Bombay High Court
Samadhan Laxman Dandage vs The State Of Maharashtra on 6 January, 2021
Bench: R.V. Ghuge, B. U. Debadwar
CrApl-192-14.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 192 OF 2014
Samadhan S/o Laxman Dandage
Age 35 years, Occ - Labour,
Galli No.4, Misarwadi, Aurangabad. ... Appellant
Vs.
The State of Maharashtra
(At the instance of CIDCO Police
Station, Aurangabad.) ... Respondent
...
Advocate for Appellant : Shri A. K. Bhosale
APP for Respondent - State : Shri R. B. Bagul
...
CORAM : RAVINDRA V. GHUGE
AND
B. U. DEBADWAR, JJ.
RESERVED ON 11th DECEMBER, 2020
PRONOUNCED ON 06th JANUARY, 2021
JUDGMENT [PER: B. U. DEBADWAR, J.]:
1. This is an appeal against judgment and order dated
10-03-2014 passed by the learned Additional Sessions Judge-2,
Aurangabad, in Sessions Case No. 380 of 2009, whereby convicted
the appellant under Section 235(2) of Code of Criminal Procedure,
1973 (hereinafter referred to as 'Cr.P.C.'), for the offences
punishable under Sections 302 and 324 of the Indian Penal Code
(hereinafter referred to as 'I.P.C.') and sentenced him to suffer
rigorous imprisonment for life and fine of Rs.5,000/- (Rupees Five
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Thousand Only), in default in payment of fine further rigorous
imprisonment for six months and rigorous imprisonment for one
year and to pay fine of Rs.1,000/- (Rupees One thousand Only), in
default of payment of fine further rigorous imprisonment of one
year, respectively.
2. Case of the prosecution in brief is as under :
a) Bhagwan Shyamrao Misal was elder brother of deceased
Rajesh @ Raju Shyamrao Misal. They both used to reside at
Misarwadi, Lane No.3, Aurangabad, with their families.
b) Mandabai w/o Bhagwan Misal (PW1), Gautam s/o
Bhagwan Misal (PW4), Sandeep s/o Bhagwan Misal (PW5) and
Rahul s/o Bhagwan Misal (PW6) are the wife and sons of Bhagwan
Shyamrao Misal, respectively.
c) The appellant Samadhan Laxman Dandge and his
brother Pravin S/o Laxman Dandage are also resident of Misarwadi,
Lane No.3, Aurangabad.
d) The appellant and deceased Raju Misal were friends
inter se.
e) On the eve of Nagapanchami Festival inhabitants of
Misarwadi, Lane No.3 locality had tied swing on the branch of big
Peepal tree standing on eastern side of the internal road running in
north south direction.
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f) On 26-07-2009 (i.e. on the day of Nagapanchami
festival) at about 04.00 p.m. Raju Misal was swinging on the swing
tied on the Peepal tree and the appellant Samadhan was pushing
the swing. Rahul Misal (PW6), nephew of deceased Raju Misal was
standing near the swing. While Raju Misal was enjoying swinging,
all of a sudden, appellant stopped the movement of the swing by
holding the same and got off Raju Misal from the swing. Upon
getting off from the swing, appellant asked Raju Misal either to
arrange liquor or accompany him for drinking liquor. When Raju
Misal refused for the same, scuffle started between they two.
g) Rahul Misal (PW6) and his friend Ravi Magre rushed
forward for intervention.
h) Meanwhile, Pravin Laxman Dandge (accused No.2),
brother of appellant, and Gautam Misal (PW4), son of Bhagwan
Misal and nephew of deceased Raju Misal came there one after
another.
i) Thereafter, Pravin Dandage (accused No.2) caught hold
the deceased Raju Misal and upon that appellant Samadhan Dandge
rushed forward and slashed neck of Raju Misal with a knife, taking
it out from the pocket.
j) After slashing the neck of Raju Misal, appellant turned
towards Gautam Misal (PW4) and gave blows of the said knife on
his neck and abdomen.
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k) Because of slashing of neck, Raju Misal suffered profuse
bleeding injury and collapsed then and there only.
l) After committing assault on Raju Misal and Gautam
Misal (PW4), appellant and his brother Pravin (accused No.2) ran
away from the spot.
m) Gautam Misal (PW4) and Rahul Misal (PW6) carried Raju
Misal to Ghati Hospital, Aurangabad, in an auto-rickshaw.
n) Soon after examining, Medical Officer on duty declared
Raju Misal dead and provided medial aid to Gautam Misal (PW4).
o) Then on the very same day at about 05.30 p.m.
Gautam Misal (PW4), victim and eye witness of the incident, lodged
the report narrating aforesaid incident.
p) On the basis of the report lodged by Gautam Misal
(PW4) Crime bearing No. 248 of 2009 was registered at CIDCO
Police Station, Aurangabad, against the appellant and his brother
Pravin both, for the offences punishable under Sections 302 and
324 read with Section 34 of IPC.
q) Investigation of the said crime commenced as expected.
r) During the course of investigation, on the same day i.e.
on 26-07-2009 at about 06.00 p.m. to 07.10 p.m. spot inspection
was carried out in presence of panchas and spot panchanama was
drawn. Then on the same day at about 09.30 p.m. appellant was
arrested under the arrest panchanama drawn in presence of
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panchas. Thereafter, postmortem was conducted on the dead body
of deceased Raju Misal. His clothes, soaked with blood removed at
the time of postmortem, were seized under the seizure
panchanama drawn in the presence of panchas.
s) Then, on 27-07-2009, Pravin (accused No.2), brother of
appellant was arrested under the arrest panchnama drawn in
presence of panchas.
t) While in police custody on 29-07-2009, appellant in
presence of panchas made a statement to the investigating officer
leading to discovery of the knife used in commission of crime. The
memorandum of that statement was reduced in writing. Thereafter,
at the instance of appellant, crime weapon i.e. knife recovered after
taking off the same from the place where it was concealed under
the recovery panchanama drawn in presence of the said panchas.
u) Prior to that, clothes worn by appellant and his brother
Pravin (accused No.2) were seized in presence of panchas after
drawing seizure memos. All the muddemal articles viz. articles
seized from the spot and articles seized from appellant and his
brother Pravin (accused No.2) were sent to forensic lab with
requisition dated 30-09-2009 for examination and report.
v) Postmortem report and CA report were collected.
w) After completion of investigation, as sufficient material
against the appellant and his brother Pravin was found, they both
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were charge-sheeted before the learned J.M.F.C., Aurangabad, for
the aforesaid offences.
x) As the offence under Section 302 of IPC is exclusively
triable by the Court of Sessions, learned J.M.F.C., Aurangabad,
committed the case to the Sessions Court at Aurangabad, who in
turn made it over to the Court of Additional Sessions Judge-2,
Aurangabad.
y) After hearing the learned APP and defence counsel, on
12-04-2010 learned Additional Sessions Judge-2, Aurangabad,
framed charge against both the accused i.e. appellant and his
brother Pravin vide Exhibit-28. When so framed charge was read
over and explained to accused in vernacular, they both pleaded not
guilty and claimed to be tried.
z) Their defence as disclosed from trend of cross-
examination and statements recorded under Section 313(1)(b) of
Cr.P.C. was that of denial. According to them, there was dispute
between two brothers Rajesh @ Raju Misal and Bhagwan Misal
regarding partition of property and out of that dispute sons of
Bhagwan Misal committed the murder of Rajesh @ Raju Misal.
None was examined in defence.
aa) To prove the guilt of accused viz the appellant and his
brother Pravin, prosecution has examined as many as nine
witnesses including first informant and surviving victim Gautam
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Misal (PW4) and other two eye witnesses namely Sandeep Misal
(PW5) and Rahul Misal (PW6).
ab) Having considered the evidence on record and
arguments advanced by both the sides, learned Additional Sessions
Judge-2, Aurangabad, acquitted Pravin Dandge (accused No.2) but
convicted appellant for both the charges and sentenced him as
stated above.
ac) Being aggrieved by the impugned judgment and order,
appellant has preferred the present appeal.
3. Heard Shri. A. K. Bhosale, learned Advocate for the
appellant and Shri. R. B. Bagul, learned Additional Public Prosecutor
for the State.
4. While taking us through the aforesaid evidence adduced
by the prosecution, Shri. Bhosale, learned Advocate, vehemently
argued that impugned judgment and order is incorrect. The
learned Additional Sessions Judge-2, Aurangabad, failed to
appreciate the evidence in proper perspective and arrived at wrong
conclusion. The evidence of three eye witnesses on the material
aspects is false. No incident as alleged by the prosecution has ever
taken place. Alleged three eye witnesses examined by the
prosecution, being kith and kin of deceased Raju Misal, are
interested witnesses. Though independent witnesses were
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available, prosecution has not examined them. In such
circumstances, merely relying on the inconsistent testimonies of
highly interested witnesses appellant should not have been
convicted. Absolutely, there is no evidence about packing and
sealing of muddemal articles immediately after their seizure. In
such circumstances, it would be risky to rely upon C.A. reports.
5. Shri. Bhosale, learned Advocate, further argued that
though the statements of Sandeep Misal (PW5) and Rahul Misal
(PW6) were recorded on the day when incident took place, they
were not brought on record. The conduct of the prosecution in
suppressing the same gives rise to draw adverse inference. There
is no consistency in the evidence of witnesses. At one place they
say that deceased Raju Misal was directly taken to the Ghati
Hospital, Aurangabad, from the spot of incident and at another
place they say that initially deceased Raju Misal was taken to the
CIDCO Police Station and then to Ghati Hospital. This
inconsistency cannot be overlooked.
