Tukaram Kashinath Khambayat And ... vs The State Of Maharashtra
2022 Latest Caselaw 12930 Bom

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         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 837 OF 2018

1.     Tukaram Kashinath Khambayat
       Age 37 years, occ. Agri.

2.     Rekhabai Tukaram Khambayat
       Age 32 years, occ. Household

       Both r/o Chaudhari Wada, Adawad
       Tq. Chopda, Dist. Jalgaon.

3.     Sushilabai Arun Barde
       Age 52 years, occ. Household
       R/o Sakegaon Tq. Bhusawal
       Dist. Jalgaon.                                      Appellants

       Versus

The State of Maharashtra                                   Respondent

Mr. D. P. Pande, Advocate for the appellants.
Mr. S. P. Sonpawale, APP for the State.


                                 CORAM : R. G. AVACHAT &
                                         R. M. JOSHI, JJ.

RESERVED ON : 5th DECEMBER, 2022.

PRONOUNCED ON :13th DECEMBER, 2022.

JUDGMENT : ( PER R. M. JOSHI, J.)

1. An incident occurred on 19th May, 2016 at about 11.30

pm, when Ganesh, whose marriage was to be performed shortly, met

with assault in which he died. In connection with the said crime,

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present appellants were charged for the offence punishable under

Section 302 of the Indian Penal Code and they came to be convicted

by the learned Additional Sessions Judge, Amalner, in Sessions Case

No. 19/2016. The convicts are taking exception to the said judgment

by invoking Section 374 of the Code of Criminal Procedure by fling

present appeal.

2. The case of prosecution runs as follows :-

On 19th May, 2016, there was a program of music

arranged on eve of marriage of Ganesh and number of female invitees

were performing dance therein. After the said program was over by

11.30 pm, a quarrel occurred between Tukaram (appellant/accused

No. 1) and his wife Rekhabai (appellant/accused No. 2). At that time,

Rekha and Sushilabai (mother-in-law of accused No. 1) raised cries

for help. Ganesh went to the house of the accused and intervened in

the said quarrel. At that time, Tukaram was hurt by his advice and

therefore, he assaulted Ganesh at the middle of his neck with knife.

In the said assault, Ganesh died. Tukaram had also assaulted

Kishor who was present at the spot. On the basis of said

information, given by Hiralal, offence came to be registered vide

Crime No. 40/2016 with Adawad Police Station.

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3. On the next day, at about 1.00 pm, supplementary

statement of informant Hiralal was recorded wherein he stated that

there occurred quarrel between Tukaram and Rekhabai on account of

he performing dance amongst other females. It is further stated

therein that Rekhabai and Sushilabai raised cries for help. Kishor,

who was present on the spot, was assaulted with knife on his right

hand whereas Ganesh was pulled inside the house by Rekhabai and

Sushilabai and thereafter the door of the house was closed. When

Hiralal went to the house of accused, he saw Ganesh being caught by

Rekhabai and Sushilabai and Tukaram assaulting on his neck and

chest.

4. During investigation of crime, police visited the spot and

panchabnama of the spot was drawn. Accused persons came to be

arrested. At the instance of accused Tukaram, pursuant to his

memorandum statement, recovery of knife is done from the house of

the accused. Clothes of accused and deceased were seized. Entire

muddemal was sent for forensic examination. After fling of charge-

sheet, case was committed to the Sessions Court for trial and since

the accused abjured the charge, they were put on trial.

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5. Prosecution examined in all eleven witnesses in order to

prove guilt of the accused.

6. Learned advocate for the appellants/accused submitted

that there is material variance in the frst information given by

Hiralal as well as his supplementary statement recorded on the next

day. According to him, material improvements are made by

informant in his version even before the Court in order to implicate

accused No. 2 and 3 in this crime. It is submitted that the testimony

of the alleged eye-witnesses i.e. Hiralal (PW 3) and Kishor (PW 5)

shows that infact when they came to the house of accused, they saw

Ganesh having fallen in the pool of blood in injured condition

meaning thereby they did not see the actual occurrence of incident in

which those injuries were sustained by him. It is submitted that

these witnesses have alleged motive for accused to eliminate Ganesh

that he was knowing the illicit relations of Rekhabai, but from cross-

examination of these witnesses, it is clear that they did not have any

knowledge about any such relationship nor Ganesh ever disclosed to

them about it. Thus, according to him, there is absolutely no

evidence on record to show that accused No. 2 and 3 had any reason

to kill Ganesh or they shared any common intention to commit

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murder of deceased. As far as appellant/accused No. 1 Tukaram is

concerned, it is argued that the alleged recovery at the instance of

this accused in the form of knife from his house is not reliable in view

of the fact that prior thereto police had visited the house of the

accused for the purpose of conducting spot panchanama and as

admitted by panch witness, extensive search was taken on the spot.

