Criminal Trial: Admission in Cross-Examination- In a criminal trial, an admission made during the cross-examination of a witness by the counsel of one accused does not bind another accused if they are represented by different counsels/advocates. Each accused is entitled to their own defense, and admissions made by one counsel cannot be used against another accused who is represented separately.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 38 OF 2022
Manohar s/o Kondiba Waghmare, Vs The State of Maharashtra .
CORAM : R. G. AVACHAT AND NEERAJ P. DHOTE, JJ.
JUDGMENT [Per : Neeraj P. Dhote, J.] : -
DATED : 31st JANUARY, 2025.
Citation: 2025:BHC-AUG:1988-DB.
1. By the present Appeal under Section 374(2) of the Code of
Criminal Procedure, the Appellant has challenged his conviction for the
offence punishable under Section 302 of the Indian Penal Code
[hereinafter referred to ‘IPC’] and the consequent sentence to suffer
imprisonment for life and fine of Rs.5,000/-, in default, to undergo
Rigorous Imprisonment for six months, recorded by the learned
Additional Sessions Judge, Parbhani, in Sessions Case No. 130/2017, vide Judgment and Order dated 03.11.2020.
2. The Prosecution case, as revealed from the Police Report, is
as under : -
2.1. The Appellant and acquitted Accused No.2, who was the
wife of Ashroba (hereinafter referred to as ‘Deceased’), were having
illicit relations. They were residing in the same village, namely, Ukhalad,
Tq. & Dist. Parbhani. The Deceased had gone to Nanded for some work.
He returned in the village by 10:00 pm. Accused No. 2 was not at
home. The Deceased went in search of Accused No.2. As the Deceased
did not return till midnight, his brother Kailash Mallahari Waghmare
gave phone call on the mobile of Deceased. He heard the ring tone of
Deceased’s mobile. He saw the Deceased lying in front of the house of
the Appellant with injuries on the body. The mobile was in the pocket of
Deceased. The brother of Deceased informed the village Sarpanch, who
in turn informed the Police. The Police came on the spot. Deceased’s
brother lodged report with the Police Station, Tadkalas, against the
Appellant and the acquitted Accused and Crime bearing No.165/2017
for the offence punishable under Section 302 r/w 34 of the IPC, came to
be registered.
2.2. Police prepared the Inquest, conducted Spot Panchanama
and referred the dead body for post mortem. The statement of the
witnesses were recorded. The Appellant and the acquitted Accused came
to be arrested. During the course of investigation, the knife came to be
seized at the instance of the Appellant pursuant to the disclosure
3 APEAL38.2022J.odt
statement. The clothes of the Appellant came to be seized. The call
records of the mobile phone of the Appellant, acquitted Accused,
Deceased and Informant were called from the Service Provider. The post
mortem report was collected. The articles seized during the investigation
were referred for Chemical Analysis [for the sake of brevity “CA”]. The
CA reports were received. The relevant documents were collected. On
completion of the investigation, the Appellant and the acquitted Accused
came to be charge-sheeted.
2.3. On committal, the learned Trial Court framed the Charge
against the Appellant and the acquitted Accused for the offence
punishable under Section 302 r/w 34 of the IPC, at Exh.08. They
denied the Charge and claimed to be tried. To establish the Charge, the
Prosecution examined in all thirteen (13) witnesses and brought on
record the relevant documents. After the Prosecution filed evidence
closure pursis, the statement of the Appellant and the acquitted accused
came to be recorded under Section 313(1)(b) of the Cr.P.C. After
hearing both the sides and appreciating the evidence on record, the
Appellant came to be convicted as referred to above in paragraph no. 1,
and Accused No. 2 came to be acquitted by the learned Trial Court.
