Bombay High Court
Rani Chagan @ Rushi Jadhav vs The State Of Maharashtra on 10 August, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:17007-DB
Cri Appeal No.572 of 2016
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 572 OF 2016
1. Rama Abaji Jadhav,
Age: 64 years, Occupation: Agriculture,
2. Chagan @ Rushi Rama Jadhav,
Age: 28 years, Occupation: Agriculture,
3. Jyoti Rama Jadhav,
Age: 59 years, Occupation: Housewife,
All R/o: Morandi Mohalla, Old Jalna,
District: Jalna. ... Appellants
[Orig. Accused No.1, 3 & 4]
Versus
State of Maharashtra ... Respondent
WITH
CRIMINAL APPEAL NO. 125 OF 2017
The State of Maharashtra
Through Police Station,
Kadim Jalna, Tq. and Dist. Jalna. ... Applicant
[Orig. Respondent]
Versus
1. Rama s/o Abaji Jadhav
Age: 62 years,
2. Digambar s/o Narayan Gaike
Age: 24 years,
3. Jyoti w/o Rama Jadhav
Age: 57 years,
4. Rani w/o Chagan @ Rushi Jadhav
Age: 23 years
All R/o Morandi Mohalla, Old Jalna,
Dist Jalna. ... Respondents
[Ori. Accused nos.1, 2, 4 & 5]
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Cri Appeal No.572 of 2016
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WITH
CRIMINAL APPEAL NO. 124 OF 2017
Laxman Shamrao Yeole
Age-67 years, Occupation - Labourer,
R/o. Morandi Mohalla,
Old Jalna, Tq. & Dist. Jalna. ... Appellant
[PW2, informant & victim of the crime]
Versus
1] The State of Maharashtra
2] Rama s/o Abaji Jadhav
Age- 62 years, Occupation-Business
3] Jyoti w/o Rama Jadhav
Age- 57 years, Occupation-Household,
4] Rani w/o Chagan @ Rushi Jadhav
Age- 23 years, Occupation-Household,
Respondent no. 2 to 4 are
R/o. Morandi Mohalla, Old Jalna,
Dist. Jalna. ... Respondents
[R.Nos. 2 to 4 original accused]
WITH
CRIMINAL APPEAL NO. 581 OF 2016
WITH
CRIMINAL APPLICATION NO. 5645 OF 2016
IN CRIMINAL APPEAL NO. 581 OF 2016
Rani Chagan @ Rushi Jadhav
Age: 25 years, Occupation: Housewife,
R/o: Morandi Mohalla, Old Jalna,
District: Jalna. ... Appellant
[Orig. Accused No.5]
Versus
State of Maharashtra ... Respondent
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Cri Appeal No.572 of 2016
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.....
Mr. Joydeep Chatterji, Advocate for the Appellants in Criminal Appeal
No. 572 of 2016, Criminal Appeal No.581 of 2016 and Criminal
Application No. 5645 of 2016.
Mr. S. J. Salgare, APP for Appellant in Criminal Appeal No. 125 of
2017 and for Respondent in rest of the matters.
Mr. S. J. Salunke, Advocate for Appellant in Criminal Appeal No. 124
of 2017.
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
Reserved on : 31.07.2023
Pronounced on : 10.08.2023
JUDGMENT [ABHAY S. WAGHWASE, J.] :
1. Original accused nos. 1, 3 and 4 [appellants in Criminal Appeal
No. 572 of 2016] and original accused no.5 [appellant in Criminal
Appeal No. 581 of 2016] are hereby invoking Section 374 of the Code
of Criminal Procedure [Cr.P.C.], thereby taking exception to the
judgment and order of conviction passed by learned Additional
Sessions Judge-1, Jalna dated 17.08.2016 in Session Case No. 66 of
2014, convicting them as under:
1. Accused No.3) Chagan alias Rushi Rama Jadhav is hereby
held guilty under Section 235(2) of Cr.P.C. for commission
of offence p.u.s.302 of IP Code, and he is sentenced to
Cri Appeal No.572 of 2016
suffer rigorous imprisonment for life and to pay fine of
Rs.5000/- I.D. of payment of fine to suffer simple
imprisonment for Six months.
2. Accused No.1) Rama s/o Abaji Jadhav, No.4) Jyoti Rama
Jadhav and No.5) Rani w/o Chagan @ Rushi Jadhav, are
hereby held guilty under Section 235(2) of Cr.P.C. for
commission of offence p.u.s. 323 of I.P.Code and they are
sentenced to suffer Simple Imprisonment for One year and
to pay fine of Rs.500/- each I.D. of payment of fine to suffer
Simple Imprisonment for three months. They shall
surrender their bail bonds.
3. Accused No.3 Chagan @ Rushi Rama Jadhav, is hereby
acquitted under section 235(1) of Cr.P.C. for commission of
offence p.u.s.143, 147, 148, 323, 504 r.w. 149 of IPC,
u/sec.4/25, 7/25(1)(A) of the Arms Act and Sec. 135 of the
Bombay Police Act.
4. Accused no.2 Digamber Narayan Gaike is hereby acquitted
u/sec.235(1) of Cr.P.C. for commission of offence p.u.s.
