Murder convictions of two accused were upheld on corroborated eyewitness evidence. The court rejected challenges based on FIR delays and medical opinion, maintained the acquittals of seven others, and dismissed all three appeals. The convicted accused were directed to surrender.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Cri. Appeal No. 225/01 & Ors.
1
IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 225 OF 2001
Dhansing s/o. Annasaheb Sonavane, Age 40 years, Occu. Agriculture, R/o. Khamba, Tq. Shirur, Dist. Beed.
....Appellant. (Ori. Accd.No. 8)
Versus
The State of Maharashtra
....Respondent.
Mr. N.S. Ghanekar, Advocate for appellant.
Mr. S.D. Ghayal, APP for respondent/State.
WITH
CRIMINAL APPEAL NO. 211 OF 2001
Kundalik Jagannath Parjane, Age 31 years, Occu. Agriculture, R/o. Khalapuri, Tq. Shirur, Dist. Beed.
....Appellant.
(Ori. Accd.No.1)
Versus
The State of Maharashtra (Ori. Comp.) Through : P.S.O. Police Station Shirur, Dist. Beed.
....Respondent.
Mr. R.G. Hange, Advocate for appellant.
Mr. S.D. Ghayal, APP for respondent/State.
WITH
CRIMINAL APPEAL NO. 303 OF 2001
The State of Maharashtra Through P.S.O. Police Station, Shirur, Dist. Beed.
....Appellant.
Cri. Appeal No. 225/01 & Ors.
2
Versus
Mr. S.D. Ghayal, APP for appellant/State.
Mr. R.G. Hange, Advocate for respondent Nos. 1 to 7.
CORAM : T.V. NALAWADE AND S.M. GAVHANE, JJ.
RESERVED ON : 12/09/2017 PRONOUNCED ON : 25/09/2017
JUDGMENT : [PER T.V. NALAWADE, J.]
Cri. Appeal No. 225/01 & Ors.
3
of Sessions Case No. 10/2000, which was pending in the Court of learned Sessions Judge, Beed. In all, nine accused were tried for the offence punishable under section 302 r/w. 149 of Indian Penal Code ('IPC' for short) and for the offences punishable under sections 147 and 148 of IPC. There was charge by using section 34 of IPC also. The Trial Court has convicted accused No. 1 - Kundalik and accused No. 8 - Dhansing for the offence punishable under section 302 r/w. 34 of IPC. Other accused are acquitted of all the offences. Life imprisonment is given to accused Nos. 1 and 8. State has filed Criminal Appeal No. 303/2001 to challenge the decision of acquittal and other two appeals are filed by the accused to whom conviction is given. Both the sides are heard.
Deceased - Ashok Parjane was son of first informant Sagarbai. Two years prior to the date of incident, husband of Sagarbai had died. Ashok had married two wives namely Ujjwala and Sangita and both these wives were cohabiting with Ashok in village Khalapuri, District Beed. They had house in their agricultural land and they were staying there. Their field is known as 'Pimpalacha Mala'. In the vicinity of this field, there are lands of persons of Bhavki of Sagarbai and they have also houses in their respective
Cri. Appeal No. 225/01 & Ors.
4
fields.
and she felt that some persons were coming to their place and she woke up. There were bulbs fixed in the courtyard and in the light
Cri. Appeal No. 225/01 & Ors. 5
of bulbs, she noticed that all the nine accused were standing near
the place where Ashok was sleeping. She noticed that accused No. 1 - Kundalik was holding sword and he gave blow of sword on Ashok. He noticed that accused No. 8 - Dhansing was holding axe and he gave blow of axe on the neck of Ashok. She felt that there was sound like groaning from Ashok. She also saw other accused like Kashinath, Mahadeo, Ashok Bhosle, Tanaji Bhosale, Arun Parajane and Bappa Parjane, all resident of Khalapuri and they ran towards river side after finishing Ashok. She went towards the place where Ashok was sleeping and she noticed that Ashok was dead and there were bleeding injuries on his neck, abdomen and other parts of the body. She started shouting for help.