3. It is submitted by the learned Advocate for the Appellant
that, the case is based on circumstantial evidence. There was no
evidence to show that the Appellant was present at his house at the
4 APEAL38.2022J.odt
relevant time. The blood on the spot of incident and the injuries on the
Appellant show that scuffle took place. There were no calls in the CDR
to corroborate the version of Informant that he made a phone call on the
phone of the deceased. The discovery and seizure of knife at the
instance of the Appellant were delayed. Though the Homicidal death is
not in dispute, the evidence available on record fall short of establishing
the Charge of Murder against the Appellant. In the alternative, he
submitted that, even if the evidence on record is accepted as it is, it
would be Culpable Homicide not amounting to Murder within the ambit
of Section 304 Part-II of IPC. The Appeal be allowed by setting aside the
impugned Judgment and Order. In support of his submissions, he relied
upon the Judgments in;
[i] Dasari Siva Prasad Reddy v. Public Prosecutor, High Court of A.P.,
AIR 2004 SC 4383
[ii] Shantabai and Ors. v. State of Maharashtra,
AIR 2008 SC 1571
[iii] Nagendra Sah versus State of Bihar,
(2021) 10 SCC 725
[iv] Surendra Kumar and another Versus State of Uttar Pradesh,
(2021) 20 SCC 430.
[v] Jagannath s/o. Damaji Pol Vs. State of Maharashtra,
2009 ALL MR (Cri) 2231.
4. It is submitted by the learned APP that as there were illicit
relations between the Appellant and the acquitted Accused, the
Appellant had the Motive to commit the Crime. The dead body was
found in front of the house of the Appellant. The place of incident was
the house of the Appellant. Human blood was found on the walls of the
5 APEAL38.2022J.odt
Appellant’s house and the articles. The Appellant gave history of assault
to the Medical Officer while receiving the treatment for his injuries. The
Appellant gave false explanation that he fell down from the motorcycle.
The CDRs brought on record shows several calls between the Appellant
and the acquitted Accused. The circumstantial evidence brought on
record established the Charge of Murder against the Appellant. The
learned Trial Court properly appreciated the evidence on record and
rightly convicted the Appellant and the Appeal be dismissed.
5. Heard both the sides. Scrutinized the evidence on record.
The case is based on circumstantial evidence. The law in respect of
circumstantial evidence is well settled right from the Judgment in
Sharad Birdhichand Sarda v State of Maharashtra, (1984) 4 SCC 116,
wherein following principles have been laid down.
(1) The circumstances from which the conclusion of guilt is
to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned 'must or should' and not 'may
be' established. There is not only a grammatical but a
legal distinction between 'may be proved' and 'must be
or should be proved' as was held by this Court in
Shivaji Sahabrao Bobade v. State of Maharashtra,
(1973) 2 SCC 793, where the following observations
were made: [SCC para 19, p. 807 : SCC (Cri) p. 1047]
Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a Court
can convict, and the mental distance between 'may be'
and 'must be' is long and divides vague conjectures
from sure conclusions.
6 APEAL38.2022J.odt
(2) The facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say,
they should not be explainable on any other hypothesis
except that the accused is guilty,
(3) The circumstances should be of a conclusive nature and
tendency,
(4) They should exclude every possible hypothesis except
the one to be proved, and
(5) There must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.”
6. In the case on hand, the circumstances relied upon by the
Prosecution in support of the Charge, are;
(i) Homicidal death of Ashroba Mallahari Waghmare.
(ii) The house of the Appellant as the place of incident.
(iii) Injuries on the Appellant.
(iv) Seizure of knife at the instance of the Appellant.
(v) Human blood on the clothes of the Appellant.
(vi) Motive.
[I] HOMICIDAL DEATH : -
7. There is no dispute that the Informant’s brother Ashroba
Mallahari Waghmare met with a homicidal death. The evidence of PW1
– Kailash Mallahari Waghmare shows that Deceased was his brother. On
12.09.2017, the deceased had gone to Nanded for some work and he
returned home by 10:00 pm. Deceased inquired about his wife, who
was not at home. The Deceased went in search of his wife and as he did
7 APEAL38.2022J.odt
not return till midnight, PW1 – Kailash Mallahari Waghmare gave a
phone call on the mobile phone of Deceased. On hearing the ring tone of
the mobile phone of the Deceased near the house of the Appellant, he
went there and saw the Deceased lying in an injured condition. He
informed the Sarpanch of the village, who informed the Police. The
Police arrived on the spot. He lodged report with the Police against the
Appellant and the acquitted Accused. The cross-examination shows that
the said evidence was not seriously disputed. Though certain
improvements are brought in the cross-examination, it is settled position
under the law that the Report / FIR is not an encyclopedia.
