Bombay High Court
Rohidas Chagan Devkar And Another vs The State Of Maharashtra on 3 March, 2025
Author: R.G. Avachat
Bench: R.G. Avachat
2025:BHC-AUG:6779-DB
Cri.Appeal No.55/2024
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.55 OF 2024
1) Rohidas s/o Chagan Devkar,
Age 49 years, Occ. Agriculture,
R/o Lakh-Khandala, Tq. Vaijapur,
District Chhatrapati Sambhajinagar
2) Devidas s/o Chagan Devkar,
Age 45 years, Occ. Agriculture,
R/o Lakh-Khandala, Tq. Vaijapur,
Dist. Chhatrapati Sambhajinagar ...APPELLANTS
VERSUS
The State of Maharashtra
(Copy to be served on Public
Prosecutor, High Court of Bombay,
Bench at Aurangabad) ...RESPONDENT
.......
Mr. Rahul P. Mote, Advocate for appellants
Mrs. K.B. Patil Bharaswadkar, A.P.P. for respondent
.......
CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 30th January, 2025
Date of pronouncing judgment : 3rd March, 2025
J U D G M E N T (PER : R.G. AVACHAT, J.) :
The challenge in this appeal is to the judgment
and order of conviction and consequential sentence, dated
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06/12/2023, passed by the Court of Additional Sessions Judge,
Vaijapur, District Aurangabad in Special Case No.28/2020.
Vide impugned judgment and order, the appellants herein have
been convicted and consequently sentenced as detailed
below:
Appellants Sections Sentence of imprisonment
Appellants 302 r/w 34 Imprisonment for life and to pay
No.1 & 2 IPC fine of Rs.5000/- (Rupees five
thousand) each, in default, S.I. for
6 months.
Appellants 307 r/w 34 R.I. for 5 years and to pay fine of
No.1 & 2 IPC Rs.3000/- (Rupees three
thousand) each, in default S.I. for
4 months.
Appellants 449 r/w 34 R.I. for 3 years and to pay fine of
No.1 & 2 IPC Rs.2000/- (Rupees two thousand)
each, in default S.I. for 3 months.
Appellant 201 IPC R.I. for 1 year and to pay fine of
No.2 Rs.1000/- (Rupees one thousand),
in default, S.I. for 1 month.
All the substantive sentences have been directed to run
concurrently.
Along with these appellants, two more persons
were tried. One of them was for harbouring the appellants
when the other one for committing the offence along with the
appellants herein. Both of them have been acquitted. Neither
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the State nor the victim has preferred appeal against their
acquittal.
2. The facts in brief, giving rising to the present
appeal are as follows :-
The appellants are the real brothers. They would
reside at village Lakh-Khandala along with their family
members. Appellant Devidas has a grown-up daughter - "P"
(name withheld). P.W.1 Alkabai along with her husband
Balasaheb (P.W.2) and their two sons - Amol and Bhimraj
were residing in a house constructed by them on their land.
The houses of both, the informant and the appellants were
nearby of each other. Amol was a grown-up son of the
informant. About 4 days before the incident dated 14/3/2020,
Amol left the house under the pretext of going for work. He did
not return. The daughter of Devidas too went missing from the
very day. The appellant suspected her to have eloped with
Amol. They along with two others had, therefore been to the
house of the informant and threatened them with dire
consequences, if their daughter did not return safe
immediately.
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3. By little past 8.00 p.m. on 14 March, both Alkabai
and Balasaheb were sitting on the Otla of their house after
their dinner was over. Their son Bhimraj (deceased) was
sleeping in the house. Both the appellants came to their
house, armed with sharp weapons. They first mounted attack
on Balasaheb. Alkabai intervened to save her husband. She
too was not spared. Both Alkabai and Balasaheb started
running with a fear. They reached the house of Dadasaheb,
brother of Balasaheb. Both had suffered multiple injuries.
