O.

preferred charge-sheet against accused before learned Magistrate at

Kandhar.

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6. The learned Magistrate verified the charges pitted against the

accused and wisely transmitted the proceeding to the concerned

Sessions Court for trial of the accused within ambit of law. Accordingly,

the learned Ad-hoc Additional Sessions Judge, Kandhar framed the

charges against each of the accused for the offence punishable under

sections 302, 506 read with section 34 of IPC. The accused pleaded not

guilty and claimed for trial. The prosecution adduced evidence of in all

14 witnesses to bring home guilt of the accused. The learned trial Court

after hearing both sides, appreciated the entire oral and circumstantial

evidence adduced on record and arrived at the conclusion that,

prosecution failed to prove the serious charges of murder against

accused beyond reasonable doubt. Therefore, learned trial Court was

pleased to acquit all the respondents-accused from the charges levelled

against them and passed the impugned judgment and order of

acquittal, which is the subject matter of present appeal.

7. Before embarking into merits of the prosecution case to evaluate

guilt of the accused, we would like to elucidate the scope of exercise of

powers by the appellate Court against judgment of acquittal under

sections 378 and 386 of the Cr.P.C. The Hon'ble Supreme Court in the

case of Ghurey Lal Vs. State of Uttar Pradesh 1 considered the catena of

judgment and delineated the legal guidelines in paragraph No. 69 as

below:-

"69. The following principles emerge from the cases above:

1(2008) 10 SCC 450: 2009 (1)SCC Cri. 60

7 Cri.Al-307-13-J

1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilt. The accused possessed this presumption when he was before the trial Court. The trial Court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial Court's decision. This is especially true when a witness credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong."

8. Keeping in mind aforesaid legal principals, we proceeded to deal

with core question in this case as to whether, prosecution story is

worth credence and whether prosecution succeeded to prove the case

against accused beyond all reasonable doubts?.

9. We have heard learned APP for respondent No. 4 - State and

learned counsel appearing for respondents No. 1 to 3 at length. We

have also made endeavor to secure the presence of learned counsel for

appellant, but found unavailing. However, with the able assistance of

learned APP, we have carefully considered the submissions, impugned

8 Cri.Al-307-13-J

judgment and order passed by the learned Sessions Judge and the

evidence in this case. After careful consideration of the entire evidence

on record and for the reasons mentioned below, we are of the opinion

that learned Sessions Judge did not appreciate the evidence on record

in its proper perspective and has taken extremely perverse view and

acquitted the respondents-original accused in this case.

10. P.W. 2 Dr. Nilkant Bhosikar and his associate Dr. Punpale

conducted post-mortem on the dead bodies of victims of Abdul Razzak

and Abdul Majeed on 03-11-2007. At the time of autopsy on mortal

remains of deceased Abdul Razzak Abdul Khader he noticed following

ante-mortem injuries.

(i) An incised would on anterior surface of neck extending from mid-lines to right streno-

mastoid cutting, skin superficial fasicia muscles red vessels with fracture of cervical spine.

(ii) multiple incised wound on left side of neck.

                  (iii)    Incised would on left little finger with
                           fracture of phalax.


                  (iv)     Incised would on left side of face.


                  (v)      Incised would on left thigh measuring 10
                           c.m.x 2 cm. and


                  (vi)     Incised wound on right fore-arm.

P.W.2 Dr. Bhosikar opined that cause of death of victim Abdul

Razzak was cardio respiratory arrest due to hemorrhagic shock

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following injury to major vessels with cervical spine.

11. P.W.2 Dr.Bhosikar and his associate Dr. Punpale also conducted

post mortem on the dead body of another victim Abdul Majeed on the

very same day i.e. on 03-11-2007 and came across with following

external ante-mortem injuries.

(i) Injury on the anterior surface of neck measuring 10 cm X 10 cm, cutting skin, subcutanious tissues, muscle, great vessels of neck with injury to cervical spine.

(ii) Incised wound on right palm measuring 4 cm.

X 2 cm.

There was also fracture to the cervical spine of Abdul Majeed.

According to P.W.2-Dr. Bhosikar, the deceased Abdul Majeed

succumbed to the injuries of major vessels with fracture to cervical

spine. Accordingly, medical expert P.W.2-Dr. Bhosikar issued post

mortem reports (Exhibits 25 and 26) which are placed on record in this

case. There was no arduous cross-examination to medical expert on

behalf of accused. In such circumstances, there is no impediment to

arrive at the conclusion that both the victims met with an homicidal

death. The learned trial Court did not discuss this issue of homicidal

death of both victims elaborately, might be because of uncontroversial

issue in this case.

