Vinod S/O. Rangnath Pawar vs The State Of Maharashtra And Anr
2022 Latest Caselaw 13177 Bom

                                                Cri. Appeal No.355/2017 with
                                                     Cri. Appeal No.491/2017
                                      :: 1 ::


          `IN THE HIGH COURT OF JUDICATURE OF BOMBAY

                               BENCH AT AURANGABAD


                     CRIMINAL APPEAL NO.355 OF 2017


 Vinod s/o Rangnath Pawar,
 Age 36 years, Occu. Driver,
 R/o Sawangi, Taluka and
 District Aurangabad                               ... APPELLANT

          VERSUS

 1.       The State of Maharashtra
          Through Police Station Officer,
          Police Station, Phulambri,
          Tq. Phulambri, Dist. Aurangabad

          (Copy to served on Public
          Prosecutor, High Court of Bombay
          Bench at Aurangabad)

 2.       Nazmabi Sayyad Raheman,
          Age 30 years, Occu. Labourer,
          R/o Naigaon, Taluka and
          District Aurangabad
          (Formal Respondent)                      ... RESPONDENTS

                               .......
 Mr. Shrikishan S. Shinde, Advocate for appellant
 Mr. S.P. Sonpawale, A.P.P. for respondent No.1 - State
                               .......

                                      WITH

                     CRIMINAL APPEAL NO.491 OF 2019


 Nazmabi w/o Sayyad Raheman,
 Age 32 years, Occu. Labour,
 R/o Naigaon, Taluka and
 District Aurangabad                               ... APPELLANT




::: Uploaded on - 20/12/2022                      ::: Downloaded on - 20/12/2022 21:37:59 :::
                                                Cri. Appeal No.355/2017 with
                                                    Cri. Appeal No.491/2017
                                   :: 2 ::


          VERSUS

 The State of Maharashtra
 Through Police Station Officer,
 Police Station, Phulambri,
 Tq. Phulambri, Dist. Aurangabad

 (Copy to served on Public
 Prosecutor, High Court of
 Judicature of Bombay
 Bench at Aurangabad)                             ... RESPONDENT

                               .......
 Mr. N.S. Ghanekar, Advocate holding for
 Ms Varsha S. Ghanekar, Advocate for appellant
 Mr. S.P. Sonpawale, A.P.P. for respondent - State
                               .......

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

                  Date of reserving judgment : 13th December, 2022
                  Date of pronouncing judgment : 19th December, 2022

 JUDGMENT (PER : R.G. AVACHAT, J.) :

Both these appeals from conviction are being

decided by this common judgment since the challenge therein

is to one and the same order of conviction and sentence,

passed by learned Additional Sessions Judge-2, Aurangabad in

Sessions Case No.13/2015, by judgment and order dated

15/7/2017. Vide impugned order, the appellants have been

convicted for the offence punishable under Sections 302 and

201 read with Section 34 of the Indian Penal Code and,

Cri. Appeal No.355/2017 with Cri. Appeal No.491/2017 :: 3 ::

therefore, sentenced to suffer imprisonment for life and to

pay fine of Rs.10,000/- each, and rigorous imprisonment for

three years and to pay fine of Rs.5000/- each, respectively

with default stipulations.

2. The facts giving rise to the present appeals are as

follows :

Appellant Nazmabi is a widow of Sayyad Raheman

(deceased). Nazmabi is alleged to have had extra-marital

relationship with appellant Vinod. Both the appellants

committed murder of Sayyad Raheman in the field of one Anil

Jagdale at village Naigaon in the early evening of 27/9/2014.

Shaikh Gaffar (P.W.1) lodged the F.I.R. (Exh.18). A crime vide

C.R. No.137/2014, therefore, came to be registered against

both the appellants. On investigation of the crime, the

appellants came to be proceeded against by filing a charge

sheet.

3. The case came to be committed to the Court of

Sessions. Learned Additional Sessions Judge-2, Aurangabad

(trial Court) framed the charge (Exh.9). The appellants

pleaded not guilty. The prosecution examined 9 witnesses

Cri. Appeal No.355/2017 with Cri. Appeal No.491/2017 :: 4 ::

and produced in evidence some documents. On appreciation

of the evidence in the case, the trial Court convicted and

sentenced the appellants as stated above.

4. Learned counsel for the appellants would submit

that, the case is mainly based on evidence of two witnesses,

P.W.4 Sayyad Kalim and P.W.5 Asma, daughter of the

deceased. The evidence of both these witnesses has been

shattered in their cross-examination. Then there remains

nothing against any of the appellants. They, therefore, urged

for allowing the appeals.

5. Learned A.P.P. would, on the other hand, submit

that, P.W.4 Sayyad Kalim is an eye witness to the incidence.

Evidence of daughter of the deceased indicates appellant

Vinod took the deceased with him just some time before the

incident. The appellant Nazmabi followed them to the field.

The rest then followed. A 14 year innocent daughter has no

reason to give evidence against her own mother. Pursuant to

the disclosure statement made by appellant Vinod, a jacket on

his person at the material time came to be seized. The C.A.

reports indicate the jacket had blood stains. According to

learned A.P.P., the evidence on record does not warrant

Cri. Appeal No.355/2017 with Cri. Appeal No.491/2017 :: 5 ::

interference with the impugned order. He, therefore, urged

for dismissal of the appeals.

6. Considered the submissions advanced. Perused

the evidence relied on. The F.I.R. (Exh.18) was lodged on

suspicion. Admittedly, the informant - P.W.1 Shaikh Gaffar

did not witness the incidence. On having learnt Sayyad

Raheman to have died, he reached to the field of Anil Jagdale.

