Bombay High Court
Sharad Dashrath Shivade vs The State Of Maharashtra on 23 January, 2025
Author: R. G. Avachat
Bench: R. G. Avachat
2025:BHC-AUG:1861-DB
1 Criappeal-957-2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.957 OF 2022
Sharad S/o Dashrath Shivade
Age: 45 years, Occu: Driver, Now : Nil,
R/o.: Shivratan Colony - Ayodhyanagar,
Collector - Patta, Malegaon,
Tq. Malegaon, Dist. Nashik
Now at Nashik Road Central Prison, Nashik .... Appellant
Versus
The State of Maharashtra
Through P.S.O. Mohadi Police Station .... Respondent
_____________________________________________________________
Appearance :-
Mr. Rupesh Jaiswal, Advocate for the Appellant [Appointed
through Legal Aid]
Mr. S. D. Ghayal, Addl. PP for Respondent - State
CORAM : R. G. AVACHAT &
NEERAJ P. DHOTE, JJ.
Reserved On : 16/01/2025
Pronounced On : 23/01/2025
JUDGMENT :
[PER NEERAJ P. DHOTE, J.]
1. By the present Appeal preferred under Section 374[2] of
the Criminal Procedure Code, 1973 [hereinafter referred to as
'Cr.P.C.'], the Appellant has challenged his conviction for the
offence punishable under Sections 302 and 324 of the Indian
Penal Code, 1860 [hereinafter referred to as 'I.P.C.'] and
consequent sentence to suffer Rigorous Imprisonment for life
and to pay fne of Rs.1000/-, in default, to suffer Rigorous
Imprisonment for a month and to suffer Rigorous Imprisonment
for the period already undergone and to pay fne of Rs.500/-, in
2 Criappeal-957-2022.odt
default, to suffer Rigorous Imprisonment for ffteen [15] days,
respectively, vide Judgment and Order dated 31/10/2018,
passed by the learned Sessions Judge, Dhule, in Sessions Case
No.87/2016.
2. The Prosecution's case, as revealed from the Police
Report, is as under : -
[I] Priyanka Balasaheb Ahire [hereinafter referred to as 'the
Deceased'] was married to PW - 2 [Balasaheb Onkar Ahire].
Initially, they were residing with their children at Malegaon.
The Appellant was also residing in the same town. The
Appellant used to trouble / threaten the Deceased. The
Deceased and her family shifted to Dhule. PW - 4 [Bebibai
Kautik Nagrale], who was the mother of Deceased, was also
residing at Dhule. The Deceased was working in one Hospital at
Dhule as a Nurse. PW - 1 / Informant [Sudhakar Dagadu
Londhe] and the Deceased were knowing each other. The family
of Deceased also knew PW - 1 [Sudhakar Dagadu Londhe]. The
husband of the Deceased was a Painter and used to be out of
town intermittently for some days. PW - 1 [Sudhakar Dagadu
Londhe] used to receive the Deceased from the Hospital in late
hours and drop her home.
[II] On 28/05/2016 in between 11.00 p.m. and 11.30 p.m., PW
- 1 [Sudhakar Dagadu Londhe] received the Deceased from the
Hospital and they both went to one Deepak Hotel situated at
Malegaon road. They had water and were sitting in the Hotel.
The Appellant came at the Hotel and went near them. The
Appellant took the Deceased outside the Hotel and assaulted
her by using Sickle [koyta]. PW - 1 [Sudhakar Dagadu Londhe]
also went behind them and intervened. The Appellant gave a
3 Criappeal-957-2022.odt
blow by Sickle on the chest of PW - 1 [Sudhakar Dagadu
Londhe], due to which, he suffered injury. The Appellant fed
from the spot. On receiving the information about the incident,
the Police Mobile Van came on the spot and shifted both the
injured to the Hospital. The Deceased succumbed to the
injuries. PW - 1 [Sudhakar Dagadu Londhe] was provided
medical aid and his statement was recorded, which was treated
as the First Information Report [FIR] at Exhibit - 21 and Crime
No.60/2016 came to be registered against the Appellant for the
offence punishable under Sections 302 and 307 of I.P.C.