143, 147, 148, 302, 323, 504 r.w. 149 of IPC, 4/25, of the
Arms Act and U/Sec. 135 of the Bombay Police Act. His bail
bonds stand cancelled.
5. Accused nos.1) Rama s/o Abaji Jadhav, No.4) Jyoti Rama
Jadhav and No.5) Rani w/o Chagan @ Rushi Jadhav, are
hereby acquitted under section 235(1) of Cr.P.C. for
commission of offence p.u.s. 143, 147, 148, 302, 504 r.w.
Cri Appeal No.572 of 2016
149 of IPC, U/Sec. 4/25, 7/25(1)(A) of the Arms Act, and
u/sec. 135 of the Bombay Police Act.
6. Set off under Section 428 of Cr.P.C. be given to accused
nos. 1) Rama s/o Abaji Jadhav, No.3) Chagan @ Rushi
Rama Jadhav, No.4) Jyoti Rama Jadhav and No.5) Rani w/
o Chagan @ Rushi Jadhav.
7. Muddemal properties article no.9 Knife (Khanzir) and
Article No.11 Sword be sent to District Magistrate, Jalna, as
provided u/sec.32 of Arms Act, for its disposal and rest of
the Muddemal property being worthless be destroyed after
appeal period is over.
8. Accused no.2 Digambar Narayan Gaike is directed to furnish
P.R. and S.B. of Rs.05,000/- as per Section 437-A of Cr.P.C.
for appearing before appellate court.
9. Copy of the Judgment be given to accused nos. 1, 3 to 5
free of costs.
10. Dictated and pronounced in open Court.
2. Here, even State is challenging the order of acquittal of accused
nos.1 Rama, 2 Digambar, 4 Jyoti and 5 Rani from charge under
Section 302 of the Indian Penal Code [IPC] by preferring Criminal
Appeal No.125 of 2017 and simultaneously, father of deceased is also
Cri Appeal No.572 of 2016
challenging the order of acquittal from charge under Section 302 of
IPC to the extent of accused nos.1 Rama, 4 Jyoti and 5 Rani.
PROSECUTION CASE IN TRIAL COURT
3. An event of celebration of Devi festival was organized at
Morandi Mohalla on 29.11.2013. According to prosecution, sound
system for the festival was arranged but there was dispute as to who
should pay rent towards the amplifier and in such backdrop, there
was quarrel between deceased and accused no.3 Chagan @ Rushi
[hereinafter referred to as "Rushi"]. The issue and quarrel was
resolved and deceased Ganesh was taken back by his family members
in the house. After a short while, accused no.4 Jyoti, [mother of
accused no.3 Rushi], and accused no.2 Digambar [brother in law of
accused no.3 Rushi] again visited house of deceased Ganesh and it is
the case of prosecution that, he was allegedly abused by accused no.4
Jyoti challenging him to come to their house. So, around 7.00 p.m.,
Ganesh went to the house of accused. There, accused no.3 Rushi
stabbed him in his abdomen, accused no.1 Rama inflicted blow with
sword on his leg, whereas accused no.4 Jyoti [wife of Rama], accused
no.5 Rani [wife of Rushi] and accused no.2 Digambar showered fist
blows on Ganesh and as a result of said assault, he collapsed. Ganesh
was shifted to hospital but, on examination, was declared as brought
Cri Appeal No.572 of 2016
dead and therefore, PW2 Laxman [father of deceased Ganesh] set law
into motion vide report Exhibit 51 on the basis of which instant crime
was registered.
4. PW14 PSI Suresh Bhale carried out investigation and after
completing the same, he presented chargesheet. Trial was conducted
by learned Additional Sessions Judge-1, Jalna, who on its conclusion
and on appreciation of evidence, recorded the above conviction vide
judgment and order dated 17.08.2016. This is now questioned before
us by convicts as well as State and father of deceased [informant].
RIVAL CONTENTIONS :
On behalf appellants in Criminal Appeal No.572 of 2016 and Criminal
Appeal No. 581 of 2016:
5. According to learned counsel, prosecution has not discharged
its primary burden of proving the case against accused appellants
beyond reasonable doubt, i.e. by adducing trustworthy and credible
evidence. Taking us through the evidence of informant PW2 Laxman,
he pointed out that it is doubtful whether he himself has seen the
occurrence of assault as his evidence shows that he had reached the
spot after everything was over and therefore, he has not named
Cri Appeal No.572 of 2016
accused no.1 Rama for assaulting by sword. He would strenuously
submit that his name is not stated in the FIR and is rather appearing
for the first time in supplementary statement on 04.12.2013 i.e.
almost after 4 to 5 days since the date of occurrence dated
29.11.2013. For the said reason, he submits that implication is after
due deliberation and is apparently false.
6. Learned counsel also invited our attention to the answers given
by informant PW2 Laxman in cross and submitted that the same are
full of material omissions, more particularly answers given in para 16,
17 and 23 of the cross examination.
7. Learned counsel further submitted that deceased accidentally
fell and suffered injuries, however, such defence raised has not been
considered and appreciated by learned trial Judge.