8. The evidence of PW2 – Santosh Ramkishan Gore shows that
he was a Public Servant. As per directions of his superior, he went to the
spot of incident with another Panch Abdul Nadim. The said spot was in
village Ukhalad. Spot was shown by PW1 – Kailash Mallahari
Waghmare. There were blood stains on the spot. The Police collected
the samples and prepared Spot Panchanama at Exh.39. Though crossexamined, nothing came on record to disbelieve his testimony.
9. The evidence of PW3 – Syed Akram Aga Miya Patel shows
that, he was the resident of the same village where the incident took
place. He was the husband of Sarpanch. PW1 – Kailash Mallahari
Waghmare came to his house at 1:30 am with others and informed him
8 APEAL38.2022J.odt
that Deceased was murdered. He informed the Police. The Police
arrived. Deceased was lying dead in front of the house of the Appellant
in the veranda. The evidence shows that, as he did not further supported
the case of Prosecution, he was cross-examined by the learned APP. He
denied in the cross-examination of the defence that the Appellant
reached the village when he was present on the spot. It has come that
the Appellant did not meet him on the day of the incident.
10. The evidence of PW4 – Chewlabai Laxman Gaikwad shows
that she was also the resident of same village where the incident took
place. PW1 – Kailash Mallahari Waghmare came to her home and
informed about the incident. She also came on the spot and saw
Deceased lying dead in front of the door of the Appellant’s house. Her
cross-examination shows that her house was at a distance of 1.00 km
from the house of the Appellant, and the houses of the Deceased and the
Appellant were adjacent to each other.
11. The evidence of PW5 – Shankar Manikrao Takras shows
that he was Police Naik. On 16.09.2017, he was directed by his superiors
to reach the spot of incident. Accordingly, he reached the said spot
around 4:50 am. As per the directions of superior, he carried/secured
the spot of incident. The cross-examination shows that there was no
serious dispute with his evidence.
9 APEAL38.2022J.odt
12. PW10 – Sugriv Narsingrao Waghmare was the cousin
brother of the deceased. In the midnight, PW1 – Kailash Mallahari
Waghmare and his wife came to him and informed about the incident.
They all went to the house of the Sarpanch and from there to the spot of
incident. He saw Deceased lying in front of the house of the Appellant.
There was no cross-examination by the defence.
13. The evidence of PW13 – Mahesh Balasaheb Landge shows
that on 12.09.2017, he was attached to the Police Station, Tadkalas, as
the Assistant Police Inspector. On receiving the information about the
incident, while he was on patrolling duty he went to the village Ukhalad
and went on the spot of the incident. He sent the dead body for post
mortem to the Government Hospital. On this aspect, there is no
challenge to his evidence.
14. There is evidence of PW7 – Dr. Rahul Pandurangrao
Ranveer, who was a Medical Officer at the Civil Hospital, Parbhani at the
relevant time. On 13.09.2017, he received the dead body of Ashroba for
post mortem. He performed the post mortem and found the following
injuries.
[i] Abrasion on right nose having size 3 x 1 cm at lateral side.
[ii] Bruishes on right corner of right eye.
[iii] Incised wound on right chest lateral to sternum. It was
deep upto 11 cm. Its width was 1 cm and length 2 cm. On
pressing blood was coming out from the said wound.
10 APEAL38.2022J.odt
[iv] Incised wound on posterior superior iliac and rest having
measurement 2 cm in length, 1 cm width and 3 to 4 cm
deep.
[v] Right lung pura was ruptured. There was contusion to the
3
rd
and 4
th
ribs.
14.1. The further evidence of PW7 – Dr. Rahul Pandurangrao
Ranveer shows that, he mentioned the injuries in the post mortem
report. The cause of death was ‘Cardio respiratory arrest due to
haemorrhagic shock due to rupture of right lung due to penetrating
injury.’ The post mortem report and the injuries on the dead body are
not seriously challenged, as seen from the cross-examination. The post
mortem report is brought on record at Exh.71.