[III] The Police performed the Inquest. The dead body was
referred for Postmortem. The Police went on the spot of
incident and conducted the Spot Panchnama. The statement of
witnesses were recorded. The clothes of Deceased and the
Informant were seized. The Appellant came to be arrested on
03/06/2016. During the course of investigation, the Article -
5/2 - Sickle came to be discovered / recovered and seized at the
instance of the Appellant. From the Postmortem, the cause of
death was revealed as 'Hemorrhage and shock due to injuries
described'. The Articles seized during the course of
investigation were referred to the Chemical Analyzer. The
reports of Chemical Analyzer were received. On completion of
investigation, the Appellant came to be Charge-sheeted.
[IV] On committal, the learned Trial Court framed the Charge
against the Appellant for the offence punishable under Sections
302 and 307 of I.P.C. vide Exhibit - 15, to which, the Appellant
pleaded not guilty and claimed to be tried. To establish the
Charge, Prosecution examined in all fourteen [14] witnesses
and brought on record the relevant documents. After the
4 Criappeal-957-2022.odt
Prosecution closed their evidence, the statement of the
Appellant came to be recorded by the learned Trial Court under
Section 313[1][b] of Cr.P.C. The Appellant stated that, he and
the Deceased were in illicit relations, which were not liked by
the husband of Deceased, therefore, one false report was lodged
against him for the offence punishable under Section 354 of
I.P.C. After the Deceased shifted to Dhule, she came in contact
with the Informant [PW - 1]. After some time, the relation
between the Deceased and Informant [PW - 1] came to an end
and the Deceased wanted to re-establish the relations with the
Appellant. The same was not liked by the husband of Deceased
and therefore, he got his wife killed through the contract killers
and falsely implicated the Appellant. After hearing both the
sides and appreciating the evidence available on record, the
learned Trial Court passed the impugned Judgment and Order,
convicting and sentencing the Appellant as referred above in
Paragraph No.1.
3. It is submitted by the learned Advocate for the Appellant
that, the case is based on solitary eyewitness whose evidence
gets falsifed by the evidence of the mother of Deceased. There
is variance in the testimony of solitary eyewitness and the
mother of Deceased. No witness from the Hotel where the
incident took place is examined. Though the discovery of blood
stained Sickle is brought on record by the Prosecution, the
Sickle was not sealed after its seizure and it was referred to the
Chemical Analyzer belatedly. The Sickle was foisted on the
Appellant. There is no evidence to show as to how the
Appellant came to know that, the Deceased was at the Hotel
with the Informant [PW - 1]. The evidence available on record
do not inspire confdence and the impugned Judgment
5 Criappeal-957-2022.odt
convicting and sentencing the Appellant be set aside and
Appeal be allowed.
4. It is submitted by the learned Addl. PP that, the
Prosecution's case is based on the testimony of injured
eyewitness, which is corroborated by the medical evidence. The
history of assault was given by the Informant [PW - 1] at the
time of his treatment. There is prompt lodging of FIR. The
evidence of eyewitness remained unshaken in the cross-
examination. The Appellant was having one sided love with the
Deceased and he did not like the closeness between the
Deceased and Informant [PW - 1] and therefore, he committed
the Crime with deadly weapon. The Homicidal Death is proved
through the medical evidence, which is corroborated by the
Postmortem Report. The weapon of assault came to be
discovered / recovered at the instance of the Appellant
pursuant to the provisions of Section 27 of the Indian Evidence
Act, 1872 [hereinafter referred to as 'the Evidence Act']. The
weapon was found with blood stains of the Deceased's blood
group. The other evidence on record corroborate the
Prosecution's case. The learned Trial Court has properly
appreciated the evidence on record and rightly convicted the
Appellant. Hence, the Appeal be dismissed.
5. Heard both the side. Scrutinized the evidence on record.
The Charge against the Appellant is that, he committed murder
of the wife of PW - 2 [Balasaheb Onkar Ahire] and attempted to
murder the Informant [PW - 1] in the late night of 28/05/2016.