8. Similarly, taking us through the testimony of PW3 Vilas,
brother of deceased, it is submitted that in spite of claiming to have
accompanied deceased Ganesh, apparently he did not intervene to
save his brother from the assault and rather, he chose to remain a
mute spectator. Thus it is stated that his conduct is unnatural and
unbecoming of a brother. It is pointed out that even his statement
Cri Appeal No.572 of 2016
under Section 161 of Cr.P.C., substantive evidence and statement
under Section 164 of Cr.P.C. are inconsistent. Therefore, learned
counsel even doubts the very veracity of his version.
9. Same attack is made on the testimony of PW4 Shubham, a
resident of the same locality, and it is submitted that all above
witnesses are interested witnesses. Therefore, only on the strength of
such evidence, it is submitted that, story of prosecution cannot be said
to be substantiated and charges cannot be held to be proved.
10. Finding fault in the procedure of recovery of alleged weapon,
learned counsel submits that so-called evidence on recovery is also
not convincing and so, unsafe for reliance.
11. He next submitted that even otherwise, there is weak evidence
against accused no.1 Rama, accused no.4 Jyoti and accused no.5
Rani. It is submitted that still they are roped in along with other
accused and are held guilty for offence under Section 323 of IPC.
According to learned counsel, appreciation and finding of learned
trial Judge to that extent is also against law.
Cri Appeal No.572 of 2016
Lastly, he submitted that for above reasons, there being false
implication and erroneous appreciation of evidence, appeals deserve
to be allowed.
On behalf of State:
12. In answer to above submissions, learned APP would also take
us through the evidence, more particularly that of PW2 Laxman
[father], PW3 Vilas [brother], PW4 Shubham and PW5 Arun,
residents of same locality. According to learned APP, PW4 Shubham
and PW5 Arun are independent witness. Reading the evidence in
chief of above witnesses, he submits that, they are all consistent about
the occurrence which took place during quarrel and subsequently,
accused party again coming to house of deceased, abusing him and
inviting him to their house and as a result of which, deceased going
there and then he to be assaulted and killed on the spot. Learned APP
submitted that ocular account is finding support from medical
evidence. Medical expert has confirmed the injuries to be due to
articles like sword and knife. There is clinching evidence about
accused Rushi responsible for murder by stabbing and accused Rama,
who was armed with sword, inflicting grievous injury. It is submitted
that, learned trial court has rightly appreciated the ocular account,
medical account and even taking into consideration the recovery at
Cri Appeal No.572 of 2016
the instance of accused, he submits that, guilt has been rightly
fastened. It is submitted that law has been correctly appreciated and
applied. Finding evidence of prosecution convincing and acceptable,
guilt has been recorded and for said reasons, he submits that
conviction of accused nos. 1, 3, 4 and 5 cannot be faulted at.
13. However, learned APP has taken exception to the findings of
learned trial Judge for acquitting accused nos. 1, 2, 4 and 5 from the
charge under Section 302 of IPC. Learned APP further submitted that
on same set of evidence, guilt of accused no.3 Rushi is recorded under
Section 302 of IPC, however, accused no.1 Rama, accused no.4 Jyoti
and accused no.5 Rani have been convicted only for offence under
Section 323 of IPC and clean chit has been unfortunately given to
accused no.2 Digambar. Thus it is submitted that it is a fit case for re-
appreciation and re-analysis of the entire evidence in an appeal at the
instance of State.
On behalf of appellant in Criminal Appeal No. 124 of 2017 preferred
by informant [father of deceased] :
14. Learned counsel representing original complainant also is
questioning the acquittal of accused nos. 1, 4 and 5 for the charge
under Section 302 of IPC. The sum and substance of his argument is
Cri Appeal No.572 of 2016
that there is clinching, clear, cogent evidence regarding the assault on
deceased Ganesh. It is submitted that presence of all accused has been
established in the trial court by prosecution. However, there is no
proper appreciation as regards to accused no.1 Rama, accused no.4
Jyoti and accused no.5 Rani and they have been convicted only for
offence under Section 323 of IPC in spite of convincing evidence
available against them. He would strenuously submit that in view of
charge under Section 149 of IPC, all were liable and responsible for
the homicidal death and therefore, all ought to have been convicted,
however, as the same has not happened, he prays for allowing the
appeal and convicting such accused also for all the charges for which
they were made to face trial.
SUM AND SUBSTANCE OF THE EVIDENCE ON BEHALF OF
PROSECUTION IN THE TRIAL COURT
PW1 Gajanan Kale, pancha to spot panchanama. He has identified
panchanama Exhibit 47 and according to him, the spot is on
the road, 7 to 8 feet away from the house of accused Rushi.
PW2 Laxman Yeole, informant and father of deceased Ganesh,
stated about occurrence to be of 29.11.2023 at 7.00 p.m..
The sum and substance of his testimony is that, while he was
in the house, he heard shouts and therefore, he and his
family members ran towards the temple and they saw Ganesh
Cri Appeal No.572 of 2016
being assaulted. They saw Rushi and Rama assaulting Ganesh
with knife and sword respectively, and other accused giving
fist and kick blows. His son was shifted to the hospital and
when declared dead, he lodged report Exhibit 51.
