Bombay High Court
Raisoddin Alias Guddu S/O. Mohammad … vs The State Of Maharashtra on 1 October, 2024
Author: R.G. Avachat
Bench: R.G. Avachat
2024:BHC-AUG:23836-DB
Cri.Appeal No.197/2021
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.197 OF 2021
1) Raisoddin alias Guddu s/o
Mohammad Amiroddin,
Age 35 years, Occ. Agriculture,
R/o Qadrabad Plot, Ashraf Corner,
Parbhani, Taluka & District Parbhani
2) Raufabegum alias Gauribi w/o
Mohd. Amiroddin, Age 70 years,
Occu. Agriculture & Household,
R/o as above.
3) Akbarouddin s/o Mohd. Amiroddin,
Age 42 years, Occ. Agriculture,
R/o as above.
(At present the Appellants/ accused
are in Aurangabad Central Prison,
Harsool, Aurangabad, Taluka and
District Aurangabad) ... APPELLANTS
(Orig. Accused No.1, 3 & 4)
VERSUS
1. The State of Maharashtra
through the Police Station Officer,
Police Station, New Mondha,
Parbhani, Taluka & District Parbhani
(Notice to the respondent be served
through the Public Prosecutor,
High Court of Bombay,
Bench at Aurangabad) ... RESPONDENT
.......
Mr. Rajendra Deshmukh, Senior Counsel with
Mr. Vishal Chavan, Jay Veer, i/b
Mr. Devang Deshmukh, Advocate for appellants
Mrs. Uma S. Bhosle, A.P.P. for respondent - State, assisted by
Mr. Quadri Tabrezuddin Rahimuddin, Advocate for complainant
.......
Cri.Appeal No.197/2021
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CORAM : R.G. AVACHAT AND
NEERAJ P. DHOTE, JJ.
Date of reserving judgment : 3rd September, 2024.
Date of pronouncing judgment : 1st October, 2024.
JUDGMENT (PER R.G. AVACHAT, J.) :
The judgment and order of conviction and
consequential sentenced passed by Additional Sessions
Judge-4 Parbhani (Trial Court) on 18/2/2021 in Sessions Case,
No.41/2016 is under challenge in this appeal.
2. The appellants before us are a mother and her two
sons. Her husband too was one of the accused in the said
Sessions Case. He died pending the trial. The trial, therefore,
stood abated against him.
The appellants No.1 to 3 have been convicted for
the offence punishable under Section 302 of the Indian Penal
Code and sentenced to suffer imprisonment for life and to pay
fine of Rs.10,000/- (Rupees ten thousand), in default of
payment of fine, to undergo R.I. for 2 years. The appellants
No.1 to 3 are also convicted for the offence punishable under
Section 307 of the Indian Penal Code and sentenced to suffer
rigorous imprisonment for seven years and to pay fine of
Cri.Appeal No.197/2021
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Rs.5000/- (Rupees five thousand), in default to undergo R.I. for
one year.
The appellant No.1 Raisoddin has also been
convicted for contravention of Section 4 r/w Section 25 of the
Indian Arms Act and sentenced to suffer rigorous imprisonment
for one year and to pay fine of Rs.2000/- (Rupees two
thousand), in default to undergo R.I. for one month.
All the substantive sentences have been directed
to run concurrently.
The appellants have been acquitted of the offence
punishable under Section 504 of the Indian Penal Code.
Whereas the appellant No.2 Raufabegum @ Gauribi and
appellant No.3 Akbaroddin have been acquitted of the offence
punishable under Section 4 r/w 25 of the Indian Arms Act.
3. The case of the prosecution, in brief, was as
follows :-
Raufabegum @ Gauribi (appellant No.2)
(hereinafter referred to as Gauribi) is the sister of P.W.4 Sk.
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Masiyoddin. There are agricultural lands, Gut Nos.250 and
255, situated within the limits of city of Parbhani. A civil suit
and revenue proceedings were pending between the family of
appellants on one hand and P.W.4 Masiyoddin and others on
the other. Admittedly, all of them have share in both the lands.
Land Gut No.255 was converted into N.A. assessment. The
land Gut No.250 has N.A. potential.