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was sent to police station and it was registered in police station at about 11.30 a.m. at C.R. No. 36/1999 for aforesaid offences. Sub Divisional Police Officer (S.D.P.O.) - Vasant Pardeshi took over the investigation of the matter on 11.7.1999. Prior to that, the Head Constable, who had reached to the spot, prepared inquest panchanama of the dead body and the spot panchanama was also prepared in the presence of panch witnesses. The dead body was referred for P.M. examination. Some articles from the spot like bed, on which the deceased was sleeping were taken over from the spot of offence.
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recorded. Statements of some other witnesses, who had reached the spot after hearing hue and cry of Sagarbai were also recorded. Chargesheet came to be filed for aforesaid offences.
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abdomen and also on hands of the deceased. The injuries were noticed mainly on the front portion of dead body and all the injuries were bleeding, appearing to be inflicted by using sharp and cutting weapon. The clothes on the dead body had become wet due to blood of the deceased. The defence admitted the panchanama of seizure of clothes of deceased also which is at Exh. 28. It was prepared in Shirur Government Hospital where P.M. was conducted.
Cri. Appeal No. 225/01 & Ors.
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Cri. Appeal No. 225/01 & Ors.
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sharp object.
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at the distance of 20 ft. from the spot of offence. These circumstances are also noted in the spot panchanama. The challenge to spot of evidence is being discussed at proper place while appreciating the evidence of Sagarbai (PW 6). The other part of the evidence of this witness and also the evidence of Head Constable - Madhukar Puri (PW 7) on the spot panchanama has support of this document. This evidence is more than sufficient to prove that the incident in question took place in front of house of deceased.
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did not wake up and then virtually by encircling the deceased, assault was made on him by using weapons like sword and axe. Sagarbai (PW 6) has given evidence that she witnessed the incident in the light of two bulbs which were fixed in the open space.
Cri. Appeal No. 225/01 & Ors.
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Cri. Appeal No. 225/01 & Ors.
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sleeping inside of the house and only Ashok was present outside of the house. She has deposed that she came out when she heard hue and cry, but she has tried to say that Sagarbai raised hue and cry early in the morning, by indirectly denying that it was at about 00.00 hour to 1.00 hour. On this aspect of the evidence of Sangita (PW 6), other circumstances need to be seen and then only, it can be ascertained as to whether and to what extent, Sangita is telling the truth.
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not shown. However, the blood was lying there and bed and blanket of the deceased were there and these things are shown. On this bed, the deceased was sleeping. The spot panchanama was prepared after 11.00 a.m. and this circumstance needs to be kept in mind. In view of these circumstances, not much can be made out due to circumstance that in the spot panchanama the cot is not shown. In any case, in view of nature of evidence of these three witnesses the evidence needs to be closely scrutinized. If there is sufficient corroboration to the evidence of Sagarbai (PW 6), she can be believed.
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these two witnesses.
accused No. 1 was taking the side of Kausalyabai. Husband of Kausalyabai is dead. Some other evidence is brought on the record
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to the effect that the lands of the accused are situated adjacent to
the land of first informant and due to that, there was dispute. These suggestions can be used both ways. The defence suggested these circumstances to create a probability that due to enmity, the accused are falsely implicated. But, these circumstances also create motive for the offence. The relationship of other accused with accused No. 1 is also brought on the record by the defence. Due to these circumstances also, it can be said that it was not difficult for Sagarbai (PW 6) to identify atleast accused Nos. 1 and 8 on that night if they had come there and they had assaulted the deceased.
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writing the entire panchanama, the two lines are written, having small size alphabets. Thus, there is the circumstance. But, the panch witness has stuck to his version that this portion was there when he signed on the spot panchanama. Police Head Constable Puri (PW 7) has also given evidence on spot panchanama.