He found Sayyad Raheman was brutally assaulted. There

were no clothes on his person below the waist. He was only

clad in a shirt. The informant's evidence suggests that, he

came to know from the villagers about the illicit relationship

between the appellants inter-se.

7. Admittedly, deceased Sayyad Raheman met with

homicidal death. Post mortem report (Exh.49) suggests he

died of haemorrhagic shock due to multiple fractures along

with head injury. The question is whether the appellants are

the author of the homicidal death of deceased Sayyad

Raheman.

8. P.W.2 Shaikh Lal is a witness to the scene of

offence panchanama (Exh.21). A piece of spade handle came

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to be seized in addition to broken bangles from the scene of

offence. P.W. 3 Shaikh Ahemad is a witness to the disclosure

statement made by appellant Vinod, pursuant to which

another piece of a spade handle came to be recovered from

the well under panchanama Exh.23, besides a jacket on his

person at the material time.

9. The only evidence relevant for deciding both these

appeals is that of P.W.4 Sayyad Kalim, a friend of the

deceased and P.W.5 Asma, daughter of the deceased.

The evidence of P.W.4 Sayyad Kalim suggests that,

on the fateful day, both the deceased and himself were to go

to Aurangabad carrying bullocks from Naigaon. The deceased

went home to deliver tea powder and sugar. He assured

P.W.4 Sayyad Kalim of his return in a short while. Since the

deceased did not come back, P.W.4 Sayyad Kalim claimed to

have visited the house of the deceased. He learnt from the

children of the deceased that, both the appellant Nazmabi and

the deceased Sayyad Raheman went together to the field to

fetch water. He, therefore, went to the field to witness

appellant Vinod brutally assaulted the deceased with a

wooden rod. Vinod gave threats of eliminating P.W.4 Sayyad

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Kalim. P.W.4 Sayyad Kalim, therefore, claimed to have not

shared the incident with anyone for next two days.

10. From the cross-examination of P.W.4 Sayyad

Kalim, it has come on record that, on the following day, he

was in the company of police. He even signed the inquest

panchanama (Exh.13) as a witness. He, however, gave his

statement to the police on 28th September i.e. two days after

the incident and a day after he signed the inquest

panchanama. The same suggests unnatural conduct on his

part. Had he really witnessed appellant Vinod committing

murder of his friend, P.W.4 would not have kept quiet. His

statement under Section 164 of the Code of Criminal

Procedure was also recorded by the Judicial Magistrate, First

Class. He admittedly stated therein to have come to know

about the incident on the following day. P.W.5 Asma did not

state P.W.4 Sayyad Kalim to have had visited her resident on

the fateful evening. The same suggests P.W.4 Sayyad Kalim is

not a witness to the incident. His evidence is found to be

unreliable.

11. Asma (P.W.5) is a daughter of the deceased

Sayyad Raheman. Her evidence suggests that, appellant

Cri. Appeal No.355/2017 with Cri. Appeal No.491/2017 :: 8 ::

Vinod would frequently visit her residence. Her evidence

would further suggest that, there was illicit relationship inter-

se the appellants. It is in her evidence that, on the fateful

evening, appellant Vinod had come her residence and took the

deceased with him. Her mother then followed them. P.W.5

Asma then went to sleep. She learnt about the incident on

the following morning.

12. The evidence of P.W.5 Asma may suggest the

appellant Vinod to have taken the deceased with him.

Appellant Nazmabi followed then. P.W.5 Asma was confronted

with her police statement. She admitted to have not stated

therein that the appellant Vinod had come her residence to

take her father (deceased) away. This is a material omission

amounting to contradiction. This witness is none other than

the daughter of the deceased. She is an interested witness.

Her evidence further suggests that, there was discussion

among all the family members over the incidence. She

admitted to have come to the Court along with her

grandmother. She further admitted to have been told of the

incident by her grandmother. She went on to state to have

learnt about the entire incident since her grandmother told

her the same. In view of this, the evidence of P.W.5 Asma is

Cri. Appeal No.355/2017 with Cri. Appeal No.491/2017 :: 9 ::

also found to be not fit to rely on.

13. Then remains the disclosure statement made by

appellant Vinod, pursuant to which a piece of spade handle

and jacket on his person at the material time came to be

recovered. The C.A. reports (Exh.43 to 45) pertaining to both

these articles are, however, do not further the prosecution

case, since the blood group of the deceased could not be

ascertained. Rest of the prosecution evidence does not bring

the appellants closer to the charge. It is reiterated that, P.W.4

Sayyad Kalim is not proved to be an eye witness to the

incident. The evidence of the daughter of the deceased could

not make out a case that, the appellant Vinod took the

deceased with him on the fateful evening and then her mother

followed them, so as to make out a case of last seen together.

We, therefore, reach to the conclusion that, the prosecution

evidence fell short to establish the charge. Interference with

the impugned order of conviction and consequential sentence

is, therefore, warranted. Hence the order :

ORDER

(i) The Criminal Appeals are allowed.

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(ii) The order dated 15/7/2017, passed by learned

Additional Sessions Judge-2, Aurangabad in Sessions Case

No.13/2015, convicting both the appellants for offence

punishable under Sections 302 and 201 read with Section 34

of the Indian Penal Code is hereby set aside.

(iii) The appellants are acquitted of the offences punishable

under Sections 302 and 201 read with Section 34 of the

Indian Penal Code. They be set at liberty forthwith if not

required in any other case. Fine amount, if paid, be refunded

to them.

          ( R. M. JOSHI, J. )                          ( R. G. AVACHAT, J. )




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