Narayan Laxman Suryawanshi vs The State Of Maharashtra
2017 Latest Caselaw 3786 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                            CRIMINAL APPEAL NO. 236 OF 2013

Narhari S/o. Laxman Suryawanshi,
Age 66 years, Occ. Agril.,
R/o. Rui (Uttar)
Tq. Ahmedpur, Dist. Latur.
                                                             ...APPELLANT
                                                              (Ori. Accused)
       versus

The State of Maharashtra


                                                          ...RESPONDENTS
                                                         (Ori. Complainant)
                                     .....
Mr. R.R. Mantri, with Mr.V.D. Gunale, Advocate for Applicant
Mr. M.M. Nerlikar,APP for Respondent-State
                                     .....

                                          CORAM : S.S. SHINDE AND
                                                  K.K. SONAWANE, JJ.

RESERVED ON : 14TH FEBRUARY, 2017.

PRONOUNCED ON : 30TH JUNE, 2017.

JUDGMENT : ( Per : K.K. Sonawane, J.)

1] Being dissatisfied with the judgment and order of conviction for

the offence punishable under section 302 of IPC and the resultant sentence

to suffer R.I. for life and fine of Rs. 2,000, in default, to suffer R.I, for six

months imposed by the learned Additional Sessions Judge, Ahmedpur in

Sessions Case NO. 12 of 2012, the appellant/original accused by availing the

remedy under Section 374(2) of Cr.P.C. preferred the present appeal to

redress his grievances.

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2]              The prosecution case in nutshell is as under :-

That, on 14-03-2012, the first informant Gangadhar Digamber

Suryawanshi filed the FIR and alleged that the victim Laxman Digambar

Suryawanshi was his real brother. He accompanied with victim Laxman, his

parents I.e. father Digamber and mother Gayabai and other family members

were residing at village Rui-Uttar, tahsil Ahmedpur. They all were eking

livelihood by doing agricultural labour work. The appellant-original accused

Narhari Laxman Suryawanshi is his uncle residing in the same village. The

appellant/accused Narhari and one Sangram are the brothers of Digambar -

father of the first informant. There was an ancestral agricultural land at

village Rui Uttar. Since last 20 years, accused Narhari was at Mumbai for

employment. Thereafter, he returned to village prior to two years of the

incident and doing agricultural work. There was a dispute in between

Digambar - father of the informant and his brothers - Sangram as well as

accused Narhari, on account of family partition of the ancestral agricultural

land and consequently, the relations in between the family of the brothers

were strain.

3] On the unfortunate day of incident i.e. 14-03-2012 in the

morning at about 11-00 a.m. the mother Gayabai, victim Laxman and others

had been to the field known as "Bramhanache Shet" ( Brahmin's field) for

collecting firewood. There was a quarrel in between the appellant Narhari

and victim Laxman, his mother Gayabai and others, on account of cutting of

wood from the field. The appellant/accused exhorted victim Laxman and

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his mother. There were altercation in between them and in the fight,

accused assaulted mother Gayabai by means of stick etc. The victim

Laxman, his mother Gayabai and others returned to home. They all were

intending to lodge complaint against the accused Narhari in the police

station, Ahmedpur. Therefore, the father Digambar, mother Gayabai and

victim Laxman came to auto-rickshaw stand in the village, for going to

Ahmedpur P.S. Meanwhile, accused Narhari and his wife Kalpana, both

arrived at the auto-rickshaw stand. They picked up quarrel with the

Digambar-father of First informant Gangadhar. In the altercation,

appellant-Narhari dealt a blow of sickle on the head of Digambar, father of

the first informant, but he succeeded to dodge the same. The victim

Laxman, on seeing accused Narhari assaulting the father, rushed towards the

appellant Narhari and intervened in the scuffle to rescue the father.

But,Accused Kalpana - the wife of appellant Narhari caught hold the victim

Laxman. The appellant Narhari gave a blows of sickle on the neck as well as

shoulder of the victim Laxman. He received the fatal bleeding injuries. The

denizens and onlookers thronged at the spot. Thereafter, assailant made

their escape good from the scene of occurance. The injured Laxman was

escorted to the Government Hospital at Ahmedpur for medical treatment,

But, the Doctor declared him dead. The information of death of victim

Laxman was passed on to the concerned police of Ahmedpur Police station,

District Latur. On receipt of information, the Ahmedpur Police, registered

the A.D. No. 11 of 2012 under Section 174 of Cr.P.C. and swung into action

for enquiry to ascertain the cause of death of victim Laxman. I.O. drawn

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inquest panchanama and referred the dead body for autopsy to the rural

hospital, Ahmedpur. The medical experts conducted the post-mortem and

opined that the victim died due to hemorrhagic shock owing to injuries to

vital organs. I.O. seized the clothes of the deceased after autopsy under

panchanama. Meanwhile, the first informant Shri Gangadhar Suryawanshi

approached to the police of Ahmedpur Police station and lodged the FIR. He

blamed the accused/appellant Narhari and his wife Kalpana for the death of

brother Laxman.

4] Pursuant to FIR of Gangadhar, the police of Ahmedpur P.S.

registered the Crime NO. 35 of 2012, under Section 302, 324, 504 r/w. 34 of

IPC and set the penal law in motion. I.O. visited to the scene of occurrence

and drawn the panchanama of spot. I.O. recovered the blood stained earth,

simple earth, Chappal stained with blood, etc. from the spot of incident.

I.O. apprehended the appellant/accused Narhari for the sake of

investigation. I.O. recorded statements of witnesses acquainted with the

facts of the case. During custodial interrogation, appellant/accused

confessed about the crime and shown willingness to produce the weapon of

crime concealed in the bushes of Ketki trees. The I.O. recorded

memorandum statement of appellant/accused under section 27 of the

Evidence Act and proceeded towards Nanded- Ahmedpur Road. The

appellant/accused produced the weapon of crime concealed in the bushes of

the Ketki trees. I.O. seized the weapon under panchanama recovered at the

behest of appellant. I.O. sent the seized Muddemal to the forensic

Laboratory for analysis. I.O. collected the relevant documents of P.M. etc.

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The accused No.2 - Kalpana w/o appellant Narhari was absconding since day

of incident. There were endeavour to trace out the whereabouts of accused

No.2 - Kalpana but all efforts found unavailing. Eventually, I.O. preferred

the charge sheet against the appellant Narhari showing his wife accused

Kalpana as absconding accused under Section 299 of Cr.P.C.

5] On receipt of charge sheet and investigation papers, the

learned Magistrate Ahmedpur verified the charges pitted against the

appellant/accused. It was transpired that the offence under Section 302 of

IPC levelled against the appellant was exclusively triable by the Court of

Sessions. Therefore, the learned Magistrate wisely transmitted the entire

proceedings of RCC No. 84 of 2012 to the Court of Sessions for trial of the

accused/appellant, within ambit of law. Since arrest, the appellant is in

jail, being an under-trial prisoner. The learned Sessions Judge, after

appreciation of allegations nurtured against the appellant/accused framed

the charges for the offences punishable under Section 302, 324, 504 r/w. 34

of IPC against the appellant/accused Narhari Suryawanshi (Exh.8.) The

appellant/accused denied the charges and pleaded not guilty. He claimed

for trial.