The Prosecutions evidence can be categorized as under :
[i] Eyewitness ;
[ii] Panch witnesses ;
6 Criappeal-957-2022.odt
[iii] Medical evidence ;
[iv] Family member / relative of the Deceased ;
[v] The Police witnesses ;
6. PW - 1 [Sudhakar Dagadu Londhe] is examined as the
eyewitness to the incident. He was a teacher. He knew PW - 4
[Bebibai Kautik Nagrale], who was the mother of Deceased. He
was on visiting terms with PW - 4 [Bebibai Kautik Nagrale]. He
was also knowing the Deceased, who was residing at Dhule. He
knew the Appellant through the Deceased from last two [2]
years from the date of incident. Initially, the Deceased and
Appellant were residing at Malegaon within the same vicinity.
The Deceased was working as a Nurse in the Hospital of Dr.
Sumit Patil at Dhule. Intermittent telephonic conversations
used to take place between him and the Deceased. Whenever
the husband of Deceased would be out of town for his painting
work at other places, he used to receive the Deceased from the
Hospital in the night and drop her home. He used to go to the
Hotel with the Deceased.
7. The evidence of PW - 2 [Balasaheb Onkar Ahire] shows
that, he was the husband of Deceased. Initially, he along with
Deceased and children was residing at Malegaon where the
Appellant was also residing. The Appellant was behind the
Deceased and wanted her to establish relations with him. The
Appellant used to threaten the Deceased, for which, the Report
was lodged with the Malegaon Police Station. Eventually, he
shifted to Dhule along with the Deceased and children. The
Deceased was working in the Clinic of Dr. Sumit Patil at Dhule.
He knew PW - 1 [Sudhakar Dagadu Londhe] from last four [4]
years from the incident, as he was residing near the house of
7 Criappeal-957-2022.odt
PW - 4 [Bebibai Kautik Nagrale]. He used to go out of station
for his painting work for ten [10] to ffteen [15] days at a
stretch. During that period, PW - 1 [Sudhakar Dagadu Londhe]
used to receive the Deceased from the Hospital in the night
time.
8. The evidence of PW - 4 [Bebibai Kautik Nagrale] shows
that, she was the mother of Deceased and residing at Dhule.
The Deceased was married to PW - 2 [Balasaheb Onkar Ahire]
for last seventeen [17] years from the incident. Initially,
Deceased was staying with her family at Malegaon. She knew
the Appellant as he was residing nearby. The Appellant used to
torture the Deceased, due to which, Deceased shifted to Dhule
with her family. The Deceased was working in the Hospital of
Dr. Sumit Patil at Dhule. She knew PW - 1 [Sudhakar Dagadu
Londhe] since last twenty fve [25] years from the date of
incident.
9. From the evidence of the above referred witnesses, it is
more than clear that, they all knew each other and also the
Appellant. The Appellant was behind the Deceased. The
Appellant, in his written 313 at Exhibit - 88, stated of love
relations between him and the Deceased when the Deceased
was residing at Malegaon and their relations were not liked by
the husband of Deceased and false report was lodged against
him by the Deceased at Malegaon Police Station. The husband
got his wife killed through the contract killers.
10. Coming back to the evidence of PW - 1 [Sudhakar Dagadu
Londhe], his evidence shows that, on 28/05/2016, he received
phone call from the Deceased around 11.30 p.m. The Deceased
told him that, food was to be taken for the children from the
8 Criappeal-957-2022.odt
Hotel, therefore, he went to the Clinic, received the Deceased
and they both came to the Hotel Deepak situated at Malegaon
road on his motorcycle. They sat in the Hotel and had water.
The Appellant came in the Hotel and stood near them and
greeted him. The Appellant and Deceased went outside the
Hotel. Quarrel took place between the Deceased and Appellant.
He went outside the Hotel. The Appellant gave blows by the
Sickle on the neck and hand of the Deceased and she fell down.
When he tried to support the Deceased, the Appellant gave blow
by the Sickle on his chest, due to which, he got injured. The
Appellant fed from the spot. The said incident took place
between 11.30 p.m. to 12.00 a.m.