Thus, according to him, there is possibility of planting of the said

knife, and hence said recovery of knife cannot become a ground for

convicting the accused.

7. Learned APP supported the impugned judgment by

placing reliance on the proved fact that the occurrence of the incident

in which deceased died is in the house of the accused. The incident

in question is said to have been proved through eye-witness Hiralal

and injured witness Kishor, who narrated about the manner in which

deceased was assaulted with knife. According to him, the ocular

evidence gets corroboration from the recovery of blood stained clothes

of the accused as well as knife which was used in the crime in

question. It is submitted that the Medical Offcer has also opined

after examination of the said weapon that the injuries caused to the

deceased are possible by the said knife. Thus, according to him,

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there is no case made out by the appellants for causing any

interference in the impugned judgment.

8. Testimony of Hiralal (PW 3) who is the informant and

brother of deceased indicates that at the relevant time, some function

was going on wherein accused also participated and thereafter

everyone heard quarrel between Tukaram and Rekhabai in their

house. Both the eye-witnesses i.e. Hiralal and Kishor candidly

deposed about having heard cries for help by Rekhabai and

Sushilabai. Though it is sought to be canvassed on behalf of

prosecution that it was a plan of the accused persons to call Ganesh

inside the house in order to commit his murder as he had knowledge

about the illicit relations of Rekhabai with another person but the

evidence on record however, does not support the said theory. On

the other hand, Report (Exhibit 43), which is immediate after

incident, specifcally states about incident of assault was caused for

the reason that Tukaram did not like interference and advice of

Ganesh in the quarrel.

9. Evidence of Kishor ( PW 5) shows that after hearing the

cries of Rekhabai and Sushilabai, he along with Ganesh went to the

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house of the accused and there was a talk between accused and

Ganesh for about fve minutes. He also stated that accused did not

have knife in his hand however, he shows his inability to state as to

how later knife was procured by the accused. This evidence also goes

to show that there was no preparation to kill Ganesh as per theory

propounded by prosecution. Otherwise, Tukaram ought to have been

seen with knife since the inception of the incident.

10. Kishor, however, is candid to say that accused Tukaram

caused assault on his right hand with knife and thereby injury was

caused to his thumb. It is thus clear that it was accused Tukaram

held knife to cause said injury to Kishor. There is no evidence to

show that the knife has changed the hands thereafter.

11. Moreover, it has further come in evidence of Kishore that

Tukaram and Rekhabai wanted to dance in the program and on the

issue of dancing amongst women, there occurred quarrel between

them and while quarreling they went to their home, which fact

supports the frst report given by Hiralal to police about the incident.

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12. It is the case of prosecution that accused No. 2 and 3

pulled Ganesh inside the house but frst information by Hiralal does

not disclose the same. The said theory is belatedly introduced to the

case. It is pertinent to note that both these witnesses have candidly

admitted about having no knowledge in respect of any illicit relations

of Rekhabai nor Ganesh has disclosed to them about it. Though

Kishor claims that both ladies pulled Ganesh inside the house, after

they reached home of accused, his cross-examination however shows

that some neighbours were also present at the home of accused. He

further stated that for 5 minutes Ganesh was separating quarrel.

According to him, after 5 minutes of assault on him, Ganesh was

assaulted but Ganesh did not intervene nor tried to fee from the

spot. In the light of this evidence, it was necessary for the

prosecution to examine neighbours present at spot, who were

independent witnesses. Considering the improved version of

informant and belated introduction of role of ladies, the examination

of independent witnesses was must and in absence thereof, it is

unsafe to accept the contention that both Rekhabai and Sushilabai

pulled Ganesh inside house.

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13. As far as actual occurrence of the incident of assault in

which deceased Ganesh sustained injuries is concerned, cross-

examination of Hiralal as well as Kishor shows that they went to the

house of accused, the door was opened after giving kicks thereon and

they saw Ganesh lying in injured condition in pool of blood. It clearly

means that they did not have occasion to see the actual causing of

assault on Ganesh. Therefore, on the basis of their evidence it

cannot be held that Rekhabai and Sushilabai had caught hold

Ganesh and Tukaram inficted blow in the middle of his neck with

the knife.