PW3 Vilas Laxman Yeole, brother of deceased Ganesh, deposed
about reason of quarrel between his brother and Rushi. That,
mother of Rushi coming with her son in law and abusing
Ganesh and challenging him to come to their house and
hence Ganesh going towards their house to question them for
abuse. This witness claims that he also followed and he also
saw assault on Ganesh by Rushi with knife and by Rama with
sword and other accused beating Ganesh and after Ganesh
collapsing ,they all fleeing.
PW4 Shubham Jogdand stated that on 29.11.2013, initially there
was dispute between deceased and accused no.3 Rushi. After
the matter was resolved and deceased went, mother of Rushi
and her son in law visiting house of Ganesh, abusing him,
daring him to come to their house and so Ganesh going
there. He also narrated the occurrence of assault on deceased
by Rushi and Rama with knife and sword and beating by
other accused.
PW5 Arun Bhalekar, shop owner claims that incident took place in
front of the house of accused and his shop is opposite to the
house of accused. He narrated whatever he saw.
Cri Appeal No.572 of 2016
PW6 Mahesh Bhalekar is pancha to seizure of clothes of deceased.
He identified the panchanama Exhibit 64.
PW7 Purushottam Dhawale, pancha to seizure of clothes of Vilas
i.e. brother of deceased. He identified the panchanama
Exhibit 66.
PW8 Satish Tarmale, pancha to memorandum of disclosure at the
instance of accused Ram regarding recovery of sword. The
memorandum panchanama and recovery panchanama are at
Exhibits 69 and 70.
PW9 Lakhan Rajput, pancha to memorandum of disclosure at the
instance of accused Rushi regarding handing over
khanjir/knife, has not supported prosecution.
PW10 Dr. Rajendra Shejule, autopsy doctor, who opined death to be
due to injury to heart (penetrating stab injury) caused by
sharp edged weapon.
PW11 Ramchandra Khalse, Police Constable, acted as carrier of
muddemal.
PW12 Dr. Govind Patil, who examined Ganesh and declared him
dead.
PW13 API Shubhangi Suryawanshi, who noted the information at
the instance of PW2 Laxman and registered crime.
Cri Appeal No.572 of 2016
PW14 PSI Suresh Bhale is the Investigating Officer, who narrated
about all steps taken by him during investigation.
15. Here, we are called upon to ascertain whether conviction of
original accused no. 3 Rushi for the offence under Section 302 IPC
and that of accused nos. 1 Rama, 4 Jyoti and 5 Rani under Section
323 of IPC is just, legal and proper. Further, we are also required to
get satisfied whether acquittal of accused nos. 1 Rama, 2 Digambar, 4
Jyoti and 5 Rani from charge under Section 302 of IPC is justified. As
Section 374 of Cr.P.C. is invoked, we are required to re-appreciate, re-
examine and re-analyze the entire oral and documentary evidence
adduced by prosecution in the trial court.
16. Prosecution came with a case of availability of direct evidence
i.e. in the form of ocular account of PW2 Laxman, PW3 Vilas, PW4
Shubham and PW5 Arun. That, ocular account finds support from
medical evidence.
17. First, let us get satisfied as to whether death of Ganesh is
demonstrated to be homicidal one. For this, we need to visit evidence
of PW10 Dr. Rajendra Shejule, autopsy doctor.
Cri Appeal No.572 of 2016
18. PW10 Dr. Rajendra Shejule, autopsy doctor, in his evidence at
Exhibit 78 narrated receiving dead body of Ganesh, he examining and
noting external injuries as under:
1. Evidence of stab wound over chest left, horizontal, 7
cm below left nipple, eliptical shape, edges sharp, end
pointed, blood clots present, size 6 cm x 2.5 cm about
20 cm deep.
2. Evidence of incised wound over neck left side oblique,
size 5 x 0.5 x 05 cm, edges sharp.
3. Incised wound over left hand, size 1.5 x 0.5 x 0.5 cm.
edges sharp.
4. Two incised wounds over left foot 5 x 2 x 0.5 cm. and
6 x 4 x 0.5 cm., edges sharp.
All above injuries are ante mortem caused with sharp
edged weapon.
Thereafter, on undertaking autopsy, he claims to have come
across following internal injuries:
1. Fracture of 8th rib left side.
2. Evidence of penetrating injury to the wall of right atrium of
heart, edges sharp, size 5 x 1 cm, all chambers of heart
empty.
Cri Appeal No.572 of 2016
The above internal injuries correspond with the external
injury at Sr. No. 1.
Finally, he has concluded that death of Ganesh is due to "injury
to heard (penetrating stab injury) caused by sharp edged weapon".
19. We have gone through the cross faced by autopsy doctor PW10
Dr. Rajendra Shejule. He seems to be questioned about cause and
effect of injuries, its size, sites, whether injuries are possible by single
weapon or more than one weapon; that, whether weapon with which
injuries are caused should have sharp edges on both sides and
whether when the blade penetrates body, ridges would be visible. He
admitted that exact position of injury no.3 is not mentioned. He also
admitted about difference between stab injury and puncture injury.
Doctor has flatly denied that if a person is holding a knife and if there
is scuffle and if such person is pushed and he happens to fell, then
external injury No.I could be caused.
