Akash @ Boka S/O. Santosh ... vs The State Of Maharashtra Thr. ...
2022 Latest Caselaw 12475 Bom

                                                         1                           Cr.Appeal No.820.2018-J

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR.

                            CRIMINAL APPEAL NO. 820 OF 2018.

1.        Akash @ Boka s/o. Santosh Maskar,
          Aged about 26 years, Occ.: Labour,

2.        Akshay @ Baksha s/o. Santosh Maskar,
          Aged about 22 years, Occ.: Labour,
          Both R/o. Mungsaji Ward, Ghatanji,
          Tahsil Ghatanji, District - Yavatmal.

3.        Chetan s/o. Sukhadeo Tekam,
          Aged about 23 years, Occ. : Labour,
          R/o. Vitthal Rukhamni Ward,
          Ghatanji, Tahsil Ghatanji,                                                   APPELLANTS
          District - Yavatmal.                                                         (IN AMRAVATI JAIL)

                  ---VERSUS---

          The State of Maharashtra,
          Through Police Station Officer,
          Police Station Ghatanji,
          District - Yavatmal.                                                         RESPONDENT.
________________________________________________________________
Shri R. M. Daga, Advocate for the Appellants.
Shri I. J. Damle, A.P.P. for the Respondent /State.
_________________________________________________________________________________________________________________________________



                       CORAM                                 : VINAY JOSHI AND
                                      MRS.VRUSHALI V. JOSHI, JJ.

RESERVED ON : 18.10.2022.

PRONOUNCED ON: 02.12.2022.

JUDGMENT : [PER : MRS.VRUSHALI V. JOSHI, J.]

1. Heard.

2. These three appellants are before this Court since

they are aggrieved by the judgment and order of conviction

dated 17.09.2018 passed by the learned Additional Sessions

Judge, Yavatmal in Sessions Trial No.59/2017 thereby

convicting all the appellants/accused for the offence

punishable under Section 302 read with Section 34 of the

Indian Penal Code and sentenced them to suffer imprisonment

for life and fine of Rs.5000/- each in default rigorous

imprisonment for six months.

3. The prosecution case which was unfolded during

the course of the Trial is stated herein as under :

That on 24.02.2017 at 10.00 p.m., the informant

Prashant had been to the house of his brother at Professor

Colony. He had seen his nephew deceased Akshay Bhore on

his moped. At that time the accused came and gave dash to

the moped of Akshay and thereafter, assaulted Akshay with

iron rod. Due to which, he died. On the report, which is at

Exh. 25 lodged by Prashant, offence under Section 302 read

with Section 34 of the Indian Penal Code was registered vide

Crime No. 69/2017 and charge-sheet was filed.

4. In this case, there are five eye witnesses examined

by the prosecution. The first informant saw the assailants came

on their moped, they gave dash to the motorcycle of the

deceased, the deceased fell down. The accused Nos. 1 and. 2

assaulted him with iron rod whilst the accused No. 3 caught

hold him. When the first informant shouted for help, the other

eye witnesses came there and, thereafter, the accused persons

ran away. Akshay was taken to the hospital. There, the doctor

declared him dead. The first informant, who is the eye witness

has lodged the report and the crime is registered.

5. The prosecution has examined total twelve

witnesses to prove the prosecution case. Out of these

witnesses, five witnesses are claimed to be the eye witnesses.

The Trial Judge relying on the oral and documentary evidence

on record, convicted all the three accused persons and

sentenced them for life imprisonment.

6. We have heard Shri R. M. Daga, the learned

Counsel for the accused and Shri I. J. Damle, the learned A.P.P.

represented for State.