While running away, they heard the screams of Bhimraj. Due
to fear, they did not return to save Bhimraj. Dadasaheb rushed
Alkabai and Balasaheb to Ghati Hospital, Aurangabad in a
mini-tempo. On the following morning, after having verified
Alkabai to have been conscious, police recorded her
statement-cum-F.I.R. Within hours of the assault on both of
them, it was realised that, Bhimraj was done to death with
sharp weapon/s. Mortal remains of Bhimraj was rushed to the
hospital. It was subjected to inquest and autopsy.
4. The crime was investigated. The crime scene
panchanama was drawn. Blood spots were collected from
crime scene. The appellants were arrested. The appellant
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Devidas made a disclosure statement, pursuant to which a
sickle came to be recovered besides a motorbike, ash of burnt
clothes etc. The clothes on the person of deceased/ injured
and the appellants were seized. The seized articles were
forwarded to Forensic Science Laboratory (FSL). Statements
of persons acquainted with the facts and circumstances of the
case were recorded. On completion of the investigation, the
charge sheet was filed.
5. The Trial Court framed the Charge (Exh.33).
appellants pleaded not guilty. Their defence was of false
implication. According to them, Balasaheb had money with
him, received on sale of agricultural produce. Thieves entered
their house and committed robbery.
6. To bring home the charge, the prosecution
examined 18 witnesses and produced in evidence certain
documents. On appreciation of the evidence on record, the
Trial Court passed the order impugned herein.
7. Heard. The learned Advocate for the appellants
would submit that, there was delay in lodging of the F.I.R.
Dadasaheb, who was instrumental in lodging of the F.I.R., has
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not been examined. Both the injured gave evidence
inconsistent with each other. Their multiple statements were
recorded. In each statement, they changed the kinds of
weapons with which they were allegedly assaulted. According
to them, both of them suffered Contused Lacerated Wounds
(C.L.Ws.), which could only be caused with hard and blunt
object. As such, the medical evidence is inconsistent with the
eye witness account. It rules out the assault with sharp
weapons. No person from the nearby has been examined.
Panch witnesses were the relative of the informant. There is
nothing to indicate the appellants and others had threatened
the informant and her family members a few days before the
fateful night. P.W.2 Balasaheb had a low vision. It was dark in
the night. The time of incident has been changed with the spot
as well. P.W.2 Balasaheb testified that, he was assaulted
while he was returning after urinating. There was a fencing to
the house of the injured. Height thereof was such that nothing
happened on the other side was visible from the front yard of
the house of the informant.
8. The learned Advocate would further submit that,
P.W.1 Alkabai stated that, at the time of the incident, daughter
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of Devidas was in her house. As such, there was no motive for
the incident. Dadasaheb has not been examined. It was he
who discussed with the appellants on behalf of P.W.1 Alkabai.
He would further submit that, the earlier incident of
extending threats has not been proved. No report in that
regard was lodged. Both P.W.1 and P.W.2 had never
discussed about the relationship of Amol with "P", daughter of
Devidas. He would further submit that, had the assailants
relieved the injured, they could have described the weapons in
their hands correctly. The attack was sudden. It was made
from behind. The possibility of quarrel preceding the assault is
thus ruled out. The endorsement of the doctor, on Page 203
was adverted to. The endorsement lost its efficacy. The
doctor, without examining P.W.1 Alkabai, gave the
endorsement. The one who recorded the statement, has not
been examined. P.W.3 Shrikant did not depose as to kind of
weapon was stated by the accused Devidas during disclosure
statement. The police officer had already disclosed to P.W.3
where they were supposed to go and reason therefor. As
such, this witness had a prior knowledge. The recovery of
weapon thus loses its efficacy. The disclosure statement
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would, therefore, not be relevant under section 27 of the
Evidence Act. The photos of the weapon were not placed on
record. Then he brought to our notice the timing of the
disclosure statement and recovery pursuant thereto. He would
further submit that, one Gaurav Tribhuvan, whose name
appears on seizure panchanama, has also not been examined.
