Bombay High Court
Darasingh Thawara Jadhav vs The State Of Maharashtra on 10 January, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:439-DB
-1- Appeal.11.2017 with Appeal.721.2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 11 OF 2017
Darasingh Thawara Jadhav, }
Age : 53 years, Occu. : Labourer, }
R/o. : Bharat Nagar, Aurangabad. }
Taluka and District : Aurangabad. } ... Appellant.
} (Orig. Accused No.4)
At present the appellant is in
Aurangabad Central Prison, Harsool,
Aurangabad,
Taluka and District : Aurangabad
Versus
The State of Maharashtra, }
Through the Mukundwadi Police Station, }
Aurangabad, }
Taluka and District : Aurangabad } ... Respondent.
(Orig. Prosecution)
WITH
CRIMINAL APPEAL NO. 721 OF 2016
1. Santosh @ Bandu Rangnath Rathod }
Age : 25 years, Occu. : Labour, }
R/o. H. No.49, Bharat Nagar Garkheda }
Aurangabad, Tq. and Dist. Aurangabad }
2. Suresh @ Bandu Rangnath Rathod }
Age : 25 years, Occu. : Labour, }
R/o. H. NO. 49, Bharat Nagar, Garkheda }
Aurangabad, Tq. and Dist. Aurangabad }
3. Nikesh @ Guddya S/o. Kishan Rathod, }
Age : 21 years, Occu. : Labour, }
R/o. H. No. 49, Bharat Nagar, Garkheda,}
Aurangabad, Tq. and Dist. Aurangabad } ... Appellants.
Versus
The State of Maharashtra, }
Through Mukundwadi Police Station, }
Aurangabad. } ... Respondent.
-2- Appeal.11.2017 with Appeal.721.2016
.....
Mr. Sudarshan J. Salunke, Advocate for Appellant in APEAL/11/2017
Mr. A. M. Karad, Advocate for Appellants in APEAL/721/2016
Mr. S. D. Ghayal, APP for Respondent - State
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 14th DECEMBER, 2023
PRONOUNCED ON : 10th JANUARY, 2024
JUDGMENT (PER ABHAY S. WAGHWASE, J.) :
1. Vide both above appeals, convicts are challenging the
judgment and order of conviction passed by learned Additional
Sessions Judge-5, Aurangabad, dated 09.11.2016, holding them
guilty for charge under sections 300 read with 34, 307 read with
34 and 302 read with 34 of Indian Penal Code (IPC), respectively
and sentenced to suffer imprisonment and to pay fine as spelt out
in the operative part of the judgment.
2. In brief, prosecution was launched by Mukundwadi
Police Station, by setting up a case that, during Holi festival, on
11.03.2009, while playing colors and dancing on music, deceased
requested for change of song. As a result of which quarrel took
place between deceased Bandu @ Pandit and appellants, which was
followed by appellant Darasingh bringing knife and on facilitation
by remaining accused, knife blows were given to deceased Bandu,
-3- Appeal.11.2017 with Appeal.721.2016
PW2 Raju, PW4 Vishal and PW5 Ravinath Shendge. They all were
taken to hospital. While undergoing treatment, Bandu @ Pandit
expired, whereas PW2 Raju, PW4 Vishal and PW5 Ravinath were
admitted and treated. PW1 Kamalbai, mother of deceased Bandu @
Pandit, who had reached the spot, set law into motion vide report
Exh.14.
PW10 PSI Rathod and PW11 API Chavan carried out
investigation at respective times and in all four accused (i.e.
appellants) were charge-sheeted for above charges and when tried
by learned Additional Sessions Judge, they were held guilty and
convicted by judgment and order dated 09.11.2016, which is now
taken exception to by filing two distinct appeals.
As both appeals are heard simultaneously on
arguments made by each of the learned counsel representing them
and both appeals being answered by learned APP together, both
appeals are taken up for decision by way of common judgment.
