Mahendra Rajwade vs State Of Chhattisgarh
2022 Latest Caselaw 5966 Chatt

                                                                   Cr.A.Nos.920/2015 & 340/2015

                                         Page 1 of 28

                                                                                            AFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                           Criminal Appeal No.920 of 2015

{Arising out of judgment dated 19-2-2015 in Sessions Trial No.70/2014 of
                    the Sessions Judge, Baikunthpur}

                          Judgment reserved on: 17-8-2022

                          Judgment delivered on: 23-9-2022

Mahendra Rajwade, S/o Ranjit Rajwade, aged about 39 years, R/o
Village Mahuwapara, Charcha, Police Station Charcha, District Koria
(C.G.)
                                                            (In Jail)
                                                     ---- Appellant

                                                Versus

State of Chhattisgarh, Through Station House Officer, Police Station
Charcha, District Koria (C.G.)
                                                     ---- Respondent

                                              AND

                           Criminal Appeal No.340 of 2015

Dhansai @ Giri, S/o Jagmohan Rajwade, aged about 41 years, R/o
Village Mahuapara, Churcha, Police Station Churcha, District Koriya
(C.G.)
                                                            (In Jail)
                                                     ---- Appellant

                                                Versus

State of Chhattisgarh, through the Station House Officer, Police Station
Churcha, District Koriya (C.G.)
                                                        ---- Respondent

--------------------------------------------------------------------------------------------------
For Appellant in Cr.A.No.920/2015: Mr. Jeet Patel, Advocate.
For Appellant in Cr.A.No.340/2015: Mr. D.N. Prajapati, Advocate.
For State / Respondent:                        Mr. Sudeep Verma, Dy. Govt. Adv.
--------------------------------------------------------------------------------------------------

                         Hon'ble Shri Sanjay K. Agrawal and
                        Hon'ble Shri Sachin Singh Rajput, JJ.

C.A.V. Judgment Cr.A.Nos.920/2015 & 340/2015

Sanjay K. Agrawal, J.

1. Since both the above criminal appeals have arisen out of one and

same judgment dated 19-2-2015 passed by the learned Sessions

Judge, Baikunthpur in Sessions Trial No.70/2014 and since

common question of fact and law is involved in both the appeals,

they have been clubbed together, heard together and are being

disposed of by this common judgment.

2. These two criminal appeals have been preferred by the accused /

appellants under Section 374(2) of the CrPC against the impugned

judgment convicting them for the offences punishable under

Sections 302 & 120B of the IPC and sentencing them to undergo

imprisonment for life with fine of ₹ 1,000/- each, in default, to further

undergo rigorous imprisonment for two years on both counts.

3. Appellant in Cr.A.No.920/2015 namely, Mahendra Rajwade (A-1)

and appellant in Cr.A.No.340/2015 namely, Dhansai @ Giri (A-2)

have assailed their conviction for offences under Sections 302 &

120B of the IPC by way of these appeals.

4. The two appellants were charged by the trial Court for offences

under Sections 302, 201, 506 Part-II & 120B read with Section 34

of the IPC and by the impugned judgment, they have been

convicted only for offences under Sections 302 & 120B of the IPC

and for rest of the offences including that of Sections 201 & 506

Part-II read with Section 34 of the IPC, they have been acquitted.

5. Case of the prosecution, in brief, is that on 27-3-2014 at about late

night (11.30 p.m.), Mahendra Rajwade (A-1) and Dhansai @ Giri

(A-2) strangulated the wife of Mahendra Rajwade (A-1) namely, Cr.A.Nos.920/2015 & 340/2015

Namita Rajwade with help of a nylon rope which was witnessed by

his daughter Kum. Sneha Rajwade (PW-1), thereafter, she has

informed the same to her maternal grand-father & maternal grand-

mother and also to her aunt (mausi) and thereafter, the wheels of

investigation started running. It is the further case of the

prosecution that on 27-3-2014, appellant Mahendra Rajwade along

with his wife after taking dinner had gone for sleep and in the late

night, Kum. Sneha Rajwade (PW-1) heard the cry of her mother

Namita Rajwade, then she went inside the room of her mother as

the door was open on which she saw that with help of a nylon rope,

the two appellants (A-1 & A-2) were stretching the rope tightened

on the neck of her mother Namita Rajwade, whereupon she

requested them from not doing the illegal act against which her

father threatened her and asked her to go outside, thereafter, she

went outside of her mother's room. In the morning, she saw that

her mother's dead body was found hanging in the first floor then

she informed the incident to her maternal grand-father and maternal

grand-mother and also to her aunt (mausi). Kum. Sneha Rajwade

(PW-1) got registered the first information report vide Ex.P-1. Spot

map was prepared vide Ex.P-2 and thereafter, inquest was

conducted vide Ex.P-4 and the dead body of the deceased was

sent for postmortem examination. Postmortem was conducted vide

Ex.P-10 by Dr. Yogendra Chauhan (PW-6) and cause of death was

reported to be asphyxia due to strangulation and nature of death

was homicidal. Memorandum statement of accused Mahendra

Rajwade was recorded vide Ex.P-14 pursuant to which broken Cr.A.Nos.920/2015 & 340/2015

bangles and ear tops of the deceased were recovered from his

possession vide Ex.P-15 and same was proved by Hitesh Kumar

Rajwade (PW-8). Statements of the witnesses were recorded

under Section 161 of the CrPC. Thereafter, after usual

investigation, the appellants were charge-sheeted for offences

under Sections 302, 201, 506 Part-II and 120B read with Section 34

of the IPC.

