9. The convict - Sandesh, who mounted attack on the
deceased Sadashiv and injured Raju is not before us. The appellants
herein are his (Sandesh) father and father's co-brother. They have
been held guilty of the offences punishable under Sections 302 and
324 of Indian Penal Code, solely based on Section 34 of Indian Penal
Code. The appellants have not been attributed with the overt act of
assault. They are alleged to have caught hold of deceased Sadashiv,
on the say of convict Sandesh.
10. PW1 - Raju was nephew of deceased Sadashiv. He
testified that the incident took place by little past 7.45 p.m. on
15.05.2016 at Beed-bypass road. The marriage of his brother - Viju
was scheduled at Prasad Lawns (Mangal Karyalaya). By that time, a
marriage procession was heading towards Prasad Lawns. Little over
200 persons were in the procession. DJ was being played ahead of
the procession. Then, there was the bridegroom. The Varatis were
closely following him. PW1 - Raju further testified that his uncle
Sadashiv (deceased) and he were together. They were proceeding
towards Prasad Lawns. Both the appellants and Sandesh came
together. They intercepted Sadashiv. The trio questioned him, " सदा
तू खूप माजला होतास मुलगी दिली नाहीस. साडु च्या पोराचे लग्न कसे पाहतोस आता ". Then,
Sandesh asked the appellants to catch hold Sadashiv. They obliged.
Sandesh stabbed in the back of Sadashiv. When he (PW1)
intervened to save Sadashiv, Sandesh assaulted on his ribs with
knife. The appellants and Sandesh then fled away from the spot.
PW1 - Raju called his sister - Bharati and her husband Samadhan for
help. They were there at the entrance of Prasad Lawns. Samadhan
took Sadashiv and Raju, first, to Hedgewar Hospital and within
minutes, shifted them to GHATI Hospital. He further testified that
thereafter he lodged the FIR (Exh.64) with the police. PW1 - Raju
further testified that the reason behind the assault was that,
Sadashiv's daughter - Kavita was not given in marriage to Sandesh.
11. PW2 - Navnath was a witness to the crime-scene
panchnama (Exh.69). He did not stand by the prosecution. The
crime-scene panchnama (Exh.69) has been proved by the evidence
of the police officer (PW9 - Taher Patel).
12. PW3 - Samadhan testified that he along with his wife was
present just outside Prasad Lawns. He was about to get down from
the auto-rickshaw. He noticed people running. He learnt that his
maternal father-in-law was murdered. He claimed to have seen the
trio (appellants and Sandesh) running away. He also saw PW1 - Raju
to have been injured. He took Raju and Sadashiv, first, to Hedgewar
Hospital and then, to GHATI Hospital. He learnt that Sadashiv was
stabbed to death.
13. PW4 - Dhananjay was son of the deceased Sadashiv. He
too claimed to have witnessed the incident. He testified that the
appellants and Sandesh came together. The appellant - Gorakh told
his father :-
"Salya Tu Khup Majalas - you had not given your
daughter in marriage to the son of my sadu (co-
brother). He had not given her daughter to the
son of his co-brother.
He further testified that the appellants herein caught hold of his
father and Sandesh gave him knife-blows.
14. PW5 - Ashok also claimed to have witnessed the
incident. His evidence is on the lines of the evidence of PW4 -
Dhananjay. We, therefore, do not propose to reiterate the same.
PW6 - Balaji was witness to the spot panchnama. He did not stand
by the prosecution. PW8 - Dr. Priya was Medical Officer. She
examined PW1 - Raju and convict Sandesh as well. The injury
certificate of PW1 - Raju is at Exh.125. Same indicates him to have
suffered stab injury on left mid axillary line approximately 1x1x1.5
cm. of size. Her evidence further indicates that she examined the
convict - Sandesh and noticed blunt trauma to head and CLW on the
back of his person. The police had referred him for medical
examination.
15. The other witness namely, PW9 - Taher Patel is the
Investigating Officer.
16. The appellants examined DW1 - Kiran to prove that they
were not present at the crime-scene. A defence of alibi was sought
to be introduced. Learned APP would submit that the defence of alibi
should have been made out upto to the hilt. The defence could not
make out the same.
17. Now, we propose to appreciate the evidence of the
aforesaid witnesses with reference to their cross-examination. PW1 -
Raju was, admittedly, a close relative of the deceased. Since it was
the time of marriage of his real brother, his presence at the crime-
scene could not be disputed. Moreover, he is an injured eye-witness.