11. The cross-examination of PW - 1 [Sudhakar Dagadu
Londhe] shows that, his evidence in respect of Appellant
coming to the Hotel at the time of incident is strengthened. The
cross-examination could not create any dent in the evidence of
PW - 1 [Sudhakar Dagadu Londhe]. On the contrary, the cross-
examination fortifes his evidence that, the Appellant came to
the Hotel when he and Deceased were sitting at the Hotel. His
evidence shows that, he witnessed the entire incident and there
was suffcient light from the high-mast lamps. His further
evidence shows that, the Deceased died on the spot, Police
arrived and took him to the Civil Hospital for treatment. His
report was taken in the Civil Hospital as per his narration,
which was treated as First Information Report [FIR] at Exhibit
- 21. His evidence shows that, his testimony was corroborated
by his report, which was taken in the Hospital.
12. The evidence of PW - 14 [Dr. Siddharth Uday Patil] shows
that, from October - 2015 to October - 2018, he was serving as
9 Criappeal-957-2022.odt
the Medical Offcer at Government Medical College, Dhule. He
was on duty as CMO on 29/05/2016. Around 01.10 hours, he
examined PW - 1 [Sudhakar Dagadu Londhe], who gave the
history of assault with sharp weapon around 12.30 a.m. On
examination, he found incised wound 10 x 3 x 2 c.m. by size
over the chest. The age of injury was within six [6] hours and
caused by sharp object. The injury was simple in nature. The
injury certifcate at Exhibit - 85 corroborate his testimony. The
same bears his signature. He accepted that, history of assault
by means of sharp object was not specifcally mentioned in
Exhibit - 85. He denied the suggestion that, the injury suffered
by PW - 1 [Sudhakar Dagadu Londhe] was self inficted. He
denied the other suggestions that, he issued false certifcate.
13. The evidence of PW - 8 [Bharat Mahadeo Mali] shows
that, on 29/05/2016 at about 10.45 a.m., he acted as the panch
for the Inquest at Exhibit - 44. The dead body was of one
woman by name Priyanka Balasaheb Ahire [Deceased]. There
were injuries on different part of dead body. The cross-
examination shows that, his evidence was not seriously
challenged.
14. The evidence of PW - 13 [Mahendrakumar Prakash Gavai]
shows that, the investigation of Crime which was registered on
the report lodged by PW - 1 [Sudhakar Dagadu Londhe] was
handed over to him. His evidence shows that, P.S.I. Mr. Y. B.
Shaikh registered the Crime. Non examination of the said P.S.I.
will not be fatal for the Prosecution, as the Informant is
examined. His evidence shows that, the night patrolling police
vehicle moved the injured and dead body to the Hospital. He
visited the spot of incident and called the panchas and prepared
10 Criappeal-957-2022.odt
the Spot Panchnama. The blood, hairs, pieces of hair pin, pieces
of bangles, Mangalsutra and three cut fngers of the Deceased
were found on the spot. He seized the Articles under the
Panchnama at Exhibit - 29. In the Hospital, he prepared the
Inquest at Exhibit - 44 in the presence of panchas and referred
the body for Postmortem and thereafter, handed over the body
to the relatives of Deceased. It is brought in his cross-
examination that, the Deceased and Appellant were in love
relations. Non describing the physical appearance by the Rahul
Dayaram Rawandle whose statement was recorded by him, will
not at all affect the case of Prosecution, as the injured
eyewitness i.e. PW - 1 [Sudhakar Dagadu Londhe] knew the
Appellant. The cross-examination could not create any dent in
the above discussed evidence of PW - 13 [Mahendrakumar
Prakash Gavai].
15. The evidence of PW - 3 [Rajendra Bhagwan Bhoi] shows
that, he was the panch for Spot Panchnama at Exhibit - 29. The
Panchnama was done at 03.55 a.m. in front of Hotel Deepak.
There was blood, pieces of bangles, broken Mangalsutra, one
clip and pieces of fngers on the spot. The Spot Panchnama was
prepared in the light of high-mast lamp. The said Articles were
seized by the Police. He identifed the said Articles during his
evidence. It is affrmed in his cross-examination that, the spot
of incident was a National Highway. He denied the suggestion
that, the Spot Panchnama was already prepared. The cross-
examination could not affect his testimony.