7. The learned Counsel for the accused and the

learned A.P.P. took us through the entire record of the Sessions

Trial very minutely. They also took us through the evidence of

prosecution witnesses. According to the learned Counsel for

the accused, though the prosecution has claimed that there are

five eye witnesses, but the evidence of the first informant itself

shows that he is not the eye witness, as he was not present on

the spot. The contradictory statements are made by the eye

witnesses, therefore, all the eye witnesses are brought up

witnesses, their evidence is not reliable. The evidence on

record is not trustworthy for basing conviction. On the closure

scrutiny of their evidence, there is a reasonable doubt about

their presence on the spot and their character as an eye

witness, even their evidence is contradictory inter se. The

recoveries of the weapon and the clothes as claimed and relied

by the prosecution are highly suspicious and consequently the

scientific evidence in the nature of Chemical Analyser Report

needs to be discarded. He, therefore, submits that appeal be

allowed.

8. Per contra, the learned A.P.P. would submit that no

fault can be found in the judgment of the learned Judge of the

Court below in accepting the evidence of all the eye witnesses,

whose presence is admitted by the accused during the cross-

examination. Merely because the first informant has not

helped to carry the deceased while taking him to hospital and

his clothes were not stained with blood, cannot be the reason

to doubt his presence on the spot. The evidence of all the eye

witnesses is consistent, therefore, prayed to dismiss the appeal.

9. In a case like this, the first question to be

determined by the Court is about the nature of death of the

deceased. The occurrence is dated 24.02.2017. The Inquest

was conducted. While observing the inquest proceedings, the

panchas observed the injuries on the person of the deceased.

The Medical Officer (PW-11) has conducted the postmortem

and has stated the cause of death as due to shock, due to

injuries caused to the deceased. The learned Counsel for the

accused has stated that the doctor has not mentioned

specifically that the deceased died due to said injury and said

injury is sufficient to cause the death. Therefore, as only two

blows are there and the eye witnesses have stated that the two

persons assaulted him with iron rod and the injuries on the

head which caused the death are only two injuries on head are

not sufficient to cause death. We have carefully scrutinized the

medical evidence. The description of injuries given in

postmortem is as follows :

      I]     CLW over occipital region each of
             [a] 15 cm x 4 cm x 3 cm.
             [b] 10 cm x 3 cm x 3 cm.
             [c] 10 cm x 3 cm x 3 cm.

      II]    CLW over occipital [scalp] 3 cm x 1 cm x 0.5 cm.

III] Abrasion 3 cm x 3 cm inter scapular region.

IV] Abrasion 0.5 cm x 3 cm each over Rt Scapular region.

V] Contusion over lower back horizontally each of (3 injuries) [a] 20 cm x 3 cm [b] 18 cm x 3 cm [c] 15 cm x 3 cm.

VI] Contusion over left arm vertically & laterally 20 cm x 6 cm x 3 cm.

VII] Abrasion over left knee 2 cm x 1 cm.

10. The cause of death is mentioned as death due to

head injury with haemorrhagic shock. The defence has argued

that it is not mentioned whether the injury No.1 or 2 are

sufficient to cause the death. From the injuries itself the

intention to kill the deceased is not proved, therefore, it can be

converted into Section 304 Part II of the Indian Penal Code.

11. The learned Counsel for the accused relied on the

judgment of this Court in Criminal Appeal No.481/2018

(Pawan s/o. Billu Rathod Vs. The State of Maharashtra) in

which this Court has converted the offence under Section 302

into 304 Part II of the Indian Penal Code considering the nature

of injury and weapons used and circumstances, the appellant

imputed to the knowledge that the injury inflicted by him was

likely to cause death and therefore, convicted for the offence

under Section 304 Part II of the Indian Penal Code.

12. The defence has relied on the judgment of the

Hon'ble Supreme Court in the case of Surajit Sarkar Vs. State

of West Bengal reported in (2013) 2 SCC 146 wherein the

Hon'ble Supreme Court has held as under :

"64. Given the nature of injuries, it is difficult to accept the view that Surajit Sarkar intended to cause the death of Gour Chandra Sarkar or that the injuries were so imminently dangerous that they would, in all probability, cause death. The murder of Gour Chandra Sarkar would,

therefore, be ruled out. Nevertheless the injuries were quite serious and inflicted by Surajit Sarkar on Gour Chandra Sarkar's head with an iron rod, as stated by PW 8 Achintya Sarkar. We can surely credit Surajit Sarkar with the knowledge that if a person is hit with an iron rod on the head, then the act is likely to cause the death of the victim. That being so, in our opinion, it would be more appropriate to hold Surajit Sarkar guilty of an offence of culpable homicide not amounting to murder. Since we attribute to him the knowledge of his action, he should be punished under the second part of Section 304 IPC"