12. In order to bring home guilt of the accused, prosecution primarily

relied upon following four sets of incriminating circumstances including

10 Cri.Al-307-13-J

animosity in between family of accused and victims on account of

dispute of boundary line of their agricultural land.

                  (a)      The evidence of sole eye witness, P.W. 12 -
                           Kamrunissa,

                  (b)      Recovery of weapons of the crime under
                           section 27 of the Evidence Act at the behest
                           of accused,

                  (c)      C.A. Reports of the blood stain on
                           weapons, cloths of the deceased and
                           accused etc. and

                  (d)     Subsequent conduct of the accused relevant
                          under section 8 of the Evidence Act.

(A) Evidence of sole eye witness PW-12 Kamrunissa

13. P.W.12 Kamrunissa deposed that accused are her co-lateral

relatives. The accused used to pick up quarrels with her family

members since last 12 years on account of boundary line of their

agricultural land. On the day of incident, accused Abdul Qayuum came

to her home and gave threats that he would going to destruct the

boundary line and if some one else ventured to intercept, he would be

chopped there only. At that time, her husband, father-in-law and

brother-in-law were at home. P.W. 2 Kamrunissa further stated that

they did not take threats of the accused serious as same was routine

matter for them. Thereafter, her husband left home for going to

Kandhar to attend function of "Walima" at the house of relative. Her

father-in-law and brother-in-law both attended Juma (Friday Prayers)

and returned to home. P.W.12 Kamrunissa stated that her father-in-law

and brother-in-law disclosed her that they all have to attend function of

"Walima" at the house of their relatives at Kandhar. Thereafter, they

11 Cri.Al-307-13-J

both went towards field saying that they would return shortly for going

to attend the function of "Walima". But, they did not return to home,

even after sufficient time. Therefore, P.W.12 Kamrunissa rushed to the

field. There were no one else present at the well in the field.

Therefore, she proceeded towards common boundary line (Bandh) of

the field. She saw her father-in-law and brother-in-law in the field of

accused Abdul Qayyum. They both were mercilessly assaulting by

accused Abdul Qayyum, his son Abdul Ansar and Abdul Jabbar. Both

victims sprawled on the ground. She further deposed that the weapon

katti was in the hand of accused Abdul Qayyum and accused Abdul

Ansar was armed with Axe whereas wooden log was in the hand of

accused Abdul Jabbar. On seeing assailants she raised shouts. Accused

Abdul Jabbar saw her and exhorted to kill her. He attempted to chase

her. The frantic P.W.-12 Kamrunissa, any how escaped from the spot

and came to her home. P.W.-12 Kamrunissa further stated that her

nephew Moin and children were at home. She asked nephew Moin to go

to Mosque in the village and if some one found from her relations

disclosed them about the incident of assault to victims- Abdul Razzak

and Abdul Majeed. Thereafter, she gave information about the incident

to her husband on telephone. Accordingly, her husband accompanied

with other relatives returned to village in Auto rickshaw. She narrated

the incident of assault by the accused on victims to her husband. All

rushed towards the field. Eventually, her husband visited to the Police

Station and filed the FIR. He blamed the accused for injuries

sustained to his father and brother.

12 Cri.Al-307-13-J

14. The learned trial Court disbelieved the version of P.W.12

Kamrunissa mainly on the following reasons,

(I) Testimony of P.W.12 Kamrunissa suffers from contradictions. While P.W.12- Kamrunissa stated in her evidence that accused Abdul Qayyum alone came to her house in the morning hours and gave threats for destruction of boundary line in the filed, the deposition of her husband P.W.13 -Abdul Rauf was that all three accused came to his house and gave threats. In the FIR Exhibit-62 he stated about visit of only accused Abdul Qayyum and his son Abdul Ansar to the house and gave threats of destruction of boundary line.

(II) P.W.12 Kamrunissa failed to give accurate account of events occurred at the time of assault. She was unable to state the distance between both the victims and assailants at the time of alleged incident. She could not state in which hand the weapons were holding by the assailants while assaulting and how many blows of weapon assailants dealt with on the victim and at what part of their bodies.

(III) The conduct and demeanour of P.W.12 Kamrunissa found suspicious and incredulous one. She did not disclose about the incident to anybody else while she escaped from the spot and straight way came to home, nor she stated about the incident to Coin Box owner while informing her husband about the

13 Cri.Al-307-13-J

incident on telephone. Moreover, she did not prefer to take shelter for protection in the adjoining field of one Jaffar.