4. Raisoddin (appellant No.1) is the son of appellant
No.2 Gauribi, who is maternal aunt of P.W.3 Sk. Khijar. The
incident took place by little past 6.00 p.m. on 13/12/2015 on
the land Gut No.250. About half an hour therebefore, P.W.3
Khijar had asked A/1 Raisoddin to give him back the PVC
pipes temporarily given by him to A/1. A/1, in turn, asked him
first to pay money/ cost of the fodder supplied to P.W.3 Khijar
and then he would return the PVC pipes. P.W.3 Khijar told him
the fodder money to have already been paid by his father. A
quarrel was said to have ensued between the two. A/1
Raisoddin went back hurling abuses to P.W.3 Khijar.
5. After a while i.e. 6.30 p.m., the appellants and
Mohd. Amiroddin, then accused No.2 (since deceased), came
together to a buffalo shed of P.W.3 Khijar. A/1 was holding a
Cri.Appeal No.197/2021
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knife (Khanjir). Amiroddin (since deceased) was holding a
sword. A/3 Gauribi was having an iron pipe. Azharoddin
(deceased) convinced them not to abuse. Thereupon A/3
pierced Khanjir in the stomach of Azharoddin. A/2 Gauribi
assaulted on Azhar’s head with iron pipe from behind. Khijar’s
father intervened to rescue his son Azhar. Amiroddin (since
deceased) assaulted him with a sword. A/3 Akbarouddin beat
up the father of Khijar with kicks and fist blows.
6. P.W.3 Khijar rushed the injured to a Government
Hospital. Azhar was declared dead. Khijar’s father was
shifted to Nanded as his condition was critical. P.W.3 Khijar
then approached Mondha Police Station and lodged the First
Information (F.I.R. Exh.77).
7. A crime vide C.R. No.279/2016 for the offences
punishable under Sections 302, 307, 504 read with Section 34
of the Indian Penal Code and Section 4 read with 25 of the
Arms Act was registered against the appellants and Amiroddin
(since deceased). The A/1 Raisoddin and Amiroddin (since
deceased) made disclosure statements, pursuant to which a
knife, sword and iron pipe came to be recovered from two
different places in the presence of panchas. Clothes on the
Cri.Appeal No.197/2021
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person of the deceased at the time of the incident and that of
the appellants and injured were seized under different
panchanamas. Services of a sniffer dog were availed. From
the crime scene a pair of Chappal, some earth and earth
mixed with blood came to be seized. Statements of persons
acquainted with the facts and circumstances of the case were
recorded. Upon completion of the investigation, a charge
sheet was filed against all the four.
8. The Trial Court framed the Charge (Exh.209). The
appellants pleaded not guilty. The defence of A/1 was that, by
5.00 p.m. on the given day, he was watering the crop in the
field. Azhar and Masiyoddin assaulted him with a spade. He
suffered grievous injury to his right thumb and index finger.
The injury was sutured with 8 stitches. He then returned home
and went to hospital for treatment. Police forcibly arrested him
in the hospital. During suggestion to some of the prosecution
witnesses, a defence was put up that the injured were
assaulted by someone else in the village.
9. To bring home the charge, the prosecution
examined 19 witnesses and produced in evidence certain
documents. After appreciation of the evidence in the case, the
Cri.Appeal No.197/2021
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Trial Court convicted and consequently sentenced the
appellants as stated above.
10. Heard. Learned Senior Advocate representing the
appellants would submit that, it was a month of December.
Sunset by little past 5.00 p.m. The incident took place in a
cattle shed on the field. The crime scene panchanama and the
evidence of the prosecution witnesses did not disclose that
there was electricity. The learned Senior Advocate meant to
say that, it was dark and the victims were, therefore, unable to
identify the assailants. He would further submit that,
admittedly a civil dispute was pending before the Civil Court
and revenue authorities as well. The lands in dispute have
N.A. potential. The appellants have share in those lands.
Only with a view to deprive them of their rightful claim, a false
F.I.R. has been lodged against one and all the members of the
same family. He would further submit that, A/1 was in fact
assaulted by Azhar and Masiyoddin with a spade. He brought
to our notice a photograph indicating his right hand below the
wrist was completely bandaged. It was therefore, difficult for
him to hold a Khanjir in the very hand and make assault
therewith. Admittedly, he was not lefty. He would further
submit that, the father of A/1 was 70 plus. He was a patient of
Cri.Appeal No.197/2021
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Asthma. He used to be brought before the Trial Court lifting
him by 2/3 persons. It was just impossible for him to make an
assault with a sword. A criminal case was also instituted by A/
1 against those who assaulted him with a spade. The same
resulted into acquittal. Unfortunately, no appeal has been
preferred thereagainst.