Learned APP relied on the Apex Court judgment in the case of
Laxman (Supra), to submit that it would be the first effort of the
eye-witness to save the life of the injured and then, lodge the FIR to
the police. She meant to say that the delay of over five hours in
reporting the matter to the police was duly explained and even
justified in the facts and circumstances of the case. She, then, relied
on the judgment of the Apex Court in the case of Mano Dutt
(supra), to submit that the testimony of the related witnesses cannot
be thrown overboard. Such witnesses are natural witnesses to the
incident. At the most, their testimony could be subjected to close
scrutiny.
18. Learned counsel for respondent nos.2 and 3 - intervenors
relied on the Apex Court judgment in the cases of (i) Birbal Nath
Vs. State of Rajasthan and ors., 2023 SCC OnLine SC 1396;
and (ii) Deepak Chetri Vs. State of Sikkim, (Cri. A. No.40 of
2023, decided by the High Court of Sikkim:Gangtok, on
05.07.2024) and reiterated the submissions made by learned APP.
He would submit that the omissions in the evidence of the
prosecution witnesses, which were minor in nature, are of little
consequence.
19. Turning to the cross-examination of PW1 - Raju, it has to
be stated that he was confronted with his FIR (Exh.64). Some
omissions amounting to contradictions have been duly brought on
record. His FIR is silent to state that the appellants and Sandesh
questioned his uncle Sadashiv in one voice. The FIR is also silent to
record as to Sandesh asked the appellants to catch hold of Sadashiv
and they obliged. He was shown three photographs. Initially, he
claimed to have not been recognizing the person appearing in the
photographs (Articles "A" to "C"). He then came around to state that
he had seen a person like one appearing in the photographs at the
crime-scene. According to the defence, the person appearing in the
photograph is none other than appellant - Sandesh. PW1 - Raju
admitted that the parents of convict Sandesh, i.e. appellant Suresh
and his wife would run a fruit-stall in front of Gajanan Maharaj
Temple, Aurangabad. The distance between the crime-scene and the
Gajanan Maharaj temple was about 10 kms.; while it was 3 kms., if
one goes by short-cut. He admitted that he was conscious all along.
There was police stations at both the hospitals, i.e. Hedgewar
Hospital and GHATI Hospital; even, on way to the Hedgewar
Hospital, there was one. According to him, since appellant - Suresh
was residing in the neighbourhood of the family of the bride, he and
Sandesh might have been invited by them for marriage. He further
admitted that the convict Sandesh had suffered bleeding injuries on
the day of the incident. His uncle (deceased Sadashiv) had beaten
him (Sandesh) up. Sandesh too was brought to GHATI Hospital, for
treatment. Then, he admitted that his uncle Sadashiv was taken out
of the roadside ditch. He testified that his uncle Sadashiv crawled
towards the pit. He did not report to the police that the incident took
place in a trench. His evidence further indicates that the relationship
between the families of deceased and that of appellant - Suresh was
strained since before the incident. The reason therefor was Kavita
(daughter of deceased Sadashiv) to have not married Sandesh
(convict).
Here, learned APP submitted that had there been any
incident of fight between the two families, the matter could have
been reported to the police. So is not the case herein, according to
her.
20. PW3 - Samadhan's evidence indicates that he did not
witness the incident. He claimed to have learnt the appellants and
Sandesh to have stabbed his uncle. True, he rushed the deceased
Sadashiv and injured (PW1 - Raju) to hospital in auto-rickshaw. He
claimed to have seen the trio to have taken to their heels. According
to learned APP, the presence of PW3 - Samadhan was not in dispute.
What he deposed to was natural. He only claimed to have seen the
appellants and convict Sandesh to have run away from the crime-
scene.
20. PW4 - Dhananjay, son of deceased, testified in his cross-
examination that Sandesh (convict) was not at all assaulted by
anyone at the crime-scene. This is a false statement made by him.
According to him, there was affray "fight between the two".
According to him, Sandesh did not suffer a scratch. Learned APP
would submit that some portion of the incident has been brought on
record through the cross-examination of this witness (last part of
paragraph 12 of his cross-examination). Close reading thereof would
indicate, no suggestion was given to him, indicating any implied
admission. On the contrary, in the later part of his cross-
examination, he admitted that he learnt PW1 - Raju to have lodged
the FIR. Thereafter, he and his relatives had a talk inter se regarding
the report lodged by PW1 - Raju. He went on to admit that it was
decided that he would be the witness in the matter and to give
statement to the police.
21. Learned APP would submit that the FIR would be lodged
only by one. The admission given by PW4 - Dhananjay could be
interpreted in many ways. It was a normal conduct of the witness.