The timing of seizure of clothes is contrary.
9. The learned Advocate also relied on the following
set of authorities :-
(1) Subhan Usman Shaikh & ors. Vs. State of Maharashtra
2022 (4) Mh.L.J. (Cri.) 33
(2) Shahbuddin Abdul Khalik Shaikh Vs. State of Gujarat
(Criminal Appeal No.242/1994, decided on 5/4/1995)
(3) Durbal Vs. State of U.P.
(Criminal Appeal No.1398/2008, decided on 25/1/2011)
(4) Jandel Singh Vs. State of M.P. (Criminal Appeal no.1690-
1691/1996, decided on 8/5/2003)
(5) Komal s/o Babusingh & ors. Vs. State of Maharashtra
2022 (3) Mh.L.J. (Cri.) 292
(6) Anil Phukan Vs. State of Asam
1993 AIR (SC) 1462
(7) Baliter & anr. Vs. State of U.P.
2022 (6) ALJ 739
(8) Mahendra s/o Tularam Dehmukh Vs. State of
Maharashtra (Criminal Appeal No.519/2012, decided
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on 19/7/2013)
(9) Shahaja @ Shahajan Ismail Mohd. Shaikh Vs. State
of Maharashtra (Criminal Appeal No.739/2017, decided
on 14/7/2022)
(10) Adina & ors. Vs. The State of Maharashtra & ors.
(Criminal Appeal No.12/2022, decided on 29/7/2024
(11) Vithal & ors. Vs. State of Maharashtra (Criminal Appeal
No.550/1984, decided on 3/8/1995)
10. We have perused all the authorities. It needs no
mention that, each case is required to be decided on the facts
and circumstances thereof and the evidence adduced. Law
precedent can hardly be of any assistance to decide the
criminal case except when the Court interprets any provision of
law such as Section 27 of the Evidence Act or alike. While
appreciating the evidence in the case, the authorities relied on
mind.
11. The learned A.P.P. would, on the other hand,
submit it to be an open and shut case. He would submit that,
the injured were rustic and illiterate. Although the incident took
place somewhat late in the evening, the appellants were the
neighbours of the injured. A person acquainted with the injured
could even be identified by appearance. The appellants had
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assaulted from very close range. The injured had, therefore,
no difficulty in identifying them. The appellant had a strong
motive. The case is based on eye witness account of the
injured. Their evidence carries greater weight. Pursuant to the
disclosure statement, a sickle used in the commission of crime
was seized. The offence was nothing short of a honour killing.
The learned A.P.P. reiterated the reasons given by the Trial
Court in support of the order of conviction. She, therefore,
urged for dismissal of the appeal.
12. Let us advert to the evidence on record and
appreciate the same. P.W.9 Dr. Ashish was the Medical Officer
on duty at Sub-District Hospital, Vaijapur on 15/3/2020. He
conducted autopsy on the mortal remains of Bhimraj during
9.30 a.m. to 10.30 a.m. He noticed following injuries on the
person of Bhimraj :-
(i) Incised wound extending from lower margin of eye up to
the base of nose with almost complete cut of nostril
irregular with lane of 8 cm. and maximum width 4 cm. in
middle.
(ii) Incised wound below cricoid cartilage extending from
sterno cleidmastoid muscle to another irregular with
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length 11 cm. and width maximum 3 cm. midline with cut
major vessels and trachea cut seen.
(iii) Stab wound over right side chest extending from nipple
towards midline obliquely with length 8 cm. and width
maximum 3 cm. with lungs protrading from it.
(iv) Stab wound two over left arm anterolaterally and
posteriorly approximate 4 x 2 cm. in dimension.
(v) Stab wound over left side lower axillary region
approximate 3x2 cm.
(vi) Stab wound over left side of back laterally approximate
3x2 cm.
(vii) Stab wound over back and neck midline approximate
3x2 cm. obliquely directed.