6. In order to bring home the offence, the prosecution has examined

as many as 13 witnesses and brought on record 27 documents

Exs.P-1 to P-27. The defence has examined none, but exhibited

one document Ex.D-1 i.e. the statement of Kum. Sneha Rajwade

(PW-1) recorded under Section 161 of the CrPC.

7. The trial Court after appreciating oral and documentary evidence,

convicted and sentenced the appellants under Sections 302 & 120B

of the IPC in the manner mentioned in the opening paragraph of

this judgment against which these appeals have been preferred and

acquitted them of the charge under Sections 201 & 506 Part-II read

with Section 34 of the IPC.

8. Mr. Jeet Patel, learned counsel appearing for appellant Mahendra

Rajwade in Cr.A.No.920/2015, would submit that Kum. Sneha

Rajwade (PW-1) is the daughter of appellant Mahendra Rajwade &

deceased Namita Rajwade and out of love and affection towards

her mother, she has made false statement against the appellant

which cannot be relied upon, in fact, she has not witnessed the

incident and therefore her statement is not reliable and it does not

inspire confidence. He would further submit that motive of the Cr.A.Nos.920/2015 & 340/2015

offence that the appellant used to suspect his wife for having illicit

relationship with the son of local MLA is also not proved. He would

also submit that seizure of ear tops and broken bangles of the

deceased would not connect the appellant with the offence in

question. Therefore, the appellant deserves to be acquitted by

setting aside the impugned judgment and his appeal be allowed.

9. Mr. D.N. Prajapati, learned counsel appearing for appellant Dhansai

@ Giri in Cr.A.No.340/2015, would submit that appellant Dhansai

@ Giri is stranger to the family of Mahendra Rajwade and he did

not visit the house of Mahendra Rajwade on the fateful day. He

would further submit that Kum. Sneha Rajwade (PW-1) is relative

witness and her statement has to be scrutinized with great care and

caution and it would be unsafe to convict the present appellant

under Section 302 of the IPC on the basis of her statement,

particularly when offence under Section 34 of the IPC has not been

found proved by the learned trial Court. He would also submit that

except the so-called testimony of eyewitness Kum. Sneha Rajwade

(PW-1), there is no other piece of evidence like memorandum &

seizure of any article from the possession of appellant Dhansai @

Giri and there is no evidence of criminal conspiracy against

appellant Dhansai. He would further submit that even looking to

the nature of injury which the deceased has received, it would be

inappropriate to hold that appellant Dhansai was party to the crime

in question and there is no evidence that after the doors of the

house were closed by appellant Mahendra Rajwade & deceased

Namita Rajwade on the fateful night, the doors were opened and Cr.A.Nos.920/2015 & 340/2015

appellant Dhansai was seen along with appellant Mahendra

Rajwade and after conspiring with Mahendra Rajwade, he has

strangulated the deceased. As such, the impugned judgment

deserves to be set aside and appellant Dhansai @ Giri deserves to

be acquitted.

10. Per contra, Mr. Sudeep Verma, learned Deputy Government

Advocate appearing for the State / respondent, would submit that

eyewitness Kum. Sneha Rajwade (PW-1) has clearly stated the

presence of two appellants and that she has seen the two

appellants strangulating the deceased in the mid night and in cross-

examination, she has maintained her version that she has seen the

incident by which the appellants have strangulated deceased

Namita Rajwade and death of the deceased was also found to be

homicidal in nature, it is not the case of suicidal death. Against

appellant Mahendra Rajwade, motive is established, as Mahendra

Rajwade used to suspect the character of his wife i.e. the deceased

alleging her to be in relationship with son of the local MLA namely,

Vijay Rajwade and further, medical evidence also supports the

case of the prosecution, as the sign of struggle has been noticed

over the body of the deceased. Furthermore, pursuant to the

memorandum statement of appellant Mahendra Rajwade (A-1),

broken bangles and ear tops have been seized from the

possession of appellant Mahendra Rajwade (A-1) at the place

indicated by him and as such, it is a case where both the appeals

deserve to be dismissed.

11. We have heard learned counsel for the parties and considered their Cr.A.Nos.920/2015 & 340/2015

rival submissions made herein-above and also went through the

record with utmost circumspection.

12. The first question for consideration is whether, the trial Court is

justified in holding that death of deceased Namita Rajwade was

homicidal in nature?

13. The trial Court has answered this question in affirmative holding

that death of the deceased was homicidal in nature taking into

account the statement of Dr. Yogendra Chauhan (PW-6) and

further taking into account the postmortem report Ex.P-10.

14. In order to judge the correctness of the said finding it would be

appropriate to notice the statement of Dr. Yogendra Chauhan (PW-

6) who has noticed injuries over the body of the deceased which

state as under: -

3& xys esa fyxspj ekdZ mifLFkr FksA ;g fu'kku e`R;q iwoZ ds FksA xys esa nks fyxspj ekdZ FksA igyk %& xys ds mijh fgLls esa mij dh fn'kk dh vksj ekStwn Fks tks xys ds lkeus fgLls ls ysdj ihNs ds fgLls rd x;s Fks vkSj ck,a Mastoid Process rd ekStwn FksA fyxspj ekdZ lw[kk] dM+k ,oa yky ,oa Hkwjs jax dk FkkA fyxspj ekdZ esa Parehmentised mifLFkr FkkA fyxspj ekdZ dh yEckbZ 7-5 bZap vkSj pkSM+kbZ 0-5 ls-eh- Fkk bl ekdZ dh nkfgus rjQ dh pkSM+kbZ 01 ls-eh- FkhA nwljk %& xys ds Fkk;jk;M dkfVZyst Lrj ij ekStwn Fkk tks Transverse Direction esa FkkA ftldh yEckbZ 05 bZap ,oa pkSM+kbZ 0-5 ls-eh- FkkA