6] In order to bring home guilt of the accused, prosecution adduced

the evidence of in all 13 witnesses. The learned Sessions Judge also

recorded the statement of appellant as prescribed under Section 313(1)(b) of

Cr.P.C., to afford an opportunity to explain the incriminating circumstances

brought on record against him. The appellant opposed the incriminating

circumstances and claimed innocence for the charges pitted against him.

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7] The learned Sessions Judge, after hearing the prosecution and

the appellant/accused, appreciated the oral and circumstantial evidence

adduced on record and arrived at the conclusion that the appellant/accused

is guilty for the offence of murder of victim Laxman punishable under

section 302 of IPC. Therefore, the learned Sessions Judge, drawn the adverse

inference against the accused/appellant and passed the impugned judgment

and order of conviction, and resultant sentence, which is the subject matter

of the present appeal.

8] Learned counsel Shri Mantri, appearing for the appellant

scathingly assailed that the impugned judgment and order of conviction is

illegal, imperfect and not as per the provisions of law. The learned Sessions

Judge did not appreciate the oral and circumstantial evidence in its proper

perspective and committed error for adverse inference against the

appellant. There are material discrepancies in the evidence of eye

witnesses. The Medical evidence adduced on record is also suspicious and

does not inspire confidence. The learned counsel much more gave emphasis

on the circumstances that the concerned doctor did not mention in the post

mortem report that the injuries received to the victim Laxman were ante-

mortem in nature. The evidence of medical expert shows that death of

victim Laxman was not homicidal. He received injuries accidentally after

fallen on the rough surface. There was scoring/over-writing in the post

mortem report in regard to size of injury No.1. These circumstances created

doubt about the genuineness of the post mortem report. The medical

evidence did not support the ocular evidence of prosecution witnesses

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adduced on record. Learned counsel Shri Mantri also drawn attention

towards the discrepancies in the ocular evidence of PW-7 Gayabai, PW-8

Digambar and PW-11 Gangadhar. He submitted that these witnesses are the

family members of victim Laxman and they are interested witnesses. The

PW-7 Gayabai, PW-8 Digambar did not disclose about the presence of PW-11

Gangadhar at the scene of occurrence during the relevant period. The PW-8

Digambar also not stated in his evidence about the presence of PW-7

Gayabai on the spot of incident. Learned counsel Shri Mantri pointed out

the contradictions and omissions in the version of eye witnesses, pertaining

to earlier incident occurred in the morning hours in the field while

collecting the firewood. According to learned counsel for appellant, there

was dispute in between the brothers on account of partition of agricultural

land. PW-11 Gangadhar and his family members were intending to grab the

land of appellant. They had also attempted to sell the 7.5 acres of land of

appellant, which was lateron re-conveyed in the name of appellant, for

consideration of Rs. 2,000/-. The learned counsel harped on the

circumstances that there was delay of near about 11 hours in lodging the FIR

after the alleged incident, occurred in the noon hours at about 12.30 p.m.

He submits that the statement of eye witnesses PW-7 Gayabai, PW-8

Digamber were recorded at belated stage after about 3 days of the incident.

He criticized the C.A. Report, inquest panchanama, seizure panchanama of

the weapon under Section 27 of the Evidence Act etc. He alleged that the

entire evidence adduced on record on behalf of prosecution is suspicious,

doubtful and not credible to bring home guilt of the accused. Most of the

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star witnesses of the prosecution turned hostile and did not support the

prosecution case. Therefore, evidence of interested and partisan witnesses,

who are relatives of the deceased Laxman, is required to be discarded.

There are material discrepancies and contradictions in their evidence.

Therefore, he prayed to allow the appeal and upset the impugned findings

expressed by the learned Sessions Judge while convicting the

accused/appellant for the offence punishable under Section 302 of IPC. In

support of his arguments, he relied upon the exposition of law in the matter

of Babu Ram & ors Vs. State of Punjab 2008 (3) SCC 709, Ishwar Singh : Ilam

Singh Vs. State of Uttar Pradesh 1976 (4) SCC 355, Damodar Joma Mokashi &

ors. Vs. State of Maharashtra 2012 (5) AIR Bom R 437, Sandhya Jadhav Vs.

State of Maharashtra 2006 (4) SCC 653.

9] Per contra, learned APP vociferously opposed the contentions

propounded on behalf of appellant/accused and submitted that the learned

trial court has appreciated the oral & circumstantial evidence in its proper

perspective . There are eye witnesses to the incident. The PW-7 Gayabai,

PW-8 Digambar, and PW-11 Gangadhar had seen the appellant/accused while

assaulting the victim Laxman with lethal weapon on the spot of incident. The

appellant and the family of the victim were at inimical terms on account of

family partition of agricultural land. The learned APP explained in detail the

evidence of prosecution witnesses and contended that though the other eye

witnesses turned hostile, their evidence cannot be thrown at the over board.

The circumstances favourable to the prosecution in their evidence could be

appreciated for adverse inference against the appellant/accused. There was

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no delay in filing the FIR. Learned Prosecutor submitted that evidence of

Medical experts categorically establish that death of victim Laxman was

homicidal in nature. The ocular evidence of PW-7 Gayabai, PW-8 Digamber

and PW-11 Gangadhar proved the complicity of the appellant for the

homicidal death of victim Laxman. These are circumstances of recovery of

weapon at the instance of the accused, under Section 27 of the Evidence

Act. C.A. Report showing blood stained clothes of deceased as well as the

appellant, the weapon Katti/sickle found smeared with blood stains, all

which corroborated the testimonies of eye witnesses. Therefore, learned

APP urged that the prosecution has proved the case against the appellant

beyond all reasonable doubt. The conclusions drawn by the learned

Additional Sessions Judge, in regard to guilt of the appellant is just, proper

and reasonable. There is no perversity or error in the findings expressed by

the learned Sessions Judge. Hence, learned APP prayed not to nod in favour

of appellant and appeal may be dismissed. He relied upon the judicial

pronouncement of the Apex Court in the matters of [1] Khujji @ Surendra

Tiwari Vs. State of M.P., AIR 1991 SC 1853 [2] Sher Singh and anr. Vs.

State of Haryana, AIR 2011 SC 373 [3] Bhagwan Singh Vs. The State of

Haryana, AIR 1976 SC 202.

10] We have given anxious consideration to the arguments

canvassed on behalf of both sides. We have also delved into the oral and

circumstantial evidence adduced on record. Before embarking into the

merits of the matter, to evaluate guilt of the accused, it would be apposite

and justifiable to determine the exact cause of death of victim Laxman and

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thereafter only, it would be convenient to proceed further for assessment of

evidence of prosecution witnesses, to ascertain the nexus and proximity of

the appellant with the alleged causes of death of victim Laxman.

(A)    MEDICAL EVIDENCE :-

11]             In order to prove the cause of death of victim Laxman,

prosecution relied upon the Inquest Panchanama (Exh.31), The PW-2 Balaji

Waghmare was the panch witness for inquest panchanama. He described the

physical condition of mortal remains of victim Laxman at the time of inquest

Panchanama. The document of Inquest Panchanama, (Exh.31), demonstrate

that victim Laxman received the fatal injuries by sharp edged weapon on his

neck below the head and nearer to shoulder. After inquest panchanama, the

corpse of victim Laxman was referred to the Rural Hospital, Ahmedpur for

autopsy. The medical expert PW-1 Dr. Patil conducted the post-marten and

noticed the following external injuries.