On analyzing above substantive evidence of autopsy doctor, it is
seen that medico legal expert has confirmed death due to injury no.I,
which, according to him, is possible by article no.9 knife. All questions
and suggestions put to him have been answered and explained by
Cri Appeal No.572 of 2016
assigning reasons. Therefore, here, prosecution has shown that death
of Ganesh is because of stab injury to the heart and as such, it is
nothing but homicidal one.
20. Now, let us see whether there is convincing and legally
acceptable direct eye witness account as claimed by prosecution.
ANALYSIS
21. PW2 Laxman, who is father of deceased, in his evidence has
stated about alleged occurrence taking place at 7.00 p.m. on
29.11.2013. According to him, on hearing shouts and noise, he came
out of the house along with his wife and daughter-in-law and went
towards the temple, and when they reached the house of accused, he
has marked the presence of his son Vilas, one Anil Jadhav,
Radhakishan Jogdand, Rameshwar Bhalekar and others. According to
him, accused no.3 Rushi, accused no.1 Rama, Rushi's mother i.e.
accused no.4 Jyoti and his wife accused no.5 Rani as well as Rama's
son-in-law accused no.2 Digambar were showering fist blows and
kicks on Ganesh. Then he stated that accused no.1 Rama gave blow
with sword on leg of Ganesh, whereas accused no.3 Rushi gave knife
blow on his abdomen and so Ganesh fell down. According to this
witness, Ankush Shere, Vilas Yeole, Shubham, Akshay and Bhalekar
Cri Appeal No.572 of 2016
lifted Ganesh and took him to hospital. His further testimony shows
that by way of supplementary statement dated 04.12.2013, he has
specified that Ram used sword and Rushi used knife on being held by
others.
Above witness has been subjected to extensive cross, however,
we wish to deal with only material part, wherein he has candidly
admitted that earlier there were good relations with all accused. He is
questioned about geographical location of his house and directions
therein and he is asked if anybody talks loudly from the temple, then,
whether it is audible inside his house. He admitted that if there is
quarrel in front of Maroti temple, then, it is audible in his house. This
witness has admitted that he does not know that 30 to 45 minutes
prior to the above fight, there was any quarrel and exchange of
abuses between accused no.3 Rushi and his son Ganesh, but he stated
that before fight, Shubham, his sons Vilas and Ganesh had come to
their house and had informed him about the quarrel. He answered
that it was revealed that quarrel was on account of contribution. He
stated that his son went out and he remained in the house. Quarrel is
got confirmed by suggesting that it was on account of rent towards
the amplifier to be paid and that deceased was insisting accused to
pay it. He denied that there was quarrel and abuse between his son
Cri Appeal No.572 of 2016
and accused Rushi in front of his house. He admitted that on hearing
noise only, he went towards the temple. He denied seeing the house
of accused from inside. He admitted that witnesses Ankush Shere,
Shubham Jogdand, Arun Bhalekar, Radhakishan Jogdand and
Rameshwar Bhalekar are from his community but he denied them to
be his relatives. He answered that he alone went to lodge report but
when he went to gave supplementary statement, his son Vilas had
accompanied him. Omissions are brought in para 16 and 17 on the
point of running to the spot, about going near the house of accused
and about seeing the incident in the light of bulb of the house of
accused and of the shop. He admitted that in the report he did not tell
that accused no.1 Rama hit his son on leg, rather, he told it during
recording supplementary statement. He candidly admitted that he did
not see knife with which his son was assaulted and therefore, he
could not identify it. He further answered that accused no.1 Rama
gave blow with sword with one hand and he had seen him hitting but
he is unable to state whether it was with or without force. Case of
defence suggested in para 23 is denied by him. Rest is all denial.
22. PW3 Vilas Yeole is the brother of deceased Ganesh, also stated
that there was dispute between his brother Ganesh with accused
Rushi regarding contribution to be paid for the amplifier. After some
Cri Appeal No.572 of 2016
time, mother of accused Rushi, namely Jyoti [accused no.4] and his
brother in law Digambar [accused no.2] came to their house and
abused them. He stated that accused no.4 Jyoti said to Ganesh as to
why he is sitting in the house like eunech and challenged him to come
to their house and therefore, at 7.00 p.m., his deceased brother
Ganesh went to question why he was abused. This witness stated that
as his brother went alone, he also followed him and while going,
accused no.3 Rushi brought his motorcycle across this witness.
Thereafter, accused no.3 Rushi stabbed with knife in the abdomen of
Ganesh and Rama hit with sword on leg of Ganesh, whereas, Rushi's
mother Jyoti (accused no. 4), his wife Rani (accused no.5) and
brother in law Digambar (accused no.2) all started slapping and
giving fist blows to his brother Ganesh. Because of said assault, he
collapsed and thereafter, accused ran away. His brother was taken to
hospital in a rickshaw, but on reaching hospital, he was declared
dead. He claims to have given statement to police as well as before
JMFC Court, Jalna.