13. The defence has also relied on the judgment of the

Hon'ble Supreme Court in the case of Shaikh Matin Vs. State of

Maharashtra and Anr. reported in (2020) 20 SCC 402 wherein

the Hon'ble Supreme Court has held that Single blow -

Appellant - accused had come to place of occurrence without

being armed. Appellant delivered only a single blow of heavy

wooden log but on a vital part of the body of deceased i.e.

head. Despite opportunities he had restrained himself from

inflicting any further injury on the deceased. Conviction

altered from under Section 302 to Section 304 Part I. Sentence

is converted to the period of custody already suffered, nearly 9

years.

14. The judgment of the Hon'ble Supreme Court in the

case of Shivappa Buddhappa Kolkar Vs. State of Karnataka and

Ors. reported in (2004) 13 SCC 168 wherein the Hon'ble

Supreme Court has held as under :

"13. We need not dilate further on this aspect as it is not the prosecution case that the appellant was responsible for causing any injury other than Injury (1). If so, it is fairly clear that the injuries to occipital region as well as the thorax injury which caused damage to the ribs and lungs are both severe injuries and according to the medical evidence both these injuries cumulatively caused death. There is no evidence of the medical expert to the effect that Injury (1) by itself would have caused instantaneous death as has happened in this case or that Injury (1) by itself was sufficient in the ordinary course of nature to cause death. No doubt Injury (1) is a severe injury on a vital part and in all likelihood, it could cause death. Yet, it is difficult to extricate the impact of an equally severe injury which was found to be present on internal examination. In these circumstances, it is not safe to draw a conclusion that the injury inflicted by the appellant, if at all it was intended to be inflicted, by itself would be sufficient in the ordinary course of nature to cause death. On the state of medical evidence we have, it is not possible to draw such definite conclusion. Considering the nature of the injury and weapons used and the circumstances in which the injury came to be inflicted, we are of the view that the appellant shall be imputed with the knowledge that the injury inflicted by him was likely to cause death. He is therefore liable to be convicted under Section 304 Part II".

15. In case in hand though there are blows with rod,

the motive was there, they gave dash to motorcycle.

Motorcycle fall down there and they gave blows on head which

clearly proves their intention to kill the deceased. Therefore,

though, the assault was with rod and two injuries were there

on the head it will not come under the exception punishable

under Part II of Section 304 of the Indian Penal Code.

16. The learned Counsel for the accused also relied on

the judgment of the Principal Seat in the case of Pradip

(In Jail) Vs. The State of Maharashtra reported in 2004(1)

Crime 591 wherein it has held as under :

"Where in a sudden fight accused inflicted a single blow by stick on head of deceased which resulted in fracture of skull but doctor did not opine that injury was sufficient in ordinary course of nature to cause death, offence would fall u/s 304 Part II, IPC and not u/s. 302, IPC."

17. In the case in hand there was no sudden fight but

premeditation was there.

18. The accused has relied on the judgment of this

Court at Aurangabad Bench in the case of Shankar Sonu More

and Anr. Vs. The State of Maharashtra reported in 2018 ALL

MR (Cri) 3486 wherein this Court has held as under :

"23. By referring the nature of the injuries and the aforesaid admission given by PW 11 Dr. Sonwane, Mr. Satej Jadhav, learned counsel for appellants has argued that such two fractures are possible by one hit by a hard substance. The argument of Mr. Jadhav is acceptable for the reason that there is no evidence on record to show that accused No.1 gave multiple stroke on the

head of deceased Shivram with the help of iron rod. So it is seen that there is only one hit given by accused No.1 on the head and rest of the injuries were caused due to assault by lathi. The accused persons are charged for the offence punishable under section 302 read with section 34 of the Indian Penal Code. But looking to the evidence on record it cannot be said that there was intention of the accused persons to commit murder of Shivram.