"1] Stab wound over right clavicle region, direction downward, of size 4 cm. In length, 2 cm.,in breadth and 4 to 5 cm. in deep with fracture of clavicle on middle 1/3rd.

2] Contusion over occipital region, of size 2 x 2 cm.

3] injury to curotial artery on right lung."

12] According to medical expert, all the aforesaid external injuries

were ante mortem in nature. There were internal injuries like Hematoma of

size of 2 x 2 cm., on the occipital region, as well as injuries at the upper

border over the right plura as well as upper region of right lung. The

medical expert opinion that the cause of death of victim Laxman was

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"haemorrhagic shock due to injuries to the vital organs of lung and right side

of the carotide vessels." Accordingly, the medical expert PW-1 Dr. Patil

issued the Post Mortem report (Exh.29). During the course of evidence the

medical experts categorically stated that the injuries mentioned in Column

No. 17 and 20 of the Post Mortem report could be possible by weapon scythe.

The medical expert was cross-examined on behalf of accused/appellant.

But, it reveals that there was no arduous cross examination sufficient to

devastate the credibility of the evidence of medical expert PW-1 Dr. Patil.

There was endeavor to point out infirmity that the medical expert did not

mention in the post mortem report that the external injuries were ante

mortem in nature. The learned counsel Shri Mantri also gave much more

emphasis on this aspect. But we are not in agreement with the contention

propounded on behalf of Mr. Mantri. The document of post mortem report

(Exh.29) itself reflect that while mentioning the nature of injuries, the

medical experts categorically made a reference to "injuries shown at

Column Nos. 17 and 18 at column No. 18-A of P.M. report". The medical

experts indicated that the injuries shown in Column Nos. 17 and 18 of the

post mortem report are of ante-mortem in nature. Therefore, the objection

that the concerned medical expert failed to ascertain the ante-mortem

nature of injuries, would not sustainable and appreciable in this case.

13] The concerned medical expert ruled out the possibility that the

injuries shown in the Post Mortem Report at the neck and nearer to the

shoulder of victim Laxman would be possible after fallen on the stony

surface accidentally. Obviously, in view of nature of injuries received to

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victim Laxman i.e. one stab wound on the clavicle region, fracture injuries

to the right side lung i.e. on carotide vessels, it is evident that practically,

these injuries are not at all possible to a human being after fallen on a rough

surface. Therefore, the defence put-forth on behalf of appellant that the

victim Laxman received the injuries accidentally appears not probable and

acceptable one. The evidence of medical expert belies the defence of

occurrence of any mishap with victim Laxman as projected on behalf of

appellant. It is explicit from the post mortem findings that the victim

Laxman met with an homicidal death. He received the injuries due to

assault with lethal weapon. Therefore, we do not find impediment to

conclude that the death of victim Laxman was homicidal in nature.

(B)    OCULAR EVIDENCE :-

14]             Now, the crucial point to be pondered over is in regard to nexus

and proximity of the appellant-accused, with the alleged homicidal death of

the victim Laxman, being the author of injuries sustained to him. According

to prosecution, the appellant Narhari and his wife Kalpana, taking umbrage

of the dispute of family partition of agricultural land, attacked the victim

Laxman by means of lethal weapon like scythe/Katti and inflicted fatal

injuries sufficient to cause his death. In order to prove the complicity of

appellant with alleged homicidal death of victim Laxman, prosecution

primarily relied upon the ocular evidence of eye witness account,

comprising PW-7 Gayabai, PW-8 Digambar and PW-11 Gangadhar- the first

informant in this case. These witnesses i.e. PW-7 and 8 are the parents of

Laxman and PW-11 is the elder brother of victim Laxman.

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15] PW No.7, Gayabai Suryawanshi deposed that the deceased

Laxman was her son. The family members of Gayabai,including her husband,

sons and daughter in law all were residing jointly at village Rui-Uttar, Taluka

Ahmedpur. The accused Narhari is her brother in law and younger brother of

her husband PW-8 Digambar. She stated about the dispute on account of

family partition of agricultural land in between accused and her husband PW-

8 Digambar. According to PW-7 Gayabai, on the day of incident she,

accompanied with grand-daughter had been to the field known as

"Bramhanache Shet" for collecting fire-wood. Her son deceased Laxman

also followed them in the field. Accused Narhari was seen sitting under the

tree. On seeing PW-7 Gayabai, accused Narhari came running towards her

and gave a blow of stick on her head. There was a quarrel in between the

accused Narhari and PW-7Gayabai as well as victim Laxman. Thereafter, they

returned to home and disclosed about the incident to husband PW-8

Digambar. PW-7 Gayabai further added that they had an apprehension that

accused Narhari might have filed a false complaint against them. Therefore,

she, alongwith her husband, grand-daughter and victim Laxman came to the

auto-rickshaw stand in the village for going to Police Station Ahmedpur to

lodge the report of the incident. However, accused Narhari and his wife

Kalpana arrived at the rickshaw stand. Accused Narhari dealt a blow of

scythe (Katti) on the head of her husband PW-8 Digambar. Due to the attack

her husband had sprawled on the ground. Meanwhile, victim Laxman rushed

to intervene in the fight. PW-7 Gayabai deposed that accused Narhari gave

blows of weapon-scythe near the neck of Laxman. His wife accused Kalpana

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caught hold the victim Laxman. There were bleeding injuries sustained to

victim Laxman. PW-7 Gayabai, on seeking brutal attack on her son, felt

giddiness and she fell on the ground. Thereafter, the injured Laxman was

escorted to the Govt. Hospital Ahmedpur, but he was declared dead by the

concerned doctor.

16] The prosecution also examined PW-8 Digambar husband of PW-7

Gayabai. According to PW-8 Digambar, accused Narhari and one Sangram are

his brothers. There was a dispute on account of family partition of

agricultural land in between the brothers, due to which their relations were

strain. PW-8 Digambar stated that on the day of incident, at about 10 to 11

a.m., his wife, as well as grand-daughter, had gone to the field located in

the Arsad vicinity for collecting fire-wood. Victim Laxman also followed

them. There was quarrel in between the accused Narhari and his wife

Gayabai, as well as victim Laxman. Therefore, they returned to home, and

disclosed about the incident of assault by accused Narhari to him. There was

an apprehension that accused might have filed a false criminal case against

them. Therefore, they decided to lodge report against accused Narhari at

police station Ahmedpur. Hence, PW-8 Digambar, PW-7 Gayabai and victim

Laxman came to the auto-rickshaw stand of the village for going to

Ahmedpur. Meanwhile, accused Narhari arrived there. PW-8 Digambar asked

accused Narhari the cause of quarrel occurred in the field. Accused Narhari

gave a blow of Katti scythe on his head. PW-8 Digambar added that he tried

to hold the accused and in the attempt, he fell on the ground. Meanwhile,

victim Laxman by saying, "Aba Aba" rushed towards them to intervene in the

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fight, but the accused dealt blows of Katti/Scythe on the neck of victim

Laxman owing to which he sustained bleeding injuries and sprawled on the

ground. According to PW-8 Digambar, his son injured Laxman was escorted

in the auto-rickshaw to hospital at Ahmedpur but he was declared dead by

the concerned doctor.