In the initial cross, omissions are brought in the statement
under Section 164 of Cr.P.C. about "T" shirt to be smeared with blood
and he changing it subsequently. According to him, abuses lasted for
two to three minutes near the temple and there, quarrel was pacified
Cri Appeal No.572 of 2016
and Rushi went to his house. He admitted that house of accused is not
visible from their house. He further answered that when he was going
behind his brother, at that time, he was 10 to 15 feet away from him.
He denied that at that time his father, mother and sister-in-law came
with him. Omission is brought about Rushi putting motorcycle across
him. He also admitted that there was dispute with his brother and
Rushi on account of payment of rent of amplifier. To a question he
answered that abuses were also given at 7.00 p.m. and it lasted for
two to three minutes, whereas giving slaps and fist blows lasted for
one to two minutes. He has admitted that there is chamber in front of
house of accused. Rest all is either immaterial omissions or denials.
23. PW4 Shubham Jogdand claims to be a resident of the same
locality where accused and deceased lived. According to him, the
incident took place on 29.11.2013 at 6.30 p.m. when he was in front
of Hamunam Mandir and there, a dispute was going on between
deceased and accused no.3. Deceased had borrowed amplifier on rent
and its money was to be paid by accused no.3 Rushi and therefore
dispute was going on. The matter was then settled and deceased was
sent back. After some time, accused no.4 Jyoti and accused no.2
Digambar came towards the house of Ganesh and gave abuses.
Accused no.4 Jyoti said to deceased that if he has courage, then come
Cri Appeal No.572 of 2016
to their house. Therefore, after a short while, deceased went after
them and this witness claims that he too went. There, they saw Jyoti,
Digambar, Rani and Rama beating Ganesh with fist and kick blows
and then accused Rushi stabbing Ganesh with knife over the abdomen
and accused Rama assaulting with sword on his leg and running from
the back door.
In cross, he confirmed that he was friend of Ganesh and Vilas.
He admitted that he, Vilas [PW3] and Arun [PW5] had been to he
house of Ganesh, but he denied that three of them again went
towards the house of accused. He is questioned whether blows with
knife were given first or whether blow of sword was given first and he
has answered that both were given at the same time. He answered
that Ganesh was caught by all and that catching, abusing, giving kicks
and fist blows and giving blows with knife and sword was all done in
two minutes. He answered that knife blows are given two to three
times. He answered that only one blow was given with sword. He is
asked whether article was knife or khanjir and he answered it to be
khanjir.
24. PW5 Arun Bhalekar, also a resident of the same locality,
narrated the occurrence which took place at 7.00 p.m. on 29.11.2013.
Cri Appeal No.572 of 2016
He claims that he was present in his grocery shop and his shop is just
opposite to the house of accused. He narrated that he saw Rushi made
his motorcycle fell across the road and Rama, Digambar, Rushi, Jyoti
and Rani abusing deceased Ganesh and beating him with fist and kick
blows. This witness stated that at that time, he came near the
motorcycle from his shop and that time, accused no.3 Rushi inflicted
knife blow over the abdomen of Ganesh and accused no.1 Rama gave
blow with sword on his leg and thereafter all accused ran.
On the occurrence, he is questioned in para 6. He answered
that motorcycle fell across the road and as such the lane was got
blocked. Due to beating with fist and kicks, deceased Ganesh fell but
he immediately stood up and that time Digambar, Jyoti and Rani
caught Ganesh. Accused Digambar caught his waist from backside,
Jyoti and Rani caught his hands and they were also beating him. To a
question regarding when Ganesh was caught by above three accused,
whether other accused Ram and Rushi were only seeing, witness has
answered that Ram and Rushi had been immediately beating him.
Rushi gave two blows in the abdomen and one on neck of Ganesh
with knife. The blows in the abdomen were given with force and so
he was taken to hospital. He has denied that he is falsely deposing
and he was not in the shop.
Cri Appeal No.572 of 2016
SUMMATION ON OCULAR ACCOUNT
25. Before reproducing the sum total of testimony of PW3 Vilas,
PW4 Shubham and PW5 Arun, we wish to throw light on the
principles to be followed while appreciating ocular account. The same
are recently dealt by the Hon'ble Apex Court in the case of Balu
Sudam Khalde and another v. The State of Maharashtra [Criminal
Appeal No. 1910 of 2010], reported in 2023 SCC OnLine SC 355,
wherein, in para 25, the following observations are made:
"25. The appreciation of ocular evidence is a hard task.
There is no fixed or straight-jacket formula for appreciation
of the ocular evidence. The judicially evolved principles
for appreciation of ocular evidence in a criminal case
can be enumerated as under:
"I. While appreciating the evidence of a witness, the
approach must be whether the evidence of the witness
read as a whole appears to have a ring of truth. Once that
impression is formed, it is undoubtedly necessary for the
Court to scrutinize he evidence more particularly keeping
in view the deficiencies, drawbacks and infirmities
pointed out in the evidence as a whole and evaluate
them to find out whether it is against the general tenor of
the evidence given by the witness and whether the earlier
evaluation of the evidence is shaken as to render it
unworthy of belief.
Cri Appeal No.572 of 2016
II. If the Court before whom the witness gives evidence had
the opportunity to form the opinion about the general
tenor of evidence given by the witness, the appellate
court which had not this benefit will have to attach due
weight to the appreciation of evidence by the trial court
and unless there are reasons weighty and formidable it
would not be proper to reject the evidence on the
ground of minor variations or infirmities in the matter of
trivial details.