4& e`frdk ds 'kjhj ij dbZ pksaVs ik;h xbZ Fkh ftldk fooj.k fuEukuqlkj gS%&

A- psgjs ds ck,a Hkkx esa 06 daV~;wtu FksA igyk& psgjs ds ck,a Hkkx tk;xksesfVd jhtu ij 01 ls-eh- yEck ,oa 01 ls- eh- pkSM+kA nwljk & ukd ds ck,a rjQ 0-5 ls-eh- yEck ,oa 0-5 ls-eh- pkSM+kA rhljk & ck,a Hkkx ds gksB ds mijh fgLls ij 01 ls-eh- yEck ,oa 01 ls-eh- pkSM+kA pkSFkk & ck,a Hkkx gksaB ds uhpys fgLls esa 03 ls-eh- yEck ,oa 0-5 ls-eh- pkSM+kA iakpok & psgjs ds ck,a rjQ uhps fgLls esa 02 ls-eh- yEck ,oa 01 ls-eh-

Cr.A.Nos.920/2015 & 340/2015

pkSM+kA NBk& BqM~Mh ds ck,a fgLls ij 1-5 ls-eh- yEck ,oa 01 ls-eh- pkSM+kA

B- fyxspj ekdZ ds mij nkfgus Hkkx esa nks ,Scsztu ¼[kjksap½ FkkA igyk& nkfgus Hkkx esa esafMcy ds uhps rhu pksaV Fkh tks Øe'k% 1-5x1 ls-eh-] 1-5x0-5 ls-eh-] 1x1 ls-eh- FkkA nwljk& Fkk;jk;M dkfVZyst ds 02 ls-eh- mij tks 2-5 x2 ls-eh- FkkA

C- fyxspj ekdZ ds uhps fgLls esa 03 daV~;w'ku FksA igyk& fyxspj ekdZ ds lkeus Hkkx ij 02 ls-eh- uhps nkfgus rjQ 2x1-5 ls-eh- FkkA nwljk & igys pksV ds cxy esa fLFkr Fkk tks 2x2 ls-eh- FkkA rhljk & fyxspj ekdZ ds lkeus Hkkx ij 04 ls-eh- uhps ck,a Hkkx ij tks 3x1 ls-eh- FkkA

D- daV~;w'ku Juglar fossa ij 1x1 ls-eh- FkkA E- ck,a Clavicle gM~Mh ds ikl 2x2 ls-eh- FkkA F- [kjksap& nkfgus da/ks fiNys fgLls ij 6x3 ls-eh- FkkA G- [kjksap& ck,a da/ks ds fiNys fgLls ij 3x3 ls-eh- FkkA H- ihB esa daV~;w'ku LdSiwyj jhtu ds chp esa frjNk tks 21x2 ls-eh- FkkA I- [kjksap& nk,a [kqVus ds ckgj rjQ 2-5x2-5 ls-eh- FkkA J- [kjksap& nk,a [kqVus ds vanj dh vksj 1x1 ls-eh- FkkA K- [kjksap& ck,a ?kqVus ds ckgjh rjQ 2x1 ls-eh- FkkA L- [kjksap& ck,a Mastoid Process ds vkxs lkeus dh vksj 3x0-5 ls-eh- FkkA M- e`frdk lkekU; dn&dkBh dh FkhA xnZu ij xkaB ds fu'kku FkkA

vkarfjd ijh{k.k %&

1& diky ds nkfgus rjQ uhps [kwu dk FkDdk tek gqvk FkkA efLr"d& datLVsM inkZ] ilyh] dksyeLo& LoLF; FkkA daB vkSj 'okl uyh& Fk;jk;M dkfVZyst VwVh gq;h Fkh] 'okl uyh VwVh gq;h FkhA nka;k vkSj cka;k QsQM+k datLVsMA isfjvksu& LoLF;] g`n; ds nksuks psEclZ [kwu ls Hksjs gq, FksA inkZ] vka[kksa dh f>Yyh] eqg rFkk xzkl uyh& LoLF;A isV ,oa mlds Hkhrj dh oLrq,a& v/kipk Hkkstu ekStwn FkkA NksVh vkar vkSj mlds Hkhrj dh oLrq,a& ipk gqvk Hkkstu ekStwn FkkA cM+h vkar ,oa mlds Hkhrj dh oLrqr,& ey ,oa xSlsl ekStwn FksA ;d` r] Iyhgk] xqnkZ& datLVsMA ew=k'k; [kkyh] Hkhrj ,oa ckgj dh tusfUnz;ka& LoLF; ,oa ;wVªl esa ekgokjh py jgh FkhA isf'k;ka vkSj vfLFk;ka LoLFk FkhA pksV dk fooj.k ,oa 'kjhj esa ik;h xbZ oLrqvksa dk fooj.k eSaus iwoZ esa fn;k gSA

15. Thereafter, Dr. Yogendra Chauhan (PW-6), who has conducted Cr.A.Nos.920/2015 & 340/2015

postmortem on the body of deceased Namita Rajwade, has also

found that the death of the deceased has occurred on account of

asphyxia due to strangulation and it was homicidal in nature. He

has been subjected to some extent of cross-examination on behalf

of the prosecution in which he has clearly stated that on the neck of

the deceased, two ligature marks were noticed by him which shows

that the case of Namita Rajwade was not the case of suicide as

there was bleeding from nose as well as from mouth and

bloodstained froth was noticed, in case of suicide, tongue would be

protruded. As such, the doctor in his cross-examination paragraph

5 has clearly refuted that it is a case of suicide and has

categorically and firmly maintained that it is a case of homicidal

nature. After going through the record, we are of the opinion that

the trial Court is absolutely justified in holding that it was not the

case of suicide by the deceased, but death was due to

strangulation on account of asphyxia. We hereby affirm the finding

of the trial Court that the death of the deceased was homicidal in

nature.