24. So looking to the entire evidence, it appears that, the provision of section 304 Part II of the Indian Penal Code is attracted to the present case. When the accused gave one hit with iron rod on the head of deceased, the intention to cause death cannot be imputed to him but it would be reasonable to infer that he had knowledge that any injury on the vital part of the body of deceased would cause death. The accused persons came on the spot armed with iron rod and lathi which indicate that they have common intention to assault Shivram and the complainant. From the record it is seen that the accused No.1 had given single blow on the head of deceased Shivram, which is proved to be fatal. However, from the circumstances it appears that there was no intention or premeditation in the mind of the appellant/accused to inflict such injuries to the deceased as were likely to cause in ordinary course of nature."

19. The above decision is distinguishable on facts as in

case in hand, the accused came with premeditation, after

assault they informed PW-4 that "Bhai Kam ho gaya", which

clearly conveys their intention to kill.

20. It is argued that the cause of death was because of

assault on head. The role played by accused No.2 is assault on

head and accused No.3 caught hold of him, according to the

accused, which would not attract Section 34 of the Indian

Penal Code. Benefit of doubt be given to accused Nos.1 and 3

as it cannot be certainly held that they had common intention.

For this purpose, the learned Counsel for the accused relied on

the Judgment of the Hon'ble Supreme Court in the case of

Krishnamurthy Alias Gunodu And Ors. Vs. State of Karnataka

reported in (2022) 7 SCC 521.

21. In case in hand there was previous enmity. All the

three accused came with preparation. One of them caught

hold the deceased to facilitate the assault which proves the

prior intention of all the three accused.

22. The learned Counsel for the accused also relied on

the judgment of the Hon'ble Supreme Court in the case of

Mummidi Hemadri and Ors. Vs. State of A. P. reported in 2007

ALL MR (Cri) 1417 (SC) wherein the Hon'ble Supreme Court

has held as under :

"14. Considering the background facts and the roles attributed to the accused persons it is crystal clear that the accused persons had caught hold of the deceased and thereafter the attacks by he other A-4 and A-5 came. A-1 instigated the other accused persons to attack the deceased."

23. It is about Section 149. In case in hand they came

with common intention.

24. The defence has relied on the judgment of the

Hon'ble Supreme Court in the case of Ezajhussain

Sabdarhussain and Anr. Vs. State of Gujarat reported in (2019)

14 SCC 339 wherein the Hon'ble Supreme Court has held as

under :

"Common intention being the state of mind can be gathered by inference drawn from the facts and circumstances established in a given case".

"22. Other than the allegation that the accused persons caught hold of deceased Mohammad Shakil, there is no other instigating action or overt act attributed to the present appellant-accused actively participating in the commission of crime as alleged and from the conduct of the accused persons, it seems that there was no meeting of minds to form pre-arranged plan. It is true that it can be developed at the spur of the moment but there must be pre-arrangement and premeditation concert which is the requirement of law for applicability under Section 34 IPC and from the case of the prosecution, the mere fact that appellant-accused caught hold of deceased Mohammad Shakil facilitating the other accused persons to come with a knife and gupti and give blows, it cannot be said that the appellant-accused shared common intention with the other accused persons keeping note of the fact that in the complaint which was in the first instance registered for the alleged incident by Accused 1 Iftekharhussain Sabdarhussain, he only recorded the presence of Accused 2 Shefakathussain Sabdarhussain but the time when the complaint

was registered at the instance of the present offence by Shamimbanu (PW 1) at 2.00 p.m., the present appellant-accused were also intentionally implicated. Certainly it creates a doubt of their false implication and their presence from the prosecution evidence on record appears to be clouded with suspicion and in our considered view, the present appellants cannot be held guilty of the offence under Section 302 with the aid of Section 34 IPC."