III. When eye-witness is examined at length it is quite
possible for him to make some discrepancies. But courts
should bear in mind that it is only when discrepancies
in the evidence of a witness are so incompatible with the
credibility of his version that the court is justified in
jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the
core of the case, hyper technical approach by taking
sentences torn out of context here or there from the
evidence, attaching importance to some technical error
committed by the investigating officer not going to the root
of the matter would not ordinarily permit rejection of the
evidence as a whole.
V. Too serious a view to be adopted on mere variations
falling in the narration of an incident (either as between
the evidence of two witnesses or as between two
statements of the same witness) is an unrealistic approach
for judicial scrutiny.
Cri Appeal No.572 of 2016
VI. By and large a witness cannot be expected to possess a
photographic memory and to recall the details of an
incident. It is not as if a video tape is replayed on the
mental screen.
VII. Ordinarily it so happens that a witness is overtaken by
events. The witness could not have anticipated the
occurrence which so often has an element of surprise. The
mental faculties therefore cannot be expected to be attuned
to absorb the details.
VIII. The powers of observation differ from person to
person. What one may notice, another may not. An
object or movement might emboss its image on one
person's mind whereas it might go unnoticed on the part of
another.
IX. By and large people cannot accurately recall a
conversation and reproduce the very words used by them
or heard by them. They can only recall the main purport of
the conversation. It is unrealistic to expect a witness to
be a human tape recorder.
X. In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their
estimates by guess work on the spur of the moment at the
time of interrogation. And one cannot expect people to
make very precise or reliable estimates in such matters.
Again, it depends on the time-sense of individuals which
varies from person to person.
Cri Appeal No.572 of 2016
XI. Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in rapid
succession or in a short time span. A witness is liable to
get confused, or mixed up when interrogated
later on.
XII. A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing cross
examination by counsel and out of nervousness mix up
facts, get confused regarding sequence of events, or fill up
details from imagination on the spur of the moment. The
sub-conscious mind of the witness sometimes so operates
on account of the fear of looking foolish or being
disbelieved though the witness is giving a truthful and
honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent
with the evidence need not necessarily be sufficient to
amount to contradiction. Unless the former statement
has the potency to discredit the later statement, even if the
later statement is at variance with the former to some
extent it would not be helpful to contradict that witness."
[See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat
1983 Cri LJ 1096 : (AIR 1983 SC 753) Leela Ram v. State
of Haryana AIR 1995 SC 3717 and Tahsildar Singh v. State
of UP (AIR 1959 SC 1012)]"
Cri Appeal No.572 of 2016
26. Keeping in sight above principles, on critical analysis of
testimony of PW3 Vilas, PW4 Shubham and PW5 Arun, we are of the
firm view that occurrence and role of each of the accused is distinctly
brought on record. PW3 Vilas is both, party to initial quarrel, its
settlement, visit of Jyoti and Digambar to the house of deceased for
challenging him and he accepting the same and going to the house of
accused persons. PW3 Vilas has followed this witness. Even PW4
Shubham is very categorical about going and seeing the occurrence.
PW5 Arun, who is natural witness by virtue of being shop owner of
the shop which is located exactly opposite to the scene of occurrence,
has also spelt roles of each of the accused. Though they have faced
extensive cross, their account of occurrence has not been rendered
doubtful. It is also pertinent to note that when defence has been taken
in examination under Section 313 of Cr.P.C. by the appellant about
scuffle, it goes without saying that there is no dispute at all as regards
to assault is concerned. Therefore, ocular account deserves not only to
be accepted but also to be relied.
27. Role of accused no.3 Rushi about stabbing is consistently stated
by all witnesses. He has already made his intentions explicit by using
knife in stabbing deceased on the vital part like heart. Therefore, his
assault is murderous one.
Cri Appeal No.572 of 2016
Though accused Rama is attributed with the role of using
sword, but injury by the same is at ankle of deceased. Therefore, it
cannot be said that it was an assault with intention to commit attempt
to murder. We have already noticed that even recovery of sword is
not free from doubt. However, presence of accused Rama is
consistently stated by all the witnesses. Therefore, he can definitely be
imputed with the charge of commission of offence under Section 323
of IPC along with accused Jyoti and Rani. No role is attributed to
accused no.2 Digambar.
28. Having formed opinion about existence of reliable ocular
account, we wish to state that as stated above, autopsy doctor has
already confirmed death to be homicidal one. The sites of injuries
targeted are confirmed by autopsy doctor and the same is finding
place in his substantive evidence as well as PM notes. Resultantly,
here is a case wherein ocular account finds support from medical
evidence thereby fortifying the charge under Section 302 of IPC as
against accused no.3 Rushi.
29. Now let us touch the objections and grounds raised before us
during appeal. It is pointed out that PW2 Laxman, who has set law
into motion, did not name convicts but after three to four days, in
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supplementary statement, their names are appearing with roles
allegedly played. Thus, it is tried to be submitted that FIR is
apparently false or it is after due deliberation.