15. From the above referred evidence on record, it is
established by the Prosecution that, Ashroba, brother of PW1 – Kailash
Mallahari Waghmare, was found lying dead. The incident took place in
the night of 12.09.2017. The injuries and the cause of death are proved
through medical evidence, which is corroborated by the post mortem
report. The Inquest at Exh.103 is admitted by the Appellant. The
Homicidal death of Informant’s brother Ashroba is thus clearly
established.
[II] THE HOUSE OF THE APPELLANT AS
THE PLACE OF INCIDENT :-
16. The evidence of PW1 – Kailash Mallahari Waghmare, PW2 –
Santosh Ramkishan Gore and PW4 – Chewlabai Laxman Gaikwad shows
11 APEAL38.2022J.odt
that the dead body was lying in front of the house of the Appellant.
PW2 – Santosh Ramkishan Gore was the spot panch. The Spot
Panchanama at Exh.39 is brought on record in his evidence. His
evidence corroborates the prosecution case that the spot of incident was
in front of the house of the Appellant. The evidence of spot panch
shows that there were blood stains on the walls of the house. The Spot
Panchanama at Exh.39 shows the sketch of the spot of the incident. The
spot is shown inside the shed in front of the Appellant’s house. It
corroborates the testimony of the panch witnesses regarding the
presence of blood stains inside the Appellant’s house. There is consistent
evidence of the said witnesses that the spot of incident was in front of
the Appellant’s house. The evidence of Investigating Officer PW11-
Shankar Pandurang Tale corroborates the evidence of the said witnesses
that the spot of the incident was the house of the Appellant. What can
be seen in the cross-examination of the witnesses is that there is no
serious dispute in respect of the spot of the incident. Nothing has come
in the cross-examination of the witnesses examined by the Prosecution
to discard their testimony that the spot of incident was the house of the
Appellant.
[III] INJURIES ON THE APPELLANT : -
17. Prosecution examined PW12 - Dr. Mohd. Jafer Iqbal, who
was a Medical Officer in Civil Hospital at Parbhani. He was on
12 APEAL38.2022J.odt
emergency duty from 9 pm of 12.09.2017 till 9 am of 13.09.2017. The
Appellant came to him for a medical examination at 4:00 a.m. He
examined the Appellant and found the following injuries on his person.
[i] Contused lacerated wound of size 3.5 x 0.5 cm. bone deep
injury present over occipital area of head.
[ii] Lacerated wound of size 4.00 x 0.5 cm. bone deep injury
over left parietal area.
[iii] Incised wound of size 3.00 x 0.5 cm x subcutaneous deep
[only up to skin and not entered in muscle) on upper 1/3
rd
of left arm of anterio lateral aspect.
[iv] Contusion of size 1.5 x 1 cm. at left zygomatic area (below
eye) of face.
[v] Contused abrasion of size 4.00 x 1 cm. at left Lumber [left
side of the stomach middle area).
18. The further evidence of PW12 – Dr. Mohammad Jafer Iqbal
shows that all the said injuries were simple and caused by hard and
blunt object, except third incised injury. All injuries were within 24
hours. The Appellant was advised CT-Brain. The Appellant left the
hospital before the investigation and treatment. The history was given
as Scuffling. He identified the Injury Certificate at Exh.101, as that of
the Appellant. He deposed that injury nos. 1, 2, 4 and 5 may be possible
by brick, and injury no. 3 may be possible by knife, if scuffling takes
place. The MLC certificate at Exh.102 is brought on record. His
evidence shows that at the time of evidence, he brought original papers
with him.
13 APEAL38.2022J.odt
19. The cross-examination of PW12 – Dr. Mohammad Jafer
Iqbal shows that stitches were required to the injury on the head. Except
for the suggestion that all the injuries may be possible in a motor
accident, the tenor of cross-examination shows that, the evidence of this
Medical Officer that he attended the Appellant for the aforesaid injuries,
and the issuance of the Medical Certificate and the MLC letter was not
challenged.
20. The evidence of PW13 – Mahesh Balasaheb Landge, the
Investigating Officer, shows that he collected the Injury Certificate of the
Appellant by issuing letter at Exh.117. From the medical evidence
available on record, it is conclusively established that the Appellant
visited the Civil Hospital, Parbhani in the intervening night of
12.09.2017 and 13.09.2017, for injuries suffered by him.