3. In support of above case, scrutiny of the record shows
that, prosecution has adduced evidence of in all 12 witnesses and
their status and sum and substance of their testimony is as under :-
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PW1 Kamalbai mother/informant deposed that, while
she was in the house, around 2:30 p.m., one Raju came and
informed her regarding assault on her son Bandu by Santosh and
Darasingh. She rushed to the spot and found her son bleeding and
so shifted him to Ghati hospital. According to her, accused had also
assaulted Vishal and Ravi by means of a knife. The doctor declared
Bandu as dead. She claims that, she learnt that quarrel took place
on account of playing music on the tape-recorder. She lodged
report Exh.14 against accused persons.
The sum and substance of evidence of PW2 Raju is that,
on 11.03.2009 being Holi festival, he went to deceased and they
both consumed liquor. Ravi Shendge joined them and they all went
to dance and play colour towards Bharatnagar. Vishal joined them
and they went towards the house of appellant Darasingh, who was
accompanied by Santosh, Nikesh and Suresh. While dancing,
Vishal slapped Darasingh in the background of changing song on
the cassette. According to him, Santosh, Suresh and Nikesh caught
hold of him as well as Vishal, Ravi and Bandu. Darasingh assaulted
Bandu @ Pandit by means of knife on the chest and stomach,
whereas Santosh, Suresh and Nikesh assaulted Vishal and Ravi by
knife. Bandu collapsed and on being taken to hospital, he was
declared dead, whereas Ravi and Vishal were admitted and
treated.
-5- Appeal.11.2017 with Appeal.721.2016
PW3 Kalyan is pancha to spot panchanama (Exh.23)
and he identified the same.
According to PW4 Vishal, while playing colours on
account of 'Dhulivandan' at around 9:00 a.m. deceased Bandu told
Santosh to change the song and when he changed it, deceased
again asked him to change the song, which was objected by
appellant Darasingh. He and others settled the quarrel. But then,
Darasingh gave blow of knife in stomach of this witness and
thereafter gave blows of knife in the chest of deceased Bandu @
Pandit and they were taken to hospital, where Bandu was declared
dead and he was treated. However, he denied being caught hold by
Santosh, Suresh and Nikesh.
PW5 Ravinath Shendge claimed that, after consuming
liquor, while they were dancing Vishal asked Darasingh to change
the song, but he did not change. Thereafter, Darasingh assaulted
Vishal and Bandu @ Pandit by knife. He and deceased fell down
and were taken to the Ghati hospital, where deceased was declared
dead. He also denied that accused Santosh, Suresh and Nikesh
assaulted them.
PW6 Shankar claims that on hearing about Bandu @
Pandit lying in front of house of Suresh Rathod and Santosh
-6- Appeal.11.2017 with Appeal.721.2016
Rathod, he went there. Mother of Bandu also came there. He
brought a rickshaw and shifted Bandu to the hospital, where doctor
examined Bandu and declared him dead.
PW7 Dr. Kalias Zine autopsy doctor, who claims to have
conducted PM on dead body of Bandu @ Pandit, narrated the
injuries, its size, directions and about conducting internal
examination and then deposed that, injuries were ante mortem in
nature. According to him, injury no.2 was sufficient in the
ordinary course of nature to cause death and that, person died due
to stab injury to heart. According to him, injury nos.1 and 2 are
possible by means of knife.
PW8 Vijay has acted as pancha to the seizure of clothes
of Vishal Mhatre. He identified it at Exhibit 44.
PW9 Sk. Chand Pasha Sk. Mohammad has acted as
pancha to the seizure of clothes of accused (Exh.61). He identified
articles as well as panchanama (Exhs.61 and 62).
PW10 PSI Rathod and PW11 API Chavan are the
Investigating Officers.
PW12 Dr. Pravin Wasadikar, who treated Ravi Shendge
and Vishal Mhatre and issued medical certificate.