13. P.W.9 Dr. Ashish issued post mortem report
(Exh.83). In his opinion, cause of death of Bhimraj is "Injury to
trachea and major vessels of neck due to incised wound over
neck and stab wound over right side chest with other multiple
incised wounds as mentioned.
14. During his cross-examination, he testified to have
perused inquest panchanama before conducting autopsy.
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According to him, in the inquest panchanama, injury to left
hand of the deceased and on his back were not noted.
According to him, normal incised wound is caused due to
sharp cutting edged weapon. He denied that incised wound
was not possible due to sickle like object or a hook. He
testified the injuries on the person of the deceased were very
serious. Those were caused with full force. He admitted that
he should have mentioned the width of the weapon used. He
was unable to give characteristics of injuries in gaping shape.
According to him, there are two types of incised wounds -
spindle shape and gaping shape. He did not notice any
dragging injury on the dead body.
15. The learned Advocate for the appellant would
submit that, the Medical officer did not testify that the injuries
were sufficient to cause death in ordinary course of nature. In
our view, the nature of injuries suffered by the deceased
suggest the intention of the assailant was to do away with him
(Bhimraj).
16. P.W.13 Dr. Arti examined P.W.1 Alkabai and P.W.2
Balasaheb and noticed following injuries :-
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P.W.1 Alkabai:-
(i) CLW on left parietal region size 2x1x1 cm. margin sharp
clean reddish. Age of injuries were 2 to 3 hours, caused
by sharp and heavy weapon.
(ii) CLW left vertex region of head size 12x3x2 cm. Margin
sharp deep reddish, age of injuries within 2 to 3 hours,
caused by sharp and heavy weapon.
(iii) CLW left palm measuring 10x4x3 cm. margin sharp deep
reddish, age of injury within 2 to 3 hours, probable
weapon sharp and heavy.
(iv) CLW over nose size 2x1x1 cm. sharp, deep and reddish,
age of injury within 2 to 3 hours. Probable weapons harp
and heavy. Nature of injury opinion reserved. Patient
advised CT brain plain surgery opinion, ortho opinion, so
patient referred to GMC Hospital, Aurangabad for further
management, nature of injury can be given on the basis
of investigation.
P.W.2 Balasaheb :-
(i) CLW over left forehead size 6x2x1 cm. oblique, age of
injury within 2 to 3 hour, caused by sharp and heavy
weapon.
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(ii) CLW suprapubic region size 2x2x2 cm. horizontal within
2 to 3 hours, caused by sharp and heavy weapon.
(iii) CLW over left chest size 4x2x2 cm. horizontal within 2 to
3 hours, caused by sharp and heavy weapon.
(iv) CLW over left hand, size 15x10x3 cm. horizontal within 2
to 3 hours, caused by sharp and heavy weapon.
(v) CLW over right buttock size 2x2x1 cm. horizontal within 2
to 3 hours, caused by sharp and heavy weapon.
(vi) CLW left axilla, size 5x3x2 cm. oblique within 2 to 3
hours, caused by sharp and heavy weapon. Patient
advised CT brain (plain), surgery opinion and ortho
opinion so patient referred to GMCH Aurangabad for
further management. Opinion as to nature of ionjury
reserved till arrival of investigation report.
She referred to the injury certificates (Exhs.94, 95
and 96, 97 respectively.
17. During cross-examination, she testified that the
final opinion was given on the basis of discharge card issued
by Ghati Hospital, Aurangabad. It is a Government Hospital.
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The discharge card is issued in the official course of business
and there is no reason for us to disbelieve the same.
18. The crime scene panchanama (Exh.56) indicate it
to be a residential house of P.W.1 Alkabai and P.W.2
Balasaheb. As such, the fact that the incident took place by
9.00 p.m. on 15/3/2020 in front of and in the house of these
two witnesses is the fact duly established.