(IV) Panch of the spot panchnama P.W. 14- Mohd Mustaq (relative of first informant Abdul Rauf) admitted in his cross-examination that P.W-12 Kamrunissa was at Kandhar during the relevant period for attending function of "Walima", and therefore, her presence at the scene of occurrence found doubtful.

15. After intense scrutiny of the evidence of P.W.12 Kamrunissa, we

find painful to discard the evidence of such star witness of the

prosecution for the reasons as referred supra, pointed out by the

learned trial Court. It is true that the P.W.12 Kamrunissa was the

chance witness in this case. She by chance or co-incidence happens to

be at the place of occurrence and watched the spectacle. She was also

the relative of both victims and inimical to accused. But, it does not

mean that her evidence is necessarily incredible and unbelievable one.

No doubt, it requires cautions and close scrutiny.

16. There are some discrepancies in the evidence of P.W.12 but

these discrepancies are not fatal to the prosecution case. The P.W.12

Kamrunissa stated about visit of accused Abdul Qayyum alone and

gave threats for destruction of boundary lines of the field and about

dire consequences, while her husband stated that all three accused

came to his house in morning hours and gave threats for destruction of

boundary lines. In the FIR, he (first informant Abdul Rauf) stated only

the names of two accused i.e. Abdul Qayyum and Abdul Ansar for

14 Cri.Al-307-13-J

giving threats in the morning hours. But, these discrepancies appears

not vital in nature to cause damage to the prosecution case. These

discrepancies are relating to the incident occurred in the morning

hours. The substram of prosecution case was that of incident of brutal

attack by accused occurred in the field late afternoon. Obviously, these

minor discrepancies relating to the incident of morning hours would not

touching to core of the matter and, therefore, cannot bring discredit to

the story of prosecution.

17. Moreover, in regard to conduct and demeanour of P.W.12

Kamrunissa not disclosing the incident to anybody else till arrival of her

husband as well as her failure to give detail particulars of the incident

of assault as referred supra, we find that giving undue importance to all

these circumstances would amount to adopting hyper-technical

approach for appreciation of her evidence. It cannot be ignored that

P.W. 12 Kamrunissa was illiterate and rustic woman. The learned trial

Court was required to bear in mind the set up and environment in

which the crime came to be committed, the level of understanding of

the witness and her power of observation. It seems that most of the

part of cross-examination of P.W. 12 was very much depend upon her

power of observations. The Hon'ble Supreme Court time and again in

series of cases made it clear that people react to situation not always

uniform ways. The reaction would very with the physical courage,

mental equipment and social awareness etc. The evidence of the

witnesses cannot be thrown away only because of few discrepancies or

omissions to state certain acts. If story of the prosecution found

15 Cri.Al-307-13-J

probable in the sense that it is coming in natural flow and it finds

support from other surrounding circumstances, it cannot be suggested

that testimony of witness is doubtful.

18. The learned trial Court criticized the evidence of P.W.12 that she

was unable to disclose the detail particulars of the incident, the

sequence of event occurred, the distance in between victims and

accused at the time of alleged assault. Moreover, she failed to state

the hands in which the weapons were holding by the accused at the

time of incident and the number of blows inflicted by the accused etc.

Therefore, learned trial Court proceeded to disbelieve her version for

adverse inference against accused. We are not in agreement with the

observation made by the learned trial Court. The failure to give all

these details by P.W.12, may be due to normal error of observation or

owing to mental disposition following shock and horrer at the time of

occurrence of gruesome murder of her family member. In such

situation, it would unreasonable to expect that evidence of ignorant

and rustic witness P.W.12 must be photographically accurate and

should stand to the test of word to word and in measurement of an

inch to inch. The Court should not adopt suspicious approach to the

evidence of witnesses by resorting to surmises and conjectures. In the

instant case, P.W. 12 Kamrunissa deposed that when her father-in-law

and brother-in-law did not return to home from the field even after

quite sometime, she rushed to the field. She was aghast on seeing the

brutal attack with deadly weapon by the accused on her family

members. She raised shouts but accused Abdul Jabbar attempted to

16 Cri.Al-307-13-J

chase her. Albeit, she succeed to escape from the spot. The sequence

of events occurred at the relevant time adumbrates that P.W. 12

Kamrunissa, unsophisticated and rustic woman, must have under

mental stress, truma as well as under duress. Moreover, while sending

nephew Moin at the Mosque, she had taken care and asked him to

disclose about the incident to only relatives and not any other person.

Thereafter, she immediately, passed on information to her husband on

telephone. The story putforth on behalf of P.W.12- Kamrunissa appears

more probable in the sense that it has come in natural flow. Therefore,

non-disclosure of incident to other villagers or even Coin Box Owner

would not render her evidence nugatory and worthless

19. The another aspect of the impugned judgment required to be

considered is in regard to evidence of panch witness P.W.14 Mohd.