11. Learned Senior Advocate has also placed on
record a written notes of his submissions. According to him, a
pair of Chappal, Namaz-Cap was seized from the crime scene.
No investigation was made in that regard to prove that the cap
belonged to A/1. The evidence of the witnesses to the spot
and seizure panchanama are not consistent with each other.
Admittedly, P.W.3 Khijar (informant) did not understand
Marathi. In his cross-examination, he was called upon to read
the F.I.R. He could not. No police official has been examined
who recorded the F.I.R., which is in Marathi. When the injured
had suffered serious bleeding injuries, it is surprising that
P.W.3 Khijar who carried them to the hospital did not get
clothes on his person stained with blood. The prosecution
failed to explain the injuries on the person of A/1. All the
prosecution material witnesses are relations of each other.
The so called independent witness- P.W.6 Kamlakar was
Cri.Appeal No.197/2021
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unreliable. Turning to the medical evidence on record, he
would submit that, certain standard procedure was not
followed by the concerned Medical Officer while preparing post
mortem notes. Panch to the inquest panchanama was a
Government servant. The panchanama was drawn on
Sunday, a holiday. His presence to the said panchanama was
therefore doubtful. The panchanamas on record appear to
have been forged. So far as regards injuries to she buffalo are
concerned, nothing was brought on record that the buffalo
belonged to the informant and she really suffered injury during
the incident. P.W.11 Dr. Sonali had examined A/1 Raisoddin
and injured Masiyoddin same time.
12. Learned Senior Advocate would further submit that,
photographs were snapped of the incident indicating A/1 was
taking out a knife. The photographer, however, admitted that,
no panchanama was drawn in his presence (when the Chappal
pair was used, availing services of a sniffer dog, 4 days had
already been passed post his seizure). The same suggests
the articles taken charge from the crime scene were neither
seized before they were sent to Forensic Science Laboratory,
Aurangabad. According to the learned Senior Advocate, the
evidence on record fell short to bring home the charge beyond
Cri.Appeal No.197/2021
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reasonable doubt. He, therefore, urged for allowing the
appeal.
13. The learned A.P.P. and the learned Advocate who
assisted the learned A.P.P. would, on the other hand, submit
that the case was based on evidence of an injured eye
witness. Evidence of an injured witness stands on higher
footing. The victims have no reason to falsely implicate the
appellants, sparing the actual culprits. She took us through the
evidence on record and also relied on the case of Shahaja
Alias Shahajan ismail Mohd. Shaikh Vs. State of
Maharashtra (AIR OnLine 2022 SC 1011) and particularly
paras 25, 26, 27, 29 to 32, which read :-
“25. It appears from the evidence on record, more
particularly the evidence of the PW-1 Nandlal
Ramnihor Mishra (Exh. 12), that both, the deceased
and appellant herein were known to him. The PW-1
Nandlal knew both as they all used to reside in the
same locality i.e. nearby the Hanuman temple situated
at the Vile Parle railway station. The PW-1 in his oral
evidence has talked about the fight that first ensued at
10:30 P.M. between the deceased and the appellant
somewhere near the west ticket window of Vile Parle
Railway Station. The fight between the two was on
account of money. It appears that thereafter at about
12:00 in the night while the deceased was sleeping,
the appellant herein laid an assault on the head of the
deceased with a hammer. The PW-1 Nandlal
witnessed the same on hearing the noise. After the
assault was over, the PW-1 is also said to have
Cri.Appeal No.197/2021
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confronted the appellant herein by asking him
whether he had killed the deceased. We do not find
anything improbable in the examination-in-chief of
Nandlal (PW-1) more particularly considering a very
scant & deficient cross-examination. We take notice
of the fact that except a minor contradiction in the
form of an omission, nothing substantial could be
elicited from the cross examination of the PW-1 so as
to render his entire evidence doubtful.
26. The PW-8 Udaysingh Ramsingh Thakur
(Exh.29) is also one of the eye witnesses to the
incident. He also knew the deceased as well as the
appellant as they all used to work as labourers in the
locality of Vile Parle. So far as the evidence of the
PW-8 Udaysingh is concerned the defence has been
able to bring on record a major contradiction in the
form of an omission as the PW-8 in his police
statement recorded under Section 161 of the Cr.PC
had not stated anything about the appellant inflicting
blows with a hammer on the head of the deceased.
The PW-8 in his cross-examination stated that he had
no idea as to why the police did not record in his
police statement the factum of assault with the
hammer. However, the PW-8 in his evidence has
deposed that after the incident the appellant was
confronted by the PW-1 Nandlal. Some part of the
evidence of the PW-8 corroborates the oral testimony
of the PW-1 Nandlal.