6. It is also argued by Shri. Bhosale, learned Advocate
that Gautam Misal (PW4) could have lodged the FIR immediately,
but he lodged the same after about one and a half hour of alleged
incident. This unexplained delay creates every doubt about its
genuineness. The place from where crime weapon is alleged to
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have been seized was the public place accessible to all, therefore,
no reliance can be placed on the memorandum and recovery
panchanama relied upon by the prosecution. Moreover, both the
panch witnesses of the said discovery and recovery panchanamas
have not been supported to the prosecution. Therefore, the
evidence of I.O. on this aspect becomes doubtful. The reason for
not recording the statement of material witnesses immediately,
though available, is not assigned. As such, the ocular evidence of
Mandabai w/o Bhagwan Misal (PW1), Gautam Misal (PW4), Sandeep
Misal (PW5) and Rahul Misal (PW6) cannot be considered and on
the basis of their evidence appellant cannot be held guilty.
7. According to Shri. Bhosale, learned Advocate, in view of
the facts and circumstances of the case, the defence raised by the
accused that there was dispute between two brothers viz. Bhagwan
Misal and deceased Raju Misal over the partition of property and out
of that dispute sons of Bhagwan viz. Gautam Misal (PW4), Sandeep
Misal (PW5) and Rahul Misal (PW6) picked up quarrel with Raju
Misal and during that quarrel Raju Misal suffered injuries and died,
appears to be probable. The learned Additional Sessions Judge-2,
Aurangabad, ought to have acquitted both the accused instead of
only accused No.2 - Pravin Dandge, by giving benefit of doubt.
Therefore, the appeal deserves to be allowed.
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8. Shri. A. K. Bhosale, learned advocate, in support of
aforesaid submissions made by him, placed reliance on following
rulings :-
1] Kochu Maitheen Kannu Salim vs State Of Kerala
[1998 CRI.L.J. 2277]
2] Bachhu Narain Singh Vs. Naresh Yadav and Others
[2004 AIR (SC) 3055]
3] State of Rajasthan Vs. Madho [1991 AIR (SC) 1065]
4] Kishor Shamrao Bhoyar Vs. State of Maharashtra
[2020 ALL M.R.(Cri) 306]
5] Irappa @ Chermal Subhash Dhangar and Others Vs. The
State of Maharashtra [2020 (1) Mh.L.J. 242]
6] Tulshiram Bhanudas Kambale and Others vs. State of
Maharashtra [2000 Cri.L.J.1566]
7] Salim Akhtar alias Mota Vs. State of U.P. [Air 2003 SC 4076]
8] Lakshmi Singh and others Vs. State of Bihar
[AIR 1976 SC 2263]
9] Suryabhan Dattu Kharat Vs. State of Maharashtra
[2016 (3) Mh.L.J. 373]
10] Lalchand Cheddilal Vs. State of Maharashtra
[2000 (3) Mh.L.J. 438]
11] Amarjeetsingh S/o Jagtarsingh Mohar and Others Vs. State
of Maharashtra [2016 (4) Mh.L.J. 446]
12] State of Rajasthan Vs. Motia and Others
[1955 AIR (Rajasthan) 82]
9. Per contra Shri. Bagul, learned APP, vehemently argued
that appellant and deceased Raju Misal were friends inter se. They
were inhabitants of the same locality. The incident of murder of
Raju Misal took place on broad daylight, near his house. The case
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is based on direct evidence. Out of nine witnesses examined by the
prosecution, Gautam Misal (PW4), Sandeep Misal (PW5) and Rahul
Misal (PW6) are the eye witnesses. Their presence at the spot,
when incident took place, is a natural one. Gautam Misal (PW4) is
the injured eye witness. He has lodged FIR shortly after the
incident. The testimonies of three eye witnesses on material
particulars are consistent. The inconsistencies in their evidence are
minor in nature. Merely for those inconsistencies their evidence as
to the incident and complicity of appellant in the incident cannot be
doubted.
10. Shri. Bagul, learned APP, further argued that evidence
of three eye witnesses discussed above is corroborated and
supported by recovery of knife under Section 27 of the Evidence Act
and C.A. reports. Postmortem report Exhibit-36 proved in the
evidence of Dr. Kailas s/o Ukhardaji Zine (PW7), Autopsy Surgeon
who conducted autopsy on the dead body of deceased Raju Misal,
speaks volumes about the stab wound suffered by Raju Misal on his
neck and it's consequential effects. Dr. Kailas Zine (PW7) in his
evidence at Exhibit-35 very clearly deposed that the cause of death
of Raju Misal was hemorrhagic shock due to stab wound in the
neck. Nothing could be brought on record through his cross-
examination, on the basis of which his testimony as to the nature
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and cause of death of Raju Misal, can be discarded. On the
contrary, during the cross examination, he has very clearly stated
that deceased Raju Misal could not have survived even if medical
treatment was provided to him immediately. As per Shri. Bagul,
learned APP, medical evidence, beyond doubt, proves that Raju
Misal died instantly due to slashing of neck by the appellant with
muddemal knife, when he refused for arranging liquor demanded by
the appellant or accompanying the appellant to liquor shop for
drinking.
11. Shri. Bagul, learned APP, also submitted that after
slashing the neck of deceased Raju Misal appellant turned towards
Gautam Misal (PW4), and assaulted him on his neck and abdomen
with the same knife. Dr. Khan Heena Kausar (PW8) deposed about
the injuries suffered by Gautam Misal (PW4) and nature of the said
injuries. Injury certificate Exhibit-43 corroborates his evidence. Out
of two injuries suffered by Gautam Misal (PW4), one was on left
side neck and another was on left side of lower arm. Nothing is
elicited in the cross examination of Dr. Khan Heena Kausar (PW8)
which would discredit his evidence.
12. Shri. Bagul, learned APP, while taking us through the
panchanama Exhibit-18 under which clothes on the person of
deceased Raju Misal were seized after postmortem, memorandum
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and recovery panchanama at Exhibit 53 and 54 regarding discovery
and recovery of crime weapon i.e. knife at the instance of appellant,
panchanama Exhibit-56 under which cloths worn by appellant at the
relevant time were seized, vehemently argued that though panch
witnesses of the said panchanamas have not supported to the
prosecution as far as the contents therein, but PSI Baburao s/o
Uttamrao Bodkhe (PW9), investigating officer, clearly deposed
about contents of all those panchanamas. In such circumstances,
merely for the reason that aforesaid panch witnesses, without
denying the execution of the said panchanamas, denied about the
contents therein, those material documents lending corroboration to
the ocular evidence of three eye witnesses, cannot be discarded.
C.A. report at Exhibit-59 also corroborates to the ocular evidence of
three eye witnesses discussed above. The defence raised by the
appellant that there was a dispute between two brothers i.e.
Bhagwan Misal and deceased Raju Misal about partition of the
property and out of that dispute murder of Raju Misal took place, is
not at all worthy of credence and cannot be accepted when no
evidence is adduced to justify the same.
13. According to Shri. Bagul, learned APP, relevant entries
in case diary make sure that after lodging the FIR on 26-07-2009,
first time statements of material witnesses including aforesaid eye
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witnesses under Section 161 of Cr.P.C. came to be recorded on
31-07-2009. Therefore, merely relying on some stray admissions
given by some of them that on 26-07-2009 enquiry as to the
incident was made with them and their statements were recorded
by police, inference of suppression of those police statements
cannot be drawn. Moreover, PSI Baburao s/o Uttamrao Bodkhe
(PW9), investigating officer was not cross examined on this aspect.
14. As far as injuries suffered by the appellant are
concerned, Shri. Bagul, learned APP, submits that after arrest on
27-07-2009 the appellant was referred for medical examination and
after medical examination he found to have suffered two simple
injuries, one was on the occipital region and another was on lower
lip mentioned in the injury certificate Exhibit-44, have been
explained by Sandeep Misal (PW5). Therefore, case of the
prosecution cannot be thrown away on that ground. During the
course of statement recorded under Section 313(1)(b) of Cr.P.C.
appellant has not come with a specific case. He has answered
almost all questions by saying 'No'. When appellant has not come
with a specific defence, very clear evidence adduced by the
prosecution establishing incident of murder of Raju Misal and
complicity of the appellant in the said incident, cannot be discarded
for minor contradictions and omissions. The totality of the evidence
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throws light on the intention of appellant. The case squarely falls
within the ambit of Section 300 of the IPC. The impugned
judgment is correct, proper and legal in all respect, therefore,
deserves to be confirmed.
15. In support of his aforesaid submission, Mr. Bagul has
placed his reliance on following ruling :-
1] Mallikarjun and Others Vs. State of Karnataka
[2019 DGLS(SC) 1301]
2] Sathya Narayan Vs. State Rep. By Inspector of Police
[2012 DGLS(SC)592]
3] Ramesh & Others Vs. State of Haryana
[2016 DGLS(SC) 1260]
4] Jodhan Vs. State of Madhya Pradesh [2015 DGLS(SC)459]
5] Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat
[1983 DGLS(SC) 171]
6] Naseem Ahmed Vs. Delhi Administration
[1973 DGLS(SC) 400]
7] Dalipsingh Vs. State of Punjab [1953 DGLS(SC) 62]
8] State of Uttar Pradesh Vs. M. K. Anthony
[1984 DGLS(SC) 307]
9] State of Uttar Pradesh Vs. Anil Singh [1988 DGLS(SC)507]
10] Babulal Bhagwan Khandare Vs. State of Maharashtra
[2004 DGLS(SC) 1108]
11] Bishna @ Bhiswadeb Mahato Vs. State of West Bengal
[2005 DGLS(SC) 942]
12] Ashok Rai Vs. State of Uttar Pradesh and Others
[(2014) 5 SCC 713]
13] State of Uttar Pradesh Vs. Ashok Kumar Shrivastava
[1992 DGLS(SC) 21]
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16. Before turning towards the ocular and documentary
evidence adduced by the prosecution for appreciation, we would
like to note down the facts which are not in dispute and they are as
under :-
a) Gautam Misal (PW4), Sandeep Misal (PW5) and
Rahul Misal (PW6) are brothers inter se and
nephews of deceased Raju Misal, Mandabai Misal
(PW1) is their mother and sister-in-law (brother's
wife) of deceased Raju Misal.
b) Deceased Raju Misal and appellant were friends
inter se.
c) Deceased Raju Misal, his family members and
appellant were resident of one and the same
locality i.e. Misarwadi, Lane No.3.