Mustaq. He was examined by the prosecution to prove panchnama of

scene of occurrence and inquest panchnama. However, in his cross-

examination he gave admission that on the day of incident P.W.-12

Kamrunissa was at Kandhar for attending function of "Walima." The

learned trial Court found much more impressed by this stray statement

made by the panch witness during his cross-examination. Learned trial

Court venture to appreciate the mode in which panch P.W. 14 Mohd.

Mustaq adduced his evidence on record. He has stated about the

manner in which police conducted panchnama, and therefore, learned

trial Court drawn the inference that P.W.14 Mohd. Mustaq was straight

forward and truthful witness. The learned trial Court in paragraph No.

18 of the judgment has observed that:-

17 Cri.Al-307-13-J

"18. ..................

I had especially noticed that he was examined before the court during the month of Ramzan and it had came to the notice of the Court that he was fasting. In these circumstances, it was more than clear, that he did not want to make false statement only to suit the prosecution-

complainant Abdul Rauf but he was fully aware of expectations from him to be a truthful Muslim while fasting during the month of Roznama.".......

......... on this background his admission that Kamrunissa wife of Abdul Rauf had attended Valima that was celebrated at Kandhar on the day of the incident is a hard reality..........................

... Therefore, I have absolutely no hesitation on holding this witness to be a straight forward, truthful and as such trustworthy witness and holding that his version about Kamrunnisa being present at the place of celebration of Valima at Kandhar being a true version. If that is the case, he has taken earth from beneath the prosecution feet, especially on the point of P.W-12 Kamrunnisa's presence at celebration of Valima at Kandhar on the day of incident."

20. We find the aforesaid observations would be the fallout of

impression which prevailed over in the mind of concerned learned

Judge. It is to be appreciated that evidence of P.W.12-Kamrunissa and

her husband P.W. 13 Abdul Rauf were recorded by the learned trial

Court on 08-09-2008 and 09-09-2008 as well as evidence of P.W.14

Panch Mohd Mustaq was also recorded on the very same day i.e. on

18 Cri.Al-307-13-J

09-09-3008, during the fasting period of month of "Ramzan". In such

circumstances, the evidence of P.W.12 Kamrunissa as well as her

husband P.W. 13 - Abdul Rauf was also required to be appreciated as

truthful and unblemished version. Be that as it may, stray statement of

P.W.-14 Mohd Mustaq made in his cross-examination that P.W. 12

Kamrunissa was at Kandhar for attending function of Walima at the

relevant time, cannot be accepted, on such emotional religious ground

without any corroboration. In contrast, circumstances demonstrate that

P.W. 13 Abdul Rauf had been to Kandhar in morning hours for

attending function of Walima and his wife P.W. 12 Kamrunissa as well

as father victim Abdul Razzak were at home. They were intending to

attend function in the evening hours. The victim Abdul Razzak and his

son Abdul Majeed after prayer in the mosque proceeded towards the

field to take stock of situation, unaware of their tragic end on account

of dispute of boundary line of the field. The P.W.13 Abdul Rauf

immediately returned to home after receipt of information about the

incident from his wife P.W.12 Kamrunissa. The F.I.R. (Exh.62)

corroborates to the version of P.W.13 Abdul Rauf, In such

circumstances, inference drawn by the learned trial Court that P.W.12

Kamrunissa was at Kandhar to attend function of "Walima" appears

fallacious and not credible one. We find that judicial approach while

dealing with such kind of evidence has to be cautious and careful.

21. In view of aforesaid discussion, we are of the considered opinion

that findings of the learned trial court rejecting the evidence of P.W.12-

Kamrunissa, star witness of the prosecution appears erroneous illegal

19 Cri.Al-307-13-J

and extremely perverse in nature. In contrast, we are of the opinion

that her evidence is trustworthy and inspire confidence. At this

juncture, we would like to mention that the duty cast on the Court is

to see with the vision of prudence and appreciate the evidence of

prosecution witness taking into consideration substram of prosecution

case. Their Lordships in the case of the State of Punjab Vs. Jagir Singh

Baljit Singh and Karam Sing2 in paragraph No. 23 observed that:-

"23. A criminal trial is not like a fairy tale wherein one is free to give fight to one's imagination and phantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."

In such backdrop discussed above, we are unable to persuade

ourselves to discard the evidence of P.W.12 Kamrunissa, the key

witness of the prosecution. The reasons given by the learned trial

2 (1974)3 Supreme Court Cases 277

20 Cri.Al-307-13-J

Court for rejection of her evidence appear to be based on figment of

imagination and not sustainable at all.