19. The question is, whether the appellants are the
authors of the crime. Although number of witnesses have
been examined, the fate of this appeal is dependent on the
evidence of two injured eye witnesses. If their evidence is
found to be cogent, reliable and fit to act upon, the appeal is
bound to fail. We even need not advert to the other evidence
on record which has even no much relevance.
20. P.W.1 Alkabai testified that, she would reside along
with her husband (P.W.2 Balasaheb), elder son Amol and
Bhimraj (deceased) at Lakh-Khandala. Her house was on their
agricultural land. The front yard of the house has a fencing of
a human height. In the neighbourhood, there are agricultural
lands and houses of others. The appellants (brothers inter-se)
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would reside in their neighbourhood along with their family. On
the way to their house, there is house of appellants. It is at a
distance of half a Km. There is no other way between the two
houses. She rear goats. Goats are tied in the house. Field of
Punjaram was towards west of her residence. Kum. "P" was
daughter of one of the appellants. She further testified that, a
few days before the incident, both the appellants and Sagar
(son of Devidas, since acquitted) had come to their house.
They told her that Amol eloped "P". They were told that, Amol
was out for work. They threatened them that if their daughter
did not return home, they (P.W.1 and P.W.2 and their family
members) would not be spared.
21. P.W.1 Alkabai further testified that, it was little past
8.30 p.m. of 24/3/2020. After taking dinner, she along with her
husband (P.W.2 Balasaheb) was sitting at the entrance of her
residence. Bhimraj was sleeping in the house. Both the
appellants arrived. They were armed with weapons - sickle
and sword. Both of them started assaulting Balasaheb and her
as well. Both assaulted them indiscriminately. They, therefore,
started running away to save their lives. They went to the
house of Dadasaheb (brother-in-law of P.W.1). Dadasaheb
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had his residence at a short distance. They told Dadasaheb
the incidence. He immediately brought them to Primary Health
Centre, Vaijapur. On the following day, police arrived and
recorded her statement-cum-F.I.R. (Exh.47).
22. She further testified that, before the incident, her
family did not have any quarrel or dispute with the appellants.
Their relations with the appellants were cordial. After taking
meal, she along with her husband had come out of the house
for a brief walk. Her son Amol was studied up to 12 th Standard.
The appellants were on talking terms with Amol. He even used
to go for work with them. Amol left the house 4-5 days prior to
the incident. He informed that, he was going for work. He did
not return. A missing person's report was lodged. They even
made enquiry with the appellants. They, however, did not
make enquiry of "P". They even did not suspect that Amol and
"P" eloped together. According to her, "P" was in the house by
the time of the incident.
23. She further testified that, the incident took place
when she and her husband were outside the fencing. Both of
them were together until lasting of the incident. Her husband
was attacked while he was on way back after relieving himself
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(urination). She admitted that, in her subsequent statement
she stated different weapon in the hands of the appellants.
She, however, clarified that, she was mentally disturbed. She
denied the suggestion that due to darkness, she could not
visualize who were the assailants and what kind of weapons
they were armed with. On first assault, her husband fell on the
ground. While she was proceeding towards her husband, she
was attacked from behind. She too collapsed. Without
thinking anything, both of them started running to save
themselves. Bhimraj was in the house. She even did not
remember who took her to the hospital. She claimed to have
been unconscious in the hospital. She, however, testified that,
in the hospital at Vaijapur, she was semi-conscious.
Dadasaheb (brother-in-law) discussed with the police on her
behalf. She denied that no such incident did take place.
24. P.W.1 Alkabai was subjected to a searching cross-
examination. It has been brought on record that, there is a
shed outside her house. The front yard has a fencing. No
other person would reside along with them except they four.
Dadasaheb was the only brother of her husband. Her father-
in-law would reside with him. Her field was separate from the
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field of Dadasaheb. At the time of the incident, there was
cotton crop in her field.