Cri. Appeal No. 225/01 & Ors.
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The circumstances of the present matter show that there was no option to police officers than to use the witnesses available.
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of Village Khalapuri was already present in the police station. His evidence shows that no written report of Police Patil was shown to him and only orally direction was given to him to go to village Khalapuri. According to him, one can reach the village Khalapuri within 15 minuts after starting from the police station. He has deposed that he started at 8.15 a.m. and he reached the spot at about 8.55 a.m. on 10.7.1999.
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drawing of panchanamas is mentioned correctly and no attempt was made either to pre-pone the time or post-pone the time. The evidence of Puri (PW 7) shows that he made arrangement to send the F.I.R. to police station for it's registration after recording it on the spot. Thus, the F.I.R. was registered in the register subsequently and probably after drawing of the aforesaid panchanamas in the village. In any case, even if it is presumed that the F.I.R. was recorded by him on the spot at about 8.55 a.m., it can be said that there was some delay in giving of F.I.R. as the incident had taken place at about 00.00 hour to 1.00 hour of the night and the persons from the village could have reached to police station within 15 minutes.
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12.7.1999 and they were produced before Magistrate on 13.7.1999.
It appears that copy of F.I.R. was sent to Magistrate on 12.7.1999. The copies of remand reports and case diary show that some accused came to be arrested late on 19.7.1999 and accused No. 8 came to be arrested in September 1999.
Cri. Appeal No. 225/01 & Ors.
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Bhavsar Vs. Sadiq Yakubbhai Jamadar and Ors.]. In that case,
the F.I.R. was found to be concrete and the circumstances were not creating a doubt as to the veracity. The facts and circumstances of each and every case are always different. In the present matter, in view of the aforesaid circumstances, it cannot be said that copy of F.I.R. was not sent immediately as required under section 157 of Cr.P.C. and the non compliance of this provision gave opportunity to concoct the case against the accused persons. This Court has quoted the circumstances that there were no male persons in the family of the first informant and the family was virtually helpless. One Police Head Constable was given for making investigation even when it was a case of murder and the record shows that the S.D.P.O., superior officer came in picture on the next day. Due to these circumstances, this Court holds that not much can be made out due to the circumstance that F.I.R. was not sent immediately, after it's registration to the Court of J.M.F.C. Similarly, the delay caused in giving of the F.I.R. can be considered only to ascertain as to whether there is a possibility of concoction.
Cri. Appeal No. 225/01 & Ors.
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observed that in the past, a case was filed due to the report given by accused No. 1 against this family. The case was mainly against the accused. It can be said that the dispute was between the deceased and his step sister and accused No. 1 was taking the side of said step sister of the deceased. Both the widows of the deceased have given similar evidence on this point and it can be said that the mother of deceased was virtually shocked due to the incident and she kept crying. There is no record to show that the Police Patil had given written report after learning about the incident or his oral report was recorded. The evidence of Police Officer Puri (PW 7) shows that the statement of Police Patil came to be recorded subsequently, after registration of the crime. Due to these circumstances, this Court holds that the delay caused in giving the F.I.R. also has not created a doubt about the version of Sagarbai (PW 6). Similarly, there is no hurdle in considering the F.I.R. of Sagarbai (PW 6) for corroboration purpose.
Cri. Appeal No. 225/01 & Ors.
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reasonable explanation available, not much can be made out from such circumstances in favour of the accused persons. [Reliance placed on the case of Anil Rail Vs. State of Bihar (2001) 7 SCC 318 ].
[Shambhu Das alias Bijoy Das and Anr. Vs. State of Assam] , it is made clear by the Apex Court that there is no requirement of provision of section 174 of Cr.P.C., of preparing the inquest report that the sum and substance of F.I.R. is mentioned in such report. The purpose of creating inquest report is only to show that the death was not natural, it was unnatural. In view of this position of law, not much can be made out in the present matter on the basis of such circumstance.
Cri. Appeal No. 225/01 & Ors.