:: 'DISCOVERY OF WEAPONS U/S. 27 OF THE EVIDENCE ACT' ::

22. Prosecution placed reliance on the incriminating circumstance of

recovery of weapons at the behest of accused. Prosecution has

examined P.W.1 Balaji Suryawanshi for recovery of weapon Katti

(sickle) from accused Abdul Qayyum and P.W.3 - Dattarao

Sadashivrao Mukhede for recovery of Axe from the custody of accused

No. 1 Abdul Ansar as well as P.W. 8- Abdul Masood Abdul Aziz for

recovery of weapon wooden log at the behest of accused - Abdul

Jabbar.

23. P.W.1 Balaji Suryawanshi deposed that on 06-11-2007 he was

called at Sonkhed Police Station to act as panch. Accused Abdul

Qayyaum was in the police custody. He divulged that he would produce

weapon - Katti (sickle) concealed in his agricultural land located at

Shevadi Bajirao. I.O. prepared the memorandum panchnama of

confessional statement of accused Abdul Qayyum in presence of

panchas (Exhibit-21/A). Thereafter, accused - Abdul Qayyum led the

police and panchas with photographer and other police staff to village

Shevadi Bajirao in his field. The accused Abdul Qayyum produced one

weapon katti (sickle), which was concealed in the heap of stems of Till

crop. The police drawn seizure panchnama of the weapon katti (sickle),

recovered at the instance of accused-Abdul Qayyum. The weapon was

found smeared with blood stains and earth particles. Panchas put their

21 Cri.Al-307-13-J

signatures on recovery panchnama (Exhibit 21/B), P.W.1 Balaji

identified the weapon recovered at the instance of accused - Abdul

Qayyum at the time of his evidence in the Court.

24. P.W. 3 Dattarao Mukhede deposed that on 08-11-2007 he was

called by his Superior Officer, Tahsildar and directed him to go to the

Police Station and assist the Police in the investigation of crime.

Accordingly, he visited to Sonkhed Police Station. The Talathi Mr.

Kawale was also accompanied with him. Police Personnel asked him to

act as panch for the panchnama as accused Abdul Ansar would produce

the weapon of crime. Thereafter, the memorandum panchnama

(Exhibit-31/A) was prepared and he put his signature on it. P.W. 3-

Dattarao Mukhede stated that accused Abdul Ansar took the police and

panchas in the vehicle jeep to his village Shevadi Bajirao and produced

weapon Axe, concealed beneath the Soyabean crop. The police seized

the weapon Axe under panchnama (Exhibit-31/B) and obtained his

signature on it.

25. P.W. 8-Abdul Masood deposed that he was called by the Police in

the Police Station to act as panch. It was informed to him that accused

would produce wooden log used as weapon while commission of crime.

P.W. 8 -Abdul Masood stated that confessional statement of accused

was reduced into witting under memorandum panchnama. Thereafter,

both panchas put their signatures on panchnama (Exhibit-49).

According to P.W.8- Abdul Masood, accused Abdul Jabbar led police and

panchas to his village Shevadi Bajirao in the Police jeep and produced

one wooden log from the heap of Soyabean crop. The Police drawn

22 Cri.Al-307-13-J

panchnama (Exhibit-49/B) for seizure of weapon wooden log at the

behest of accused Abdul Jabbar.

26. It is worth to mention that all these weapons recovered at the

behest of accused were seen and identified by P.W.12-Kamrunissa

being weapons used by assailants at the time of assault on both

victims. In C.A. Report (Exh.76), the human blood was detected on

the blade of the weapon katti (sickle) and Axe having blood group 'B'.

Unfortunately, the blood group of both victims and accused were

detected as of blood group 'B' only. But, the find of human blood on

the blade of weapon katti (sickle) and axe lends corroboration to the

testimony of P.W.12-Kamrunissa.

