Bombay High Court
Saifan Kondaji Abdul Kurne And Anr vs The State Of Maharashtra on 4 December, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:25210-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 270 OF 2017
1. Saifan Kondaji Abdul Kurne,
Age: 36 years, Occ. Agri.,
R/o: Nilegaon, Taluka Tuljapur,
District Osmanabad.
2. Asif @ Ashapak Sahanawaj Patel,
Age: 21 years, Occ. Labour,
R/o: Nilegaon, Taluka Tuljapur,
District Osmanabad. ... Appellants
[Orig. Accused Nos. 2 and 3]
Versus
The State of Maharashtra
Through Police Station Officer,
Naldurg, Taluka Tuljapur,
District Osmanabad. ... Respondent
WITH
CRIMINAL APPLICATION NO. 3241 OF 2022
IN
CRIMINAL APPEAL NO. 270 OF 2017
Asif @ Ashapak Sahanawaj Patel,
S/o Shaikh Hasan
Age: 24 years, Occ. Education,
Taluka Tuljapur, Nilegaon,
District Osmanabad. ... Applicant
Versus
The State of Maharashtra ... Respondent
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WITH
CRIMINAL APPEAL NO. 703 OF 2018
The State of Maharashtra
Through Police Station,
Naldurg, Taluka Tuljapur,
District Osmanabad. ... Appellant
Versus
Kondaji Abdul Karim Kurne,
Age 70 years, Occu. Agril.,
R/o Nilegaon, Taluka Tuljapur,
District Osmanabad. ... Respondents
[Orig. Accused No. 1]
.....
Mr. Nilesh S. Ghanekar, Advocate for the Appellants in Criminal
Appeal No. 270 of 2017 and Respondent in Criminal Appeal No. 703
of 2018.
Mrs. V. S. Choudhari, APP for State.
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
Reserved on : 28.11.2023
Pronounced on : 04.12.2023
JUDGMENT [ABHAY S. WAGHWASE, J.] :
1. Convicts as well as State is challenging the judgment and order
of conviction of accused nos. 2 and 3 and acquittal of accused nos. 1
and 4 respectively, dated 31.05.2017 passed by learned Additional
Sessions Judge, Osmanabad in Session Case No. 24 of 2016. As both
appeals are heard on the same day, both are decided by way this
common judgment.
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PROSECUTION STORY UNFOLDED IS AS UNDER
2. Deceased Mashak and accused no.1 Kondaji are brothers.
Deceased Mashak had sought partition and share in the property
which angered accused Kondaji, his two sons and grandson.
According to prosecution, on 11.12.2015 around 8.30 p.m., all
accused persons visited house of deceased, dragged him towards their
house and there he was assaulted by means of stone, sticks and sickle.
Mashak sustained fatal bleeding injuries and succumbed to the same
and hence his son PW3 Ramjan lodged a report on the basis of which,
crime was registered and investigated and accused were duly
chargesheeted and tried by learned Additional Sessions Judge and on
appreciating both, oral and documentary evidence, learned trial
Judge passed the following order:
"1. The accused no.2 Saifan Kondaji Kurne and accused no.3
Asif @ Aspak Shahanawaj Patel, both R/o Nilegaon, Tq.
Tuljapur Dist. Osmanabad are found guilty for the offence
punishable under Section 302 and 323 read with 34 of
Indian Penal Code vide Section 235 (2) of Code of Criminal
Procedure.
2. The accused no.2 Saifan Kondaji Kurne and accused no.3
Asif @ Aspak Shahanawaj Patel, both R/o Nilegaon Tq.
Tuljapur Dist. Osmanabad are convicted for the offence
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punishable under Section 302 read with 34 of Indian Penal
Code and sentenced to undergo rigorous imprisonment for
life and pay fine of Rs.1,000/- (In words Rs. One Thousand
only) each. In default, they shall undergo rigorous
imprisonment for Three (3) months each.