16. The two appellants A-1 & A-2 both were charged by the trial Court

for offences punishable under Sections 302, 201 & 506 Part-II read

with Section 34 of the IPC by order dated 18-8-2014, but the

learned trial Court has convicted them only for offences under

Sections 302 & 120B of the IPC, and acquitted them from the

offences under Sections 201 & 506 Part-II read with Section 34 of

the IPC. Since the learned trial Court has acquitted the two

appellants from the offences under Sections 201 & 506 Part-II read Cr.A.Nos.920/2015 & 340/2015

with Section 34 of the IPC and convicted them holding it to be a

simpliciter individual crime i.e. Sections 302 & 120B of the IPC,

conviction under Section 302 of the IPC simpliciter is permissible in

the light of the decision of the Supreme Court in the matter of

Rohtas and another v. State of Haryana1 in which their Lordships

considered the question, whether a charge framed with the

assistance of Section 149 of the IPC can later be converted to one

read with Section 34 of the IPC or even a simplicitor individual

crime? Their Lordships considered and reviewed all the earlier

case laws on the point including the Constitution Bench decision in

the matter of Willie (William) Slaney v. State of MP 2 and relying

upon the decision in the matter of Nallabothu Venkaiah v. State of

Andhra Pradesh3 holding that "the conviction under Section 302

simpliciter without aid of Section 149 is permissible if overt act is

attributed to the accused resulting in the fatal injury which is

independently sufficient in the ordinary course of nature to cause

the death of the deceased and is supported by medical evidence",

observed in paragraphs 20, 21 and 22 of the report as under: -

"20. The above-extracted position of law was further concretised in Willie (William) Slaney v. State of MP 3 and by the majority in Chittarmal v. State of Rajasthan4. The permissibility of convicting an accused individually under a simplicitor provision after group conviction with the aid of Section 149 of IPC fails, was further explored in Atmaram Zingaraji v. State of Maharashtra5, wherein this Court held that:

"4. The next question that falls for our

1 AIR 2021 SC 114 : AIROnline 2020 SC 900 2 AIR 1956 SC 116 3 (2002) 7 SCC 117 4 (2003) 2 SCC 266 : (AIR 2003 SC 796) 5 (1997) 7 SCC 41 : (AIR 1997 SC 3573) Cr.A.Nos.920/2015 & 340/2015

determination is whether, after having affirmed the acquittal of all others, the High Court could convict the appellant under Section 302, I.P.C. (simpliciter). The charges framed against the accused (quoted earlier) and the evidence adduced by the prosecution to bring them home clearly indicate that according to its case, the nine persons arraigned before the trial Court and, none others, either named or unnamed (totalling minimum five or more persons) formed the unlawful assembly. Consequent upon the acquittal of the other eight the appellant could not be convicted with the aid of Section 149, I.P.C., more particularly, in view of the concurrent findings of the learned Courts below that the other eight persons were not in any way involved with the offences in question.

5. The same principle will apply when persons are tried with the aid of Section 34, I.P.C. In the case of Krishna v. State of Maharashtra6, a four Judge Bench of this Court has laid down that when four accused persons are tried on a specific accusation that only they committed a murder in furtherance of their common intention and three of them are acquitted, the fourth accused cannot be convicted with the aid of Section 34, I.P.C. for the effect of law would be that those who were with him did not conjointly act with the fourth accused in committing the murder.

6. In either of the above situations therefore the sole convict can be convicted under Section 302, I.P.C. (simpliciter) only on proof of the fact that his individual act caused the death of the victim. To put it differently, he would be liable for his own act only. In the instant case, the evidence on record does not prove that the injuries inflicted by the appellant alone caused the death; on the contrary the evidence of the eye-witnesses and the evidence of the doctor who held the post-mortem examination indicate that the deceased sustained injuries by other weapons also and his death was the outcome of all the injuries. The appellant, therefore, would be guilty of the offence under Section 326, I.P.C. as he caused a grievous injury to the deceased with the aid of jambia (a sharp-cutting instrument)."

6 (1964) 1 SCR 678 : (AIR 1963 SC 1413) Cr.A.Nos.920/2015 & 340/2015

(emphasis supplied)

21. This position of law has finally been summed up very succinctly in Nallabothu Venkaiah v. State of Andhra Pradesh4:

"24. Analytical reading of catena of decisions of this Court, the following broad proposition of law clearly emerges; (a) the conviction under Section 302 simpliciter without aid of Section 149 is permissible if overt act is attributed to the accused resulting in the fatal injury which is independently sufficient in the ordinary course of nature to cause the death of the deceased and is supported by medical evidence; (b) wrongful acquittal recorded by the High Court, even if it stood, that circumstance would not impede the conviction of the appellant under Section 302 r/w Section 149 I.P.C. (c) charge under Section 302 with the aid of Section 149 could be converted into one under Section 302 r/w Section 34 if the criminal act done by several persons less than five in number in furtherance of common intention is proved."