17] In order to strengthen the evidence of parents, prosecution

adduced the evidence of PW-11 Gangadhar, brother of deceased Laxman. He

was the first informant of crime for FIR bearing Cr.No. 35/2012. He deposed

that on the day of incident, I.e. 14.3.2012, at about 11.00 a.m, he had gone

to the field which is abutting to the village. He stated about the incident of

assault by accused Narhari on his mother in the field known as

"Bramhanache Shet" when they were collecting firewood. He has also

deposed that accused Narhari had a habit of filing false complaints.

Therefore, his parents and brother victim Laxman rushed to the auto

rickshaw stand of the village for going to Police Station Ahmedpur to lodge

report of the incident of assault by accused Narhari on his mother PW-7

Gayabai. But, the accused Narhari and his wife Kalpana intercepted them at

the auto-rickshaw stand and picked up quarrel. On hearing the shouts

(commotion), he rushed to the spot from the field. According to PW-11

Gangadhar, he saw the accused Narhari holding one bag containing weapon

Katti scythe. Accused Narhari took out the weapon Katti from the bag and

gave blow of Katti on the head of his father. His brother Laxman was

present on the spot and he intervened to rescue his father. But, accused

Narhari dealt blows of Katti/scythe on the neck and throat of victim Laxman,

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due to which victim Laxman sustained bleeding injuries and sprawled on the

ground. On seeing the worsened/critical condition of Laxman, he became

frantic and perturbed. Meanwhile, accused Narhari and his wife Kalpana

made their escape good from the spot. The denizens Sitaram Uttarwar, Datta

Deokate and others watched the spectacle but they did not intervene in the

fight fearing the accused for lodging false complaint against them.

Thereafter, injured Laxman was escorted to the Govt. Hospital at Ahmedpur

for medical treatment. However, the doctor declared him dead. After post

mortem, he visited to the police station Ahmedpur and filed the FIR Exh. 55.

18] Learned counsel Shri Mantri scathingly assailed that there are

material contradictions and omissions in the ocular evidence of PW-7

Gayabai, PW-8 Digambar and PW-11 Gangadhar. They made improvements

in their oral evidence before the learned trial court. It has been pointed out

that PW-7 Gayabai did not disclose in her statement recorded under Section

161 of Cr.P.C. that the accused Narhari attacked her with stick in the field

while collecting fire-wood. She had also not stated to the police that

accused Narhari gave a blow of weapon Katti (scythe) on the head of her

husband during the incident of assault occurred at rickshaw stand. PW-7

Gayabai and PW-8 Digambar did not state in their evidence about the arrival

of PW-11 Gangadhar at the scene of occurrence. Moreover, they had not

disclosed about the bag containing the weapon Katti (scythe) with accused

Narhari. Learned counsel Shri Mantri further drawn our attention to the

discrepancies that the PW-7 Gayabai in her statement before the police

stated that her son PW-11 Gangadhar and husband PW-11 Digambar were

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accompanied with her in the field known as "Bramhanache Shet" for

collecting firewood. But, she changed her version and testified that her

husband was sleeping at home and her son Gangadhar was in the field away

from the spot of alleged incident of murderous attack on victim Laxman.

These discrepancies in the version of PW-7 Gayabai are fatal to the

prosecution case. Learned counsel Shri Mantri also criticized the evidence

of PW-11 Gangadhar that he was not the eye witness of the incident, but he

had gone to Udgir for his bricks Kiln work. PW-8 Digambar also stated that his

son PW-11 Gandadhar had gone to Udgir for bricks kiln work. According to

learned counsel Shri Mantri, the presence of PW-11 at the scene of

occurrence was doubtful and suspicious one.

19] The intense scrutiny of the ocular evidence of these star

witnesses of prosecution reveals that their evidence adduced on record

found cogent, credible and consistent to prove the material circumstances of

occurrence of incident of assault on the part of accused Narhari to victim

Laxman resulting into his death. It is true that, there are some omissions

and discrepancies in regard to morning hours incident of beating by the

accused with stick to PW-7 Gayabai in the field. But, the so called incident

of assault on PW-7 Gayabai occurred in the morning hours and presence of

her family members in the field does not assume significance for evaluating

the guilt of the accused pertains to incident of murderous attack on victim

Laxman occurred in the noon hours. Therefore, the discrepancies in the

evidence of these witnesses relating to morning hour's incident, would not

cause any dent in the prosecution case. No doubt, the incident of attack by

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accused in morning hours was one of the reason for going to auto rickshaw

stand of village by the victim Laxman and his parents. But, primarily, the

issue is to find out the assailant, responsible for homicidal death of victim

Laxman and not about the occurrence of morning hour's incident.

20] Moreover, it is worth to mention that the alleged incident of

brutal attack resulting into death of victim Laxman occurred in the broad

day light at about 12.30 p.m. near the auto-rickshaw stand of village Rui-

Uttar, Taluka Ahmedpur. The victim Laxman received the fatal bleeding

injuries on the vital part of his body. He was immediately escorted to the

hospital for medical treatment, but, unfortunately he was declared dead.

Obviously, the family members were in mental trauma and grief following

sudden death of one of their family members. In such distraught condition,

PW-11 Gangadhar, elder brother of victim Laxman, lodged the FIR bearing

Crime No. 35 of 2012 to police and set the criminal law in motion. In view of

attending circumstances, some discrepancies and omissions are bound to

occur in the ocular evidence of these key witnesses of the prosecution. We

do not find that these discrepancies are detrimental to prosecution case.

21] While appreciating the evidence of PW-11 Gangadhar, it has

been harped on the circumstance that he had been to Udgir for his brick kiln

work. The PW-8 Digambar also stated that his son PW-11 Gangadhar had

gone to Udgir at the relevant time for his brick kiln work. Moreover, the

spouses PW-8 Digambar and his wife PW-7 Gayabai did not disclose about the

arrival of PW-11 Gangadhar at the scene of occurrence during the relevant

{19} crapl236.13 F.odt

period of incident. According to learned counsel Shri Mantri, PW-11

Gangadhar is the got up witness and he did not receive any opportunity to

watch the spectacle of alleged murderous assault on victim Laxman. We are

not prepare to accept these allegations against PW-11 Gangadhar to discard

his evidence in this case. We would reiterate that in view of sudden death

of victim Laxman, the entire family was in grief and disturbed mental

condition. Therefore, the discrepancies appeared in their evidence as

mentioned supra would not be considered as an improvements to raise

suspicion in the veracity of their evidence. In regard to presence of PW-11

at the scene of occurrence, he categorically stated that he was doing the

agricultural work in the field nearer to the spot of incident. PW-7 Gayabai

also stated that her son Gangadhar was in the field away from the spot.