16. The evidence of PW - 5 [Ramesh Kashinath Gadhari], who
was the Associate Professor with the Government Medical
College, Dhule from February - 2014, shows that, on
29/05/2016, the dead body of Priyanka was brought by the
11 Criappeal-957-2022.odt
Police for Postmortem. He along with Dr. N. A. Devraj
conducted the Postmortem and found internal injuries on the
dead body, which were incorporated in the Postmortem Report
at Exhibit - 34. The following internal injuries are mentioned in
Column No.17 of the Postmortem Report :
"1. Obliquely placed incised wound present over left fronto-parietal
region, situated 1cm from midline, of size 5cm X 0.5cm X bone
deep. Margins reddish in colour.
2. Incised wound present over right cheek, situated 2cm lateral to
angle of mouth, horizontally placed, of size 3.5cm X 1cm X bone
deep. Margins reddish in colour.
3. Incised wound present over right lateral aspect of neck, situated
0.5cm lateral to angle of mandible, horizontally placed, of size
3cm X 1cm X muscle deep. Margins reddish in colour.
4. Incised wound present over right submandibular region, situated
0.5cm lateral to midline, horizontally placed, of size 4.5cm X 2cm
X muscle deep. Margins reddish in colour.
5. Incised wound present over right lateral aspect of neck, situated
3cm lateral midline, horizontally placed, of size 6cm X 2cm X bone
deep. Margins reddish in colour. Underlying vessels cut and C6
vertebra cut fractured.
6. Incised wound present over right lateral aspect of neck, situated
3cm lateral midline, horizontally placed and merged with injury
no.5 mentioned above, of size 6.5cm X 2cm X bone deep. Margins
reddish in colour. Underlying vessels cut and C6 vertebra cut
fractured.
7. Incised wound present over right postero-lateral aspect of neck,
situated 0.5cm above injury no.6, obliquely placed, of size 8cm X
2cm X bone deep. Margins reddish in colour. Underlying vessels
cut and C4 vertebra cut fractured.
8. Incised wound present over right side of occipital region, situated
3cm lateral to midline, obliquely placed, of size 5cm X 2cm X bone
deep. Margins reddish in colour.
9. Incised wound present over anterio-superior aspect of right
shoulder, of size 7cm X 2cm X muscle deep, margins reddish in
colour.
10. Incised wound present over middle third of anterio-lateral aspect
of right arm, situated 13cm below shoulder tip, horizontal, of size
9cm X 1cm X muscle deep. Margins reddish in colour.
11. Obliquely placed incised wound present over lower 2/3 rd of
posterio-lateral aspect of right arm, of size 17cm X 4cm X bone
deep, underlying bone fractured. Margins reddish in colour.
12 Criappeal-957-2022.odt
12. Obliquely placed incised wound present over upper third of
posterio-lateral aspect of right forearm, of size 3.5cm X 1.5cm X
muscle deep. Margins reddish in colour.
13. Obliquely placed incised wound present over middle third of
posterior aspect of right forearm, situated 7cm below injury no.12,
of size 4cm X 2cm X muscle deep. Margins reddish in colour.
14. Obliquely placed incised wound present over lower third of
posterior aspect of right forearm, situated 1cm above wrist joint, of
size 2cm X 1cm X muscle deep. Margins reddish in colour.
15. Obliquely placed incised wound present over middle third of
posterior aspect of left forearm, situated 9cm below elbow joint, of
size 3cm X 1cm X muscle deep. Margins reddish in colour.
16. Incised wound present over posterior aspects of thumb, index and
middle fingers of left hand over proximal phalanges, of size 8cm X
1cm X bone deep. Margins reddish in colour. Proximal phalanges
of thumb, index and middle fingers of left hand cut fractured.
17. Chop amputation of left index finger at the level of middle phalanx
present, distal amputed part of length 5cm present along with
body.
18. Chop amputation of left middle finger at the level of middle
phalanx present, distal amputed part of length 4.5cm present
along with body.
19. Incised wound present over posterior aspect of middle phalanx of
left little finger, of size 1.5cm X 0.5cm X bone deep. Margins
reddish in colour. Underlying middle phalanx of left little finger
fractured.