14. There is recovery of blood stained clothes of Rekhabai

and Sushilabai. However, it is absolutely natural that their clothes to

get stained with blood considering the fact that blood spilled all over

the spot pursuant to assault caused on Ganesh. Spot panchanama

(Exhibit 36) indicates that the blood was spilled over all the walls as

well as on the foor of the house of accused. Thus, naturally, the

clothes of the person present at the spot would get stained with blood

irrespective of participation in assault or not. In the circumstances,

the said sole fact, therefore, cannot be treated as conclusive evidence

to connect them with the death of Ganesh.

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15. Dr. Patil (PW 10) who conducted post mortem on the

dead body has recorded in the post mortem note (Exhibit 67) that

there was an oblique stab wound at the middle of the neck of the

deceased. This, according to him, was the cause of death and there

is no reason for us to disbelieve the opinion of the Medical Offcer

that it is a homicidal death.

16. As far as appellant Tukaram is concerned, apart from

evidence to show that he held knife at spot, there is additional

evidence on record to show his complicity in the crime in the form of

recovery of blood stained knife pursuant to the statement made by

him under Section 27 of the Evidence Act. As per the testimony of

Ananda (PW 2), Tukaram made statement while in the custody of

police that he has concealed the knife in his house and will show the

same to the police. Said statement (Exhibit 40) is duly proved by this

witness. According to him, thereafter accused took them to his

house and removed blood stained knife from a plastic box. It is also

categorically deposed that the said weapon was sealed at the spot.

The witness has identifed the said knife in the Court. It is sought to

be argued on behalf of the accused that police had been to the house

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of the accused earlier when spot panchanama (Exhibit 36) was done

and that time, extensive search of the house was taken. It is

necessary to note that the knife was not found kept in open in the

house but it was concealed in the plastic box and hence it could

escape attention of police. Thus, the knowledge about the said knife

being kept in the said box was exclusively with the accused at whose

instance the said recovery is done.

17. Dr. Patil (PW 10) who conducted post mortem was also

referred with the said knife for his opinion about the injuries caused

to the deceased. According to him, the injuries caused to the

deceased are possible by the seized knife (Article I). The certifcate

issued by the Medical Offcer (Exhibit 68) to that effect is duly proved

by him.

18. There is evidence to show that seized knife was sent to

Forensic Lab and C.A. report (Exhibit 98) shows that clothes of

deceased were stained with blood of group 'B' and the blood of same

group is found on knife. It is, therefore, clear that the recovery of

weapon is at the instance of accused Tukaram which is duly

connected with the incident of assault. Thus, there is more than

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suffcient material evidence on record in order to show that accused

No. 1 Tukaram is the author of the injuries caused to the deceased.

19. Considering the injury caused in the middle of the neck

of the deceased attributes suffcient knowledge to accused No. 1 that

the said injury is fatal, it therefore, can be safely said that at the time

of inficting said injury, Tukaram had knowledge that the said injury

would result into death of the deceased. The circumstances on

record also indicate that deceased died on the spot. Since accused

Tukaram is found to have authored the said injury, no other motive is

required to be proved by the prosecution against him to kill Ganesh.

In the light of overall circumstances and material evidence on record

the conviction recorded against accused No. 1 Tukaram cannot be

faulted with.

20. As far appellants No. 2 and 3 are concerned, the entire

case of the prosecution rests on the fact that Ganesh had knowledge

about the illicit relations of Rekhabai and in order to prevent him

from making the same public, they eliminated him. To support the

said theory, there is absolutely no evidence on record. So also, there

is no other evidence in order to connect these accused with the

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crime in question for want of any incriminating recovery at their

hands or any overt act being committed by them which would have

indicated common intention shared by them with accused Tukaram.

In the circumstances, appellants Rekhabai and Sushilabai deserve to

be acquitted from the charge by extending beneft of doubt to them.

In the result, following order is passed :-

ORDER

i) Criminal Appeal is partly allowed.

ii) The impugned judgment and order is confrmed to the extent of conviction of appellant No. 1 Tukaram Kashinath Khambayat.

iii) The impugned judgment and order is set aside to the extent of conviction of accused No. 2 Rekhabai Tukaram Khambayat and accused No. 3 Sushilabai Arun Barde and they stand acquitted in Sessions Case No. 19/2016.

iv) Bail bonds of appellant No. 2 and 3 stand cancelled.

v) Refund fne paid, if any, to accused No. 2 and 3.

( R. M. JOSHI)                                          ( R. G. AVACHAT)
     Judge                                                     Judge

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