17. In the light of aforesaid admitted facts now we will turn
to the evidence on record.
WHETHER DECEASED RAJU MISAL DIED OF THE HOMICIDAL
DEATH?
18. The FIR Exhibit-26 indicates that immediately after the
incident Raju Misal was carried to the Ghati Hospital, Aurangabad,
in injured state and after reaching there CMO on duty declared Raju
Misal brought dead. Dr. Kailas Zine (PW7), Autopsy Surgeon, vide
his deposition at Exhibit-35 deposed that on 27-07-2009, Shri K. K.
Shinde, PSI attached to CIDCO Police Station, Aurangabad, sent
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dead body of Raju Misal to the Government Medical College and
Hospital, Aurangbad, with report for conducting postmortem and
inquest. He along with Dr. Sane, Jambure and Dr. Tisgaonkar
conducted postmortem. During the postmortem following ante-
mortem injuries found on the dead body of Raju Misal :-
"1) Stab wound over left lateral side of neck,
elliptical in shape and obliquely placed. Upper and
placed anteriorly and lower end placed posteriorly, of
size 3 cm x 1 cm deep upto pharynx on approximately
3.5 cm. Distance from left mastoid process 3 cm. Both
angles are acute directed downwards and medially
margins cleancut. Evidence of blood infiltration seen.
Track :- Skin - Subcutaneous tissue - External jugular
vein - Sternocleidomastoid muscle - left upper part
clean upto pharynx
2) Abrasion over left side of chest in mid-axillary
line of size 3 x 0.5 cm. Readdish in colour"
19. According to Dr. Kailas Zine (PW7), hemorrhagic shock
due to stab wound over the neck was the cause of death of
deceased Raju Misal. Postmortem report Exhibit-36 corroborates to
his aforesaid testimony as to the injuries suffered by deceased Raju
Misal, dimensions and locations of those injuries and cause of death
of deceased Raju Misal. In his further evidence, Dr. Kailas Zine
(PW7) has very clearly stated that aforesaid injuries suffered by
deceased Raju Misal are possible by knife Article-5 which was
shown to him during the course of recording of his evidence.
20. In cross-examination he has stated that Raju Misal was
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brought in casualty ward of the hospital in dead condition. The
CMO had informed police about the same. The patient i.e. Raju
Misal died due to blood loss caused due to cutting of jugular vein.
In further cross-examination Dr. Kailas Zine (PW7) admitted that
the margins of injury No.1 were clean cut, however, very clearly
denied that when margins are clean cut the weapon should be
sharp on both sides. In last part of the cross-examination Dr. Kailas
Zine (PW7) very clearly stated that the patient would not have
survived even if he would have given treatment immediately.
Nothing is elicited from the cross-examination of Dr. Kailas Zine
(PW7) which would discredit his testimony. Thus, from the
evidence of Dr. Kailas Zine (PW7), which is corroborated by the
postmortem report Exhibit-36 issued by him, it is clear enough that
Raju Misal died of homicidal death.
21. Once it is proved that Raju Misal died of homicidal death
the next question arises as to who killed him. Admittedly, after the
investigation appellant and his real brother Pravin Laxman Dandge
(accused No.2) were charge-sheeted for murder of Raju Misal and
for causing hurt to Gautam Misal (PW4), injured eye witness. The
charge for the offences under Sections 302 and 324 read with
Section 34 of IPC was framed (Exhibit-8) against they both,
however, after trial the learned Additional Sessions Judge-2,
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Aurangabad, vide impugned judgment and order acquitted Pravin
Laxman Dandge (accused No.2) for both the charges and convicted
only appellant for both the charges and sentenced him as stated in
para supra.
22. The case of the prosecution is based on three eye
witnesses viz. Gautam Misal (PW4), Sandeep Misal (PW5) and Rahul
Misal (PW6). Out of these three eye witnesses Gautam Misal (PW4)
is not only the injured eye witness but also the first informant of
the case. The evidence of these three eye witnesses needs to be
scrutinized carefully as, admittedly, they are nephews of deceased
Raju Misal.
23. Gautam Misal (PW4) vide his deposition Exhibit-25
deposed that he resides with his parents and brothers namely Rahul
Misal (PW6) and Sandeep Misal (PW5). Incident took place on 26-
07-2009 at about 04:00 p.m. to 04:30 p.m. There was
Nagapanchami festival on that day. Raju Misal (PW6), was
swinging on the swing tied to the Peepal tree standing near their
house. He was sitting below the said tree. Appellant was giving
swings to Raju Misal. At that time, in addition to he himself, Rahul
Misal (PW6) and Ravi Magre were also present there. Meanwhile,
appellant stopped the swing and told Raju Misal either to arrange
liquor for him or accompany him for drinking liquor. When Raju
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Misal denied the same quarrel started between appellant and
deceased Raju Misal. At that time, Pravin Dandge (accused No.2)
rushed to the spot and caught hold Raju Misal from back side and
then appellant took out knife and slashed the neck of Raju Misal by
the said knife. When he intervened appellant also gave blows of
the said knife on his neck and stomach. Raju Misal and he
himself both sustained blooding injuries. Raju Misal collapsed
since his throat was cut. After committing assault appellant
and his brother both ran away from the spot. His brother Sandeep
Misal (PW5) and Rahul Misal (PW6) took him and Raju Misal to the
Ghati Hospital. Medical officer on duty declared Raju Misal dead and
treated him. He lodged the FIR at Exhibit-26. He has identified
knife Article-5, his shirt and pant (Articles 2 and 3) and shirt and
pant of deceased Raju Misal (Articles 1 and 4) when shown to him.
24. In his cross-examination, he has stated that, he
reached to the spot after intervention of Rahul Misal (PW5) and Ravi
Magre in the quarrel. He has also stated in further cross-
examination that in the scuffle appellant and deceased Raju Misal
both assaulted each other. From his further cross-examination it
has come on record that initially he along with deceased Raju Misal
and his brothers had been to the police station in an auto-rickshaw.
Police referred them to the Ghati Hospital without recording his
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report. His parents and grand mother had also followed them to
the police station in another auto-rickshaw. However, he has very
clearly denied the suggestion that he along with brother Rahul Misal
(PW6) and Ravi Magre assaulted deceased Raju Misal on account of
property dispute. Thus, except improvement regarding his directly
proceeding to the hospital from the spot of incident along with
deceased Raju Misal, rest of his evidence is consistent one.
25. Since, he has very clearly narrated the incident of
slashing neck of deceased Raju Misal by appellant, merely for the
reason that he rushed forward after intervention of Rahul Misal and
Ravi Magre in the quarrel between appellant and Raju Misal, his
version that he has witnessed the incident cannot be discarded. We
cannot forget that in opening part of his examination-in-chief he
has very clearly stated that when Raju Misal was sitting on the
swing and appellant was pushing / giving the swings, he was sitting
below the Peepal tree on which swing was tied. This unchallenged
statement of Gautam Misal (PW4) inspires full confidence about his
witnessing the incident clearly.
26. It is pertinent to note that Gautam Misal (PW4) was not
only the injured eye witnesses but also the first informant. The FIR
Exhibit-26 dated 26-07-2009 lends full corroboration to his
testimony. His aforesaid testimony as to the assault committed on
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him by appellant, after slashing neck of deceased Raju Misal and
giving blows of the same knife on his neck and stomach, is
corroborated by injury certificate Exhibit-43 proved in the evidence
of Dr. Khan Heena Kausar (PW8). There is no effective cross-
examination of Gautam Misal (PW4) on this aspect. Since Gautam
Misal (PW4) suffered injuries in the same incident in which
deceased Raju Misal died, his presence on the spot when incident
took place and his witnessing the incident of slashing the neck of
deceased Raju Misal by appellant cannot be doubted. Thus, we
have no hesitation to accept his evidence which speaks volumes
about the complicity of appellant in the incident.
27. Sandeep Misal (PW5) is another eye witness. His
testimony at Exhibit-28, as far as date, time, place and manner of
the incident concerned, is similar to the testimony of Gautam Misal
(PW4). He too has clearly deposed as to the complicity of appellant
in the incident of slashing of the neck of Raju Misal with knife and
thereafter giving blows of the said knife on neck and stomach of
Gautam Misal (PW4). He has also very clearly stated that appellant
had committed assault on Raju Misal when he refused either to
arrange liquor for him or to accompany him for drinking liquor and
ran away from the spot after the incident.
28. Through his cross-examination it has come on record
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that quarrel was going on for 15 to 20 minutes. He had intervened
in the quarrel. Quarrel took place under Peepal tree. After assault
Raju Misal sat on the same spot. The blood oozed from the injury
suffered by Raju Misal had spread at the distance of about of 50 ft.
from the Peepal tree. Deceased Raju Misal and appellant
Samadhan were good friends. All these aspects no way discredit
his version in examination-in-chief as to the incident and his
witnessing the same.