25. The accused has relied on the judgment of the

Hon'ble Supreme Court in the Criminal Appeal No. 288/2022

(Krishnamurthy @ Gunodu and Ors. Vs. State of Karnataka

wherein the Hon'ble Supreme Court has held as under :

"20. When we apply the aforesaid principles relating to applicability of Section 34 IPC to the facts of the present case, we feel that Thimmappa and Gopala are entitled to the befit of doubt on the ground that it cannot be with certainty held that they had common intention, viz. the injuries inflicted by Krishnamurthy on Venkatarama after he had fallen down. They did not participate thereafter by physically assaulting or causing any injury to Venkatarama. They did not facilitate and help Krishnamurthy in the assault he perpetuated. We have no grounds to accept that they could have preconceived the brutal assault by Krishnamurthy who had put his knees on the neck and jumped on the chest of the deceased to cause the injuries resulting in his death. We cannot hold that these two accused could have premeditated the result which ensued when Krishnamurthy behaved and acted in the manner he did. Clearly, they had not joined Krishnamurthy when he had acted and have stood by. There is nothing to indicate that their acts, that is, holding the hands and pulling the legs

of the deceased making him fall down, were done in furtherance of the common intention that Krishnamurthy would thereupon put his leg on the neck of the deceased, crushed his chest and fracture the ribs. We would, in favour of the appellants Thimmappa and Gopala, hold that their acts cannot be primarily connected with the violence perpetuated by Krishnamurthy. Given the acts attributed to Thimmappa and Gopala, the assault by Krishnamurthy and the resultant outcome were unexpected. We are also not prepared to hold that these two accused should have known the final outcome or it was known to them, or it was a reasonably possible outcome of the preconcert/contemporaneous engagement or a manifestation of mutual consent for carrying out a common purpose. We therefore, would not hold them guilty for the offence under Section 300 or even Section 299 of the IPC on the ground that they shared common intention as understood on application of Section 34 IPC.

21. Consequently, we convert their conviction to that under Section 323 read with Section 34 IPC and we would sentence them to the maximum sentence specified therein of one year. We also uphold that conviction of Thimmappa and Gopala for individual offences under Section 447, 504, 506 and 341 IPC and the sentences imposed under the aforesaid Sections, which are up to three years of rigorous imprisonment and fine with default stipulations."

26. While arguing about the common intention, the

accused has relied on the judgment of the Hon'ble Supreme

Court in the case of Ramashish Yadav and Ors. Vs. State of

Bihar reported in (1999) 8 SCC 555 wherein the Hon'ble

Supreme Court has held as under :

"Section 34 lays down a principle of joint liability in the doing of a criminal act. The essence of that liability is to be found in the existence of common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The distinct feature of Section 34 is the element of participation in action. The common intention implies acting in concert, existence of a pre-arranged plan which is to be proved either from conduct or from circumstances or from any incriminating facts. It requires a pre-arranged plan and it presupposes prior concert. Therefore, there must be prior meeting of minds. The prior concert or meeting of minds may be determined from the conduct of the offenders unfolding itself during the course of action and the declaration made by them just before mounting the attack. It can also be developed at the spur of the moment but there must be pre-arrangement or premeditated concert."

27. In case in hand, common intention is proved as

they come with premeditation, earlier enmity is proved and

after assault they declared it as "Bhai Kam ho gaya".

28. Spot Panchanama, Inquest Panchanama and

Postmortem Report itself proves that it is not the natural death.

The death caused due to assault. The cause of death is head

injury. Hence, the nature of death is homicidal.

29. The five eye witnesses are there. PW-1 is the first

informant and eye witness and also he is the paternal uncle of

the deceased. He saw the incident. He has stated in his

evidence about the previous quarrel between accused and the

deceased in the year 2016 and he along with other persons

tried to settle the matter but all the accused refused and they

were in a revengeful state of mind. Thereafter, on 24.02.2017,

he came to see his mother in Professor Colony. There he saw

how the accused persons assaulted the deceased. He has

mentioned the role of each accused. First they gave dash to

the moped of Akshay i.e. deceased and when he fell down,

accused No.2 gave blow of iron rod on his head. Accused No.1

also beat him with the iron rod and the accused No.3 caught

hold of him. Thereafter, he shouted and his friend Rajendra

Kinekar, Dharam Thakur, Gajanan Kale came there. Then

accused ran away from the spot and they took him to hospital.