-7- Appeal.11.2017 with Appeal.721.2016
SUBMISSIONS
Appellant :
4. Learned counsel Shri Salunke for appellant Darasingh
(Original Accused No.4), who has preferred Criminal Appeal No.11
of 2017, would also submit that, there is no motive, no
premeditation and some incident had allegedly taken place during
dance, while celebrating Holi festival. Even according to him,
persons were not identifiable as all were smeared with colour. He
took us through the testimony of PW2 Raju, PW4 Vishal and PW5
Ravinath and would submit that they are not consistent and are
not corroborating each other and rather giving different versions.
He pointed out that, there is no evidence to show that appellant
went into the house and returned with the knife and then stabbed
deceased or alleged injured (PW3 and PW4). He pointed out that,
alleged injured in the incident have not completely supported
prosecution. But, according to him, still learned trial Judge has
accepted the prosecution story and has recorded conviction. He
pointed out that there is no evidence to suggest that appellant
Darasingh had ever absconded and that moreover no steps were
taken by invoking provisions under section 82 of Cr.P.C. In support
of above submission, he seeks reliance on the judgment of this
court in the case of Bharat v. State of Maharashtra, 2018 SCC
OnLine Bom 2083.
-8- Appeal.11.2017 with Appeal.721.2016
5. He would further found fault in the above conclusions
drawn by learned trial court by submitting that, on same set of
evidence some accused are held guilty of offence of 307 of IPC, but
his client is alone held guilty for homicide, even when learned trial
Judge in operative part has invoked section 302 read with section
34 of IPC.
6. He further submitted that, witnesses whose
testimonies are relied have admitted in cross that, they were
appraised and tutored before they stepped into witness box.
According to him, this is a patent illegality and on this count, he
seeks reliance on judgment of this Court in the case of Satish s/o.
Sushilkumar Shukla & Anr. v. State of Maharashtra, 2018 ALL
MR (Cri.) 3620. For above said reasons also, he questions the
sustainability of the judgment.
7. He submitted that, even otherwise going by the
sequence of events, which are emanating from the prosecution
evidence, i.e. appellant Darasingh being slapped and only
thereafter he retaliating and that occurrence had taken place on
sudden and grave provocation and therefore according to him, case
would fall under Exception-1 of Section 300 of IPC. In support of
-9- Appeal.11.2017 with Appeal.721.2016
such case, he seeks reliance on following decisions :-
1] Sunil Kundu and Another Vs. State of Jharkhand with
connected matters; (2013) 4 Supreme Court Cases 422.
2] Nandlal v. State of Maharashtra; 2019 (2) ABR (CRI) 242.
3] Imranali Babuali Sayyed v. State of Maharashtra,
2022 (3) ABR (CRI) 525.
8. Lastly, he would submit that, there is no convincing,
cogent and reliable evidence. That, there is no recovery of article
knife, forensic evidence also does not support prosecution in spite
of seizure of clothes, still, it is his submission that, weak evidence
has been accepted by learned trial Judge and has thereby erred in
recording guilt and so he seeks interference at the hands of this
court by allowing the appeal.
9. Learned counsel Shri Karad representing appellants
(original Accused Nos.1, 2 and 3), who had preferred Criminal
Appeal No. 721 of 2016, would submit that, there is false
implication. Secondly, there is improper appreciation of evidence
by leaned trial Judge. He pointed out that as regards to appellants
represented by him, no specific role is attributed. Injured witness
account is inconsistent. None of the witnesses have corroborated
each other. Moreover, there is no recovery at the instance of the
appellant, to whom he is representing.
-10- Appeal.11.2017 with Appeal.721.2016
10. He next submitted that, the occurrence had taken
place during celebration of Holi festival. Witnesses are admitting
about no previous enmity. Therefore, he would submit that there is
no motive nor there is premeditation and rather, the incident is of
a sudden free fight. That, as persons available were being playing
colours, identification was impossible and there is admission to
that extent by prosecution witnesses.
