Kishor S/O. Laxman Mungulwar vs The State Of Maharashtra
2023 Latest Caselaw 11510 Bom

2023:BHC-AUG:24340-DB

                                                -1-                  Cri.Appeal.54.2018

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD

                              CRIMINAL APPEAL NO. 54 OF 2018

              Kishor S/o. Laxman Mungulwar,           }
              Age : 29 years, Occu. : Nil.,           }
              R/o. Rajegaon, Tq.Majalgaon, Dist. Beed.}
              Presently at -                          }
              Nashik Road Central Prison, Nashik.     }              ... Appellant
                                                                     (Orig. Accused)

                          Versus

              The State of Maharashtra,                }
              Through Police Station Officer,          }
              Majalgaon Rural Police Station,          }
              Tal. Majalgaon & Dist. Beed.             }             ... Respondent

                                               ...
                         Mr. Vilas P. Sawant, Advocate for Appellant.
                        Mrs. V. S. Choudhari, APP for Respondent - State.
                                               ...

                                     CORAM : SMT. VIBHA KANKANWADI AND
                                             ABHAY S. WAGHWASE, JJ.
                             RESERVED ON : 03rd NOVEMBER, 2023
                           PRONOUNCED ON : 08th NOVEMBER, 2023


              JUDGMENT (PER ABHAY S. WAGHWASE, J.) :

1. Instant appeal arises out of judgment and order passed

by Additional Sessions Judge, Majalgaon, Dist. Beed dated

09.12.2016 in Sessions Case No.52 of 2015, holding present

appellant Kishor guilty for the offence punishable under Section

302 of the Indian Penal Code (IPC) and sentenced him to suffer

imprisonment for life and to pay fine of Rs.2,000/-.

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2. On 09.09.2015, deceased Angad was playing cards

with accused at around 3:00 p.m.. Quarrel took place between

accused no.1 Kishor and deceased. At around 5:00 p.m., accused

Nos.1 to 3 came to the spot where deceased was sitting and

accused no.1 Kishor stabbed him, whereas other accused beat by

stone, fists and kick blows. He was taken to the hospital, but on

examination, he was declared dead.

His brother PW1 Mukund lodged report resulting into

registration of crime, which was investigated by PW12 Bhausaheb

and all three accused came to be charge-sheeted and tried by

Additional Sessions Judge, Majalgaon, who, on appreciating the

evidence, held the charges proved only as against appellant Kishor

and accordingly convicted him. Remaining two accused Ramu @

Rameshwar and Chitrabai stood acquitted.

The sole convict has now taken exception to the above

judgment and order on various grounds raised in the appeal memo.

SUBMISSION IN BRIEF

On behalf of Appellant :-

3. Learned counsel for appellant would submit that,

implication and further conviction is in absence of cogent and

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reliable evidence. He pointed out that on same evidence accused

nos.2 and 3 are acquitted, whereas appellant only convicted. He

pointed out that, evidence is only of relatives and interested

witnesses. No independent witness has been examined. Further,

evidence of witnesses are not consistent and are rather full of

material omissions, contradictions and therefore, it is his

submissions that, conviction recorded is misplaced. He further

pointed out that so called witnesses are shown to be away i.e. more

than 50 feet from the spot, and therefore, it is doubtful whether

they could at all be called as eye witnesses. He further submitted

that, seized weapon had no blood stains and further it was not sent

for CA analysis. There are several irregularities and major lapses

during investigation and therefore, it is his submission that, it was

a case of benefit of doubt as case was not proved beyond reasonable

doubt. Hence, he prays to allow the appeal.

On behalf of State : -

4. In answer to above, canvasing in favour of impugned

judgment, learned APP would submit that, there is direct eye

witness account. Occurrence had taken place in day light.

Witnesses were present with deceased and they had watched

arrival of accused and assault from close proximity. Their evidence

has not been shaken or rendered doubtful. There was background

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to the assault as few hours before there was quarrel between

deceased and accused. Accused subsequently came armed with

deadly weapon knife and put it to use for stabbing. Medical expert

has confirmed death to be homicidal. Hence, according to learned

APP, no fault can be found in the judgment and so she prays to

dismiss the appeal.

5. Record shows that prosecution adduced both oral and

documentary evidence of in all 12 witnesses and also sought

reliance of documentary evidence like FIR, inquest panchanama,

spot panchanama, recovery discovery panchanama, P.M. report

etc. The status of the witnesses and the sum and substance of their

testimonies are as under :-

PW1 Mukund is the brother of deceased and informant.

According to him, on 09.09.2015, when he was in the field, he

learnt from his nephew Radhakisan regarding assault on his

brother Angad, causing him serious injuries, so he went to

Government hospital. Their also he learnt about assault by accused

no.1 on the count of amount while playing play cards. Brother had

suffered injury in the stomach. Doctor examined him and advised

to be shifted to Majalgaon and their he was declared dead and this

witness lodged report.

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PW2 Sunil, pancha to spot panchanama (Exh.24),

seizure of articles, like blade of knife, stone from the spot.

PW3 Ramnath, pancha to memorandum of disclosure

regarding handing over wooden grip of the knife and accordingly

its recovery at his instance from the grass near country liquor

shop (Exh.26).

PW4 Hanumant, pancha to inquest at Exh.30.

PW5 Ram, pancha to seizure of clothes of deceased and

accused (Exhs. 32 & 33 respectively).

PW6 Radhakishan, nephew of deceased deposed that,

on 09.09.2015, when he was going from house to market yard

(Bazar tal), at that time, he saw quarrel between deceased Angad,

accused Kishor and Ramu on account of Rs.10. He claims to have

intervened and separated them. He stated that, he sent them to

their houses. While he, one Madhukar and Asaram were chit-

chatting near market yard, deceased Angad was also sitting there.