29. He too has very clearly denied the defence of the
appellant that out of the dispute regarding partition of the property,
he along with Gautam Misal (PW4) and Ravi Magre assaulted
deceased Raju Misal. Besides, he has denied the suggestion
pertaining to one more defence raised by the appellant that
deceased Raju Misal had kidnapped sister of Ravi Magre, and
therefore, Ravi Magre was at inimical terms with deceased Raju
Misal and out of that enmity Ravi Magre along with Gautam Misal
(PW4) and him assaulted deceased Raju Misal and also the
appellant, when appellant tried to intervene in the incident of
assault on Raju Misal. Moreover, both the defences are not
probable. Thus, in any angle, testimony of Sandeep Misal (PW5) as
to the incident, complicity of appellant in incident and his
witnessing the same cannot be discarded.
30. It is true that name of Sandeep Misal (PW5) does not
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find place in the FIR. But that itself would not be a ground to
disbelieve him. Material came on record through his cross
examination, discussed in para supra, inspires confidence about his
presence at the spot when incident took place. Thus, in view of
foregoing discussion we hold that like Gautam Misal (PW4),
Sandeep Misal (PW5) is also a truthful witness.
31. Rahul Misal (PW6), one more eye witness, is also an
important and material witness. His testimony at Exhibit-31 is
completely in consonance with testimonies of two more eye
witnesses viz. Gautam Misal (PW4) and Sandeep Misal (PW5) as far
as the date, time, place of incident and complicity of appellant in
the said incident, is concerned.
32. In cross examination Rahul Misal (PW6) has stated that
the swing tied to the Peepal tree was a common swing. He was
standing about 5 ft. to 6 ft. away from the swing towards south.
Except them no other person had intervened in the quarrel. This
substantive evidence, came on record through the cross-
examination, inspires confidence about his presence at the spot
when incident took place. It is pertinent to note that his name and
role played by him after the incident is reflected in the FIR
Exhibit-26. This adds in truthfulness of his version pertaining to the
incident. Omission, as to accused No.2 Pravin's catch holding
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deceased Raju Misal from back side, in his statement before police
is not too vital to reject his testimony in it's entirety. Therefore, we
have no reason to discard the testimony of this witness on material
aspect of incident of assault on deceased Raju Misal and Gautam
Misal (PW4) by knife and complicity of appellant in the said
incident.
33. Mandabai Misal (PW1) is the mother of Gautam Misal
(PW4), Sandeep Misal (PW5) and Rahul Misal (PW6) and sister-in-
law of deceased Raju Misal. Vide her deposition at Exhibit-14 she
has deposed that on 26-07-2009 there was Nagapanchami festival.
On that day at about 04.30 p.m. while engaged in cooking she
heard commotions. Therefore, she rushed outside the house and
saw that Raju Misal and Gautam Misal (PW4) both were lying near
Peepal tree in injured condition. Crowd was also gathered there.
She along with others took both the injured to Ghati Hospital in an
auto-rickshaw. After examination, doctor declared Raju Misal
brought dead and treated Gautam Misal (PW4). Gautam Misal told
her about the incident. Gautam Misal (PW4) had suffered stab
injuries on his neck and stomach whereas Raju Misal had suffered
stab injury on his neck.
34. In cross examination she has stated that their house in
Misarwadi consists of three rooms. Deceased Raju Misal was
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residing with them, since his wife was not cohabiting with him and
had shifted to her paternal house. Their house is surrounded by
many houses. When she rushed to the spot from her house, Rahul
Misal (PW6) and Sandeep Misal (PW5) were present near Raju Misal
and Gautam Misal (PW4). Sandeep Misal (PW5) accompanied her
when she carried injured Raju Misal and Gautam Misal (PW4) to the
hospital in an auto-rickshaw. The CIDCO Police Station is on the
way leading to Ghati Hospital from Misarwadi. They did not stop at
the CIDCO Police Station. Police had made enquiry regarding the
incident to her and Sandeep Misal (PW5) at Ghati Hospital and
recorded their statements. Crowd of about 25 to 50 persons
gathered near Peepal tree. She along with her husband at about
05.00 p.m. rushed to the CIDCO Police Station from Hospital.
35. It is clear enough from aforesaid evidence of Mandabai
Misal (PW1) that after rushing outside the house, on hearing
commotion, she saw Raju Misal and Gautam Misal (PW4) lying in
injured state and Rahul Misal (PW6) and Sandeep Misal (PW5) were
present near the Peepal tree. Like eye witnesses viz. Gautam Misal
(PW4), Sandeep Misal (PW5) and Rahul Misal (PW6), she has also
denied the suggestion that deceased Raju Misal was insisting for
partition of their house. Though Mandabai Misal (PW1) had not
witnessed the incident of assault on deceased Raju Misal and
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Gautam Misal (PW4) by the appellant, but she had seen the
situation at spot immediately after happening of incident and
presence of Gautam Misal (PW4), Sandeep Misal (PW5) and Rahul
Misal (PW6) at the spot. Her evidence lends full corroboration to
the evidence of Gautam Misal (PW4), Sandeep Misal (PW5) and
Rahul Misal (PW6) as to their presence at the spot when incident
took place. In this way evidence of Mandabai Misal (PW1) assumes
importance.
36. According to Sandeep Misal (PW5) and Rahul Misal
(PW6) incident took place at about 04.00 p.m. whereas according
to Gautam Misal (PW4) incident took place at about 04.00 p.m. to
04.30 p.m. It is to be noted that Gautam Misal (PW4) has not
stated that incident took place at 04.30 p.m. but he has stated that
it had taken place at about 04.00 p.m. to 04.30 p.m. Therefore, it
cannot be said that there is a variance in evidence of three eye
witnesses regarding exact time of incident.
37. Though it is argued that there are inconsistencies in the
evidence of three eye witnesses, regarding happening of incident
but, in fact, absolutely there is no inconsistency as to the main
incident i.e. incident of assault with knife committed on deceased
Raju Misal and Gautam Misal (PW4) by the appellant, on the
contrary, testimonies of three eye witnesses on this aspect are very
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much consistent.
38. No doubt, there is inconsistency in ocular evidence of
PW1 to PW4 only as to whether both the victims were directly taken
to the Ghati Hospital from the spot of incident or first they were
taken to CIDCO Police Station and then to the Ghati Hospital.
Mandabai Misal (PW1) and Gautam Misal (PW4) stated that victims
were directly taken to Ghati Hospital from the spot whereas
Sandeep Misal (PW5) and Rahul Misal (PW6) stated that first
victims were taken to CIDCO Police Station from the spot and then
on the say of police, carried them to Ghati Hospital. But merely on
the basis of that inconsistency, evidence of all three eye witnesses
cannot be rejected outrightly, branding it false and afterthought.
Looking to the injury suffered by Raju Misal which was very serious
in nature, police appears to have not detained victims at police
station for recording FIR and have referred them urgently to the
Ghati Hospital for examination and treatment.
39. Mandabai Misal (PW1), Sandeep Misal (PW5) and Rahul
Misal (PW6), in their cross-examination have stated that, when they
were in hospital, police made enquiry with them about the incident
and recorded their statement. Whereas Gautam Misal (PW4) in his
cross-examination stated about enquiry made by the police
pertaining to the incident but denied to have recorded the
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statement. PSI Baburao Bodkhe (PW9), investigating officer in his
cross examination stated about recording the statement of
witnesses on 26-07-2009. Harping a lot on the said statements of
Mandabai Misal (PW1), Gautam Misal (PW4), Sandeep Misal (PW5)
and PSI Baburao Bodkhe (PW9), investigating officer, Shri. Bhosale,
learned Advocate, vehemently argued that prosecution has
suppressed police statements of PW1, PW5 and PW6 recorded on
26-07-209 at hospital, as they were different and after five days of
lodging concocted FIR, their false statements in consonance with
FIR have been prepared.
40. Though the aforesaid arguments regarding suppression
of statements of witnesses, including eye witnesses PW5 and PW6
recorded on 26-07-2009, appears to be probable but after calling
and verifying the station diary of relevant period and case diary of
the crime in question, it has become clear that the statements of all
the material witnesses came to be recorded first time on
31-07-2009. Entries in station diary and case diary rules out
possibility of recording of statements of material witnesses
including eye witnesses either on 26-07-2009 or on any date prior
to 31-07-2009 and suppressing of the same. As such no adverse
inference as to the version of eye witnesses viz. Gautam Misal
(PW4), Sandeep Misal (PW5) and Rahul Misal (PW6) vis-a-vis case
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of prosecution can be drawn.
41. It is painful to say that PSI Baburao Bodkhe (PW9),
investigating officer found to be very casual while facing cross-
examination. He should have given answers to the questions asked
to him during cross-examination with due responsibility. Without
referring case diary he has very casually and negligently stated
about his recording statement of witnesses on 26-07-2009, though,
in fact, the statement of not a single witness was recorded on that
day. The case diary clearly states that on 26-07-2009, during the
course of investigation, except visiting the spot, drawing spot
panchanama, arresting the accused, drawing inquest panchanama
of the dead body of deceased Raju Misal, taking snaps of the spot
and attaching clothes worn by deceased Raju Misal, nothing more
was done. Thus, no reliance can be placed on vague admission,
about recording of statements of witnesses on 26-07-2009, given
by PSI Baburao Bodkhe (PW9), investigating officer. As such,
testimonies of Sandeep Misal (PW5) and Rahul Misal PW6) cannot
be rejected branding them doubtful.