Moreover, after the post mortem, PW-11 Gangadhar immediately approached

to the police and lodged the FIR. He blamed the accused Narhari for the

death of brother victim Laxman. The possibility that PW-11 Gangadhar left

the house on the day of incident saying to the father PW-8 Digambar that he

was going to Udgir for bricks kiln work, but instead of going to Udgir, he

remained in the village and attended the work in the field at some distance

from the spot of incident of auto-rickshaw stand of village Rui-Uttar, cannot

be ruled out. Therefore, the criticism that the P.W.11 Gangadhar was not

present at the scene of occurrence found not sustainable and considerable

one. In contrast, PW-11 Gangadhar categorically deposed that at the

relevant time of incident, he was in the field located abutting to the village

and after hearing shouts (commotion) he rushed towards the auto-rickshaw

{20} crapl236.13 F.odt

stand and saw that accused Narhari was assaulting his brother Laxman by

lethal weapon scythe and inflicted fatal injuries to him. The mode and tenor

of the events verbalized in the FIR by PW-11 Gangadhar spontaneously

demonstrates his presence at the scene of occurrence. He has also referred

the names of on-lookers who watched the spectacle in his FIR. But,

unfortunately, these so-called eye witnesses made volte-face and did not

support the prosecution case. Albeit, they conceded about the presence of

victim Laxman, his parents and accused at the spot during relevant time.

We will deal with the evidence of hostile witnesses later-on. However, the

document of FIR being former statement of witness under Section 157 of the

Evidence act, would render corroboration to the oral testimony of PW-11

Gangadhar on this material aspect. Therefore, we do not find any

impediment to act upon the evidence of these eye-witnesses who were

family members of the victim Laxman.

22] Learned counsel Shri Mantri placed reliance on the exposition of

law propounded by the Division Bench of this Court in the case of Damodar

Joma Mokashi vs. State of Maharashtra reported in 2012(3) Bom.C.R.

(Cri.) 371, in regard to the material omissions and improvements in the

evidence of prosecution witnesses, which would create doubt in the veracity

of their evidence. It is worth to mention that the facts and circumstances of

the aforesaid judicial pronouncement are distinguishable and not akin to the

circumstances on record of the present case. In the aforesaid Damodar

Mokashi's case, there was an assault on the people of village Pirkon by the

assailants who were about 250 in number. They killed 5 persons and inflicted

{21} crapl236.13 F.odt

grievous injuries to 19 persons as well as damaged 44 houses. The evidence

of the related witnesses of the deceased found full of contradictions and

omissions. There were no blood stains on the scene of occurrence in the

spot panchanama. But, witnesses stated that the deceased were lying in a

pool of blood. No weapons were recovered and the prosecution evidence

appears full of loopholes and not tenable. Therefore, in view of material

contradiction and omission the evidence of the related witnesses was

discarded. However, in the matter in hand the facts are totally

distinguishable from the facts of Damodar Mokashi's case. Therefore, the

observations made in the said case do not advance the argument propounded

on behalf of appellant.

23] The learned counsel Shri Mantri further raised the objections

about the admissibility of evidence of these witnesses being closely related

with each other, and belonging to one and the same family of victim Laxman.

Therefore, they are all interested and partisan witnesses. It is to be noted

that there is no bar to appreciate the evidence of interested and related

witnesses, if it is found reliable, believable as well as duly corroborated by

the Medical Evidence. It would be highly unjust and improper to discard the

evidence of related witnesses merely on the ground that they are interested

witnesses. In the instant case, it would be seen that, other independent

witnesses, who received the opportunity to watch the spectacle, turned

hostile and made volte-face. They found reluctant to get themselves

involved in this case. It is to be borne in mind that now-a-days the people

are less prone to becoming involved in police cases. In the aftermath,

{22} crapl236.13 F.odt

prosecution has to keep implicit reliance on the evidence of related and

interested witnesses in this case. The Honourable Supreme Court in series of

decisions has held that mere relationship is not a decisive factor to affect

the credibility of the witnesses. Their Lordships of Apex Court delineated in

the case of (Subal Ghorai Vs. State of West Bengal) reported in (2013) 4

SCC 607) in para.39 as under;

"39. It is true that the prosecution has relied on the evidence of interested witnesses but, interested witness is not necessarily a bad witness. In fact, if the witness is related to the deceased, there is less chance of his leaving aside the real assailants. The evidence of interested witness has to be analysed with care. But, once the court comes to the conclusion that it is truthful and in accord with the relevant circumstances on record, the court should not hesitate to accept it and record conviction on the basis thereof. In this case, all the eyewitnesses are consistent about the prosecution case as regards assault on the deceased and setting on fire of the houses of Dharas. We are, therefore, not inclined to reject their evidence on the ground that they are related to the deceased. As already noted, two of the eyewitnesses i.e. PW-12 Jamini and PW- 13 Mandakini are injured witnesses, whose presence at the scene of offence can not be doubted. They completely bear out the prosecution case."

In the matter in hand, the minute scrutiny of the evidence of these

witnesses reflects that, they are all reliable and dependable witnesses.

Their versions found trustworthy and credible. Their presence on the spot of

incident near auto-rickshaw stand appears natural and probable one. There

are no circumstances available on record to create doubt in the veracity of

their evidence. In contrast, these eye-witnesses are consistent as regards to

assault on victim Laxman. We did not come across with any sort of

exaggeration or coloured version in their evidence. Therefore, We do not

find any impediment to appreciate the version of these witnesses for adverse

{23} crapl236.13 F.odt

inference against the accused.

(C)    EVIDENCE OF HOSTILE WITNESSES :-

24]             At this juncture, we would like to appreciate the contentions

put-forth on behalf of learned APP in regard to the evidence of hostile

witnesses in this case. Learned APP vehemently submitted that the evidence

of hostile witnesses cannot be treated as effaced or washed off the record

altogether, but the same can be accepted to the extent, their version is

found to be dependable on the careful scrutiny thereof. In support of his

contention, he relied upon the observations of Their Lordships of the Apex

Court in the matter of Khujji @ Surinder Tiwari Vs. State of M.P.,

reported in, AIR 1991 SC 1853. The extract of para 6 is reproduced as

below :-

"6.We have given our anxious consideration to the submissions made by the learned counsel for the contesting parties. The fact that an incident of the type alleged by the prosecution occurred on May 20, 1978 at about 8.20 p.m. is not seriously disputed nor is the location of the incident doubted. The evidence of PW 3 Kishan Lal and PW 4 Ramesh came to be rejected by the trial court because they were declared hostile to the prosecution by the learned Public Prosecutor as they refused to identify the appellant and his companions in the dock as the assailants of the deceased. But counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this Court Bhagwan Singh v. State of Haryana, [1976] 2 SCR 921; Rabinder Kumar Dey v. State of Orissa, [1976] 4 SCC 233 and Syed Akbar v. State of Karnataka, [1980] 1 SCR 95 that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross- examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. .. .. .."

{24} crapl236.13 F.odt

25] The learned APP submits that, PW-12 Bhimashankar Patil, PW-6

Nivrutti and PW-4 Sitaram Uttarwar, all were examined by the prosecution

being an eye witness of the incident. But, they turned hostile and refused to

support the prosecution case. However, it is brought on record in their

evidence, that they were present in the immediate proximity of the spot of

incident at the relevant time and they saw, the victim Laxman in injured

condition. Thereafter, injured was escorted to the hospital for medical

treatment in auto-rickshaw. Learned APP gave much more emphasis on the

evidence of PW-6 Nivrutti Waghmare, who deposed that there was a fight in

between victim Laxman and accused Narhari and at that time he was sitting

on the platform of his house located nearer to the scene of occurrence. He

has also divulged that at the time of alleged incident, victim Laxman and his

wife were chasing the accused Narhari. According to learned APP, these

hostile witnesses refused to disclose about the actual incident of assault by

accused Narhari but the circumstances referred above are sufficient to point

out the presence of prosecution witnesses, PW-7 Gayabai, PW-8 Digambar

and PW-11 Gangadhar at the scene of occurrence. Moreover, the PW-6

Nivrutti stated about the presence of accused Narhari at the spot who was

allegedly chased by victim Laxman at the relevant time. Therefore, learned

APP urged to accept the evidence of these hostile witnesses to the extent

their version is found dependable and consistent with the guilt of the

accused. According to learned APP, the prosecution has proved the incident

of assault on victim Laxman by the accused Narhari resulting into his death.