[IV] DISCOVERY / RECOVERY OF KNIFE AT THE INSTANCE OF THE
APPELLANT: -
21. For this circumstance, the relevant evidence is that of PW11
– Shankar Pandurang Tale and PW13 – Mahesh Balasaheb Landge, the
Investigating Officer. The evidence on record goes to show that the
Appellant was arrested on 13.09.2017, at 20:41 hrs. The evidence of
these two witnesses show that, on 22.09.2017, at 13:00 hrs, the
Appellant made disclosure to show the place where the knife was
14 APEAL38.2022J.odt
hidden. The memorandum of his statement came to be prepared at
Exh.93. The Appellant led them to one agricultural land within the
vicinity of village Ukhalad. The evidence of PW13 – Mahesh Balasaheb
Landge, the Investigating Officer, shows that the said land belonged to
one Syed Shahanoor Miya. According to PW11 – Shankar Pandurang
Tale, the Appellant showed the weapon and according to PW13 –
Mahesh Balasaheb Landge, the Investigating Officer, they found the
knife. On this aspect, there is variance in the evidence of these
witnesses. According to them, the said knife came to be seized under
the panchanama at Exh.94. None of these witnesses deposed of blood
stains on the knife, though the CA report at Exh.122 show human blood
on the article ‘Knife’. Further, the evidence on record clearly shows that
the discovery/recovery of knife at the instance of the Appellant is after
nine (9) days from his arrest. This delay in discovery/recovery creates
reasonable doubt about the evidence of discovery. The evidence on
record goes to show that the Appellant had gone to the hospital in the
night/early hours of 13.09.2017 for treatment to his injuries and he was
arrested in the late evening of 13.09.2017. Whether, during that time,
the Appellant went to the agricultural field of another person and
concealed the knife, coupled with the delay in discovery/recovery, is the
aspect which requires the circumstance of discovery/recovery of the
weapon at the instance of the Appellant, to be seen with doubt. This
circumstance, therefore, is not conclusively established.
15 APEAL38.2022J.odt
[V] HUMAN BLOOD ON THE CLOTHES OF THE APPELLANT : -
22. The evidence of PW6 – Trimbak Ramrao Khandare shows
that on 13.09.2017, he was called to the Tadkalas Police Station as the
Panch. The accused was present in the Police Station with bandage on
his forehead. The mobile and white colour shirt with checks, white
handkerchief and black colour pant were seized from the Appellant. The
said clothes were stained with blood. The said articles came to be seized
under the Panchanama at Exh.58. Though cross-examined, the said
evidence of this witness remained unshaken. The CA report at Exh.122
shows human blood on the clothes of the Appellant which were seized
during the course of the investigation. With this evidence on record, it
has conclusively established by the Prosecution that after the arrest, the
blood stained clothes of the Appellant were seized.
[VI] MOTIVE
23. Though Prosecution witnesses in their evidence deposed that the Appellant and the acquitted Accused had illicit relations, their evidence do not show that they witnessed the illicit relations. If we see the cross-examination of PW1 – Kailash Mallahari Waghmare done on behalf of the acquitted Accused, it has come that illicit relations between the Accused were going on since two to three years. This cross-examination will not bind the Appellant as he was represented by another Advocate and this witness was separately cross-examined on behalf of the Appellant. In the cross-examination done on behalf of the Appellant, it has come that he came to know of the relations between the accused three to four months before the incident. This cannot be termed as admission on behalf of the Appellant.
The cross-examination of PW1, Kailash Mallahari Waghmare, revealed that the alleged relationship had been ongoing for two to three years, but this information was not binding on the appellant as he was represented by a different advocate
24. In absence of positive admissible evidence establishing illicit
relations between the Appellant and the acquitted Accused, it is not
possible to hold that the Appellant had the Motive to commit the Crime. This circumstance is not conclusively proved by the Prosecution.