42. Having regard to the totality of facts, it appears that
when victims were taken to the hospital by their family members
viz. Mandabai Misal (PW1), Sandeep Misal (PW5) and Rahul Misal
(PW6), police officials present there made cursory enquiry about
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the incident with eye witnesses, but that does not mean that
in-depth enquiry was made and their statements were recorded. If
the statements of eye witnesses had been recorded in the Ghati
Hospital on 26-07-2009 or on any date prior to 31-07-2009, entry
pertaining to the same would have been reflected in station diary
and case diary, however, both these documents rule out possibility
of recording the statements of eye witnesses on 26-07-2009 or on
any date prior to 31-07-2009. As such the adverse inference as
suggested by Shri. Bhosale, learned Advocate, cannot be drawn
only relying on admission given by PW1, PW5 and PW6, without
understanding meaning of statement contemplated in Section 161
of Cr.P.C.
43. Gautam Misal (PW4), injured eye witness, has lodged
the FIR at about 05.30 p.m. on 26-07-2009 i.e. only after one and
a half hour of occurrence of incident. From his testimony which is
discussed in para supra, it is clear enough that he lodged the FIR
after medical examination and treatment given to him by the
medical officer at Ghati Hospital, Aurangabad. Since FIR came to
be lodged shortly after the incident and it covers all the details
about the incident as well as presence of Rahul Misal (PW6) at the
spot when incident took place, no doubt can be raised about the
testimonies of Gautam Misal (PW4) and Rahul Misal (PW6), when
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FIR Exhibit-26 fully corroborates to their substantive evidence in
the Court.
44. Gautam Misal (PW4) being injured eye witness, his
evidence cannot be rejected on the ground that he is an interested
witness.
45. In the case of State of Uttar Pradesh Vs. Naresh and
Others [(2011) 2 SCC(Cri.) 216], the Hon'ble Supreme Court has
held under :-
" The evidence of an injured witness must be given
due weightage being a stamped witness, thus, his
presence cannot be doubted. His statement is generally
considered to be a very reliable and it is unlikely that
he has spared the actual assailant in order to falsely
implicate some one else. The testimony of an injured
witness has it's own relevancy and efficacy as he has
sustained injuries at the time and place of occurrence
and this lends support to his testimony that he was
present during the occurrence. Thus, the testimony of
an injured witness is accorded a special status in law.
The witness would not like or want to let his actual
assailant go unpunished merely to implicate a third
person falsely for commission of the offences. Thus,
evidence of injured witness should be relied upon
unless there are grounds for rejection of his evidence
on the basis of major contradictions and discrepancies
therein."
46. In case of Abdul Sayeed Vs. State of Madhya Pradesh
[(2010) 10 SCC 259], the Hon'ble Supreme Court held as under :-
" The question of the weight to be attached to the
evidence of witnesses that was himself injured in the
course of occurrence has been extensively discussed by
this Court. Where a witness to occurrence has himself
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been injured in the incident, the testimony of such a
witness is generally considered to be very reliable, as
he is a witness that comes with a built-in-guarantee of
his presence at the scene of the crime and is unlikely to
spare his actual assailant(s) in order to falsely implicate
someone. Convincing evidence is required to discredit
an injured witness."
47. In case at hand the evidence of Gautam Misal (PW4) is
very much clear as to the incident and complicity of appellant in the
incident. Appellant has not brought on record any material to
discredit his evidence. We have already demonstrated in para
supra as to how defence raised by appellant is not at all worthy of
credence. On going through the cross-examination of three eye
witnesses, viz. Gautam Misal (PW4), Sandeep Misal (PW5) and
Rahul Misal (PW6), it can be gathered very well that no suggestion
denying the complicity of appellant in the incident was given to
them. On the contrary, FIR Exhibit-26 lodged by Gautam Misal
(PW4), injured eye witness, in very clear words speaks about
presence of appellant at spot and role played by him in the incident.
Therefore, it would not be legal and proper to reject the testimony
of three eye witnesses for minor omissions and contradictions when
they are very consistent with each other and corroborated by the
FIR.
48. It is evident from record that statements of material
witnesses recorded under Section 161 of Cr.P.C., including
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statements of eye witnesses viz. Gautam Misal (PW4), Sandeep
Misal (PW5) and Rahul Misal (PW6), were recorded on 31-07-2009
i.e. after five days of occurrence of incident. PSI Baburao Bodkhe
(PW9), investigating officer has not explained the said delay. In
normal course, such unexplained delay would have adversely
affected on the prosecution case. However, having regard to the
facts that out of three eye witnesses one namely Gautam Misal
(PW4) was injured eye witness, and he lodged the FIR Exhibit-26
shortly after the incident, describing role played by the appellant in
the incident and presence of Rahul Misal (PW6) at the spot when
incident took place, clear, cogent and consistent testimonies of eye
witnesses Sandeep Misal (PW5) and Rahul Misal (PW6) which are
consistent with the testimony of Gautam Misal (PW4), cannot be
doubted or viewed with suspicion only on the ground that delay of
five days caused in recording their statements under Section 161 of
Cr.P.C. and that the said delay was not explained by prosecution.
49. Spot panchanama Exhibit-17 proved in the evidence of
panch witness Pritam s/o Nagorao Bhavare (PW2) also inspires
confidence about truthfulness about versions of all three eye
witnesses. Appellant has not seriously disputed the spot
panchanama which not only gives detailed description with
dimensions of the spot but also speaks about collection of plain
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earth and blood mixed earth from the spot for chemical analysis
and report about the blood group of the blood mixed in earth.
50. In addition to the testimonies of three eye witnesses
viz. Gautam Misal (PW4), Sandeep Misal (PW5) and Rahul Misal
(PW6), prosecution has also placed reliance on discovery and
recovery of crime weapon i.e. knife under Section 27 of the
Evidence Act. Recovery panchanama under which crime weapon
i.e. knife came to be recovered at the instance of appellant is at
Exhibit-54. Pritam Bhavare (PW2) and Devidas Pachavane (PW3)
are the panch witnesses of the memorandum Exhibit-53 and
recovery panchanama Exhibits-54. They both turned hostile and
have not supported the prosecution. However, Devidas Pachavane
(PW3) has admitted his signature appearing on memorandum as
well as recovery panchanama and also his signature appearing on
slip affixed to crime weapon i.e. knife. However, Baburao Bodkhe
(PW9), investigating officer, deposed about the statement Exhibit-
53 made by appellant while in police custody, pertaining to place
where crime weapon i.e. knife was concealed, and about recovery
of the crime weapon knife at the instance of appellant from the
place shown by him under recovery panchanama Exhibit-54. There
is no effective cross-examination of Baburao Bodkhe (PW9),
investigating officer, on the aspect of discovery and recovery of
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crime weapon. However, there is one inconsistency in the recovery
panchanama Exhibit-54 and testimony of PSI Baburao Bodkhe
(PW9), investigating officer at Exhibit-50. The said inconsistency is
about the place from where crime weapon was recovered.
According to recovery panchanama Exhibit-54 crime weapon viz.
Knife (Article-5) was took out from the pond/puddle situated near
to the spot after making it empty. However, in his examination-in-
chief, PSI Baburao Bodkhe (PW9), investigating officer, deposed
that crime weapon i.e. knife was recovered from the house of
appellant. It seems that he deposed the same mistakenly.
51. Appellant has challenged discovery / recovery of crime
weapon i.e. knife on two grounds one is that panch witnesses of the
said recovery have not supported to the prosecution and another is
that the place from where knife was alleged to have been recovered
was public place accessible to all. It is true that panch witnesses of
memorandum Exhibit-53 and panchanama Exhibit-54, under which
crime weapon i.e. knife came to be recovered at the instance of
appellant, namely Pritam Bhavare (PW2) and Devidas Pachavane
(PW3) turned hostile and not supported the prosecution, however,
Devidas Pachavane (PW3) has admitted his signature appearing on
label affixed to the muddemal knife. We have already discussed in
para supra the evidence of PSI Baburao Bodkhe (PW9),
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investigating officer, on the aspect of discovery and recovery of
knife at the instance of appellant. He has categorically stated about
appellant's, while in police custody, disclosing the place where crime
weapon knife was thrown, shown the said place and crime weapon
i.e. knife was recovered from the said place.
52. In the matter of Mallikarjun and Others Vs. State of
Karnataka [2019 DGLS(SC) 1301] in para No. 23 of the judgment,
the Hon'ble Supreme Court has held as under :-
"23. As pointed out earlier, based on the disclosure
statement of accused No.1, MO-1-dagger which was
kept hidden in the haystack of fodder in the loft of the
cattle shed behind the house of accused No.1 had been
seized under Ex.-P9- Panchnama in the presence of
panch witnesses PW-8- Chandrappa and PW-9-
Mahadevappa Needgera. The said panch witnesses have
not supported the prosecution case and turned hostile.
MO-2-dagger and MO-3-handle of the axe were
recovered from the scene of occurrence under Ex.-P7-
spot panchnama. On behalf of the accused, learned
senior counsel contended that the evidence of PW-17-
PSI as to the recovery of MO-1-dagger at the behest of
accused No.1 is doubtful and when PWs 8 and 9 have
turned hostile, no weight could be attached to the
alleged recovery of MO-1-dagger. There is no merit in
the contention that merely because the panch
witnesses turned hostile, the recovery of the weapon
would stand vitiated. It is fairly well settled that the
evidence of the Investigating Officer can be relied upon
to prove the recovery even when the panch witnesses
turned hostile. In Rameshbhai Mohanbhai Koli v. State
of Gujarat and others (2011) 11 SCC 111, it was held
as under:-
"33. In Modan Singh v. State of Rajasthan (1978)
4 SCC 435 it was observed (at SCC p. 438, para 9)
that where the evidence of the investigating officer
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who recovered the material objects is convincing,
the evidence as to recovery need not be rejected
on the ground that seizure witnesses did not
support the prosecution version. Similar view was
expressed in Mohd. Aslam v. State of Maharashtra
(2001) 9 SCC 362.