There Doctor declared him dead. Thereafter, he has lodged the

complaint. The Inquest Panchanama was also conducted in his

presence and he has acted as panch for Inquest Panchanama.

30. According to the defence, the conduct of this

witness is not natural. He is brought up witness. He was not

present on the spot. Though the presence of this witness is

denied by the accused during cross-examination, by way of

suggestion, the accused has admitted his presence on the spot

as suggestion was given that all the other eye witnesses, who

reached there after hearing his shouts. The learned Counsel for

the accused has relied on the judgment of the Hon'ble Supreme

Court in the cases of Kuna Alias Sanjaya Behera Vs. State of

Odisha reported in (2018) 1 SCC 296, Amar Singh Vs. State

(NCT of Delhi) reported in (2020) 19 SCC 165 and Anil

Phukan Vs. State of Assam reported in AIR 1993 SC 1462 in

support of his argument that the presence of PW-1 is doubtful

as he has not helped the injured to carry him in vehicle. His

conduct is not natural. He has not hold the deceased while

taking him to hospital cannot be the abnormal behaviour of

witness as the witnesses behaved differently by watching the

horrified incident.

31. The learned Counsel for the accused has also

argued that the witnesses have not mentioned the presence of

other eye witnesses. He relied on the judgment of this Court in

the case of Mohd. Iqbal @ Muna s/o. Abdul Sattar & Anr. Vs.

State of Maharashtra reported in 2016 All MR (Cr) 4530 in

which it has held that the eye witnesses failed to mark the

presence of each other creates doubt about their presence on

the spot. In case in hand, the First Information Report and the

evidence of all the witnesses proves the presence of each other.

32. The another eye witness is PW-2. He knows the

accused as the accused used to come to the Pan Shop adjacent

to his Grocery shop. He has specifically stated about hearing of

shouts of PW-1 and thereafter, he came out which confirms the

presence of PW-1 on the spot. He has also stated the role of all

the accused which is consistent to the evidence of PW-1. He

along with other persons took him to the hospital, there Doctor

declared him dead. He has not given the statement on his own

before recording his statement makes no difference, which

cannot be the reason to suspect his presence on the spot.

33. Raju (PW-3) is the third eye witness and he also

knows the accused as they used to come on the Pan Shop

where he used to go and he is also from Professor Colony. He

also saw the incident as he come out from the house by

hearing the noise of felling down of the vehicle. The role

attributed to all the accused by this witness corroborates with

the evidence of PW-1 and PW-2. He has also mentioned the

presence of PW-1 on the spot. Some of the statements made by

him in his evidence were contradicted by him and said

statements were denied which are not sufficient to doubt his

credibility. He has also not disclosed it to anyone or not

narrated it to police before recording his statement, which is

the general tendency of the common man to avoid the

involvement in police case as a witness.

34. The defence has argued that there is delay in

recording statements of the eye witnesses. The learned

Counsel for the accused relied on the judgment of the Hon'ble

Supreme Court in the case of Shahid Khan Vs. State of

Rajasthan reported in (2016) 4 SCC 96 in which the Hon'ble

Apex Court has observed that the delay in recording statements

casts a serious doubt about there being eye witnesses to

occurrence. In the said case, how the police came to know that

said witnesses have seen the incident was not known, which is

not the scenario, in case in hand the names of the eye

witnesses were mentioned in the First Information Report

itself. It is the lacunae at the part of investigation, benefit of

which cannot be given to the accused.

35. (PW-5) Gajanan is also the eye witness. He is the

owner of Pan Shop where the accused persons used to come

and, therefore, he knows them. He has also stated about the

role played by all the three accused which is consistent with

PW-1, 2 and 3.