FURTHER DISCUSSION : -
25. In Dasari Siva Prasad Reddy (supra), the case was
regarding the death of wife by strangulation. The case was based on last
seen evidence. According to the neighbour, he saw the accused entering
the house during the night time and quarreling with the deceased. The
said neighbour was living 4-5 houses away from the house of the
accused and it was not possible for him to observe the quarrel from his
house. There was no other evidence to establish presence of accused in
house on crucial night. It was held that, the fact that accused could not
establish by cogent evidence that on that night he remained at his
parents house in another village, does not lead to necessary inference
that he was in his own house. The accused was given benefit of doubt
by the Trial Court and the said finding was not interfered with.
17 APEAL38.2022J.odt
26. In Shantabai (supra), the case of murder was based on
circumstantial evidence. The wife of the accused was alleged to have
illicit relations with the deceased from 10 to 15 years. The evidence of
selective and interrogated witnesses, was not found reliable as other
residents of same village did not utter a word in that regard. Fact that,
dead body of deceased found in open space in front of their house,
which was a public road, was not sufficient to connect the accused with
commission of the offence. The evidence to prove prosecution version,
that accused left their house after committing death of deceased was not
found believable. Prosecution failed to establish that accused used the
recovered weapon of offence. The blood group on seized clothes of
accused did not tally with the blood, which was found on the clothes of
deceased and on sample of soil, axe, stones, handles, etc. It was held
that the chain of circumstance was not complete. Accused was held
entitled for acquittal.
27. In Nagendra Sah (supra), it was held that, there was
nothing to show that the relationship between the Appellant and the
deceased was strained in any manner. The other members of family of
the Appellant were present in the house where the incident took place.
The facts established did not rule out existence of any other hypothesis.
When chain is not complete, falsity of defence is no ground to convict
18 APEAL38.2022J.odt
the accused. Only on the basis of post mortem report, Appellant could
not have been convicted. No explanation was brought on record by the
Prosecution for delay in registering FIR. The circumstances established
by the Prosecution did not lead to only one possible inference regarding
guilt of the accused. Guilt of Appellant was not established beyond
reasonable doubt and hence, conviction of Appellant was reversed.
28. In Surendra Kumar (supra), it was held that, the burden to
prove the guilt is always on the Prosecution and cannot be shifted to
accused by virtue of Section 106 of the Indian Evidence Act, unless first
the foundational facts warranting such shifting of the burden of proof
are established by the Prosecution.
29. In Jagannath Pol (supra), it was held that, falsity of defence
or failure to offer reasonable explanation cannot be used as a
circumstance against the accused in absence of other circumstantial
evidence pointing to the involvement of the accused in the Crime. Falsity
of the defence or failure to give reasonable explanation cannot be
substituted as proof, particularly where prosecution has failed to
establish the offence against the accused beyond reasonable doubt.
30. It would not be out of place to make reference of the
Judgment of the Hon’ble Supreme Court of India in Anbazhagan Vs. The State represented by the Inspector of Police, AIR 2023 SC 3660 /MANU/SC/0782/2023, wherein the Hon’ble Supreme Court of India explained the fine distinction between the terms ‘Intent’ and ‘Knowledge’ and reiterated the important principles of law to be considered when the Court is confronted with the question, what offence the Accused could be said to have committed. The provisions of Section 299 (Culpable Homicide) and Section 300 (Murder) are considered.
31. It would be relevant to refer the paragraph no. 33 in Vijayee
Singh and Ors. Vs. State of U.P., AIR 1990 SC 1459, by three (3) Judges Bench of the Hon’ble Supreme Court of India, which reads as under : -
33. The general burden of establishing the guilt of
accused is always on the prosecution and it never
shifts. Even in respect of the cases covered by Section
105 the prosecution is not absolved of its duty of
discharging the burden. The accused may raise a plea
of exception either by pleading the same specifically
or by relying on the probabilities and circumstances
obtaining in the case. He may adduce the evidence in
support of his plea directly or rely on the prosecution
case itself or, as stated above, he can indirectly
introduce such circumstances by way of cross-examination and also rely on the probabilities and the
other circumstances. Then the initial presumption
against the accused regarding the non-existence of the
circumstances in favour of his plea gets displaced and
on an examination of the material if a reasonable
doubt arises the benefit of it should go to the accused.