34. In Anter Singh v. State of Rajasthan (2004) 10
SCC 657, it was further held that: (SCC p. 661,
para 10)
"10. ... even if panch witnesses turn hostile, which
happens very often in criminal cases, the evidence
of the person who effected the recovery would not
stand vitiated."
35. This Court has held in a large number of cases
that merely because the panch witnesses have
turned hostile is no ground to reject the evidence if
the same is based on the testimony of the
investigating officer alone. In the instant case, it is
not the case of defence that the testimony of the
investigating officer suffers from any infirmity or
doubt. (Vide Modan Singh case, Krishna Gopal case
and Anter Singh case.)"
PW-17-PSI has clearly spoken about the recovery of
MO-1- dagger at the behest of accused No.1 and MO-2-
dagger and MO-3-handle of the axe from the scene of
occurrence and his evidence cannot be discarded
merely because panch witnesses have turned hostile.""
53. In view of the aforesaid ratios laid down by the Hon'ble
Supreme Court, though panchwitnesses of memorandum Exhibit-53
and recovery panchanama Exhibit-54 Pritam Bhavare (PW2) and
Devidas Pachavane (PW3) have turned hostile, on the basis of
testimony of PSI Baburao Bodkhe (PW9), investigating officer, which
does not suffer from any deformity, discovery / recovery of crime
weapon knife can be accepted, without any hesitation.
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54. As far as another objection raised by appellant
pertaining to place from where muddemal knife recovered, we
would like to say that crime weapon knife was recovered from a big
puddle situated within the vicinity, where the incident took place.
Hand sketch (map) drawn in column No.9 of the crime details form
(Spot Panchanama Exhibit-17) demonstrates that the said
pond/puddle was situated adjacent to the south of foot-way,
running in east west direction, connecting lane No.4 to the colony
road running in north south direction, passing from Lane No.3. The
size of the said puddle was 20 ft x 30 ft. Recovery panchanama
Exhibit-54 demonstrates that the said puddle was full of water and
after drawing water from the puddle with the help of people of the
said locality, crime weapon knife found at its bottom, was taken
out. Though the pond/puddle was a public place, looking to the fact
that at the instance of appellant crime weapon knife was recovered
from the said puddle which was full of water, such recovery of crime
weapon can be accepted only for corroboration to the evidence of
eye witnesses discussed in para supra and not as an independent
evidence.
55. Even if, solely for the reason that aforesaid puddle was
a public place, the recovery of crime weapon knife is rejected, then
also, it would not adversely affect on the case of prosecution based
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on the evidence of three eye witnesses viz. Gautam Misal (PW4),
Sandeep Misal (PW5) and Rahul Misal (PW6).
56. It is evident from record that during the course of
investigation clothes of deceased Raju Misal, clothes of injured
Gautam Misal (PW4) and clothes of both the accused viz. Pravin and
appellant, came to be seized under panchanama Exhibit Nos. 18,
56, 55 and X, respectively. Clothes seizure panchanam of appellant
does not bear exhibit number, therefore, for the purpose of
identification we marked it as Exhibit-X. Panch witnesses of the
said panchanamas have not supported the prosecution, however,
PSI Baburao Bodkhe (PW9), investigating officer, proved seizure of
the clothes of victims and accused under aforesaid panchanamas.
Record reveals that all muddemal articles viz. plain earth, blood
mixed earth, crime weapon knife seized at the instance of appellant
and clothes of deceased Raju Misal and both the accused, were sent
to forensic lab under the requisition dated 30-09-2009 for scientific
examination and report. Reference of that requisition does not find
place in the evidence of PSI Baburao Bodkhe (PW9), investigating
officer. C.A. report at Exhibit-59 indicates that human blood of 'B'
group was detected on the full shirt of deceased Raju Misal and full
shirt of appellant. Likewise, human blood of 'B' group was detected
on the crime weapon knife. Absolutely, there is no evidence as to
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the blood group of deceased and blood group of appellant. So also,
explanation for delay of two months, caused for forwarding all the
aforesaid muddemal articles to the forensic lab, was not given.
Therefore, it would not be safe to rely on C.A. report Exhibit-59.
Even if C.A. report is kept out of consideration for aforesaid reason,
then also, it would not adversely affect case of prosecution which is
fully supported by clear, cogent and consistent ocular evidence of
three eye witnesses out of which one is injured eye witness.
57. Gautam Misal (PW4) has admitted in his cross-
examination that appellant had suffered injury to his head. Injury
certificate Exhibit-44 proved in the evidence of Dr. Khan Heena
Kausar (PW8) demonstrates that head injury and one more injury
on upper lip suffered by appellant were simple in nature. Upon
going through ocular evidence of three eye witnesses, more
particularly ocular evidence of Sandeep Misal (PW5), it can be
gathered very well that when deceased Raju Misal refused either to
arrange liquor or to accompany him for drinking liquor, quarrel took
place between Raju Misal and appellant and in that quarrel
appellant suffered aforesaid simple injuries. When appellant had
targeted his neck it was natural on the part of deceased Raju to
resist and take every effort to prevent blow of knife but appellant
over powered and succeeded in slashing neck of deceased Raju and
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while doing so he appears to have suffered aforesaid injuries. The
ocular evidence of eye witnesses, more particularly evidence of
Sandeep Misal (PW5) is quite sufficient to explain two simple injures
suffered by appellant. As such, appellant cannot claim benefit of
doubt on the ground of non explanation of injuries suffered by him.
58. In case of State of Rajasthan Vs. Madho [1991 AIR (SC)
1065], the Hon'ble Supreme Court held as under :-
"2. ........ If the prosecution witnesses shy away from
the reality and do not explain the injuries caused to the
respondents herein it casts a doubt on the genesis of
the prosecution case since the evidence shows that
these injuries were sustained in the course of the same
incident. It gives the impression that the witnesses are
suppressing some part of the incident. The High Court
was, therefore, of the opinion that having regard to the
fact that they have failed to explain the injuries
sustained by the two respondents in the course of the
same transaction, the respondents were entitled to the
benefit of the doubt as it was hazardous to place
implicit reliance on the testimony of the injured PW 2."
59. In case of Lakshmi Singh and others Vs. State of Bihar
[AIR 1976 SC 2263], the Hon'ble Supreme Court has held as
under :-
"11. .... It is well settled that fouler the crime, higher
the proof, and hence in a murder case where one of the
accused is proved to have sustained injuries in the
course of the same occurrence, the non-explanation of
such injuries by the prosecution is a manifest defect in
the prosecution case and shows that the origin and
genesis of the occurrence had been deliberately
suppressed which leads to the irresistible conclusion
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that the prosecution has not come out with a true
version of the occurrence. This matter was argued
before the High Court and we are constrained to
observe that the learned Judges without appreciating
the ratio of this Court in Mohar Rai v. State of Bihar,
(1968) 3 SCR 525 = (AIR 1968 SC 1281) tried to brush
it aside on most untenable grounds. ....
.
.
.... The facts of the present case clearly fall within the
four corners of either of the first two principles laid
down by this judgment. In the instant case, either the
accused were fully justified in causing the death of the
deceased and were protected by the right of private
defence or that if the prosecution does not explain the
injuries on the person of the deceased the entire
prosecution case is doubtful and the genesis of the
occurrence is shrouded in deep mystery, which is
sufficient to demolish the entire prosecution case.
17. Thus in view of the inherent improbabilities, the
serious omissions and infirmities, the Interested or
inimical nature of the evidence and other circumstances
pointed out by us, we are clearly of the opinion that the
prosecution has miserably failed to prove the case
against the appellants beyond reasonable doubt. ......
We have already pointed out that on one of the most
important points arising in a criminal trial, namely, the
non-explanation of the injuries on the person of the
accused by the prosecution, the High Court has not
only committed an error of fact but an error of law by
showing a lack of proper appreciation of the principles
decided by this Court. For these reasons, therefore, we
think there are special circumstances in the present
case which have compelled us to interfere in this appeal
by special leave."
60. In case at hand, prosecution has not suppressed
injuries suffered by appellant on, the contrary, prosecution
witnesses, more particularly Sandeep Misal (PW5), has explained as
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to how appellant suffered injuries which are proved to be simple
injuries. Therefore, ratio laid by the Hon'ble Supreme Court would
not come to rescue the appellant.