(emphasis supplied)

22. Although both Section 34 and 149 of the IPC are modes for apportioning vicarious liability on the individual members of a group, there exist a few important differences between these two provisions. Whereas Section 34 requires active participation and a prior meeting of minds, Section 149 IPC assigns liability merely by membership of the unlawful assembly. In reality, such 'common intention' is usually indirectly inferred from conduct of the individuals and only seldom it is done through direct evidence.7

17. In view of the authoritative pronouncement of their Lordships of the

Supreme Court in Rohtas (supra), it is quite vivid that though in the

instant case charge was framed by the trial Court against the

appellants with the aid of Section 34 of the IPC, but they have been

acquitted for other offences including that of Section 34 also,

however, in view of the aforesaid pronouncement in Rohtas 7 Mahbub Shah v. Kine Emperor, AIR 1945 PC 118, Pp. 153-154.

Cr.A.Nos.920/2015 & 340/2015

(supra), it was permissible for the trial Court to convict the

appellants for offences under Sections 302 & 120B of the IPC

simpliciter.

18. Now, the question is, whether the trial Court is justified in convicting

the appellants for offences under Sections 302 & 120B of the IPC?

19. Considering the nature of evidence and further considering the

submissions made on behalf of the two appellants separately and

since two appeals have been preferred, we will consider the cases

of two appellants in seriatim.

Case of appellant Mahendra Rajwade (A-1) - Cr.A.No.920/2015: -

20. The trial Court has recorded a finding that in order to convict

appellant Mahendra Rajwade (A-1), motive of offence has been

established and furthermore, Kum. Sneha Rajwade (PW-1) being

daughter of the deceased has witnessed the incident at 11.30 p.m.

in the night and pursuant to the memorandum statement of the

appellant Ex.P-14, ear tops and broken bangles of the deceased -

Namita Rajwade have been seized vide Ex.P-15, which connects

the appellant with the offence in question. Moreover, the appellant

vide Ex.P-18 lodged morgue intimation to the police station on 28-

3-2014 that his wife Namita Rajwade has committed suicide by

hanging. As such, giving false information would be one of the

incriminating evidence and therefore A-1 is guilty of the offence of

murder of the deceased i.e. his wife Namita Rajwade and in that

view of evidence, the trial Court proceeded to convict him (A-1) and

sentenced him as stated herein-above.

Cr.A.Nos.920/2015 & 340/2015

21. It is the case of the prosecution that the appellant used to suspect

the character of his wife for having alleged relationship with the son

of local MLA namely, Vijay Rajwade in protest of which, the

appellant's wife had gone to stay with his father Pillu Rajwade (PW-

4) & mother and had returned from her paternal house one week

prior to the date of offence. Kum. Sneha Rajwade (PW-1), 16

years old daughter of the deceased & the appellant (A-1), has been

cited as eye-witness to the incident by the prosecution. She has

clearly stated in her statement before the Court that her father used

to suspect the character of her mother and he used to quarrel with

her on that account and her mother has gone to her parental house

of Pillu Rajwade (PW-4) with whom she stayed and one week prior

to the date of incident, she had returned along with her parents to

the house of the appellant. Same statement has also been

reiterated by Pillu Rajwade (PW-4) - father of the deceased. He

has stated that his son-in-law i.e. appellant Mahendra Rajwade (A-

1) used to quarrel with his daughter for having illicit relationship with

another man for which he made him to understand not to quarrel

and one week prior to the date of incident, he had gone to the

appellant's house along with his daughter and asked them to live

peacefully and the trial Court has rightly held that on account of

suspecting the character of his wife i.e. the deceased, of having

illicit relationship with the son of a local MLA namely, Vijay

Rajwade, the appellant (A-1) used to quarrel with his wife.

Therefore, motive of the offence to commit the murder has rightly

been held to be established by the trial Court.

Cr.A.Nos.920/2015 & 340/2015

22. The next question would be, whether appellant Mahendra Rajwade

(A-1) is the author of the crime in question?

23. It is not in dispute that the appellant had two houses at the time of

offence and the appellant & his wife Namita Rajwade, his son

Manish, daughter Shimla and another daughter Sneha were

residing in the new house which is one kilometer away from Village

Kharwat where the offence has been committed. It is a new house

which is under construction and which has not been plastered and

doors were not fitted except chaukhat. This fact has clearly been

established by the testimonies of Kum. Sneha Rajwade (PW-1),

Shiv Kumar (PW-2), Devprakash @ Devprasad (PW-3) and Pillu

Rajwade (PW-4). Likewise, Kum. Sneha Rajwade (PW-1), Shiv

Kumar (PW-2), Devprakash @ Devprasad (PW-3), Pillu Rajwade

(PW-4), Preetlal (PW-9) and Vikas Singh (PW-10) have clearly

established that there was no electricity connection in the new

house where the offence is said to have been committed and they

have also clearly stated that the dead body of the deceased was

found hanging in the first floor and it was not in the room where the

deceased and the appellant (A-1) were sleeping on the fateful

night.

24. Kum. Sneha Rajwade (PW-1), who is eye-witness, has also clearly

stated that on the date of offence, she along with her brother

Manish and sister Shimla were sleeping in a separate room after

taking their dinner and her father & mother were sleeping in a

separate room, and in between 11-12 p.m., she heard the cry of her

mother - Namita Rajwade, on hearing that cry, she had gone into Cr.A.Nos.920/2015 & 340/2015