The version of hostile witness PW-6 Nivrutti pointed out the presence of

{25} crapl236.13 F.odt

accused Narhari at the spot of incident.

26] We find force in the argument propounded on behalf of learned

APP. Obviously, in view of settled rule of law, evidence of eye witnesses who

made volte-face and retracted from their earlier statement before the

police, could not be treated as non-est on their being declared hostile by the

prosecution in this case. The analysis of their evidence would lead to

establish that the deceased victim Laxman received the fatal injuries during

the relevant time at the scene of occurrence located near the auto-rickshaw

stand of the village. Thereafter, he was escorted to the hospital for medical

treatment, but he succumbed to injuries. The evidence of PW-6 Nivrutti also

indicate that he made endeavour to shield the accused Narhari, but while

attempt he admitted the presence of accused Narhari at the scene of

occurrence. It is to be noted that once it is accepted that victim Laxman

received injuries at the scene of occurrence, with lethal weapon, the

question would remain for consideration is, whether the appellant was the

assailant of the deceased. We would reiterate that, it is evident from the

ocular evidence of PW-7 Gayabai, PW-8 Gangadhar and PW-11 Gangadhar,

coupled with evidence of PW-1 Dr. Patil that, the accused Narhari was only

the assailant responsible for fatal injuries sustained to Victim Laxman. The

evidence of hostile witnesses to some extent lend corroboration to the

ocular evidence of related witnesses.

(D) RECOVERY OF WEAPON OF CRIME U/S. 27 OF THE EVIDENCE ACT :-

27] Now, turning to another spectrum of the matter, there was

{26} crapl236.13 F.odt

evidence of recovery of weapon under Section 27 of the Evidence Act at the

behest of the accused. Moreover, clothes of accused which were on his

person, at the time of commission crime, also seized during the course of

investigation. Firstly, we proceed to deal with the evidence of recovery of

weapon at the instance of the accused. The prosecution examined PW-5

Mahadu Deokate to prove the confessional statement leading to the recovery

of weapon at the instance of accused. Unfortunately, PW-5 Mahadu did not

support the prosecution case in regard to confessional statement of the

accused during the custodial interrogation in presence of panchas. However,

he admitted his signature on Memorandum Panchanama (Exh.39) but he

denied about confessional statement of the accused for production of

weapon of the crime under section 27 of the Evidence Act. PW-5 Mahadu

Deokate, however, conceded that he accompanied with accused and police

personnel had gone to village Rui Uttar in vehicle jeep. The vehicle was

stopped near the water tank in front of the house of accused Narhari in the

village. He further deposed that accused produced one weapon Katti

(skythe) which was kept inside his house. But, he had no knowledge where

from the accused produced the weapon concealed in the house. Police

prepared panchanama of seizure of weapon (Exh.40) recovered at the behest

of accused and obtained his signature on it.

28] In view of the hostile conduct and demeanour of PW-5 Mahadu

Deokate, particularly, on the factual aspect of confessional statement under

section 27 of the Evidence Act made by the accused during the custodial

interrogation for the memorandum panchanama (Exh.39), the prosecution

{27} crapl236.13 F.odt

kept reliance on the evidence of I.O. - PW-13 - Pandit Kachawe. He stated

that the accused Narhari was apprehended under Arrest Memo on the very

same day of the incident i.e. 14.2.2012. The I.O. further deposed that on

18.3.2012, during custodial interrogation accused Narhari made confessional

statement in presence of panchas that he had concealed the weapon of

crime Katti/scythe in the bushes of Ketki trees near his house aside the road

leading to Rui-Uttar village and he is ready to produce the same. (see the

Marathi version of witness). Accordingly, memorandum panchanama was

prepared. The panchas put their signature on it. Thereafter, accused Narhari

led the police and panchas to the village Rui-Uttar and produced the weapon

of crime, which was concealed in the bushes of Ketki trees. The weapon-

scythe was recovered at the instance of the accused in presence of panchas

under Panchanama (Exh.40). The I.O. stated about his visit accompanied

with panchas to the spot of incident which was in the immediate proximity

of auto-rickshaw stand of the village. The I.O. recovered one pair of

chappal, blood stained soil, plain soil under the panchanama (Exh.37).

29] Admittedly, the prosecution did not succeed to prove the

recovery of weapon of crime by adducing evidence of independent punch

witnesses. However, prosecution, taking recourse of the evidence of I.O.,

attempted to bring on record the incriminating circumstances of recovery of

weapon of the crime at the behest of the accused under section 27 of the

Evidence Act. No doubt that, PW-5 Mahadu Deokate found reluctant to

support the prosecution case. He denied about any confessional statement

made by the accused during custodial interrogation in regard to

{28} crapl236.13 F.odt

concealment of weapon of the crime Katti/scythe in the bushes of Ketki

trees near his house. However, his evidence partly supported the

prosecution case for recovery of weapon at the instance of accused. We do

not find any legal infirmity in relying on the evidence of I.O. to prove

recovery of weapon of the crime under Section 27 of the Evidence Act at the

instance of the accused. In the case of Modansingh Vs. State of Rajasthan

reported in AIR 1978 SC 1511, Their Lordships of the Apex Court held that

if the evidence of the I.O. who has recovered material object is convincing,

the evidence as to the recovery need not be rejected on the ground that

seizure witness did not support the prosecution case. This judicial

precedent of Hon'ble Apex Court was also considered by the Division Bench

of this Court at Nagpur in the case of Manohar Amrut Satpudkar Vs. The

State of Maharashtra, reported in (2001) Cr.L.J. 4355, in which it has

been observed that merely because the panchas have not spoken about the

disclosure made by the appellant/ accused, it does not affect the credibility

of the evidence of recovery under section 27 of the Evidence Act. In view of

the aforesaid legal guidelines, we are of the opinion that evidence of the

I.O. adduced on record, relating to recovery of weapon Katti (scythe) under

Section 27 of the Evidence Act, cannot be disbelieved or discarded merely

because the panch PW-5 Mahadu Deokate refused to support the prosecution

case. So, the recovery of weapon is one of the incriminating circumstances

for adverse inference against accused Narhari in this case, which

strengthen the ocular evidence of the eye witnesses discussed above.

Needless to state that in case of Pradumaninh Kalubha Vs. State of

{29} crapl236.13 F.odt

Gujarat, reported in 1992 Cri.L.J. 1111, the Hon'ble Apex Court

enunciated that in case where there is direct evidence, even the seizure of

the weapon is not very material.