36. Immediately after the incident, PW-4 saw all three

accused on motorcycle and while leaving the spot at the

relevant time. He has not stated about watching the incident

but after the incident when accused left the spot accused No.1

told him that "Bhaiya Kam Ho Gaya" and they went towards

S. P. M. College. He has taken the deceased in his car to

Hospital. He has narrated about the quarrel between the

accused and the deceased in the year 2016 and his brother has

mediated the said quarrel. The evidence about the said

mediation and the earlier incident corroborates with the

evidence of PW-1.

37. There is recovery at the instance of accused No.1.

(PW-6) Vitthal is the panch witness for Recovery Panchnama.

Iron Rod is recovered from accused No.1. The recovery is from

open space and the witness was knowing before the

panchanama that they are conducting Recovery Panchanama is

brought on record. The rods were recovered from the Nalha

which was at the back side of the temple. Though it is from

open place, the place was not accessible to others, it was

within the exclusive knowledge of the accused. The rods were

stained with human blood and it was of blood group A which is

the blood group of deceased. Therefore, it is also one of the

circumstance which connect the accused with crime. The

learned Counsel for the accused relied on the Judgment of the

Hon'ble Supreme Court in the case of Salim Akhtar alias Mota

Vs State of U.P. reported in AIR 2003 4076. In support of his

argument he submits that if the recovery is from open place,

which was accessible to all and everyone, then it cannot be

held that appellant was in possession of article. In case in

hand the place though it was open place was not accessible to

all and it was within his exclusive knowledge.

38. One of the defence of the accused is that at the

time of incident, the street lights were not there. It was a night

time and there was dark. Though the eye witnesses have

stated that they saw the incident, it was not possible to see the

incident in the dark as there is no evidence that at the relevant

time, the electricity on pole was on. The defence has taken us

through the Spot Panchanama and has stated that the Spot

Panchanama was conducted in the light of torch which clearly

shows that the electricity was not there. The panch witness

has also stated that it was conducted in the light of torch. The

photographs were also taken at the time of conducting Spot

Panchanama. After going through the photographs, it reveals

that the Panchanama was conducted in the light of torch but

the street lights are also shown and the lights were on, which

proves that electric lights were there at the time of incident.

The evidence of Hemantkumar (PW-7) and Digambar (PW-8)

also proves that at the relevant time, the street lights were

working. Exhibits 68, 69 and 70 proves that the lights were

there at the time of incident and the incident was clearly

witnessed by PW-1, PW-2, PW-3 and PW-5.

39. It is argued by the defence that there is delay in

lodging the First Information Report which is not explained. It

is brought on record that the Police Station is on the way of the

Rural Hospital while proceeding from the spot. As per the

printed First Information Report, the intimation received at the

Police Station at about 23.08 hours and the entry is taken in

the station diary at 03.08 hours. It is an admitted position that

the informant did not lodge the report while proceeding

towards the hospital from the spot. It is not possible for any

person while taking the injured to the hospital to lodge the

report instead of saving the life of the injured. Immediately

when the doctor declared the injured dead, the first informant

lodged the report.

40. On perusal of the evidence of Ganesh (PW-12)

which disclosed that on 24.02.2017 at about 11.08 p.m. he

received the information from Ghatanji Rural Hospital about

the death of deceased and thereafter, the informant came to

the Police Station and lodged the report which is at Exh.25

about the murder of deceased by the accused and thereafter,

on the basis of that report, he registered the crime, which is

supported by the cross-examination of the Investigating Officer

(PW-10) that the information about the incident received to

the Police Station for the first time at 11.00 p.m. and the said

information was given by the informant Prashant Bhore, which

was reduced in writing. Only because the entry in the Station

Diary was taken at 03.08 a.m. it cannot be treated as delay in

lodging the report.

41. It is also one of the defence of accused that though

the names of some of the eye witnesses are mentioned by the

first informant, but the Investigating Officer has not recorded

their statements and said persons were not examined, it is the

lacunae at the part of the Investigating Officer. Benefit of which

cannot be given to the accused. Moreover, evidence of eye

witnesses is consistent.