the room of her father & mother and saw that her mother's neck

was being tightened by a nylon rope and it was being pulled by

both the appellants (A-1 & A-2) whereupon she asked them to

refrain from that act on which her father scolded her and asked her

to go out from the room pursuant to which she frightened and went

inside her room and went asleep. In the morning, she had seen the

dead body of her mother in the first floor and immediately informed

to her maternal grand-father and maternal grand-mother and

thereafter, the matter was reported to the police vide Ex.P-1. In her

cross-examination, she has stated that she has seen the incident,

after hearing the cry of her mother, though she has not entered into

the room, but she has seen from outside the room and from the

courtyard and the incident has taken place in the new house which

is located outside the Sargaon Basti. She has refuted the fact that

she has not witnessed the incident in paragraph 6 of her statement

in her cross-examination. On further cross-examination made on

behalf of appellant Dhansai @ Giri (A-2), she has clearly stated that

all have gone for sleep after locking the main door and in the

house, there was no electricity connection, but it was illuminating

from the candle light which was available in the courtyard. As such,

she has seen the incident and immediately thereafter, she has

lodged the FIR and therefore she has confronted to her statement

before the Court, though in the house there was no electricity

connection and she was sleeping along with her brother and sister

in the room adjoining to her father & mother, but in the late night at

about 11.30 after hearing the cry of her mother, she has seen the Cr.A.Nos.920/2015 & 340/2015

incident from outside the room, in which appellants Mahendra

Rajwade (A-1) and Dhansai @ Giri (A-2) both were pulling the

nylon rope which was tightened around the neck of her mother

Namita Rajwade and on being scolded by her father, she had gone

back for sleep and in the morning, her mother's dead body was

found hanging in the first floor. In night, the house was being

illuminating by the candle light which was available in the courtyard.

As such, it is established that Kum. Sneha Rajwade (PW-1) has

witnessed the incident of strangulation of her mother by her father

at late night from outside the room of her father & mother in the

candle light available in the courtyard which the trial Court has

relied upon. We also do not find any infirmity in the testimony of

the aforesaid witness qua the appellant herein (A-1). {So far as the

role of appellant Dhansai @ Giri (A-2) is concerned, it will be

discussed in the later part of the judgment while discussing the

case of A-2.}

25. Thereafter, inquest on the dead body of the deceased was

prepared and on the recommendation of Panchas, the dead body

was subjected to postmortem as Panchas were of the opinion that

deceased Namita Rajwade has been murdered and as per the

recommendation of Panchas, her body was subjected to

postmortem. According to the opinion of doctor, though death was

homicidal in nature, abrasion was found on right shoulder, left

shoulder and on back side and on scapular region also contusion

was found and abrasion was also found on right and left knee. As

such, sign of struggle was found over the body of the deceased as Cr.A.Nos.920/2015 & 340/2015

stated by Dr. Yogendra Chauhan (PW-6) in his statement before

the Court in paragraph 2. Not only this, pursuant to the

memorandum statement Ex.P-14, ear tops and broken bangles of

the deceased were seized vide Ex.P-15 which have been proved

by Hitesh Kumar Rajwade (PW-8) - brother of the deceased and

witness to memorandum statement and seizure, though ear tops

and bangles were seized from below the bed. Moreover, after the

incident, on 28-3-2014, the appellant (A-1) lodged morgue

intimation Ex.P-18 that his wife Namita / deceased has committed

suicide by hanging which was false to the knowledge of the

appellant and giving false information to the police itself is an

incriminating piece of evidence against the appellant (A-1) in which

it is stated that she has committed suicide by hanging which he has

informed to appellant Dhansai @ Giri (A-2) and thereafter, to father

and mother of the deceased. In the considered opinion of this

Court, the trial Court has rightly held that the prosecution has

established the motive of the offence and that Kum. Sneha

Rajwade (PW-1) is eye-witness to the incident, qua appellant

Mahendra Rajwade (A-1), as she has not only heard the cry of her

mother, but also witnessed the incident from courtyard outside the

room of her father & mother and thereafter, on her report, the FIR

was registered vide Ex.P-1 and in the postmortem, sign of struggle

has also been recorded and the dead body was found in the house

of the appellant, who in his statement recorded under Section 313

of the CrPC has not explained the incriminating circumstances

found against him, rather he tried to mislead the police by giving Cr.A.Nos.920/2015 & 340/2015

false information by way of morgue intimation vide Ex.P-18 that the

deceased died on account of suicide by hanging. As such, the

prosecution has been able to bring home the offence against

Mahendra Rajwade (A-1) and rightly held that he is guilty of the

offence under Section 302 of the IPC. Accordingly, Cr.A.

No.920/2015 deserves to be dismissed so far as for offence under

Section 302 of the IPC is concerned. The case of Mahendra

Rajwade (A-1) for commission of offence under Section 120B of the

IPC will be considered in the later part of the judgment.

Case of appellant Dhansai @ Giri (A-2) - Cr.A.No.340/2015: -

26. Appellant Dhansai @ Giri (A-2) at the relevant point of time was

resident of the same village where Mahendra Rajwade (A-1) used

to reside i.e. Village Mahuwapara, Charcha, Police Station

Charcha, District Koria and he has been arraigned as accused as

he has been named in the FIR by Kum. Sneha Rajwade (PW-1).

She has clearly stated in the FIR Ex.P-1 that on hearing the cry

made by her mother at 11-12 p.m., she had gone to the room of her

mother & father where she noticed that her mother's neck was

being tightened by nylon rope being pulled by Mahendra Rajwade

(A-1) and Dhansai @ Giri (A-2) also. She has maintained her

version, whereas Dhansai @ Giri (A-2) has been convicted only on

the basis of the statement of Kum. Sneha Rajwade (PW-1) being

daughter of appellant Mahendra Rajwade (A-1) and the deceased,

being a related and interested witness, whereas, Dhansai @ Giri

(A-2) is resident of same village.

27. It is well settled law that the evidence of a related or interested Cr.A.Nos.920/2015 & 340/2015

witness should be meticulously and carefully examined and it is

also held that merely because the witnesses are related to the

complainant or the deceased, their evidence cannot be thrown out.