(E) SEIZURE OF BLOOD STAINED CLOTHES OF THE ACCUSED :-

30] The prosecution also relied upon the seizure of clothes of the

accused during the investigation. There were blood stains of blood group "B"

detected on the cloths of the accused. According to prosecution, in

Chemical Analyzer's Report, human blood detected on the clothes of the

accused which corroborates the direct evidence of the eye witnesses in this

case. PW-5 Mahadu Deokate was the panch witness on the panchanama for

seizure of clothes of the deceased Laxman (Exh.36). The clothes of the

deceased Laxman were seized after post mortem. He is also the witness for

the panchanama of scene of occurrence drawn after registration of crime in

this case. He stated about the blood stains seen splashed on the spot of

incident. The police prepared detailed panchanama (Exh.37) and obtained

his signature on it. PW-5 Mahadu Deokate was also one of the panch of

recovery of clothes of the accused after he was arrested in this crime. The

seizure panchanama of clothes of the accused is at (Exh.38).

31] In the instant case, PW-13, I.O. Shri Kachawe, categorically

stated that on the day of incident, the accused visited to the police station

and filed report of commission of non-cognizable offence against the

prosecution witnesses PW-8 Digamber and others. Accordingly, police

registered the NC and referred the accused Narhari to learned Magistrate

{30} crapl236.13 F.odt

under section 155 of the Cr.P.C. But, meanwhile, pursuant to FIR filed by

PW-11 Gangadhar, accused Narhari was immediately apprehended in this

case on the very day of the incident i.e. on 14-03-2012 under Arrest

Panchanama (Exh.11), and since then, accused Narhari was in the custody of

the police. These circumstances are indicative of the fact that the clothes

which were on the person of the accused Narhari at the time of seizure

panchnama of clothes (Exh.38) were the same clothes, he had wore at the

time of alleged incident of assault on victim Laxman. The CA report of blood

stains detected on the clothes of accused strengthen the allegations of the

prosecution that, the accused Narhari had a nexus and proximity with the

alleged injuries inflicted to the victim Laxman. It would profitable to

reproduce the observations of their Lordships of the Apex Court, in the case

of Khujji @ Surendra Tiwari Vs. State of M.P. (supra), in para 10 as

under :-

"10. xx xx xx The find of human blood on the weapon and the pant of the appellant lends corroboration to the testimony of PW1 Komal Chand when he states that he had seen the appellant inflicting a knife blow on the deceased. He appellant has not explained the presence of human blood on these two articles. We are, therefore, of the opinion that, the aforesaid two decisions turned on the peculiar facts of each case and they do not lay down a general proposition that in the absence of determination of blood group the find of human blood on the weapon on garment of the accused is of no consequences. We, therefore, see no substance in this contention urged by Mr. Lalit."

{31} crapl236.13 F.odt

In the matter in hand, accused Narhari did not put-forth any explanation

about the human blood stains found on his clothes. Therefore, these

circumstances, being incriminating in nature, fortify the allegations nurtured

on behalf of prosecution against the accused. The direct evidence of PW-7

Gayabai, PW-8 Digambar and PW-11 Gangadhar is available on record

coupled with medical evidence about the homicidal death of victim Laxman.

In addition to ocular and medical evidence, prosecution succeeded to bring

on record incriminating articles, such as, weapon of crime, blood stained

clothes of the accused, coupled with C.A. Report, etc. Definitely, it would

prop-up the edifice of the prosecution case bring home the guilt of accused.

(F) NON-EXPLANATION OF INJURIES ON THE PERSON OF ACCUSED :-

32] Learned counsel Shri Mantri much more gave emphasis on the

controversial issue that, there were injuries on the person of the accused at

the relevant time of lodging the report of non-cognizable offence. He was

referred to the hospital for medical treatment. These injuries were also

reproduced in the arrest panchnama of the accused (Exh.11). But, the

prosecution failed to give reasonable explanation about the injuries received

to the accused. The learned counsel Shri Mantri relied on the exposition of

law laid down in the case of Baburam Vs. State of Punjab reported in

2008 AIR (SC) 1260, in which it has been held that, non explanation of the

injuries sustained by the accused at the time of occurrence or in the course

of altercation is very important circumstance, from which, inference can be

drawn that the prosecution has suppressed the genesis or origin of the

occurrence and it has not presented a true version.

{32} crapl236.13 F.odt

33] We have considered the submissions on the aspect of non-

explanation of the injuries on the person of the accused by the prosecution.

Obviously, the factum of injuries on the person of the accused sustained at

the relevant time of incident, is a material and significant factor to be

considered while appreciating the allegations nurtured on behalf of

prosecution. But, it is imperative that the injuries received to the accused

must be connected with the crime. In the instant case, immediately after

the alleged incident, accused Narhari was apprehended in this crime. In the

arrest memo (Exh.11), there were reference of injuries like scratch on the

head and blisters on the sole of the foot as well as contusions on the right

knee and left arm. There were no bleeding injuries seen on the person of

accused at the time of his arrest in the wee hours of night at about 01-30

a.m. on 15-03-2012. Considering the sequence of events occurred at the

scene of occurrence, it reveals that, these injuries have no proximity or not

connected with the alleged crime. The accused was the agriculturist and

possibility of sustaining the injuries as reported in arrest memo (Exh.11)

during agricultural operations could not be ruled out. In absence of specific

circumstances for causing injuries, it would unsafe to conclude that these

injuries are connected with the alleged crime. Learned A.P.P. has rightly

relied upon the observations of the Hon'ble Apex Court in the case of

Shersingh and another Vs. State of Haryana, reported in A.I.R. 2011 SC

373, wherein it has been held that if there was evidence to show that the

injuries on the person of the accused could be connected with the incident,

then only prosecution is required to be called upon to explain the injuries.

{33} crapl236.13 F.odt

Therefore, non-explanation of these injuries by the prosecution do not cause

any flaw in the prosecution case. Moreover, there was no any theory of right

of private defence on the part of appellant / accused nor there was any

defence of free fight causing injuries to him. In contrast, it has been

suggested on the part of appellant-accused that the victim Laxman was

chasing accused Narhari and while running victim Laxman accidentally fell-

down on a stony surface and received the injuries. We are unable to

persuade ourselves to accept this theory propounded on behalf of accused-

appellant. In the instant case, absolutely there are no circumstances

sufficient to point out that the alleged injuries of the accused were in

connection with the present crime. Moreover, there was no any theory of

private defence or free fight in between the accused and victim Laxman. In

such circumstances, there was no obligation for the prosecution to explain

the cause of injuries seen on the person of accused at the time of arrest

memo (Exh.11).

(G)    DELAY IN LODGING THE FIR :-

34]             It has been alleged on behalf of appellant that the incident

occurred on 14-03-2012 in the noon hours at about 12.30 p.m. to 1.00 p.m.

and the alleged F.I.R. is lodged at about 22.45 hours on 14-03-2012. The

delay of near about 10/11 hours caused in filing the F.I.R. and it would

create doubt about the veracity of the allegations made against the accused.

According to the learned counsel Shri Mantri, the prosecution witnesses were

at Ahmadpur for medical treatment of the victim Laxman, but they did not

approach to the police and filed the F.I.R. at the earliest. The conduct and

{34} crapl236.13 F.odt

demeanour of the prosecution witnesses for delay in lodging F.I.R. itself is

fatal to the prosecution case.