25. P.W.2 Balasaheb testified describing topography of
his residence and surrounding area. The said evidence is
consistent with the evidence of P.W.1 Alkabai. He went on to
state that, his son Amol left the house under the pretext of
work. He did not return. Thereafter, daughter of Devidas left
the house. It so happened 4 days prior to the incident, the
appellant suspected that she eloped with the Amol. On 12
March, the appellants along with Sagar had come to their
residence. They abused and threatened to kill them, if the
daughter did not return on the next day. He went to Vaijapur
Police Station on the following day and lodged missing
person's report.
26. P.W.2 Balasaheb further testified that, by 9.00 p.m.
on 14 March, both the appellants came armed with sickle and
sword. He along with his wife (P.W.1 Alkabai) were outside of
their house. They first attacked him. His wife Alkabai too was
not spared. Both of them, therefore, started running to save
their lives. They went to the house of his brother Dadasaheb.
They disclosed him the incident. Due to fright, he did not
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return to his residence. His relations brought them to the
hospital at Vaijapur in a small vehicle. The police recorded his
statement. He was thereafter shifted to Ghati Hospital,
Aurangabad.
27. He too was subjected to a searching cross-
examination. It was suggested to him, maize crop in his field
was harvested about 15-20 days before the incident. He
stated to have had sold his goats to one Akhil for Rs.28,000/-.
The defence meant to say that he was having hefty amount
with him. It was the case of the appellants that robbers/
thieves had come to Balasaheb's residence. They assaulted
them and robbed of money. The injured did not buy this
theory. According to him, he did not discuss about Amol and
"P" with anybody else. He did not lodge the report with police
about the alleged incident of the appellants and Sagar visiting
his house and extending threats. He explained that, since no
incident (fight) had taken place and hence, no report was
lodged. He was confronted with his statement under Section
164 of the Cr.P.C. and particularly the matter portion marked
"A" therein, which reads that, he has lodged missing person's
report on the day of the incident (about Amol). We do not find
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this contradiction to be material one to disbelieve the evidence
of P.W.2 Balasaheb. According to him, the said report was
written by Vishwas Bagul. Be that as it may. The fact remains
that he had been to the police station to report that his son
Amol left the house and did not return.
28. It has also been brought on record through his
cross-examination that, he had low vision. He, however, flatly
denied to have not seen the appellants/ assailants. He
admitted to have stated different weapon in his different
statements. He clarified that, his mental condition was not
normal and therefore, such thing happened. He denied that,
attack on him was, while he was returning after urination. It
was a sudden attack on him. According to him, there were
repeated attacks. He had fallen down 3-4 times before he
reached his brother's house running. According to him, his
condition was fluctuating while he was in Ghati Hospital. He
did not remember when the police repeatedly visited the
hospital to enquire about the progress of his health. He did not
remember the police and doctor to have had come together.
He flatly denied that he was unable to speak in Ghati Hospital.
He was confronted with his police statement, to bring on record
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that, after assaulting him, both the appellants entered his
house. The word "entered" is only missing from the statement.
It has been brought on record that his statement to police is
silent to record that he heard cries of his son.
29. P.W.3 Shrikant is a witness to multiple
panchanamas. First one is a disclosure statement made by
appellant Devidas (Exh.55). He then taking the police and the
panch first to the house of the injured. There the crime scene
panchanama was drawn (Exh.56). Then he took to the field
and took out a sickle from the bushes on the embankment of a
field. Then he took to another place wherefrom an ash of burnt
cloth was seized (panchanama Exh.57).
30. We do not propose to give much importance to the
evidence of this witness and, therefore, the judgment of the
Apex Court relied on in respect of recovery under Section 27 of
the Evidence Act is not referred to in extenso.
31. The fact that the crime scene panchanama was
drawn immediately on the following morning is evident from the
testimony of P.W.4 (investigating officer). There was blood all
over in the room. Bed sheet was blood stained. The learned
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Advocate brought to our notice the variance in the timing of the
panchanamas. He also submitted that, one Gaurav Tribhuvan,
whose name appears in the panchanama (Exh.51) was not
examined.