If their evidence is found to be consistent and true, the fact of being

a relative cannot by itself discredit their evidence. In other words,

the relationship is not a factor to affect the credibility of a witness

and the courts have to scrutinise their evidence meticulously with a

little care. The Supreme Court in the matter of Raju alias

Balachandran and others v. State of Tamil Nadu 8 after reviewing

the earlier case laws held that the evidence of a related or

interested witness should be meticulously and carefully examined.

Relying upon the cases of Dalip Singh v. State of Punjab9 and

Sarwan Singh v. State of Punjab10 it has been further held that the

evidence of an interested witness does not suffer from any infirmity

as such, but the courts require as a rule of prudence, not as a rule

of law, that the evidence of such witnesses should be scrutinised

with a little care. Once that approach is made and the court is

satisfied that the evidence of interested witnesses have a ring of

truth such evidence could be relied upon even without

corroboration.

28. The Supreme Court in the matter of Vadivelu Thevar v. State of

Madras11 has observed as under: -

"... Hence, in our opinion, it is a sound and well-

established rule of law that the court is concerned with the quality and not with the quantity of the evidence

8 (2012) 12 SCC 701 9 AIR 1953 SC 364 10 (1976) 4 SCC 369 11 (1957) SCR 981 Cr.A.Nos.920/2015 & 340/2015

necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.

In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. ..."

29. After going through the statement of Kum. Sneha Rajwade (PW-1),

we find that she is neither wholly reliable nor wholly unreliable and

her case would fall under the third category and she is neither

wholly reliable nor wholly unreliable and therefore the Court has to

be circumspect and has to look for corroboration in material

particulars in order to rely upon her statement {Kum. Sneha

Rajwade (PW-1)}. As such, it will be necessary that there is some

corroboration to his ocular testimony to base conviction.

30. Admittedly, the incident happened in the house of appellant

Mahendra Rajwade (A-1) when the appellant & the deceased were

sleeping in one room and Kum. Sneha Rajwade (PW-1) was

sleeping in a separate room along his brother & sister in the said

house. It is established by the statements of Shiv Kumar (PW-2),

Devprakash @ Devprasad (PW-3), Pillu Rajwade (PW-4) and

Preetlal (PW-9) that the said house was not having the electricity Cr.A.Nos.920/2015 & 340/2015

connection and it is also established that doors were not fitted in

most of the places reserved for the same and it has further been

established that in the said fateful day & night, as per paragraph 12

of Kum. Sneha Rajwade (PW-1), the room (hall / courtyard) was

illuminating by candle light. Nothing has been brought on record

that Kum. Sneha Rajwade (PW-1) - daughter of the deceased and

the appellant, had acquaintance with Dhansai @ Giri (A-2). Kum.

Sneha Rajwade (PW-1) has stated that on hearing her mother's

shout or cry, she entered the room of her father & mother and

Mahendra Rajwade (A-1) - her father and Dhansai @ Giri (A-2)

were pulling the rope tightened over the neck of her mother i.e. the

deceased. Even if it is accepted that there was lack of electricity in

the house under construction where the offence is said to have

been committed, since she heard the voice of her mother, she has

identified her mother by her voice and she had identified her father

in the dim candle light available therein, but it would be difficult for

us to accept that in such a dim light of candle, she had rightly

identified Dhansai @ Giri (A-2) who was only resident of same

locality and village. In the statement before the Court she has

refused having any relationship with Dhansai (A-2) and that

Dhansai used to stay with the family in the village. The prosecution

has not established the relationship of Dhansai is so close and

intimate with Mahendra & his family that Dhansai would take such

an extreme step and made himself involved in the offence of

murder. As such, we are not convinced that in such a dim candle

light available in the courtyard outside the room of the appellant & Cr.A.Nos.920/2015 & 340/2015

the deceased, she had identified A-2 that too at late night,

particularly when she had no previous acquaintance with him and

furthermore, A-2 had also participated in the last rites of deceased

Namita Rajwade, as stated by Shiv Kumar (PW-2) in paragraph 5

and Devprakash @ Devprasad (PW-3) in paragraph 7, otherwise,

natural conduct of a person who has committed the offence is to

abscond immediately from the place of occurrence and not to

remain present in the locality wherein the offence has been

committed or in house of the deceased, more particularly, no

recovery has been made from Dhansai @ Giri (A-2) and no

evidence of friendship between both the appellants (A-1 and A-2)

has been brought on record. Furthermore, there is no corroborative

piece of evidence led by the prosecution to support the statement

of Kum. Sneha Rajwade (PW-1), though corroboration is rule of

caution and not rule of law, but the principles of administration of

justice require that for capital offences including that of murder for

which severe punishment has been laid down, proof of guilt must

be so clear that there is no other room except the culpability of

accused / appellant Dhansai @ Giri (A-2).

31. The Supreme Court in the matter of Amar Singh v. State (NCT of

Delhi)12 followed in Chunthuram v. Stater of Chhattisgarh13 has held

about the conduct and unreliability of eye witness as under:-

"32. The conviction of the appellants rests on the oral testimony of PW-1 who was produced as eye witness of the murder of the deceased. Both the Learned Sessions Judge, as well as High Court have placed reliance on the evidence of PW-1 and ordinarily this Court could be reluctant to disturb the concurrent view but since there 12 (2020) 5 SCC OnLine SC 826 13 (2020) 10 SCC 733 Cr.A.Nos.920/2015 & 340/2015

are inherent improbabilities in the prosecution story and the conduct of eye witness is inconsistent with ordinary course of human nature we do not think it would be safe to convict the appellants upon the incorroborated testimony of the sole eye witness. Similar view has been taken by a Three Judge Bench of this Court in the case of Selveraj v. The State of Tamil Nadu14. Wherein on an appreciation of evidence the prosecution story was found highly improbable and inconsistent of ordinary course of human nature concurrent findings of guilt recorded by the two Courts below was set aside."