61. In the matter of Bishna @ Bhiswadeb Mahato Vs. State
of West Bengal [2005 DGLS(SC) 942], the Hon'ble Supreme Court
in para No.52 of the judgment held as under :-
"52. The fact as regard failure to explain injuries on
accused vary from case to case. Whereas non-
explanation of injuries suffered by the accused
probabilises the defence version that the prosecution
side attacked first, in a given situation it may also be
possible to hold that the explanation given by the
accused about his injury is not satisfactory and the
statements of the prosecution witnesses fully explain
the same and, thus, it is possible to hold that the
accused had committed a crime for which he was
charged. Where injuries were sustained by both sides
and when both the parties suppressed the genesis in
the incident, or where coming out with the partial truth,
the prosecution may fail. But, no law in general terms
can be laid down to the effect that each and every case
where prosecution fails to explain injuries on the person
of the accused, the same should be rejected without
any further probe. [See Bankey Lal and others Vs. The
State of U.P. AIR 1971 SC 2233 and Mohar Rai Vs. The
State of Bihar AIR 1968 SC 1281]"
62. In case at hand, from the evidence on record discussed
in para supra it is clear that appellant had reached the spot of
incident with knife. When deceased refused to arrange liquor as
demanded by the appellant and also refused to accompany him for
drinking liquor, appellant committed attack on deceased Raju Misal
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with knife and during the process of resistance appellant suffered
two simple injuries. Therefore, it cannot be said that deceased Raju
Misal was aggressor and to defend himself appellant committed
attack on deceased Raju Misal and slashed his neck. Thus,
appellant cannot make the capital of two very simple injuries
suffered by him in the incident and claim innocence.
63. In the case of Ashok Rai Vs. State of Uttar Pradesh and
Others [(2014) 5 SCC 713], in para No.12 of the judgment Hon'ble
Supreme Court has held as under :-
"12. It is argued that the prosecution case rests on
evidence of interested witnesses. No independent
witnesses are examined. Unless there is corroboration
to the evidence of interested witnesses, their evidence
cannot be accepted. We cannot accept this submission.
Evidence of interested witnesses is not infirm. It would
be good to have corroboration to their evidence as a
matter of prudence. But corroboration is not always a
must. If the evidence of interested witnesses is
intrinsically good, it can be accepted without
corroboration. However, as held by this Court in Raju
Vs. State of T.N. (2012) SCC 107 : (2012) 4 SCC (Cri.)
184, the evidence of interested witnesses must be
scrutinized carefully. So scrutinized, the evidence of
PW1, PW2 and PW4 appears to be acceptable."
64. In case at hand, though Gautam Misal (PW4), Sandeep
Misal (PW5) and Rahul Misal (PW6) being nephews of deceased
Raju Misal, are related witnesses, considering the fact that incident
took place at broad daylight within the vicinity of their house and on
the day of Nagapanchami, their presence at the spot was natural
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and their evidence discussed in para supra is intrinsically good, we
accept the same without corroboration of other circumstantial
evidence after scrutinizing the same minutely and carefully.
65. In the matter of Ramesh & Others Vs. State of Haryana
[2016 DGLS(SC) 1260], the Hon'ble Supreme Court held as
under :-
"40. On the analysis of various cases, following
reasons can be discerned which make witnesses
retracting their statements before the Court and turning
hostile:
(i) Threat/intimidation.
(ii) Inducement by various means.
(iii) Use of muscle and money power by the accused.
(iv) Use of Stock Witnesses.
(v) Protracted Trials.
(vi) Hassles faced by the witnesses during investigation
and trial.
(vii) Non-existence of any clear-cut legislation to check
hostility of witness."
66. In case at hand, it has come on record that incident was
witnessed by many persons from the locality. Statements of some
of them came to be recorded by the investigating officer during the
course of investigation but merely for non examination of
independent witness/s clear, cogent and consistent evidence of
three eye witnesses, out of which one was injured witness, cannot
be rejected outrightly. It is common experience that witnesses are
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not inclined to come forward and give statement about incident
which they saw. Even if, any how they are convinced they would
not gather courage to depose against the accused because of
threats to their life for economic or other reasons including muscle
power.
67. Inquest panchanama Exhibit-57 reveals that the dead
body of Raju Misal kept in mortuary of Ghati Hospital was identified
by Manohar Jagannath Avasarmol who happens to be cousin (son of
mother's sister of deceased Raju) and not by anybody from eye
witnesses, but that would not adversely affect the case of
prosecution in any way. Therefore, arguments of defence counsel
on this aspect holds no water and cannot be accepted.
68. It is true that Rahul Misal (PW6) in his cross-
examination stated that incident took place in spur of the moment
but having regard to the totality of evidence it cannot be said that
there was no intention on the part of the appellant to commit the
murder of deceased Raju Misal and in a sudden fight Raju Misal
suffered injury on his neck and died. Ocular evidence of three eye
witnesses in one voice states that appellant picked up quarrel with
deceased Raju misal, who was sitting on the swing and swinging on
the occasion of Nagapanchami, for the petty reason of not fulfilling
his demand of arranging liquor and during the quarrel appellant
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took out knife from his pocket and slashed neck of the deceased
Raju Misal. Looking at the location, nature and severity of injury
which resulted in instant death of Raju, it cannot be said that
assault was unintentional. The case squarely falls within the ambit
of clause secondly or thirdly of Section 300 of the IPC and not
either part (I) or part (II) of Section 304 of the IPC.
69. Testimony of Gautam Misal (PW4), corroborated by
testimonies of Sandeep Misal (PW5) and Rahul Misal (PW6) and
medical evidence viz. testimony of Dr. Khan Heena Kausar (PW8) at
Exhibit-42 and injury certificate at Exhibit-43 proved in his
evidence, establishes charge under Section 324 of IPC for causing
hurt to Gautam Misal (PW4) by knife in addition to the charge of
murder of deceased Raju Misal.
70. In KKochu Maitheen Kannu Salim vs State Of Kerala
[1998 CRI.L.J. 2277], Hon'ble Supreme Court held as under:-
"6. The High Court has also not considered another
important aspect, viz. the conduct of PW 2. According
to PW 2, the deceased came to his shop requested him
to close it and then both of them went to the shop of
PW 3 to purchase plantains and thereafter both of them
were walking on the road and at that time the incident
took place. He has further stated that thereafter he
went near the intersection of the road and shouted that
Salim and Jalal had given knife blows to Ummer. If his
relations with Ummer were so friendly as stated by him
then in that case he would not have left Ummer like
that and gone near the junction shouting that Salim
and Jalal had given knife blows to him but would have
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really taken him to his aunt's place which was near by
or to a hospital for treatment or gone to the police
station for lodging a complaint. He did neither of these
things and just disappeared till next day evening. This
conduct has to be regarded as inconsistent with his
being with the deceased at the time of incident. PW 3
from whose shop the deceased and PW 2 are stated to
have purchased plantains did not support PW 2.
According to PW 2, he had informed PWs 7 and 8 about
the incident. But their evidence has been found to be
inconsistent both by the trial court and the High Court.
That would mean that he had not really informed those
witnesses. All this creates a serious doubt regarding his
having seen the incident.
7. The High Court also committed an error in
relying upon the evidence regarding discovery of MO3 -
knife. It appears from the evidence of the attesting
witness - PW 16 that he was a man of the police and
not an independent person. if he was thus a selected
person, it becomes difficult to appreciate how the
evidence of the Investigation Officer - PW 20 could
have made the discovery evidence reliable. The trial
court has rightly pointed out that no independent
person of the locality was associated with the
preparation of Mahazar - Ex. P. 10 even though as
admitted by PW 16 himself, there were number of
houses near the place from where the knife was alleged
to have been discovered."
71. In case at hand, eye witnesses present at spot not only
intervened and tried to pacify the quarrel but also immediately
carried deceased Raju Misal to the hospital. Therefore, the
consistent versions of three eye witnesses establishing complicity of
appellant in the incident cannot be discarded.
72. We have demonstrated in para supra how the evidence
of three eye witnesses viz. Gautam Misal (PW4), Sandeep Misal
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(PW5) and Rahul Misal (PW6) is clear, cogent and convincing and
how the discrepancies pointed out by the defence are not material
discrepancies going to the root and create doubt about their
truthfulness. Therefore, in our view the judgment delivered by the
Hon'ble Supreme Court in Kochu Maitheen Kannu Salim vs State Of
Kerala is not applicable to the case at hand.
73. In case of Kishor Shamrao Bhoyar Vs. State of
Maharashtra [2020 ALL M.R.(Cri) 306], co-ordinate Bench of this
Court, while dealing with the aspect of delay in recording
statements of witnesses recorded as under :-
"20. .... Another aspect which requires to be
considered in favour of appellant is delay in recording
statements of eye witnesses. It is admitted by PW-10
Yogesh Ingle, Investigating Officer that though he was
investigating this crime on 6.4.2014 and 7.4.2014, he
has not recorded statements of any of the eye
witnesses on any of these two days. PW-4 Guruprasad,
however, admitted that his statement is recorded by
police in the night on 5.4.2014 itself and further
admitted that after that day he was never called by
police. It is material to note that no such statement of
PW-4 Guruprasad dated 5.4.2014 is on record. In fact,
according to PW-10 Yogesh Ingle, I.O. till 7.4.2014 he
did not record statement of any of the eye witnesses.
....
21. All these facts create doubt in the case of
prosecution to establish guilt of appellant. In that view
of the matter, merely because blood of group 'AB',
which is blood group of deceased, was found on the
clothes of appellant, that by itself is too short to
connect the appellant with the present crime. More
particularly when, in spite of seizure of his clothes on
his arrest on 6.4.2014, were forwarded for its analysis
to C.A. on 22.4.2014 and there is no link evidence
brought on record with reference to safe custody of
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these articles nor there is reference to sealing of same
at the time of its seizure on 6.4.2014. Above aspect
thus leaves no room to doubt about tampering of
clothes of appellant, more particularly in absence of any
satisfactory explanation on record to dislodge above
suspicion.