3. The period of inquiry, investigation and trial undergone by
the accused no.2 Saifan Kondaji Kurne accused no.3 Asif @
Aspak Shahanawaj Patel, since 12.12.2015 up till now be
set off vide Section 428 of Code of Criminal Procedure
respectively.
4. The accused no.1 Kondaji Abdul Karim Kurne and accused
no.4 Sadik Kondaji Kurne, both R/o Nilegaon Tq. Tuljapur
Dist. Osmanabad are acquitted of the offence punishable
under sections 302, 323 and 504 read with 34 of the Indian
Penal Code Act, vide Section 235 (1) of Criminal Procedure
Code. The accused no.1 Kondaji Abdul Karim Kurne and
accused no.4 Sadik Kondaji Kurne shall execute the bail
bond of Rs.15,000/- (Rs. Fifteen Thousand only) each with
a surety of like amount to appear before the appellate Court
as and when the court issued notice in respect of appeal or
petition against the judgment vide Section 437A of Code of
Criminal Procedure, 1973.
5. The accused no.2 Saifan Kondaji Kurne accused no.3 Asif @
Aspak Shahanawaj Patel are acquitted of the offence
punishable under section 504 read with 34 of the Indian
Penal Code Act, vide Section 235 (1) of Criminal Procedure
Code.
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6. The muddemal articles being worthless be destroyed after
the appeal period is over or subject to finality of the appeal.
7. A copy of the Judgment be given to the accused in gratis
and forwarded to District Magistrate, Osmanabad vide
Section 353(4) and 365 of the Code of Criminal Procedure
respectively.
8. The accused are appraised of provision of appeal.
9. Pronounced in the open Court."
3. At the outset, it is to be noted that vide order dated 12.09.2018
passed in Criminal Application No. 5428 of 2017, leave was granted
to the State to file appeal only against acquittal of accused no.1
Kondaji and the application to file appeal against acquittal of accused
no.4 Sadik was rejected. During pendency of Criminal Appeal No. 703
of 2018, respondent-accused no.1 Kondaji is reported to be dead and
therefore Criminal Appeal No. 270 of 2017 by accused nos. 2 Saifan
and 3 Asif only remains for consideration.
SUBMISSIONS
4. Learned counsel for appellants Saifan and Asif would submit
that case has not been proved against appellants beyond reasonable
doubt. Secondly, there is no independent witness and only family
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members i.e. informant son and his close friend are examined. Even
their evidence is full of material omissions and contradictions.
Learned counsel pointed out that evidence of informant is apparently
improvised. That, there was a cross complaint. That, on the same set
of evidence, learned trial court has acquitted accused nos. 1 Kondaji
and 4 Sadik from all charges but remaining accused nos. 2 and 3 i.e.
present appellants are convicted who allegedly used stick and sickle.
He submitted that no role is attributed to appellant-accused no.3 Asif.
The genesis of occurrence has not come on record. However, learned
trial court has accepted the story of prosecution and passed the
impugned order.
5. In answer to above, learned APP would submit that there is
direct eye witness account of informant son and his friend Rajesh,
who were party to the occurrence. Even independent witness like
PW5 Wajioddin has also deposed about the role played by each of the
appellants. Therefore, there is direct, cogent and reliable eye witness
account. Medical expert has already confirmed death of deceased
Mashak to be homicidal one. That deceased has suffered as many as
23 injuries. Motive was dispute for demanding share in the property
and therefore, it is her submission that, even motive is proved by
prosecution. That, learned trial court has correctly appreciated the
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available evidence and has committed no error whatsoever in
convicting present appellants and therefore she prays for dismissal of
the appeal filed by the accused.
EVIDENCE BEFORE THE TRIAL COURT
6. To bring home the charge, prosecution has examined in all 8
witnesses. Their role and status can be summarized as under:
PW1 Dr. Sharda Wagatkar examined injured Ramjan and issued
injury certificate Exhibit 38 which she identified in court. She
has also conducted postmortem over the dead body of Mashak
and issued postmortem report, provisional death certificate
and final cause of death Exhibits 42 to 44 respectively, which
she identified.