30. We have tested the above objection in the light of available
evidence. We wish to state that informant is almost 68 years old man.
Secondly, incident has taken place in the late evening. It needs to be
considered that such incidence when watched by related witnesses,
and more particularly of such age, naming them and specifying the
roles in detail may not happen as is expected. He is a father who has
witnessed assault on his young son. Therefore, failing to name and
define roles cannot be a ground to question his entire evidence. Even
otherwise, law is fairly settled that FIR not being an encyclopedia, it is
not expected that every event is to be accounted. Further, in our
opinion, presence of accused persons is not only marked by brother
but also by witnesses who are neighbours and residents of same
locality. It is not a case that their version and version of informant
differs on this count. Note of the fact also is required to be taken that
except not stating about assault by Rama with sword, names of rest
all are finding place in the FIR. Resultantly, in our opinion, the said
objection has no force.
Cri Appeal No.572 of 2016
31. While arguing, learned counsel for the appellant also brought
to our notice that recovery of weapons is not free from doubt. In the
light of such objection, we have scrutinized the evidence of panchas
to memorandum and recovery. It transpires that pancha witness PW8
Satish Tarmale, pancha to recovery of sword, though deposed about
being party to the memorandum and accused taking them to his
house and producing sword from the tin shed of the bathroom, this
witness in cross para 8 seems to have answered that when he asked
police officer why he was called, witness stated that, Bhale told him
that "sword is seized and you wait". Therefore, there is substance in
the argument that recovery of sword is not free from doubt. However,
as regards to recovery of knife is concerned, though PW9 Lakhan did
not support prosecution, recovery of knife at the instance of accused
no.3 is confirmed by Investigating Officer PW14 PSI Suresh Bhale and
therefore, there is no reason to doubt his testimony, more particularly
in absence of any serious infirmity.
32. At the time of drawing panchanama of scene of occurrence,
blood seems to have been gathered and even dispatched to the
Chemical Analyzer. Analysis of blood of decease Ganesh is reported to
be of group "A". Whereas Exhibit 96 i.e. analysis of knife article A is
reported to be carrying "A" blood group, including clothes of
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deceased. Therefore, even scientific evidence is forthcoming so as to
connect appellants.
33. On minute scrutiny of the evidence, here, though charge is
framed under Section 149 of IPC, we too are skeptical whether such
charge could be invoked for the simple reason that going by the
evidence of PW3 Vilas, he is found to be deposing that, at about 7.00
p.m., deceased went to the house of accused to question why they
had abused him. His evidence does not disclose which of the accused
were questioned and as to whether they were all together at that
point of time. Straightway he is found to be deposing that on the way,
accused no.3 Rushi alone intercepted by use of motorcycle and
prevented this witness and then he speaks about assault by accused
no.3 Rushi with knife on Ganesh. However, none of the witnesses
have stated that accused had formed a gathering. Admittedly, arms
are only with accused Rushi and accused Rama. We have already
raised doubt about recovery of sword. Only knife is proved to be
recovered. Nothing has been brought on record to show that they had
formed an unlawful assembly with the common object to commit
crime. Proper sequence is not narrated by PW3 Vilas and therefore, in
our considered opinion, ingredients of Section 149 of IPC being
patently missing from the testimony of PW3 Vilas and even PW4
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Shubham and PW5 Arun, we are afraid whether said provision could
at all be brought into play.
34. It is also pertinent to note that going by the sequence as
narrated by above witnesses, after settlement on initial quarrel and
after visit of accused Jyoti and Digambar, deceased seems to have
himself gone to their house. The incident has taken place in front of
house of accused. This being the fact, which is not disputed, even it
cannot be said that presence of accused in front of their house was an
unlawful assembly.
Resultantly, as like trial court, we are also of the considered
opinion that it has not been satisfactorily shown that accused no.1
Rama, accused no. 4 Jyoti and accused no.5 Rani were aware about
accused no.3 Rushi carrying arm with him. However, there are other
injuries apart from stab injury. Therefore, they are liable for offence
under Section 323 of IPC.
35. In the light of above material on record, no fault can be found
in the appreciation and analysis and conclusion reached at by learned
trial Judge. In appeal, learned APP could not point out that learned
trial court erred in appreciating the available evidence and eared in
acquitting accused no.2 Digambar from all charges and in acquitting
Cri Appeal No.572 of 2016
accused no.1 Rama, accused no.4 Jyoti and accused no.5 Rani from
charges under Sections 143, 147, 148, 302, 504 and 149 of IPC,
Sections 4/25 and 7/25(1)(A) of the Arms Act and Section 135 of the
Maharashtra Police Act.
36. Likewise, even learned counsel for the original informant also
could not demonstrate as to how judgment under challenge is
patently perverse and illegal.
37. Resultantly, we find no merit in respective appeals. No
interference is called for and the judgment and order passed by
learned Additional Sessions Judge needs to be kept intact and
maintained. Hence, we proceed to pass the following order:
ORDER
I. All appeals are hereby dismissed.
II. In view of dismissal of main appeal, nothing survives for
consideration in Criminal Application No.5645 of 2016 and the same
also stands disposed off.
[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]
vre