32. Therefore, in our considered opinion, it would be unsafe to base

conviction of Dhansai @ Giri (A-2) on the sole oral testimony of

Kum. Sneha Rajwade (PW-1), though she is eye-witness and the

prosecution has not brought on record any corroborative piece of

evidence to connect A-2 for the offence in question. As such,

conviction of Dhansai @ Giri (A-2) for offence under Section 302 of

the IPC is set aside.

Conviction of the appellants (A-1 & A-2) for offence under Section

120B of the IPC: -

33. Both the appellants have been convicted for offence under Section

120B of the IPC. Section 120B of the IPC provides as under: -

"120B. Punishment of criminal conspiracy.--(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."

14 (1976) 4 SCC 343 Cr.A.Nos.920/2015 & 340/2015

34. The essential ingredients of the offence of criminal conspiracy

would be: (a) an object to be accomplished, (b) a plan or scheme

embodying means to accomplish that object, (c) an agreement or

understanding between two or more of the accused persons

whereby, they become definitely committed to co-operate for the

accomplishment of the object by the means embodied in the

agreement, or by any effectual means, and (d) in the jurisdiction

where the statute required an overt act. (See Chaman Lal and

others v. State of Punjab and another15.)

35. To substantiate the charge under Section 120B of the IPC, there

must be criminal conspiracy at least between two or more persons.

It has been held that meeting of mind is essential to constitute an

offence under Section 120B of the IPC, mere knowledge or

discussion would not be sufficient.

36. Recently, in the matter of Ram Sharan Chaturvedi v. The State of

Madhya Pradesh16, the Supreme Court has held that the principal

ingredient of the offence of criminal conspiracy under Section 120B

of the IPC is an agreement to commit an offence, such an

agreement must be proved through direct or circumstantial

evidence, and some kind of physical manifestation of agreement is

required to be established. It has been observed in paragraphs 22,

25 and 26 as under: -

"22. The principal ingredient of the offence of criminal conspiracy under Section 120B of the IPC is an agreement to commit an offence. Such an agreement must be proved through direct or circumstantial

15 AIR 2009 SC 2972 16 2022 LiveLaw (SC) 709 Cr.A.Nos.920/2015 & 340/2015

evidence. Court has to necessarily ascertain whether there was an agreement between the Appellant and A-1 and A-2. In the decision of State of Kerala v. P.

Sugathan and Anr., (2000) 8 SCC 203, this Court noted that an agreement forms the core of the offence of conspiracy, and it must surface in evidence through some physical manifestation:

"12. ... As in all other criminal offences, the prosecution has to discharge its onus of proving the case against the accused beyond reasonable doubt. ... A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy...

13. ... The most important ingredient of the offence being the agreement between two or more persons to do an illegal act. In a case where criminal conspiracy is alleged, the court must inquire whether the two persons are independently pursuing the same end or they have come together to pursue the unlawful object. The former does not render them conspirators but the latter does. For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient..."

(emphasis supplied)

25. It is not necessary that there must be a clear, categorical and express agreement between the accused. However, an implied agreement must manifest upon relying on principles established in the cases of circumstantial evidence. Accordingly, in the majority opinion of Ram Narayan Popli v. CBI, (2003) 3 SCC 641, this Court had held:

"354. ... For the offence of conspiracy some kind of physical manifestation of agreement is required to be established. The express agreement need not be proved. The evidence as to the transmission of thoughts sharing the unlawful act is not sufficient..."

26. In view of the clear enunciation of law on the Cr.A.Nos.920/2015 & 340/2015

criminal conspiracy by this Court, we find that the prosecution has failed to produce any evidence whatsoever to satisfy the Court that there was a prior meeting of minds between the Appellant and A-1 and A-

2. There is no physical manifestation of such a concurrence extractable from surrounding circumstances, declarations, or the conduct of the Appellant. The evidence is shorn of even a passive acknowledgment of conspiracy of the Appellant with the accused, let alone heralding a clear and conscientious participation of the Appellant in the conspiracy. As noted above, this Court has cautioned against replacing mere suspicion with the legal requirement of proof of agreement."

37. Reverting to the facts of the present case in the light of the

aforesaid proposition of law for proving the offence of criminal

conspiracy, we find that the prosecution has miserably failed to

produce any evidence and to satisfy that there was meeting of mind

between A-1 & A-2 and merely on the basis of suspicion, the legal

requirement of manifestation of agreement cannot be held to be

established. As such, the prosecution has failed to establish the

existence of any agreement between A-1 & A-2 which is sine qua

non for charge under Section 120B of the IPC and in absence of

such agreement, even by inference by circumstantial evidence, the

two appellants are entitled to be acquitted for offence under Section

120B of the IPC.

38. Concludingly, conviction of appellant Mahendra Rajwade (A-1) for

offence under Section 302 of the IPC is maintained, however, his

conviction under Section 120B of the IPC is hereby set aside. His

appeal is partly allowed. Simultaneously, conviction of Dhansai @

Giri (A-2) under Sections 302 & 120B of the IPC are set aside and

he is acquitted of the said charges. He be released forthwith if not Cr.A.Nos.920/2015 & 340/2015

required any other case. His appeal is allowed in full.

              Sd/-                                           Sd/-
       (Sanjay K. Agrawal)                            (Sachin Singh Rajput)
             Judge                                          Judge

Soma