42. The blood stained clothes of the accused were

seized at the time of arrest of the accused persons, as per

Seizure Panchanama which is at Exhibits 75 to 77. It is the

defence of the accused that there was delay in sending clothes

to Chemical Analysis. He has relied on the judgment of this

Court in the case of Raju s/o. Mahesh Dhruv Vs. The State of

Maharashtra reported in 2017 ALL MR (Cri) 496 wherein it has

held as under :

"Murder - Circumstantial evidence - Prosecution case that accused assaulted deceased with "Tifer" (iron pipe) on his head resulting into his death. Motive alleged that deceased abused accused in presence of employees not proved. Unexplained delay in lodging FIR. Evidence of witnesses not proving that it was accused alone who was last seen in company of deceased. Spot panchanama is totally silent about noticing any objectionable article which could be termed as a weapon in

crime. Planting of weapon on spot, which was already known to police is not completely ruled out. Prosecution is completely silent where and in what condition muddemal articles were lying from date of their seizure till its dispatch to Chemical Analyser. Hence, appearance of blood stains of group 'A' on clothes of accused is immaterial. Presence of accused at probable time of death of deceased is not established by prosecution. Accused entitled to benefit of doubt."

43. In case in hand, there are eye witnesses, they have

deposed about the role played by each assailant, blood stains

on clothes is not the only evidence against the accused. The

other circumstances are there and blood stains on clothes is

additional circumstance against the accused.

44. The Chemical Analysis Report shows that the

clothes were having the blood group of A and it was the blood

group of deceased. The blood group of accused Nos.1, 2 and 3

are B, B and AB. This is the additional link against the accused

persons. The iron rods were also seized at the instance of

accused No.1. The said rods were also having blood stains of

blood group A. The rods were recovered at the instance of the

accused No.1. The accused failed to give any explanation

about the blood stains found on the clothes.

45. After arrest, the injury found on the person of

accused No.2. There was contusion and he was referred for

medical examination. He was examined by Dr. Musale

(PW-11). According to Doctor (PW-11), accused No.2 was

having contusion over the right thigh size 7 cm x 2 cm caused

within 7 to 8 hours. The accused himself has given the history

of assault by Akshay Bhore i.e deceased with metal rod. It is

mentioned in the certificate issued by the doctor, which is at

Exh.116. The accused has not given any explanation about the

injury caused to him. He has simply stated in his statement

under Section 313 that the Injury Certificate is false is not

sufficient. The Doctor has no reason to depose against the

accused. A specific explanation is required from accused about

injury.

46. The motive to kill the deceased is earlier quarrel

between the accused and the deceased in the year 2016 and it

was tried to resolve by mediation, the witnesses deposed about

it and the motive is also proved.

47. The prosecution has duly established the presence

of all the eye witnesses on the spot. There is direct evidence

against all three accused persons. All eye witnesses have

mentioned the act of the accused persons. The prosecution has

brought on record various circumstances like recovery of the

iron rods, blood stains on the clothes of the accused and blood

stains on the iron rod, which established that the accused are

the only persons who have committed the crime. In short, the

prosecution has established the case of the accused with

requisite standard of proof. The learned Sessions Judge has

properly appreciated the evidence while recording the findings

of guilt. Since it is a case of assault with iron rod on head, it

can be safely held that all accused were having requisite

intention and knowledge to eliminate the deceased which falls

within the meaning of Section 300 of the Indian Penal Code.

In the above circumstances the impugned judgment and order

calls for no interference.

48. The appeal is, therefore, dismissed.

49. The muddemal property be dealt with in

accordance with law.

50. Pending Criminal Application(s), if any, stand(s)

disposed of.

(MRS. VRUSHALI V. JOSHI, J.) (VINAY JOSHI, J.)

RGurnule

Digitally signed byRANJANA MANOJ MANDADE Signing Date:02.12.2022 17:19