27. The learned trial Court found reluctant to appreciate the

evidence of recovery of weapons of the crime at the instance of

accused and adopted superficial approach. The learned trial Court did

not take into consideration that after seizure panchnama, the weapons

were referred to Forensic Laboratory for chemical analysis. The articles

were handled by the C.A. for examination. In such circumstances, it

would preposterous to appreciate that in absence of labels of

signatures of panchas on the pocket as well as weapons were kept in

cloth and not cotton bag etc. the evidence of discovery of weapon

looses it's significance. It would be fallacious to ignore the evidence of

discovery of weapons for the reasons that, weapon Axe was wrapped in

the white cloth and not put in white cloth bag at the time of its seizure

as well as the pasting of labels bearing signatures of the panchas on it,

would not consistent with discovery in furtherance of confessional

23 Cri.Al-307-13-J

statements made by the accused. The learned trial Court also pointed

out some discrepancies in the version of panch witnesses about

confessional statement of the accused and recovery of weapon. But, it

is to be noted that, the witness is not like tape-recorder. While giving

evidence in the Court after efflux of sufficient period, his memory may

not serve him completely right. There may be an possibility of some

sort of variation in their evidence. Therefore, it would not render their

evidence suspicious and doubtful. Moreover, it would highly improper

to disbelieve the P.W.3 Dattarao Mukhede, for the reason that he was

the public servant and working in the Tahsil Office dealing with the files

of Police chapter cases. Therefore, he must have an acquaintance with

the accused, and even though he is deposing falsely that he had not

seen accused prior to panchnama of recovery of weapon Axe (Exhibit-

31/A). We find observations of learned trial Court is unreasonable and

irrational one and totally based on assumption & presumption. There is

no impediment to appreciate evidence of these witnesses to prove the

incriminating circumstances of recovery of weapons at the instance of

accused in this case.

28. It is also essential to appreciate that, the blood stains detected

on incriminating weapons were of blood group "B". The blood group of

victims as well as accused were also detected as of Group "B". But, it

would not fatal to the prosecution case. The circumstances of bare

similar blood group of "B" on the weapon would not negate the

evidence of prosecution witness as well as it does not make find of

human blood on the weapons of crime of no consequences. In

24 Cri.Al-307-13-J

contrast, the human blood detected on the weapon and on the cloths of

the accused render corroboration to the testimony of P.W.12

Kamrunissa. It has brought on record that the P.W.12 Kamrunissa

had seen the accused inflicting blows of Katti (sickles) and axe on both

the victims, and consequently, there weapons would smear with stains

of human blood. There was no explanation from the accused in regard

to presence of human blood on these weapons as well as their cloths.

We are, therefore, of the opinion that the similar blood group detected

would not itself affect adversely to the prosecution case but the human

blood detected on the weapon as well as garments of the accused

would establish their involvement and nexus with the alleged incident

of assault.

(C ) C.A. Report of blood stains on the cloths of deceased and Accused.

29. Prosecution examined P.W.5 Maroti Pandalwar to prove the

panchnama of seizure of cloths of the accused in this case. P.W-5

Maroti deposed that prior to 7/8 months, he was called in Sonkhed

Police Station for seizure panchnama of the cloths of accused Abdul

Qayyum. Police seized one Nehru Shirt, Paint and Baniyan of white

Colour in his presence and drawn panchnama (Exhibit-35). He has

further deposed that the Police also seized cloths of accused No. 2

Abdul Ansar in his presence and drawn panchnama (Exhibit-36). It is

an admitted fact that accused Abdul Qayyum and Abdul Ansar both

were arrested in this crime on the following date i.e. 03-11-2007 at

about 12.30 p.m.. Both these accused were at Sonkhed Police Station

on 02-11-2017 after alleged incident occurred at late afternoon. They

25 Cri.Al-307-13-J

lodged information about alleged fight with their kinsmen. The Police

of Sonkhed Police Station referred both these accused to the Primary

Health Centre, Sonkhed for medical checkup with medical memo

(Exhibit-33). Thereafter, on the following day they were arrested in

this crime pursuant to FIR (Exhibit-62) filed by P.W. 13 Abdul Rauf.

These circumstances indicate that the cloths seized by the Police under

panchnama (Exhibits-35 and 36) from the person of accused Abdul

Qayyum and Abdul Ansar were the same cloths on their person at the

time of incident of assault. P.W. 5-Maroti proved the seizure

panchnama of cloths of accused Abdul Qayyum and Abdul Ansar.

30. P.W-6 Shaikh Usman stated about the seizure of cloths of both

the victims after autopsy under panchnama (Exhibits-38 and 39). All

these cloths of the accused and deceased were referred to the Forensic

Laboratory for C.A. analysis. P.W.10 - PHC Kamble carried all these

articles to the C.A. Office for analysis with letter (Exhibit-53). The

prosecution produced C.A Report (Exhibit-76) on record. It reveals

that cloths of victim Abdul Majeed at Exhibits-11 to 14 were smeared

with human blood stains of blood group "B". The blood stains were

also detected on the cloths of the accused, which are at Exhibits 18 to

22 as per C.A. Report (Exhibit-76). All these blood stains detected on

the cloths of both the accused were of human and blood group of "B".