20. Horizontally placed incised wound present over upper third of
anterior aspect of left leg, situated 4cm below knee joint level, of
size 4cm X 1cm X muscle deep. Margins reddish in colour.
21. Obliquely placed incised wound present over upper third of
anterio-lateral aspect of right leg, of size 11cm X 2cm X bone deep.
Margins reddish in colour. Underlying bone fractured.
22. Incised wound present over right lateral aspect of chest, situated
11cm below right shoulder tip, of size 12cm X 3cm X bone deep.
Margins reddish in colour. Underlying scapula bone fractured."
16.1 His evidence shows that, the above referred injuries
were antemortem and fresh and possible by impact of
moderately heavy sharp cutting weapon. The cause of death
was haemorrhage and shock due to injuries described in
Column No.17.
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17. In cross-examination, it is brought that, the injuries
mentioned in the Postmortem Report were possible by any
sharp edged object other than Sickle. His evidence remained
unshaken in respect of receipt of the dead body, performing the
Postmortem and cause of death.
18. The evidence of PW - 7 [Lahu Manga Sonawane] shows
that, on 29/05/2016, he was called at the Mohadi Police Station
where the clothes of Deceased comprising purple colour
petticoat, one brassier, one nicker, one black sari, pieces of
bangles, ear tops and painjan of legs were seized under the
Panchnama at Exhibit - 39. His cross-examination shows that,
he accompanied the other pancha by name Rajendra Madhukar
Alhat to the Mohadi Police Station for Panchnama.
19. There is evidence of PW - 12 [Rajendra Madhukar Alhat],
who acted as panch for the seizure of above referred Articles of
the Deceased under the Panchnama at Exhibit - 39 on
29/05/2016 in the Mohadi Police Station. His evidence shows
that, on the same day, the Police Constable Shri. Bhika Patil
produced the clothes of injured PW - 1 [Sudhakar Dagadu
Londhe] under the Panchnama at Exhibit - 62. It has come in
his cross-examination that, it was his frst time as the pancha
for Mohadi Police Station. He denied the suggestion that, he
was the spot panch.
20. The evidence of PW - 1 [Sudhakar Dagadu Londhe] shows
that, he identifed his clothes and saree of the Deceased, which
they were wearing at the time of incident. From the evidence
of the above referred panchas, the seizure of Articles, clothes of
Deceased and the clothes of injured - Informant is established.
14 Criappeal-957-2022.odt
21. The arrest of the Appellant during the course of
investigation is not in dispute. The evidence of PW - 9
[Mohammed Vaseem Abdul Raheem Manyar] shows that, on
05/06/2016, he was called at the Mohadi-Nagar Police Station to
act as panch. As he did not support the case of Prosecution, he
was cross-examined by the learned A.P.P. In the cross-
examination, it is brought by the Prosecution that, the Article
5/2 - Sickle was seized at the instance of the Appellant, which
was tied with rubber piece near the shock-up of motorcycle.
This panch witness could not identify the Article 5/2 as to
whether it was the same koyta, though he deposed that, it was
similar to this Article. His cross-examination shows that, no
disclosure was made by the Appellant in his presence and PW -
13 [Mahendrakumar Prakash Gavai], the Investigating Offcer,
removed the said Articles from the motorcycle. It is thus clear
that, the evidence of this panch witness is not of any assistance
for the Prosecution.
22. There is evidence of PW - 13 [Mahendrakumar Prakash
Gavai], the Investigating Offcer, on the point of discovery /
recovery of the Sickle at the instance of Appellant. His
evidence goes to show that, on 05/06/2016, while the Appellant
was in custody, he showed his willingness to show the place
where the weapon and motorcycle were concealed and
Memorandum at Exhibit - 46 was prepared. His further
evidence shows that, the Appellant led them to Malegaon along
with the panchas to one house. After they all alighted, the
Appellant took them in one small lane adjacent to the house and
pointed one motorcycle, from which, the Appellant removed a
rubber tube, in which, Article 5/2 - Sickle was concealed. The
Article was stained with blood. The Article was seized under
15 Criappeal-957-2022.odt
the Seizure Panchnama at Exhibit - 47.