22. In the case of State of Rajasthan .vs. Teja Singh
and Others reported in 2001 ALL MR (Cri) 994 (S.C.),
the Hon'ble Apex Court did not rely upon eye witnesses
because of the fact that though they were available in
village, their statements were recorded after five days
of the crime, for which explanation given by
Investigating Officer was not at all satisfactory. As
against this, in the appeal in hand, there is absolutely
no explanation by the Investigating Officer for not
recording statements of eye witnesses for three days
after the incident. In fact, there is specific admission of
Investigating Officer to have not recorded statement of
any of the eye witnesses on 6.4.2014 or 7.4.2014 and
in fact, PW-Guruprasad claims to have made his
statement to police 5.4.2014 and no such statement is
on record."
74. In para supra we have demonstrated by referring case
diary and station diary of the relevant period as to how material
came on record through the cross examination of Mandabai Misal
(PW1) and Gautam Misal (PW4), that their statements were
recorded on 26-07-2009 when they were in the hospital is not
correct and as to how it is correct that first time the statements of
all the witnesses including eye witnessed were recorded on
31-07-2009. Besides, we have demonstrated that out of three eye
witnesses one viz. Gautam Misal (PW4) was injured and he had
lodged the FIR within one and half hour after the incident on getting
discharged from the hospital. The name of Rahul Misal (PW5)
appears in FIR, whereas presence of Sandeep misal (PW4) at spot
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when incident took place, reveals from evidence of Mandabai Misal
(PW1), Gautam Misal (PW4) and Sandeep Misal (PW5). Evidence of
three eye witnesses, is in consonance with FIR, therefore, worthy of
acceptance, and cannot be discarded merely for the reason that
statements of two eye witnesses viz sandip and rahul u/s 161 of
Cr.P.C came to be recorded after five days of the incident and that
delay has not been explained by investigating officer.
75. In case of Tulshiram Bhanudas Kambale and Others vs.
State of Maharashtra [2000 Cri.L.J.1566], co-ordinate Bench of this
Court held that No evidential value can be attached to the
recovered articles which are not sealed with lac immediately.
76. In the matter of Lalchand Cheddilal Vs. State of
Maharashtra [2000 (3) Mh.L.J. 438], Co-ordinate bench of this
Court held as under:-
"(c) Evidence Act, S.27 - Once the factum of sealing of
the knife becomes doubtful, possibility of blood being
smeared on it prior to its being sent to the Chemical
Analyst cannot be ruled out - Prosecution did not prove
that right from the time, the knife came into possession
of the police and till it was sent to the Chemical
Analyst, the seals were intact - The person who carried
the knife to the Chemical Analyst had not been
examined by the prosecution - Extremely unsafe to
place reliance on recovery evidence in the
circumstances.
11. The position in respect of recovery of blood
stained knife on the pointing out of the appellant is
hardly better. In the first instance, we feel it pertinent
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to mention that in the recovery panchanama of the
knife, there is no mention that the knife was sealed.
The recovery panchanama was a contemporaneous
document and absence of mentioning of sealing in the
same, in our view, hits the prosecution hard. Since in it,
it has not been mentioned that the knife was sealed, we
feel it unsafe to accept the evidence of PSI Navkhurkar
and the public panch Pramod Waigankar that it was
sealed.
Once the factum of sealing of the knife becomes
doubtful, possibility of blood being smeared on it prior
to its being sent to the Chemical Analyst cannot be
ruled out.
In this connection, it would be pertinent to refer to para
8 of the Division Bench decision of the Rajasthan High
Court reported in A.I.R. 1955 Rajasthan 82 Vol. 42 C.N.
27 The State v. Motia and others accused, wherein
Wanchoo, C.J., (as he then was) observed thus :---
"..... It is, therefore necessary for the prosecution to
produce evidence that steps were taken at once to seal
the articles, and that from the time the articles came
into possession of the police to the time they were sent
for identification before a Magistrate or for examination
to the Chemical Examiner the seals remained intact.
This evidence is missing in this case. It is, of course not
difficult to sprinkle a few human blood stains on articles
recovered if somebody wants to do so. We do not say
that this was done in the present case; but as
precautions were not taken the argument raised on
behalf of the accused that this might have been done
remains unrefuted ....."
In the instant case, the prosecution has also not proved
that right from the time, the knife came into possession
of the police and till it was sent to the Chemical
Analyst, the seals were intact. Again, it is pertinent to
mention that the person who carried the knife to the
Chemical Analyst has not been examined by the
prosecution."
77. In the matter of Amarjeetsingh S/o Jagtarsingh Mohar
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and Others Vs. State of Maharashtra [2016 (4) Mh.L.J. 446], the
Co-ordinate Bench of this Court has held as under :-
"Evidence Act, S.27 - Recovery of weapon - No blood
stains present on weapon when it was recovered - C.A.
report showing weapon was having blood stains losses
its value - Prosecution has not adduced to exclude
possibility of tampering the seized Khanjar/dagger as it
appears that the same was not kept in sealed condition
after its seizure - It cannot be said that said
Khanjar/dagger is proved to have been used in the
commission of murderous assault (para34)
34. .... - Avinash Sonawane shows that there were no
stains of blood on the Khanjar/dagger recovered at the
instance of accused No.1 - Amarjeetsingh Mohar.
However, Chemical Analyzer's report at Exh.103 shows
that the said Khanjar/dagger was having stains of blood
group 'B'. When the Khanjar/dagger recovered at the
instance of accused No.1 - Amarjeetsingh Mohar was
not sealed while it was seized and when Investigating
Officer has categorically stated that there was no blood
on the said Khanjar/dagger at the time of its seizure,
finding of blood of group "B" on that Khanjar/dagger
cannot be construed as an incriminating circumstance
against accused No.1 - Amarjeetsingh Mohar. The
prosecution has not adduced evidence to exclude
possibility of ampering the seized Khanjar/dagger as it
appears that the same was not kept in sealed condition
after its seizure. Therefore, it cannot be said that said
Khanjar/dagger is proved to have been used in the
commission of murderous assault on P.W.3 -
Jarnelsingh and as such the fact of recovery of Khanjar/
dagger at the instance of accused No.1 - Amarjeetsingh
Mohar looses its significance and he discovery cannot
be said to be that of a relevant fact."
78. In the matter of State of Rajasthan Vs. Motia and
Others [1955 AIR (Rajasthan) 82], the High Court of Rajasthan has
held as under :-
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"It is necessary that the officer recovering the articles
should immediately take steps to seal them and
evidence should be produced that the seals were not
tampered with till the identification is over, or till the
articles are sent to the Chemical Examiner for analysis.
In the absence of such precautions it would always be
open to the accused to say that the police later put
human blood on the articles in order to implicate the
accused. If evidence as to such sealing is not
produced, court cannot place the same reliance on the
discovery of blood stains on various articles as the
Court would have done if necessary precautions had
been taken."
79. In case at hand, we have not relied on C.A. report as
evidence as to the sealing of all the muddemal with lac seal is
lacking and two months delay caused in forwarding the same to
forensic lab. We uphold the conviction of appellant relying on the
evidence of three eye witnesses out of whom one was injured and
as their presence at the spot when incident took place found to be
natural and their evidence found to be clear cogent and convincing
to prove complicity of appellant in the incident of causing murder of
Raju Misal and causing hurt to the injured witness Gautam Misal.
80. In case of Dalipsingh Vs. State of Punjab [1953
DGLS(SC) 62], the Hon'ble Supreme Court has held as under :-
"26. A witness is normally to be considered
independent unless he or she springs from sources
which are likely to be tainted and that usually means
unless the witness has cause, such as enmity against
the accused, to wish to implicate him falsely. Ordinarily
a close relative would be the last to screen the real
culprit and falsely implicate an innocent person. It is
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true, when feelings run high and there is personal
cause for enmity, that there is a tendency to drag in an
innocent person against whom a witness has a grudge
along with the guilty, but foundation must be laid for
such a criticism and the mere fact of relationship far
from being a foundation is often a sure guarantee of
truth. However, we are not attempting any sweeping
generalization. Each case must be judged on its own
facts. Our observations are only made to combat what
is so often put forward in cases before us as a general
rule of prudence. There is no such general rule. Each
case must be limited to and be governed by its own
facts."
81. Therefore, from any angle, defence of the appellant
about his false implication cannot be accepted as testimonies of
three eye witnesses, one of whom was injured witness is clear,
cogent and consistent to prove the incident and complicity of the
appellant in incident.
82. Through the cross-examination of Gautam Misal (PW4)
it has come on record that appellant was resident of Lane No.4,
Misarwadi, Aurangabad, and he was the fast friend of deceased
Raju Misal. Since appellant and deceased Raju Misal Were residents
of one and the same locality and fast friends of each other question
of falsely implicating appellant in the incident by sister-in-law and
nephew of deceased Raju Misal respectively does not arise. In view
of facts and circumstances of the case, it appears that when
deceased Raju Misal refused proposal made by appellant, either for
arranging liquor or accompanying him for drinking liquor, appellant
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annoyed, lost the temper and suddenly took out knife from his
pocket, slashed the neck of deceased Raju Misal and also assaulted
Gautam Misal (PW4) with the same knife when he intervened in
rescuing uncle Raju Misal from his assault. The act of appellant,
killing deceased Raju Misal by slashing his neck with knife, squarely
falls under Section 300 of the IPC and not at all either Part I or Part
II of Section 304 of the IPC.
83. Having regard to the totality of evidence discussed
above, we have come to the conclusion that the impugned
judgment and order dated 10-03-2014, convicting the appellant-
accused, passed by the learned Additional Sessions Judge-2,
Aurangabad, in Sessions Case No. 380 of 2009 is correct, proper
and legal. Therefore, no interference is called for.
84. Accordingly, the criminal appeal is dismissed.
(B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)
SVH
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