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available for the delay caused, which can also be made out on the basis of circumstances, if the Court finds that the reaction of the witness to the incident was not improbable and human being facing such situation would not have acted in any other manner, the Court can safely accept the evidence of such witness even though the delay is caused in giving of the F.I.R.
Cri. Appeal No. 225/01 & Ors.
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natural witness and it is not disputed that the incident in question took place at the distance of hardly 20 ft. from the residential place of this witness, support her version. The medical evidence shows that four incised wounds were found on the dead body. Sagarbai (PW 6) has given account of only two injuries by deposing that one blow of axe was given by accused No. 8 on the neck of the deceased and one blow of sword was given by accused No. 1 on the abdomen of the deceased.
Cri. Appeal No. 225/01 & Ors.
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weapons were first lying in Muddemal room of police station and then in the Court in almost open condition and the rusting must have taken place. Even if there was sharp edge to the weapon in the past, after such long time nobody may not be able to see sharp edge to the weapon. This circumstance is considered by the Trial Court. Further, the sword has always some edge and has sharp point at front head and that portion can be used to inflict even stab wound.
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evidence on the overt acts of the remaining accused persons in inflicting injuries. Account of only two injuries is given by Sagarbai and there were two more incised wounds found on the dead body. This circumstance has not created a reasonable doubt about the role played by accused Nos. 1 and 8, though this circumstance can give benefit to the remaining accused persons. This Court holds that circumstance that Sagarbai attributed role only to accused Nos. 1 and 8 shows that she had no intention to implicate others and so, there is no possibility of concoction atleast as against accused Nos. 1 and 8. The circumstances of the present matter show that the investigating agency did not favour Sagarbai. Accused No. 8 was a political figure at that time and he was holding some post. That can be seen from the tenor of the cross examination made by his counsel of even Investigating Officer. On the other hand, it needs to be presumed that Sagarbai lost her only issue and she would not have spared the real culprits. This circumstance also needs to be used by drawing inference in a case like present one. Thus, Sagarbai (PW 6) needs to believed and benefit of doubt, due to aforesaid circumstances and absence of other circumstantial evidence needs to be given to other accused.
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that basis, the crime was registered. His evidence shows that after registering the crime, he had sent back the F.I.R. to Puri. In view of the discussion already made, there is no need to discuss the evidence of Amarsing (PW 9) more.
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as Exh. 53 in the evidence of Kulkarni. The same set of panch witnesses was used by Pardeshi and Kulkarni in respect of evidence collected as against accused Nos. 1 and 8, but the panch witness examined has turned hostile. Kulkarni (PW 8) has then given evidence that accused No. 8 took police and panchas to his residential place and he produced axe which was kept behind earthen pots (in a concealed condition). The seizure panchanama of axe is proved in the evidence of Kulkarni as Exh. 54.
Cri. Appeal No. 225/01 & Ors.
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was under him and the blanket which was covering him, blood of group 'B' was detected. Human blood was detected on the clothes of accused No. 1. These circumstances are not at all explained by accused Nos. 1 and 8 in their statements under section 313 of Cr.P.C.
Cri. Appeal No. 225/01 & Ors.
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and Ors. Vs. State of U.P.]. It was submitted that independent witnesses are not examined in the present matter by prosecution and so, adverse inference needs to be drawn. The aforesaid circumstances show that all the three material witnesses are examined by the prosecution. The remaining witnesses like Babu Parjane and others, who were living in the neighbourhood and who had rushed to the spot only after shouting of Sagarbai would have given evidence on the circumstance that they reached the spot due to shouting of Sagarbai. They would have given evidence on disclosure if the incident was disclosed to them by Sagarbai and that circumstances would have been relevant circumstances. In this regard, the other relevant evidence is already discussed and it shows that Sagarbai was in a shock and first time, she disclosed the incident when the police reached the spot. The submissions made by the learned counsels of the accused that brothers of Sagarbai had tutored her and due to that, she has falsely implicated the accused, is not acceptable for the reasons already given. In the incident of past, the deceased had used knife against accused No. 1 and not the brothers of Sagarbai. She is an illiterate lady and the defence has taken care not to produce the record of that case. There is evidence
Cri. Appeal No. 225/01 & Ors.