Witness claims that he asked deceased to go to field for bringing

she buffalo and while deceased was going towards field, accused

nos.1 to 3 came near deceased, accused Kishor removed one knife

from his pocket and stabbed Angad. Accused Chitrabai caught him

by neck and deceased was made to fall down and thereafter he was

-6- Cri.Appeal.54.2018

hit by means of stone on back side of his head. He himself and

Asaram shifted deceased Angad in a jeep to the hospital. PW1

Mukund came there and deceased was declared dead on

examination by the doctor.

PW7 Madhukar also deposed that, when he and PW6

Radhakisan were talking near market yard, deceased was sitting

there. PW6 Radhakisan asked him to go to the field for bringing

she buffalo and while he was proceeding accused came there,

accused Kishor stabbed Angad with knife, accused Chitrabai beat

him by means of stone. PW6 Radhakishan shifted him to hospital.

PW8 Ashok @ Asaram, also stated that while he was

chit-chatting with PW6 Radhakishan and PW7 Madhukar, Angad

was sitting near them and when on direction of Radhakishan

deceased was going to the field, accused Kishor came and stabbed

deceased in the stomach by knife, whereas Chitrabai beat Angad by

fists, kicks blows and stones. PW6 Radhakishan took injured to the

hospital.

PW9 Gajanan, autopsy doctor, who conducted P.M. and

issued P.M. notes with opinion as "death due to hemorrhagic shock

due to stab injury over abdomen".

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PW10 Sandeep and PW11 Mukund are the carrier of

muddemal to the Analyzer.

PW12 Bhausaheb is the Investigating Officer, who

narrated all steps taken by him till filing of charge sheet.

6. Pointing to the above evidence, learned counsel for

appellant seems to have questioned legality of the judgment on the

grounds that, firstly, there is no convincing evidence. Secondly,

only interested witnesses are examined. Thirdly, evidence of

witnesses are full of material contradictions and omissions.

Fourthly, absence of blood stains on the weapon and weapon not

sent for analysis.

7. Here, on taking survey and audit of entire evidence, it

is seen that, only evidence of PW6 Radhakishan, PW7 Madhukar

and PW8 Ashok @ Asaram is of relevance and their evidence show

that they were very much present together at one place. They all

are unanimous about deceased Angad also to be sitting there. On

directions of PW6 Radhakishan, when deceased was about to

proceed to the field, all these witnesses are consistently deposing

regarding accused persons arriving. They are all categorical and

specific about appellant Kishor taking out knife and stabbing

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deceased Angad. PW1 Mukund, informant has admittedly received

information and on receipt of the same, he had been to the hospital

and on deceased being declared dead, he has set law into motion.

Therefore, evidence of PW6 Radhakishan, PW7 Madhukar and PW8

Ashok @ Asaram has remained intact in spite of being cross

examined at length. The core of the accusation about accused

appellant Kishor stabbing deceased in the stomach has virtually

gone unchallenged. Occurrence has taken place at around 5.00

p.m. PW6 Radhakishan, PW7 Madhukar and PW8 Ashok @ Asaram

are unanimous that deceased was sitting near them while they all

were chatting. They had all seen deceased proceeding towards

field on directions of PW6 Radhakishan and at such time, incident

of assault has taken place right in their presence. They have

shifted injured to the hospital where he was declared dead.

8. Learned counsel for appellant would argue that, only

interested witnesses are examined. Mere witness to be related is

no good ground to cast doubt on their version. Law is fairly settled

that merely because witnesses are related, they cannot be branded

as interested witnesses. Law to this extent has been time and again

propounded in various rulings and the few noted cases are as

under:

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1. Bhagwan Jagannath Markad v. State of Maharashtra; (2016) 10 SCC 537.

2. Ravasaheb @ Ravasahebgouda and Others v. State of Karnataka; (2023) 5 SCC 391.

Consequently, merely because witnesses are related,

their evidence need not be looked upon suspicion. There is no

material to indicate that appellant is falsely involved. Even no

suggestion to that extent has put to any of the witnesses.

9. As regards to objection of inconsistency, omissions and

contradictions in the evidence of prosecution witnesses, which are

tried to be brought to our notice, in our opinion, they are not on

material count. Only omissions and contradictions which renders

core of the prosecution evidence doubtful, are of significance.

Variances on timing, distance, who shifted injured to the hospital,

which clothes wear on the person of deceased and which of them

seized are virtual insignificant.

10. As regards to non availability of blood stain or failure

to seek CA report, also does not assumes importance, more

particularity, when there is consistent, trustworthy and reliable

eye witness account. Recovery part is also not seriously challenged

before us.

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11. Therefore, having dealt with the above grounds and

objections, we do not find any force or merit in the same. Evidence

of PW6 Radhakishan, PW7 Madhukar and PW8 Ashok @ Asaram

having remained intact and unshaken on the core accusation. Case

of prosecution can definitely be said to be proved beyond

reasonable doubt. Witness speak about previous quarrel while

playing cards. This much part is also not challenged in spite of

witness has been cross examined at length.

12. Therefore, with such quality of evidence, the opinion

reached at by the learned trial Judge is the only opinion that could

emerge even on re-appreciation and re-analysis. Hence, finding no

merits in the appeal, we proceed to pass following order :-

ORDER

The appeal stands dismissed.

(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)

Tandale

Signed by: Manoj Tandale Designation: PA To Honourable Judge Date: 08/11/2023 15:01:52