Lastly, he submitted that, alleged incident having taken
place after some quarrel on a petty count and that too suddenly,
there is no case of homicide or even attempt to kill. That, learned
trial court failed to apply the settled law and for said reasons he
seeks indulgence of this court for setting aside the impugned
judgment.
PROSECUTION : -
11. Per contra, the learned APP submits that, admittedly,
accused and appellants were acquainted with each other. Even
while celebrating Holi festival, appellant Darasingh has used knife
for stabbing not only deceased but even injured witnesses. His act
of bringing knife itself shows that his intentions were manifest.
Deceased succumbed to the fatal injuries and the other two injured
fortunately survived. They are examined and they have narrated
-11- Appeal.11.2017 with Appeal.721.2016
the entire occurrence. Therefore, prosecution has cogently and
firmly proved the case. There is reliable direct evidence and
therefore, it is his submission that, learned trial Judge has
correctly appreciated the evidence and no fault can be found.
Consequently, he prays to dismiss the appeals.
12. While exercising powers as appellate court, in view of
provision under section 374 of Cr.P.C., we are empowered to re-
appreciate, re-analyze and re-examine the entire oral and
documentary evidence adduced by prosecution in trial court to
ascertain whether the judgment under challenge is just, legal and
proper.
ANALYSIS
13. Before scrutinizing the evidence on record, we wish to
get ourselves satisfied, more particularly, in the light of charge, as
to whether prosecution has established that Bandu @ Pandit met
homicidal death.
In this regard, we are required to examine the inquest
panchanama as well as medico legal expert's evidence i.e. PW7 Dr.
Kailas Zine. On appreciating such evidence, we have noticed that
doctor has initially reproduced following external injuries.
"1) Stab injury over abdomen left side 5 cm. above and
lateral to umbilicus elliptical in shape obliquely placed, lower
-12- Appeal.11.2017 with Appeal.721.2016
angle, directed medially size 4 cm. x 2 cm. x muscle deep on
approximation 4.5 cm. in length. Margin contused and
irregular. Both angles acute with tailing at upper edge and
beveling of lateral margin. On dissection the track was
established from skin to sub subcutaneous tissue - muscles of
abdomen. A stab wound was directed downward, backward
and medially.
(2) Stab injury over left side of chest 9 cm. Lateral to
medial end of clavicle, 10 cm. above left nipple and 134 cm.
above left medial malleolus, elliptical in shape, vertically
place of 5 cm. x 3 cm. x cavity deep on approximation 6 cm.
in length margin contused, blood infiltrated and irregular.
Both angles acute with beveling of lateral margin. On
dissection track was established from skin-subcutaneous
tissue-inter postal muscles between third and fourth rib pleura
left lung and (left ventricle). The wound was directed
downward backward and medially."
He also claims to have come across following internal
injuries;
"1) The pleura cavity contain 2000 ml. Of partly clotted blood
in left plural cavity.
2) Lungs were pale with perforating injury over left lung.
3) Pericardian was injured and contain 350 ml. partly clotted
blood.
4) Stab injury over left ventricle of heart on anterior part."
Doctor is very categorical that injury no.2 was
sufficient in the ordinary course of nature to cause death. He has
also opined that, injuries noticed by him to be possible by use of
knife.
We have visited the cross faced by above witness. In
-13- Appeal.11.2017 with Appeal.721.2016
our opinion, there is nothing therein to doubt his opinion.
Consequently, there is no hesitation to hold that, death of Bandu @
Pandit is shown to be homicidal one.
14. On carefully sifting the evidence, it seems that, crucial
evidence is of PW2 Raju, PW4 Vishal and PW5 Ravinath. According
to prosecution, PW4 Vishal and PW5 Ravinath are injured eye
witnesses. What we have noticed here is that, there is absolutely
no dispute about accused appellants and deceased knowing each
other. It is also not in dispute that on that day, they were
celebrating Holi festival. What triggered the incidence is also not
seriously contested, i.e. quarrel taking place on account of playing
song on a tape-recorder.