35] We find painful to accept these allegations cast on behalf of

appellant in this case. The consistent evidence of PW-7 Gayabai, PW-8

Digambar and PW-11 Gangadhar demonstrate that immediately after the

alleged incident, they escorted victim Laxman to the Government Hospital

at Ahmadpur, but Doctor declared him dead. Thereafter, police of Ahmedpur

Police Station received information about the death of Laxman. Accordingly,

A.D.No. 11 of 2012 under section 174 of the Cr.P.C. was registered and police

of Ahmadpur Police Station dealt with the mortal remains of deceased

Laxman and drawn the inquest panchnama. The dead body was referred for

autopsy to ascertain the cause of death. The concerned Medical Officer PW-

1 Dr. Patil conducted the postmortem on the dead body of deceased Laxman

on the very same day in between 5.10 p.m. to 7.00 p.m., and thereafter, the

dead body was delivered in the custody of the relatives of deceased Laxman.

The medical experts given the probable cause of death of the deceased

about the injuries to the vital part of the body. Thereafter, PW-11

Gangadhar visited to the police station and figured accused Narhari as

assailant of his brother Laxman in the F.I.R.

36] It is essential to take into consideration the mental condition of

prosecution witnesses at the relevant time. The deceased Laxman was the

family member of the prosecution witnesses- PW-7 Gayabai, PW-8 Digambar

and PW-11 Gangadhar. It can not be ignored that due to the sudden death of

victim Laxman, the parents and brother- PW-11 Gangadhar were completely

{35} crapl236.13 F.odt

distraught and in grief, and, if there was some delay, it would not adversely

affect the prosecution case. Moreover, it would preposterous to expect from

the PW-11 Gangadhar that instead of escorting injured brother Laxman for

medical treatment, immediately after the incident, he should approached to

the police and lodged the F.I.R. of the incident. The PW-7 Gayabai and PW-8

Digambar are senior citizens and it was also necessary for PW-11 Gangadhar

to take care of his old-aged parents, in such turn of events. Therefore, we

are not prepared to nod in favour of appellant that as there was delay in

lodging the F.I.R., it would get bereft of the advantage of spontaneity and,

same was the product of deliberation and consultation, detrimental to

trustworthiness and credibility of the version of PW-11 Gangadhar against

the accused.

37] There was also the allegation that the weapon of crime was not

shown to the concerned Doctor, and therefore, it could not be said that the

alleged injuries sustained to victim Laxman would be possible by the weapon

- scythe produced before the Court. This lacuna created doubt in the

prosecution case. Learned counsel Shri Mantri kept reliance on the

observations of their Lordships of the Apex Court in the case of Ishwar Singh

Vs. State of U.P., reported in (1996) DGLS SC 2050. In view of factual

scenario of the present case, we find it hard to digest these contentions put-

forth on behalf of learned counsel Shri Mantri. There is direct evidence in

regard to participation and overt-act of the accused inflicting fatal injuries

with the weapon-scythe /Katti. The medical expert PW-1 Dr. Patil, in

explicit manner stated that, the injuries inflicted to the victim Laxman were

{36} crapl236.13 F.odt

possible by the weapon Skythe / Katti. It is true that the weapon recovered

at the behest of accused under section 27 of Evidence Act was not shown to

the medical expert. But, the answer given by the medical expert about the

possibility of injuries sustained to victim Laxman by means of weapon-scythe

/ katti would not cause any aberration, while evaluating the guilt of the

accused. We are of the opinion that, the learned trial court has correctly

appreciated the evidence of the prosecution witnesses in its proper

perspective. There is no error or perversity in the findings recorded by the

trial court. Therefore, we find no hesitation to uphold the conclusion

drawn by the learned trial Court in this case against the accused/appellant.

38] At last, learned counsel Shri Mantri fervidly contended that,

there was no intention of the accused Narhari to commit murder of victim

Laxman. The alleged incident occurred within the spur of moment without

any preparation, and hence, the case would fall within the ambit of

Exception 4 to Section 300 of I.P.C. The learned counsel urged that, the

appellant-accused be convicted under Section 304 Part-II of the I.P.C. instead

of section 302 of the I.P.C. He placed reliance on the ratio laid down by the

Apex Court in the case of Sandhya Jadhav Vs. State of Maharashtra,

reported in, 2006 DGLS (SC) 253.

39] With utmost respect, we are not in agreement with the

aforesaid submissions made on behalf of learned counsel Shri Mantri. Their

Lordships delineated the legal guidelines for application of provision of

Section 300 Exception 4 in para No. 9 of the aforesaid Sandhya Jadhav's case

{37} crapl236.13 F.odt

as under :-

"9. xx xx xx The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the fight occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must be further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression undue advantage as used in the provision means unfair advantage."

The factual score occurred at the spot of incident do not permit us to hold

the accused-appellant in this case guilty under Section 304 Part-II of the

I.P.C. instead of Section 302 of the I.P.C. There was a history of earlier

quarrel and altercation in the field known as 'Brahmnache Shet'. The PW-7

Gayabai, PW-8 Digambar and victim Laxman fearing the accused, started

proceeding to Ahmadpur for lodging the report of incident to the police.

They all came at the Auto-rickshaw stand of the village. The accused

Narhari and his wife with predetermination, arrived at the scene of

occurrence and attacked on PW-8 Digambar. Meanwhile, victim Laxman

intervened in the fight and ultimately accused Narhari gave multiple blows

{38} crapl236.13 F.odt

of weapon-scythe on victim Laxman. It is discernible from the sequence of

events as well as nature of injuries inflicted to victim Laxman on vital part

of the body by lethal weapon that the appellant/accused had an intention to

kill victim Laxman. In such circumstances, we are not prepared to accept

the submission to hold the accused guilty for the offence punishable under

Section 304 Part II of the I.P.C. instead of Section 302 of I.P.C.

40] In the above premises, we are of the considered opinion that,

the prosecution has proved the charges of murder of victim Laxman against

the appellant-accused beyond all reasonable doubt. There is direct evidence

of eye witnesses' account to establish the overt-act and participation of the

accused in this crime. The evidence of medical expert also corroborates the

ocular evidence in regard to homicidal death of victim Laxman. In addition,

there are incriminating circumstances of recovery of weapon of crime under

section 27 of the Evidence Act. The clothes of the appellant-accused

recovered under the panchnama also found stained with human blood of

Group 'B' of victim Laxman. The C.A. report strengthen the direct evidence

adduced on record by the prosecution. There was no explanation on the

part of the accused-appellant in regard to blood stains detected on his

clothes. The evidence of hostile witnesses also partly supported the

prosecution case to the extent of occurrence of incident of assault resulting

into fatal injuries to victim Laxman at the relevant time. All these

circumstances are not only consistent with the guilt of the appellant, but

same are also inconsistent with his innocence. The cumulative analysis of all

these circumstances reflects that accused-appellant is only the assailant /

{39} crapl236.13 F.odt

author of the injuries received to victim Laxman. The conclusions drawn by

the learned trial court appears just, proper and reasonable. There is no

error or perversity in the findings expressed by the trial court and same

deserve to be confirmed. In sequel, appeal being devoid of merit stands

dismissed accordingly.

        [K.K.SONAWANE]                               [S.S. SHINDE]
             JUDGE                                       JUDGE


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