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of police to some extent.
Maharahtra]. The Apex Court has made some observations with regard to appreciation of evidence of sole eye witness. There are observations with regard to the duties and powers of the Appellate Court while considering the criminal appeal. The Apex Court has laid
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down that :-
"Even if the case against the accused hangs on the evidence of a single eye-witness it may be enough to sustain the conviction given on sterling testimony of a competent, honest man, although as a rule of prudence courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs."
The Apex Court has also laid down as under :-
"In many cases, especially the earlier ones the Court has in laying down such principles emphasised the necessity of interference with an order of acquittal being based only on compelling and substantial reasons and has expressed the view that unless such reasons are present an Appeal Court should not interfere with an order of acquittal (vide Suraj Pal Singh v. The State, (1952) SCR 193 = (AIR 1952 SC 52) Ajmer Singh v. State of Punjab, (1953) SCR 418 = (AIR 1953 SC 76) Puran v. State of Punjab, AIR 1953 SC 4590. The use of the words compelling reasons embarrassed some of the High Courts in exercising their jurisdiction in appeals against acquittals and difficulties occasionally arose as to what this Court had meant by the words compelling reasons. In later years the Court has often avoided emphasis on compelling reasons but nonetheless adhered to the view expressed earlier that before interfering in appeal with
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an order of acquittal a Court must examine not only questions of law and fact in all their aspects but must also closely and carefully examine the reasons which compelled the lower courts to acquit the accused and should interfere only if satisfied after such examination that the conclusion reached by the lower court that the guilt of the person has not been proved is unreasonable (Vide Chinta v. The State of Madhya Pradesh, Criminal Appeal No. 178/1959 decided on 18.11.1960 (SC), Ashrafkha Haibatkha Pathan v. The State of Bombay, Criminal Appeal No. 38 of 1960 decided on 14.12.1960 (SC).)
"..............On close analysis, it is clear that the principles laid down by the Court in this matter have remained the same. What may be called the golden thread running through all these decisions is the rule that in deciding appeals against acquittal the Court of Appeal must examine the evidence with particular care, must examine also the reasons on which the order of acquittal was based and should interfere with the order only when satisfied that the view taken by the acquitting Judge is clearly unreasonable. Once the appellate court comes to the conclusion the view taken by the lower court is clearly an unreasonable one that itself is a "compelling reason" for interference. For, it is a courts duty to convict a guilty person when the guilt is established beyond reasonable doubt, no less than it is its duty to acquit the accused when such guilt is not so established."
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(ii) The medical evidence on the use of sharp and cutting weapon by accused Nos. 1 and 8.
(iii) The motive for the crime for both the accused persons.
(v) The evidence of recovery of weapons from the accused persons on the basis of statements given under section 27 of the Evidence Act and the recovery of clothes of accused No. 1 and presence of blood stains on these articles and non explanation of these circumstances by the accused.
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However, there is no convincing evidence to prove the offence beyond reasonable doubt against the remaining accused persons, who are acquitted by the Trial Court.
have taken the defence of alibi and they have examined in all three witnesses to prove this defence. They have, however, not examined themselves on oath to substantiate this contention.