31. These circumstances demonstrate that accused had an nexus

and proximity with the alleged incident of assault and suggested their

presence at the scene of occurrence. Definitely, detection of human

blood stains on the cloths of accused strengthen version of P.W.12

26 Cri.Al-307-13-J

Kamrunissa attributing overtact of both the accused in this crime.

Therefore, these circumstances being incriminating in nature, definitely

prop-up the edifice of prosecution case.

(D) Subsequent conduct of the accused relevant under section 8 of the Evidence Act.

32. There is no doubt that conduct of the accused would be relevant

under section 8 of the Evidence Act. In order that Court can

legitimately draw inference that subsequent conduct of the accused

was that of guilty person and not of innocent man, there must be some

reliable material placed before the Court for appreciation. In the

instant case, it has been alleged that after the alleged incident accused

No. 1 Abdul Qayyum and accused No. 2 Abdul Ansar, both had been to

Sonkhed town for medical treatment of their injuries at the

Government Hospital. P.W.9 Miraj Shaikh deposed that on the day of

incident i.e. on 02/11/2007, in the evening hours, accused Abdul

Qayyum and Abdul Ansar met him near the School and disclosed that

there was quarrel in between themselves and their kinsmen and in the

fight they sustained injuries and they were intending to go to the

hospital at Sonkhed. Hence, P.W.9 Miraj Shaikh carried both the Abdul

Qayyum and Abdul Ansar in his auto-rickshaw and dropped them near

the Government hospital at Sonkhed for medical treatment. He stated

that accused paid Rs. 50/- towards fare of Rickshaw to him.

33. Prosecution also examined P.W.4 - PHC Musale. He deposed that

on 02-11-2007 he was on duty as PSO in Sonkhed Police Station. In

the evening hours at about 6.30 p.m. the accused Abdul Qayyum and

27 Cri.Al-307-13-J

Abdul Ansar visited to the Police Station and divulged that they were

being assaulted by their kinsmen, on account of dispute over the

agricultural land and they sustained injuries in the assault. P.W. 4 -

PHC Musale verified the injuries of both the accused. Thereafter, he

gave medical memo (Exhibit-33) and sent them to the Primary Health

Centre, Sonkhed for medical checkup. He took the entry about the

same in station diary. P.W.4-PHC Musale further added that he learnt

that doctor was not available at Primary Health Centre, and, therefore,

both accused had gone to Civil Hospital, Nanded for Medical checkup.

He had also given instructions to both the accused to return to Police

Station after medical treatment for lodging the complaint about the

incident in the Police Station. But, they did not return to Police Station.

PW-4 PHC Musale produced extract of medical memo (Exhibit-33)

issued in favour of both accused on record. P.W.4 PHC Musale further

deposed that in the night at about 11.00 p.m. first informant Abdul

Rauf rushed to the Police Station and filed FIR about the incident of

murder of his father and brother on the part of accused, namely, Abdul

Qayyum, Abdul Ansar and Abdul Jabbar on account of land dispute.

34. The overall scrutiny of the evidence of P.W.9 Miraj Shaikh, Auto

rickshaw driver, P.W. 4- PHC Musale coupled with document of medical

memo (Exhibit-33) would reveal that on 02-11-2007 after the

occurrence of alleged incident at late afternoon, the accused Abdul

Qayyum and accused Abdul Ansar had been to Sonkhed Police Station

at about dusk to ventilate grievance in regard to the incident of assault

by their kinsmen on account of dispute of agricultural land. Medical

28 Cri.Al-307-13-J

memo (Exhibit-33) indicate that they were referred to Government

Hospital for medical checkup. Meanwhile, P.W. 13-Abdul Rauf filed FIR

against the accused for brutal murder of his father and brother on

account of dispute of boundary line of agricultural land. It is discernible

from the circumstance that visit of the accused Abdul Qayyum and

Abdul Ansar to the Police Station for their grievance about incident of

assault against kinsmen was relating to the incident of brutal attack on

both the victims Abdul Razzak and Abdul Majeed at late afternoon on

02-11-2007 on account of dispute of boundary line of agricultural land.

The accused committed murder of both victims and thereafter they

visited Police Station to lodge information to the effect that they were

attacked by kinsmen on account of dispute of agricultural land. The

accused, thus, gave version favourable to them. The information given

to the Police about assault by kinsmen to sustain injuries and

thereafter they were referred to the Government Hospital with medical

memo (Exhibit-33), all are circumstances relevant under section 8 as

the evidence of conduct of guilty person. The subsequent conduct of

the accused conjures up the image that they had an involvement and

participation in the alleged incident of assault as nurtured by the eye

witness P.W. 12 Kamrunissa resulting into death of both the victims

Abdul Rauf and Abdul Majeed. Therefore, suspicious conduct and

demeanour of both the accused constrained to draw adverse inference

against them. These incriminating circumstances fortify allegations

nurtured on behalf of prosecutions against the accused in this case.