15. On carefully analysis, it is emerging that, PW2 Raju
claimed that, Vishal i.e. PW4 slapped accused no.4 Darasingh
(appellant of Criminal Appeal No.11 of 2017) on account of change
of song. This witness deposed that such appellant entered the
house of accused Santosh and returned with a knife. Thereafter,
according to this witness, Santosh, Suresh and Nikesh caught hold
of Vishal (PW4), Ravinath (PW5) and deceased and they were
assaulted. Then, appellant Darasingh inflicted knife blows on the
chest and stomach of deceased Bandu. He further deposed that,
-14- Appeal.11.2017 with Appeal.721.2016
Santosh, Suresh and Nikesh assaulted PW4 Vishal and PW5
Ravinath. During the incident, deceased Bandu sustained bleeding
injury and he fell down. All injured were taken to Ghati hospital
and there deceased Bandu was declared dead, whereas injured
PW4 Vishal and PW5 Ravinath were admitted and treated.
On visiting his cross, we find him answering and
admitting that, they were all acquainted to each other and they
were also having cordial relations and there to be no enmity.
Suggestion is given that, having played colour, all their faces and
clothes were smeared with colour and nobody could be identified.
The tenor of the cross shows that, there was dispute over change of
song which resulted into scuffle between PW4 Vishal and appellant
Darasingh, who later on taken out a knife and assaulted deceased
Bandu, PW4 Vishal and PW5 Ravinath and this fact is clearly
brought on record. In cross itself, only omission brought is that,
accused Santosh, Suresh and Nikesh assaulted Ravi and Vishal "by
means of knife" and accused Darasingh going to the house of
Santosh. Rest is all denial.
16. On analyzing evidence of PW4 Vishal, who is an injured
eye witness, it is emerging that, even he has corroborated above
witness to the extent of playing colour, they all are dancing on the
song. This witness stated that deceased Bandu asked Santosh to
-15- Appeal.11.2017 with Appeal.721.2016
change the song after which accused appellant Darasingh objected
and abused and he initially beat Bandu with hands, this witness
intervening and thereafter appellant Darasingh inflicting blow of
knife in the stomach of this witness and thereafter giving blows on
the chest part of deceased Bandu. That, all were taken to hospital.
That, Bandu died, while this witness was admitted and treated.
However, after stating so much, this witness denied that, when he
was assaulted by appellant Darasingh, anybody had caught hold of
him. He flatly denied that, accused Santosh, Suresh and Nikesh had
caught hold of this witness, PW5 Ravi and deceased Bandu.
When subjected to cross by learned APP, he is unable to
assign any reason as to why portion marked 'A' which is got proved
through Investigating Officer is appearing in his statement.
In cross at the hands of learned counsel for accused
No.4 Darasingh, he has admitted that he was knowing accused
persons since prior to the incident and there was no enmity. That
faces of all persons, who were playing Holi, were smeared with
colour, but he flatly denied that, it was not possible to identify
persons.
17. Another injured PW5 Ravinath in his evidence at
Exh.31 also reiterated about all playing Holi and dancing on a song.
-16- Appeal.11.2017 with Appeal.721.2016
According to him, PW4 Vishal asked appellant Darasingh to change
the song, but he refused and assaulted PW4 Vishal and thereafter
deceased Bandu @ Pandit was assaulted by knife in stomach and on
his ribs. That, he and deceased Pandit were taken to hospital. As
like PW4 Vishal even this witness has retracted in examination-in-
chief itself by denying that, accused Santosh Rathod, Suresh
Rathod and Nikesh Rathod assaulted them and he further denied
that, Santosh had caught hold of Vishal, Suresh had caught of this
witness and Nikesh had caught hold of deceased Bandu and was
resultantly declared hostile by learned APP and with permission
subjected to cross. During which he denied having stated portion
marked 'A' and he is unable to assign reason as to how it is so
appearing.
Cross at the hands of learned counsel for accused
Darasingh shows that, there is admission about he knowing
accused persons, there to be no enmity, everybody playing colour,
that faces of all were smeared with colour, but he too like PW4
Vishal denied that, identification had become difficult. Rest is all
denial.