23. PW - 13 [Mahendrakumar Prakash Gavai] was
extensively cross-examined by the defence. He denied the
suggestion that, the blood was sprinkled on the Sickle and the
discovery / recovery was foisted on the Appellant. He denied
the suggestion that, the place where the motorcycle was
standing was easily accessible to all. Non seizure of rubber
tube, in which, the weapon was concealed, will not be suffcient
to discard the evidence of discovery under Section 27 of the
Evidence Act. The evidence of this Investigating Offcer shows
that, he deposed the exact disclosure statement made by the
Appellant pursuant to which the discovery / recovery was made
and the same was seized at the instance of the Appellant. His
evidence regarding disclosure statement and recovery /
discovery of blood stained Sickle at the instance of the
Appellant is corroborated by the Memorandum and Seizure
Panchnama at Exhibits - 46 and 47, respectively.
24. The CA report at Exhibit - 108 shows that, the blood
group of the Deceased was 'A'. The Column 'Species origin' is
shown 'Not attempted'. The CA report at Exhibit - 110 shows
that, the blood group of PW - 1 [Sudhakar Dagadu Londhe] was
'A'. The CA report at Exhibit - 106 shows that, all the Articles
including the Sickle, except glass bangle pieces, two metal
anklet and scrapping in plastic bottle, were stained with human
blood of group - 'A',. Thus, the discovery of Sickle Article - 5/2 -
becomes relevant. The Prosecution has examined PW-10
[Sachin Baburao Wagh], whose evidence shows that, he was
Police Constable and carried the muddemal in the Crime to the
Forensic Laboratory at Nashik. Non producing the warrant/
tickets for his travel itself will not be suffcient to discard his
16 Criappeal-957-2022.odt
testimony. He denied the suggestion of tampering with the
Articles.
25. The evidence of PW - 6 [Devendra Hemant Amrutkar],
who was having the business of selling cutting articles would
not be of much helped to the Prosecution. As it has come in his
evidence that, the Appellant inquired about the Sickle and he
informed him that, he will purchase the same in next [2] two to
[4] four days. No clear evidence is brought that, Article 5/2 -
Sickle was purchased from PW - 6 [Devendra Hemant
Amrutkar].
26. There is evidence of PW - 11 [Prashant Bhaskar
Chaudhary], who clicked photographs and video-graphs during
the course of investigation.
27. The Appellant examined the Nodal Offcer of Vodafone
Company, Pune as the Defence Witness [Aditya Pradeep
Nifadkar]. His evidence shows that, as per the norms and rules,
the call detail records are maintained for one [1] years only and
accordingly, he communicated to the Court. Nothing has come
in his evidence, which would be of any assistance to the
Appellant. This witness was not even referred during the
course of arguments.
28. By examining the injured eyewitness as PW - 1 [Sudhakar
Dagadu Londhe], the Prosecution established that, the
Appellant inficted serious injuries on the Deceased and caused
injury to him by use of Sickle. The evidence of eyewitness
remained unshaken in the cross-examination. The injury of PW
- 1 [Sudhakar Dagadu Londhe] is proved through the medical
evidence. The evidence of injured eyewitness stands on the
17 Criappeal-957-2022.odt
higher pedestral. His evidence in respect of assault over the
Deceased by the Appellant is corroborated by the medical
evidence. The medical evidence established that, the death was
due to the injuries on the dead body. The evidence of
eyewitness is fully corroborated by the medical evidence.
Though it has come in the evidence of PW - 4 [Bebibai Kautik
Nagrale], the mother of Deceased, that, on 28/05/2016 i.e. date
of incident, the Deceased had come to her house from the Clinic
at 11.00 p.m, in her cross-examination, suggestion is given that,
thereafter the Deceased left for her room with PW - 1
[Sudhakar Dagadu Londhe] on his motorcycle. At the same
time, she deposed of receiving the phone call around 11.30 p.m.
from PW - 1 [Sudhakar Dagadu Londhe] that, the Deceased
suffered blow and died and so, she went to the Deepak Hotel,
where she saw her daughter lying in dead condition. Therefore,
her evidence that, the Deceased came to her house at 11.00
p.m., will not lead to the inference that, thereafter Deceased did
not went with PW - 1 [Sudhakar Dagadu Londhe]. In view of
the other evidence on record, the variation in the evidence of
PW - 1 [Sudhakar Dagadu Londhe] and PW - 4 [Bebibai Kautik
Nagrale] that, he went to receive the Deceased and from there,
they went to the Hotel and Deceased had come to her house at
11.00 p.m., will not be fatal for the Prosecution. The weapon of
assault stained with human blood of 'A' group came to be seized
at the instance of the Appellant, which further corroborate the
testimony of the injured eyewitness. The clothes of Deceased
and injured eyewitness were found to be stained with blood.