32. P.W.5 Laxman is a witness to the panchanama
relating to seizure of clothes of injured (P.W.1 and P.W.2). It is
at Exh.64. This witness is a real brother of P.W.1 Alkabai.
33. We do not propose to advert to the other evidence
on record. The injuries on the person of P.W.1 and P.W.2 have
been duly proved. Both of them were the injured eye
witnesses. They are uneducated and rustic as well. On the
same night, their son Bhimraj was killed in the house. The
evidence of both the injured witnesses lead us to infer that
their son Amol was in emotional relationship with daughter of
one of the appellants. The injured belong to Scheduled Caste.
The appellants were necessarily opposed to the relationship.
Although no police report of the incident dated 12 March was
lodged, we find no reason to disbelieve the testimony of both
the injured witnesses that, on the given day the appellants
accompanied by Sagar (since acquitted) had visited their
house and extended threats.
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34. The record indicates that, the incident had not been
witnessed by any other person. It was little past 9.00 in the
evening. Both P.W.1 and P.W.2 being rustic and illiterate,
testified somewhat inconsistent with each other.
Inconsistencies are as to the actual spot whereat the
appellants mounted attack on them. Although it was
somewhat late in the evening, the appellants were known
person to the injured victims. They had assaulted them from
very close range. Even if we assume that there was
somewhat dark, it is not difficult to identify a known person. It
is true that, there is no direct evidence as regards assault on
Bhimraj. We have, however, to infer that, after mounting
assault on P.W.1 and P.W.2, the appellants entered the house
and killed Bhimraj (an innocent boy). The injuries on his
person indicate the appellants had intended to do away him.
Their target might be Amol and therefore, the appellants
appear to have not continued assault on P.W.1 and P.W.2.
True, the injuries on the person of P.W.1 Alkabai and P.W.2
Balasaheb are in the nature of C.L.Ws., which could be caused
by hard and blunt object. They being rustic, were unable to
describe the nature of weapon, whether sharp or hard and
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sharp. The attack on Bhimraj took place immediately after
P.W.1 and P.W.2 were assaulted. Injuries on his person
indicate he suffered injuries with sharp edged weapon.
Although according to the prosecution, one third person was
accompanying them (Sagar), the evidence of both these
witnesses (P.W.1 and P.W.2) indicate that the assailants were
the appellants and none else. Their previous statements were
not referred to, to bring on record omissions amounting to
material contradictions.
35. The F.I.R. was lodged within hours of the incident.
To be specific, it was lodged by 4.00 a.m. The informant's
brother-in-law had accompanied the informant. One can
understand what kind of mental state the informant and her
husband had while the incident took place and little thereafter,
more so when they learnt about their young son to have been
done to death. True, P.W.1 Alkabai's brother-in-law Dadasaheb
had accompanied her to the Police Station. His thumb
impression is on the F.I.R. He put his thumb impression in
proof of the F.I.R. to have been recorded in his presence. He
has not been examined. Although P.W.1 Alkabai testified that
Dadasaheb interacted with police on her behalf, her
:: 26 ::
examination-in-chief goes a long way to infer that she narrated
the incident. We have to believe the same, since Dadasaheb
was not around while the incident took place. His non-
examination is not found to be fatal. At the cost of repetition, it
is observed that, P.W.1 Alkabai and P.W.2 Balasaheb are the
injured eye witnesses. The appellants had a strong motive to
assault them. No sooner they were assaulted, their son
Bhimraj was killed in a very short while. We have, therefore, to
infer that the killers of Bhimraj were none other than the
appellants. We find the evidence on record to have
established the appellants to have first made a bid on the life
of P.W.1 Alkabai and P.W.2 Balasaheb and then killed Bhimraj.
The Trial Court has rightly appreciated the evidence on record
and convicted the appellants. We find no reason to interfere
with the impugned order. The appeal sans merit. The appeal
is, therefore, dismissed.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.)
fmp/-