18. Apart from above witnesses, PW2 Raju, PW4 Vishal,
PW5 Ravinath, prosecution has also adduced independent witness
PW6 Shankar, who had reached the spot immediately on getting
-17- Appeal.11.2017 with Appeal.721.2016
news and he claimed about seeing injuries on stomach and chest of
deceased and passing the information of occurrence to his mother.
19. Rest of the witnesses are autopsy doctor, who has
opined cause of death, PW8 Vijay and PW9 Sk. Chand Pasha Sk.
Mohd., panchas to seizure of clothes and PW10 PSI Baburao
Rathod and PW11 API Ganesh Chavan are Investigating Officers,
PW12 Dr. Pravin Wasadikar, treating doctor of injured Vishal
(PW4) and Ravinath (PW5) and he identified injury certificates.
This treating doctor further deposed that, injuries on both patients
were life threatening and grievous in nature.
20. Therefore, what can be discerned on careful analysis of
testimonies of PW2 Raju, PW4 Vishal and PW5 Ravinath is that,
occurrence has taken place while playing colour on Holi festival.
Though, initial quarrel was only on account of playing a song on
tape-recorder, it further culminated into a serious incident during
which appellant Darasingh rushed to the house of Santosh and has
returned with a knife. PW2 Raju has deposed that, Santosh,
Suresh and Nikesh (i.e. accused nos.1, 2 and 3) had caught hold of
him, PW4 Vishal, PW5 Ravinath and deceased and assaulted them,
but, he has not elaborated which of them held whom. However, he
clearly named Darasingh for assaulting deceased Bandu @ Pandit
-18- Appeal.11.2017 with Appeal.721.2016
by knife in the chest and stomach. This aspect finds support from
autopsy doctor's evidence. Though PW2 Raju states that, Santosh,
Suresh and Nikesh assaulted PW4 Vishal and PW5 Ravinath with
knife, these two injured witnesses named only Darasingh for
inflicting blows on their stomachs and ribs, respectively.
Consequently, these two witnesses are not attributing any overt
act to accused nos.1, 2 and 3. Evidence of PW2 Raju, PW4 Vishal
and PW5 Ravinath shows that, only appellant Darasingh has
returned with knife from the house of Santosh. Appellant
Darasingh has alone inflicted blows on deceased as well as PW4
Vishal PW5 Ravinath. Deceased died and these two injured are
reported to have suffered grievous injuries. PW12 Dr. Pravin
Wasadikar, treating doctor has deposed about injuries suffered by
PW4 Vishal and PW5 Ravinath. PW4 Vishal and PW5 Ravinath
have unanimously denied that, they were being caught hold of by
appellant Nos.1, 2 and 3. Hence, it is evident that, only role of
Darasingh is surfacing for use of knife. Hence, only appellant
Darasingh can be alone held responsible and not accused Nos.1, 2
and 3.
21. In absence of any material to show that, appellant
Nos.1, 2 and 3 shared common intention to do away with deceased,
learned trial Court ought not to have held that they facilitated
-19- Appeal.11.2017 with Appeal.721.2016
assault and therefore they too have shared common intention.
Incident has taken place all of a sudden, and therefore, intention of
appellant Darasingh was not known to them to rope in them also.
22. Both learned counsel representing each of the
appellants would also vociferously submit that, alleged weapon
knife has not been recovered. In our opinion, here, there is not
only direct convincing eye witness account, but also injured
witness account confirming the occurrence. Therefore, mere
failure of investigating machinery to recover weapon or absence of
knife would not affect the above convincing truthful account of
PW2 Raju, PW4 Vishal and PW5 Ravinath.
Law is fairly settled that, non recovery of weapon of
offence is no ground to exonerate accused of the charges, when eye
witness accounts are found to be trustworthy. Such legal
proposition is enunciated in various cases viz. Umar Mohammad v.