The accused can also discharge the burden under
Section 105 by preponderance of probabilities in
favour of his plea. In case of general exceptions,
special exceptions, provisos contained in the Penal
Code or in any law defining the offence, the Court,
after due consideration of the evidence in the light of
the above principles, if satisfied, would state, in the
first instance, as to which exception the accused is
entitled to, then see whether he would be entitled for
a complete acquittal of the offence charged or would
be liable for a lesser offence and convict him
accordingly.
32. Coming to the case on hand, the Prosecution conclusively
established, the homicidal death of the Informant’s brother in the night
of 12.09.2017, the spot of homicidal death as the house/in front of the
house of the Appellant, the injuries on the Appellant and human blood
on the clothes of the Appellant. It is clear from the proved circumstances
that the deceased had gone to the house of the Appellant. The evidence
of Medical Officer, who examined the Appellant for his injuries in the
intervening night of 12th and 13th September, 2017 shows that, the
history of scuffle was given at the time of his medical examination. This
shows that, the incident had preceded with quarrel. It is not known as
to who was the aggressor and, therefore, the genesis and origin of the
incident has not come on record or not brought before the Court. The
attack was not calculated one. There is no evidence as to whether the
deceased had gone to the house of the Appellant with the knife or the
Knife was at the place of scuffle. As to how the occurrence originated,
there is no clear evidence. The medical evidence shows that injury no. 3
on the Appellant was possible by knife in scuffle and the other injuries
may be possible by brick. The evidence of PW10 – Sugriv Narsingrao
Waghmare shows that, he was the cousin brother of the Deceased and
he was residing half kilometer away from the house of the Deceased and
during the night time, the Informant and his wife came to him and woke
him up and informed him that Ashroba was killed. His further evidence
shows that, as he did not support the prosecution, suggestion was given
by the learned APP that, the Appellant called him and stated that the
deceased hit brick on his head. This shows that, according to the
Prosecution, the Deceased also assaulted the Appellant and the
Appellant sought help of the said witness. The evidence of Medical
Officer, who performed the post mortem do not show that the Deceased
was indiscriminately assaulted. The post mortem report shows that out
of four (4) injuries, two (2) were incised wounds, one was abrasion and
one was bruise. From the said injuries and cause of death, it is seen that
Injury No. (iii) proved fatal.
33. In the light of the above discussion and re-appreciation of
the evidence on record, the case would fall under exception 4 of Section
300 of IPC, which reads as under : -
Exception 4.—Culpable homicide is not murder if it is
committed without premeditation in a sudden
fight in the heat of passion upon a sudden
quarrel and without the offender's having
taken undue advantage or acted in a cruel or
unusual manner.
Thus, the conviction of the Appellant recorded by the
learned Trial Court for the offence punishable under Section 302 of the
IPC requires interference and needs to be converted to Section 304
Part–II of the IPC. The Appellant is behind the bars for a period of 6
years and 17 days [excluding the period of Bail during Corona period].
The punishment in the nature of imprisonment for the period already
undergone with fine of Rs.5,000/-, in default, to suffer imprisonment for
six months, would be appropriate. An endorsement on the impugned
Judgment and Order shows that Rs.5,000/- fine amount is deposited by
the Appellant pursuant to the impugned Judgment and Order. In this
view of the matter, we proceed to pass the following order: -
ORDER
[i] The Appeal is partly allowed.
[ii] The conviction of the Appellant recorded by the learned
Additional Sessions Judge, Parbhani, vide Judgment and
Order dated 03.11.2020 in Sessions Case No.130/2017, for
the offence punishable under Section 302 of the IPC and
consequent sentence, is hereby quashed and set aside.
Instead, the Appellant is convicted for the offence
punishable under Section 304 Part-II of the IPC and
sentenced to suffer imprisonment already undergone i.e.
6 years and 17 days, with fine of Rs.5000/- [Rupees Five
Thousand], in default, to suffer imprisonment for six
months.
[iii] The Appellant be set at liberty, if not required in any other
case.
[iv] Record & Proceeding be sent back to the learned Trial
Court.
[NEERAJ P. DHOTE] [R. G. AVACHAT]
Date: 31/01/2025 15:42:33
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