Therefore, there is no impediment to appreciate circumstance of

suspicious conduct and demeanour of the accused to evaluate their

29 Cri.Al-307-13-J

guilt.

35. In the above premises, we are of the considered opinion that the

evidence of P.W.12- Kamrunissa found credible, trustworthy and inspire

confidence. She was the sole eye witness of the incident. We have

already observed that she received the opportunity to watch the

spectacle by co-incidence and once it is satisfied that evidence of such

interested witnesses bearing ring of truth, there is no impediment to

keep implicit reliance on her version for adverse inference against

accused. Her husband P.W.13-Abdul Rauf also corroborates the

testimony of wife P.W. 12-Kamrunissa on the material circumstances of

alleged incident of assault, which resulted into death of victim Abdul

Razzak and Abdul Majeed. The medical expert P.W. 2 Dr. Bhosikar

certified that both the victims met with an homicidal death. The

incriminating weapons of the crime stained with human blood were also

recovered at the behest of accused Abdul Qayyum and Abdul Ansar in

this case. The C.A. reports adumbrate stains of human blood on the

weapons Katti (Sickle) and Axe recovered from the custody of accused

under section 27 of the Evidence Act. These incriminating

circumstances reflect nexus and proximity of the accused with the

alleged incident of brutal attack on the victim Abdul Razzak and Abdul

Majeed. The cloths of the deceased as well as accused were also found

smeared with human blood. There were no explanation from the

accused for detection of human blood of group "B" on their cloth as well

as weapon recovered from their custody. The subsequent conduct of

the accused for lodging information to the Police about the quarrel with

30 Cri.Al-307-13-J

kinsmen for dispute of agricultural land demonstrate guilty conscious of

the accused. The overall assessment of all these attending

circumstances constrained, our judicious conscious to arrive at the

conclusion that the accused are only the perpetrator of the crime and

author of injuries sustained to both victims resulting into their death

and none else.

36. There is no any other view possible than to complicity of the

accused in this case for the alleged caused of death of victim Abdul

Razzak and Abdul Majeed. The P.W. 12 -Kamrunissa attributed the

overact of all these three accused while brutal attack on her family

members. The accused Abdul Jabbar had also attempted to chase her

to assault but any how she succeed to escape from his clutches. These

circumstances indicate the commission of act of accused Jabbar in

furtherance of their common intention. Therefore, all three accused

found responsible for homicidal death of victim Abdul Razzak and Abdul

Majeed.

37. In this view of the matter, we are of the considered opinion

that, the view of the acquittal under sections 302 and 506 read with

section 34 of the IPC taken by the learned Sessions Judge is totally

perverse and not sustainable within the ambit of law. The prosecution

has proved the guilt of all these accused for the homicidal death of both

the victims beyond reasonable doubt. The incriminating circumstances

on record are not only consistent with the guilt of the respondents-

accused but also inconsistent with their innocence.

31 Cri.Al-307-13-J

38. In view of aforesaid discussion, the appeal stands allowed. The

impugned judgment and order passed by the learned Ad-hoc Additional

Sessions Judge, Kandhar, District Nanded deserves to be upset and

accordingly set aside and quashed. The respondent-original accused

No. (1) Abdul Qayyum S/o Abdul Wahed Sab, (2) Abdul Ansar S/o

Abdul Qayyum and (3) Abdul Jabbar S/o Abdul Qayyum are hereby

convicted for the offence punishable under section 302 read with

section 34 of the IPC and they are sentenced to suffer life

imprisonment and to pay a fine of Rs. 10,000/-(Rupees Ten Thousand)

each, in default of payment of fine, they shall suffer rigorous

imprisonment for further two years. The respondents-accused are on

bail. They shall surrender before the learned trial Court at Kandhar on

or before 21st August 2017 to serve out the sentence. In case,

respondents-accused fail to surrender themselves within stipulated

period, the concerned learned trial Court, Kandhar shall issue non-

bailable warrant against respondents-accused to secure their presence

for further process to serve out sentence imposed as mentioned above.

The respondents-original accused are entitled to set off in accordance

with law.

39. Accordingly, Criminal Appeal stands disposed of in aforesaid

terms.

                Sd/-                                            Sd/-
       [ K. K. SONAWANE, J. ]                           [ S.S. SHINDE, J.]




 MTK.