PW2 Kishor acted as pancha to inquest panchanama Exhibit 50 as
well as spot panchanama Exhibit 51.
PW3 Ramjan is son of deceased who claims to be an injured eye
witness.
PW4 Rajesh is friend of PW3. He also claims to have eye-witnessed
the incident.
PW5 Wajioddin is resident of the same locality. He is also an eye
witness who claims to have tried to pacify the quarrel.
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PW6 Nagnath is pancha to memorandum of disclosure and recovery
of weapons katti, sickle and sticks at the instance of accused
no.2 Saifan (Exhibits 73 and 74).
PW7 Sadik is also a resident of the same locality. He turned hostile
and was cross-examined by APP itself.
PW8 API Mengale is the Investigating Officer.
7. 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.
8. Hear, while hearing appeal, learned counsel for the appellants
fairly conceded that there is no serious dispute about the manner and
mode of death to be homicidal one. Therefore, we do not wish to
enter into that issue. We move further to ascertain whether, as held
by learned trial Judge, there is direct, reliable, trustworthy eye
witness account.
9. On re-appreciation and re-analysis, in our opinion, evidence of
PW3 son of deceased, his friend PW4 Rajesh and PW5 Wajioddin is of
vital importance and therefore we wish to reproduce their testimonies
to the extent of occurrence.
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10. PW3 Ramjan is the informant and son of deceased Mashak. He
is the injured eye witness. He, in his evidence at Exhibit 60, has
deposed about he along with his friend Rajesh (PW4) coming to his
native to reside with his father, on 08.12.2015 his father asking
accused no.1 Kondaji for partition and share in the property, accused
no.1 Kondaji having a tussle with his father over it, and all accused
getting enraged.
11. On the occurrence, he has deposed that on 11.12.2015 around
8.30 p.m., when he himself, his father and Rajesh were cleaning the
courtyard of his house, all accused came there and questioned his
father for demanding partition and share in the property. This witness
has further stated about accused having scuffle with his father and
taking him to their house, accused no.2 Saifan inflicting blows of stick
on the head of his father, accused no.3 Asif inflicting blows of sickle
on the face and nose of his father, accused no.4 Sadik assaulting his
father with stick and accused no.1 Kondaji beating his father with
stones. This witness has further deposed that when he and his friend
tried to rescue his father, accused no.2 Saifan gave beating to him
with stick blows and out of fear, he and his friend Rajesh hid in
darkness. He has further deposed that on hearing commotion, the
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locals Wajioddin Inamdar and Sadam Patel reached their and tried to
intervene, upon which this witness and his friend Rajesh again came
to the spot and found his father lying in pool of blood. This witness
claims that at that time he had seen accused no.1 Kondaji holding a
katti (sickle). He states that his father had died on the spot. He
further deposed about lodging report Exhibit 61 which he identified
in the court.
12. PW4 Rajesh is friend of PW3 Ramjan. In his evidence at Exhibit
68, he has deposed that when he and PW3 had been to village
Nilegaon, all accused were enraged due to deceased Mashak's
demand for partition. Regarding the occurrence, he has deposed that
when he along with PW3 Ramjan and his father Mashak were
cleaning the premises of their house, all accused started abusing
Mashak on the ground of demand for partition and dragged him
towards their house. He has further stated that accused no.2 Saifan
and accused no.4 Sadik assaulted Mashak by sticks, accused no.1
Kondaji assaulted him by stone and brick and accused no.3 Asif
inflicted blow of sickle on the person of Mashak. He has stated that
when he and PW3 Ramjan tried to rescue Mashak, accused started
assaulting them, upon which they both left the spot and hid
themselves. This witness has also stated that on hearing hue and cry,
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villagers Wajioddin Inamdar and Saddam Patel intervened the quarrel
and on seeing them arrive, this witness and PW3 Ramjan came to the
spot and found Mashak lying dead in pool of blood in front of the
house of accused.