State of Rajasthan, (2007) 14 SCC 711; State of Rajasthan v.
Arjun Singh, (2011) 9 SCC 115 and Ram Singh v. State of
Rajasthan, (2012) 12 SCC 339.
Even very recently above legal proposition is reiterated
in the case of Gurmail Singh v. State of U.P., (2022) 10 SCC 684
and Ravasaheb and Ors. v. State of Karnataka, (2023) 5 SCC 391.
-20- Appeal.11.2017 with Appeal.721.2016
Consequently, failure to recover weapon cannot be held
as fatal as put forth before us.
23. Much emphasis is laid by both the learned counsel on
the aspect of occurrence to be not at all attracting section 302 of
IPC. Their case is that, there was no premeditation and incident is
fall out of a sudden quarrel and therefore, it is not a case of
homicide at all. Recourse is also tried to be taken to Exception 1
and 4 of Section 300 of IPC.
On giving serious thought to such submissions, we
discard the above submissions for the simple reason that the very
sequence of above occurrence shows that, while celebrating Holi
festival, in the background of changing song incident has taken
place. But, appellant Darasingh left the spot to bring knife and he
returned with the same. He has targeted vital parts of deceased as
well as injured PW4 Vishal and PW5 Ravinath. Taking into account
the nature of weapon carried, knowledge and intention is clearly
attributable to him, and therefore, case cannot be lowered or scaled
down to culpable homicide not amounting to murder.
24. We have considered the observations and law laid
down in above referred cases. Facts in the case of Nandlal v. State
-21- Appeal.11.2017 with Appeal.721.2016
of Maharashtra (Supra) and Imranali Babuali Sayyed v. State of
Maharashtra (Supra) are different and distinct than the facts in
the case in hand, and therefore, same cannot be taken aid of by the
learned counsel for appellants.
25. To sum up, here, there is direct trustworthy eye
witness account and injured witness account. There is use of
deadly article like knife in inflicting various blows on three persons
one of them has died and two have suffered grievous injuries. All
blows are dealt by appellant Darasingh alone.
26. We have rejudged and reanalyzed the evidence as well
as keenly gone through the findings reached at by learned trial
Judge. Taking into account the quality of evidence, in our
considered opinion, offence of murder and attempt to murder is
clearly made out, but only as against appellant Darasingh and not
other appellants. There being nothing to show sharing of common
intention, learned trial Court ought not to have convicted appellant
Nos.1, 2 and 3. Findings of trial court to that extent therefore
needs to be interfered. Hence, we proceed to pass following order.
ORDER
I) The Criminal Appeal No.11 of 2017 is hereby dismissed.
II) The Criminal Appeal No.721 of 2016 stands allowed.
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III) The conviction awarded to the appellants namely, (i)
Santosh @ Bandu Rangnath Rathod, (ii) Suresh @
Bandu Rangnath Rathod and (iii) Nikesh @ Guddya S/o.
Kishan Rathod in Sessions Case No.200 of 2010 by
learned Additional Sessions Judge-5, Aurangabad, on
09.11.2016 for the offence punishable under Section
304 (2) read with 34 and section 307 read with 34 of
Indian Penal Code stands quashed and set aside.
IV) The appellants - (i) Santosh @ Bandu Rangnath Rathod,
(ii) Suresh @ Bandu Rangnath Rathod and (iii) Nikesh
@ Guddya S/o. Kishan Rathod stand acquitted of the
offence punishable under Sections 304 (2) read with 34
and section 307 read with 34 of Indian Penal Code.
V) Appellant Nos.1 to 3 be set at liberty, if not required in
any other case.
VI) The fine amount deposited, if any, be refunded to the
appellant nos.1 to 3 after the statutory period.
VII) We clarify that there is no change as regards the order
in respect of disposal of muddemal.
(ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.)
Tandale
Signed by: Manoj Tandale
Designation: PA To Honourable Judge
Date: 11/01/2024 15:48:46