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deposed that he mentioned the bus number on the two passes and there is such endorsement on the two passes. The passes are given Exhs. 96 and 97. Bhaskar Talpade (PW 3) is examined, who is another conductor and he has deposed that on 10.7.1999 he was attached to Kalyan - Dombiwali - Shirdi bus and the bus reached at Kalyan at 6.30 a.m. and there, the persons holding the passes, having Exhs. 96 and 97, boarded his bus. Mukund (DW 4), Traffic Controller of M.S.R.T.C. is examined in support of the version given by aforesaid two witnesses in respect of the bus route of the aforesaid two buses. He has deposed that on 10.7.1999 he was discharging the duty of filling T. & A. register and on that date, Bhaskar Talpade (Conductor) was given the duty on Dombiwali - Shirdi bus. He has deposed that Dombiwali - Shirdi bus reached Kalyan at 5.30 a.m. and on that day, the bus left at about 6.30 a.m. He has given evidence that there was mechanical problem in the bus and so, the bus did not proceed ahead of Nashik. Entry in that regard is proved as Exh. 107.
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are not brought on the record. Ordinarily, corresponding record is
required to be created in the office about use of such passes by passangers, but no such record was produced. It can be said that these accused who are resident of Shirur, District Beed ought to have given evidence on oath to tell as to why they were at Satara and as to why they first went to Kalyan if they wanted to go to Shirdi or Beed. For going to Shirdi or Beed one is not required to go to Kalyan as there are many routes/roads from Satara to Beed or even Shirdi and by those routes the distance to be travelled would be less than 50% of the distance for going via Kalyan.
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provided in case reported as AIR 1978 SC 191 [State of U.P. Vs.
Sughar Singh and Ors.] Through the Trial Court has considered the probability in favour of the accused persons due to the aforesaid circumstances, this Court holds that this would not have helped the accused persons. This Court, however, sees no reason to interfere in the decision given by the Trial Court. In the result, following order is made :-
O R D E R
(I) All the three appeals are dismissed.
(II) Accused No. 1 - Kundalik s/o. Jagannath Parjane and accused No. 8 - Dhansing s/o. Annasaheb Sonavane are to surrender to their bail bonds for undergoing sentence.
(III) The bail bonds of remaining accused persons, who are acquitted and against whom the State has filed the appeal are to continue for the period of three months from today.
[S.M. GAVHANE, J.] [T.V. NALAWADE, J.]
ssc/
3 issues framed by the court
Could the murder convictions stand on the mother's eyewitness testimony despite hostile witnesses, medical objections and delay in reporting?
Did delayed dispatch of the FIR or omission of accused names from the inquest undermine the prosecution case?
Was interference warranted with the acquittal of the remaining accused?
Colour shows how this judgement treated each authority
Ishwar Sing Vs. State of U.P.Distinguished¶146
1976 CRI.L.J. 1883 [Ishwar Sing Vs. State of U.P.]. · Who else cites this
Paresh Kalyandas Bhavsar Vs. Sadiq Yakubbhai Jamadar and Ors.Relied on¶146
AIR 1993 (SC) 1554 · Who else cites this
Anil Rail Vs. State of BiharRelied on¶158
Anil Rail Vs. State of Bihar (2001) 7 SCC 318 · Who else cites this
Shambhu Das alias Bijoy Das and Anr. Vs. State of AssamApplied¶160
AIR 2010 SC 3300 · Who else cites this
Mani Ram and Ors. Vs. State of U.P.Distinguished¶202
1994 CRI.L.J.3848 · Who else cites this
Balaka Singh and Ors. Vs. The State of PunjabDistinguished¶206
1975 CRI.L.J. 1734 [Balaka Singh and Ors. Vs. The State of Punjab]. · Who else cites this
Shivaji Sahebrao Bobade Vs. State of MaharahtraRelied on¶207
AIR 1973 (SC) 2622 · Who else cites this
State of U.P. Vs. Sughar Singh and Ors.Relied on¶244
AIR 1978 SC 191 · Who else cites this
10 provisions across 3 enactments
Dhansing s/o. Annasaheb Sonavane
Kundalik Jagannath Parjane
The State of Maharashtra
Tanhaji s/o. Dnyanoba Bhosle
Kashinath s/o. Ramkishan Gite
Mahadeo s/o. Jagannath Parjeane
T.V. NALAWADE
S.M. GAVHANE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