The evidence of this witness is consistent with the other prosecution
witnesses. The police statement of PW5 - Ashok was recorded four
days after the incident though he had occasion to meet the police
many a time there-before. He is also one of the relations of the
deceased. His police statement was silent to record therein that the
appellant - Gorakh had said "सदया तू लय माजलास माझ्या साडु च्या मुलाला तू
मुलगी का दिली नाहीस आणि आता तुझ्या साडु च्या मुलाचे लग्न तू कसा बघतोस ते मी बघतो ".
His police statement is also silent to record therein that both the
appellants had caught hold of the deceased. According to him,
Sandesh was not beaten up either by him or PW1 - Raju.
22. Appreciation of the evidence referred to herein above,
indicates that although these witnesses were present at the crime
scene, they were economical with truth. The fact that the convict
Sandesh too was assaulted by the deceased and he was admitted to
GHATI Hospital for treatment at the instance of police, has been
brought on record through their cross-examination. According to us,
these prosecution witnesses ought to have stated said fact in their
examination-in-chief so as to call them reliable witnesses. Their
police statements and the FIR are silent to indicate the trio to have
abused deceased Sadashiv before the assault was mounted on him.
The statements of some of them are also silent to state that the
appellants caught hold of Sadashiv at the behest of Sandesh
(convict).
23. It is reiterated that criminal liability of both the
appellants is sought to be fasten based on Section 34 of Indian Penal
Code. For ready reference Section 34 of I.P.C. is reproduced below:-
34. Acts done by several persons in furtherance of
common intention.--
When a criminal act is done by several persons in
furtherance of the common intention of all, each of
such persons is liable for that act in the same manner
as if it were done by him alone.
24. It is true that the common intention can be inferred from
the attendant circumstances also. Had these appellants really
shared common intention with convict Sandesh, to commit murder
of Sadashiv, they too would have come to the crime-scene carrying
sharp weapons with them. Admittedly, both of them did not have
any weapon. It is true that common intention can be developed in a
spur of moment. Admittedly, the prosecution case does not alleged
any of the appellants to have even given slap to the deceased
Sadashiv or PW1 - Raju (injured). True, they are alleged to have
caught hold of the deceased. The question is, whether it was
necessary for them to catch hold of the deceased, so as to facilitate
Sandesh to mount the attack. In our view, the answer is big "No".
The convict Sandesh and deceased Sadashiv were not face to face.
There is nothing to indicate that the deceased was well-built or was
unable to be overpowered and therefore, was required to be caught
hold of. As per the case of the prosecution itself, the convict
Sandesh assaulted the deceased in his back. Necessarily, the
assault was from behind. It is reiterated that the prosecution
witnesses did not come clean. No real incident has been deposed to
by them in the examination-in-chief. Same was required to be
unearthed during their cross-examination. In the incident, convict
Sandesh was beaten up. He too was rushed to the GHATI Hospital,
for treatment.
25. In our view, although it is not impossible, but illogical to
imagine that a father and uncle would assist the son to commit
murder of a person, who had refused to give his daughter to his son
in marriage. If such thought comes to the mind of a son, the father
and uncle would necessarily reason with him. The convict - Sandesh
wanted to marry Kavita (daughter of deceased Sadashiv). She had
come to attend the marriage on the day of the incident along with
her husband and father-in-law. Sandesh might have been there for
the reason best known to him. The FIR has been lodged five hours
after the incident. In the facts and circumstances of the case, the
delay of even small time may give rise to infer the FIR to be
concocted version or addition or implication of some others, who
had, in fact, not participated in the incident.
26. In our view, the trial court, based on such evidence,
ought not to have convicted the appellants before us. The evidence
of the prosecution witnesses do not inspire confidence so far as
regards implicating the appellants in the crime. They are, therefore,
entitled for the benefit of doubt. For over seven years, the
appellants have been behind the bars. For all the above reasons, we
are inclined to allow both the appeals.
27. In the result, the appeals succeed in terms of the
following order:-
(i) Both the Criminal Appeals are allowed.
(ii) The impugned order dated 06.12.2021, passed by
learned Addl. Sessions Judge, Aurangabad (trial court), in Sessions
Case No.220 of 2016, convicting and sentencing the appellants for
the offences punishable under Sections 302 and 324 r/w. 34 of Indian
Penal Code, is set aside. The appellants are acquitted thereof.
(iii) The appellants be released forthwith, if not required in
any other case.
(iv) Fine amount paid by the appellants, if any, be refunded
to them.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
...........
KBP