There were number of injuries on the dead body which resulted
in death. As the Appellant was known to injured PW - 1
[Sudhakar Dagadu Londhe], there is no question of establishing
the identity of the assaulter. There is clear evidence on record
18 Criappeal-957-2022.odt
that, the place of incident was well illuminated. From the
concrete and unshaken evidence of the Prosecution, it is frmly
established that, the Appellant committed the Murder of
Deceased. In the case based on the testimony of eyewitness, the
motive has little signifcance. However, from the evidence of
PW - 2 [Balasaheb Onkar Ahire] and PW - 4 [Bebibai Kautik
Nagrale], the husband and mother, respectively of the Deceased
read with statement of the Appellant under Section 313[1][b]
of Cr.P.C., it is clear that, the Appellant was involved with the
Deceased.
29. It is submitted by the learned Advocate for the Appellant
that, alternatively, the case would fall under Exception - 1 of
Section 300 of I.P.C. He submits that, due to intimate relations
with the Deceased, the Appellant lost his control which was the
result of grave and sudden provocation on noticing the
Deceased and injured eyewitness together in the Hotel in late
hours, which led to the incident. In support of his submissions,
he cited the following Judgments :
[a] Nawaz Vs. State Rep. By Inspector of Police ; 2019 [3]
SCC 517 ;
[b] Kandaswamy Ramaraj Vs. The State By Inspector of
Police, CBCID, in Criminal Appeal No.259/2015 of the
Hon'ble Apex Court dated November 07, 2019 ;
[c] Dauvaram Nirmalkar Vs. State of Chhattisgarh ; 2022 AIR
[SC] 3620 ;
30. We have gone through the said Judgments. Coming to the
case on hand, the clear evidence of injured eyewitness PW - 1
[Sudhakar Dagadu Londhe] established that, the Appellant
came to the Hotel, took Deceased outside the Hotel and inficted
number of fatal blows on her with the Sickle and when he
19 Criappeal-957-2022.odt
intervened, he was also assaulted with Sickle. This evidence
shows that, the Appellant had come to the spot of incident with
preparation and premeditation. He brought Sickle with him.
The number of assaults on the Deceased clearly shows his
intention to eliminate her. There is no iota of evidence that,
either PW - 1 [Sudhakar Dagadu Londhe] or Deceased gave
sudden provocation to the Appellant. It is not the case that, the
assault was by any Article which was readily available on the
spot. On re-appreciation of the evidence available on record, as
discussed above, Prosecution successfully established the
Charge of Murder and causing voluntarily hurt by dangerous
weapon on the Informant [PW - 1] against the Appellant. From
the evidence available on record, the case do not fall within the
exceptions to Section 300 of I.P.C. In the facts and
circumstances of the case on hand, in our considered view, the
above referred Judgments are of no assistance to the Appellant.
No interference is called for in the impugned Judgment and
order of conviction recorded by the learned Trial Court for the
offence punishable under Sections 302 and 324 of I.P.C. Hence,
we proceed to pass the following order :
ORDER
[I] Criminal Appeal is dismissed.
[II] The Record and Proceedings be sent back to the learned
Trial Court.
[III] The fee of learned Advocate Mr. Rupesh Jaiswal
appointed for the Appellant is quantifed at Rs.12,000/-
[Rupees Twelve Thousand Only] to be paid by the High
Court Legal Services Sub - Committee, Aurangabad.
[NEERAJ P. DHOTE, J.] [R. G. AVACHAT, J.]
Sameer
Signed by: Md. Sameer Q.
Designation: PA To Honourable Judge
Date: 23/01/2025 14:55:35