13. PW5 Wajioddin has also narrated the incident in his evidence
at Exhibit 70. He has stated that on 11.12.2015 around 8.00 p.m., he
was in front of his house and on hearing commotion from the house
of accused, he rushed there and saw fighting going on amongst
accused and Mashak. This witness claims that he himself and Saddam
Patel tried to pacify the quarrel but it was in vain. According to this
witness, accused no.1 Kondaji inflicted blow of katti on Mashak,
accused no.2 Saifan and accused no.4 Sadik assaulted him with sticks
and accused no.3 Asif gave blow of sickle to Mashak. He further
deposed that when he separated Mashak from accused, PW3 Ramjan
and PW4 Rajesh came to the spot and they all tried to raise Mashak,
who was lying in pool of blood, however he was dead.
14. Keeping in mind the ratio regarding appreciation of ocular
evidence laid down in Balu Sudam Khalde and another v. The State
of Maharashtra [Criminal Appeal No. 1910 of 2010] ; 2023 SCC
OnLine SC 355 and law on the point of evidentiary value of injured
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witness as dealt in celebrated cases of Jarnail Singh v. State of
Punjab; (2009) 9 SCC 179 and Balraje @ Trimbak v. State of
Maharashtra; (2010) 6 SCC 673, when we visit the the cross faced by
all these witnesses, it is pertinent to note that nothing damaging has
been brought in their cross-examination. In fact, there is very little or
no cross on the actual occurrence of assault. There is no serious
dispute about motive also. Therefore, evidence of all above three
witnesses, which has remained intact, clearly goes to show that on the
night of 11.12.2015 deceased Mashak, his son Rajman and son's
friend Rajesh were cleaning the premises and at that time, accused
persons, who were immediate neighbours, initially came and abused
deceased for asserting share in the property and they took him
towards their house and there, assault was mounted. PW3 Ramjan
and PW4 Rajesh also have accompanied deceased and they have
narrated whatever they saw. They have also described the weapons
held by each of the appellants and thereby spelt out the role played
by each of the appellants.
15. No doubt, in cross, omissions are brought regarding not
informing in FIR about assault being carried out on face and nose.
However, informant is son of deceased who has eye-witnessed the
assault on his father and he has lodged report. FIR is not an
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encyclopedia to carry all details. Contradictions, in our opinion, are
minor in nature as the core of prosecution case has remained virtually
unchallenged and unshaken.
16. Here, medical evidence confirms the substantive evidence of
PW3 Ramjan. Deceased has suffered as many as 23 injuries. The
injuries are caused by sharp weapon and therefore, offence under
Section 302 of IPC has been rightly attracted against
appellants/accused nos. 2 Saifan and accused no.3 Asif. Coupled with
above direct witness, there is recovery of weapons. In presence of
pancha PW6 Nagnath, memorandum was allegedly given by all four
accused and thereafter, at the instance of accused no. 2 Saifan,
recovery has been caused. Evidence of recovery pancha has also
remained intact in cross. Nothing doubtful has been brought therein.
Therefore, here, alongwith motive, occurrence has been clearly
established. Evidence, more particularly cross of Investigating Officer
PW8 API Mengale shows that in para 24 he has admitted that
deceased convict Kondaji had lodged complaint against PW3 Ramjan,
his friend as well as deceased father, suggesting cross case. Here also,
cross case being set up by accused side, even their presence gets
confirmed. Available evidence has been rightly appreciated by learned
trial Judge. We also concur with the conclusion drawn from the
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available evidence. No fault can be found in the appreciation or the
conclusion drawn by learned trial court. No perversity is brought to
our notice. Hence, we proceed to pass the following order:
ORDER
I. Criminal Appeal No. 270 of 2017 stands dismissed.
II. Criminal Appeal No. 703 of 2018 stands abated and disposed of
as the respondent accused no.1 Kondaji is reported to be dead during
pendency of appeal.
III. In view of dismissal of Criminal Appeal No. 270 of 2017,
Criminal Application No. 3241 of 2022 also stands dismissed.
[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]
vre