27. The appreciation of ocular evidence is a hard
task. There is no fixed or straight-jacket formula for
appreciation of the ocular evidence. The judicially
evolved principles for appreciation of ocular evidence
in a criminal case can be enumerated as under:
I. While appreciating the evidence of a witness,
the approach must be whether the evidence of the
witness read as a whole appears to have a ring of
truth. Once that impression is formed, it is
undoubtedly necessary for the Court to scrutinize the
Cri.Appeal No.197/2021
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evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out in
the evidence as a whole and evaluate them to find out
whether it is against the general tenor of the evidence
given by the witness and whether the earlier
evaluation of the evidence is shaken as to render it
unworthy of belief.
II. If the Court before whom the witness gives
evidence had the opportunity to form the opinion
about the general tenor of evidence given by the
witness, the appellate court which had not this benefit
will have to attach due weight to the appreciation of
evidence by the trial court and unless there are
reasons weighty and formidable it would not be
proper to reject the evidence on the ground of minor
variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is
quite possible for him to make some discrepancies.
But courts should bear in mind that it is only when
discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that
the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not
touching the core of the case, hyper technical
approach by taking sentences torn out of context here
or there from the evidence, attaching importance to
some technical error committed by the investigating
officer not going to the root of the matter would not
ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere
variations falling in the narration of an incident (either
as between the evidence of two witnesses or as
between two statements of the same witness) is an
unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to
possess a photographic memory and to recall the
details of an incident. It is not as if a video tape is
replayed on the mental screen.
Cri.Appeal No.197/2021
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VII. Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence which so often has an
element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to
person. What one may notice, another may not. An
object or movement might emboss its image on one
person’s mind whereas it might go unnoticed on the
part of another.
IX. By and large people cannot accurately recall a
conversation and reproduce the very words used by
them or heard by them. They can only recall the main
purport of the conversation. It is unrealistic to expect
a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the
time duration of an occurrence, usually, people make
their estimates by guess work on the spur of the
moment at the time of interrogation. And one cannot
expect people to make very precise or reliable
estimates in such matters. Again, it depends on the
time-sense of individuals which varies from person to
person.
XI. Ordinarily a witness cannot be expected to
recall accurately the sequence of events which take
place in rapid succession or in a short time span. A
witness is liable to get confused, or mixed up when
interrogated later on.
XII. A witness, though wholly truthful, is liable to
be overawed by the court atmosphere and the piercing
cross examination by counsel and out of nervousness
mix up facts, get confused regarding sequence of
events, or fill up details from imagination on the spur
of the moment. The subconscious mind of the witness
sometimes so operates on account of the fear of
looking foolish or being disbelieved though the
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witness is giving a truthful and honest account of the
occurrence witnessed by him.
XIII. A former statement though seemingly
inconsistent with the evidence need not necessarily be
sufficient to amount to contradiction. Unless the
former statement has the potency to discredit the later
statement, even if the later statement is at variance
with the former to some extent it would not be helpful
to contradict that witness.
[See Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753, Leela
Ram v. State of Haryana, AIR 1999 SC 3717, and
Tahsildar Singh v. State of UP, AIR 1959 SC 1012]
29. There is nothing palpable or glaring in the
evidence of the two eye-witnesses on the basis of
which we can take the view that they are not true or
reliable eye-witnesses. Few contradictions in the form
of omissions here or there is not sufficient to discard
the entire evidence of the eye-witnesses.
30. In the aforesaid context, we may refer to a
decision of this Court in the case of State of U.P. v.
Anil Singh, AIR 1988 SC 1998, wherein in para 15, it
is observed thus :
“15. It is also our experience that invariably the
witnesses add embroidery to prosecution story,
perhaps for the fear of being disbelieved. But
that is no ground to throw the case overboard, if
true, in the main. If there is a ring of truth in the
main, the case should not be rejected. It is the
duty of the court to cull out the nuggets of truth
from the evidence unless there is reason to
believe that the inconsistencies or falsehood are
so glaring as utterly to destroy confidence in the
witnesses It is necessary to remember that a
Judge does not preside over a criminal trial
merely to see that no innocent man is punished.
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A Judge also presides to see that a guilty man
does not escape. One is as important as the other.
Both are public duties which the Judge has to
perform.”
31. The medical evidence on record further
corroborates the ocular version of the eye witnesses.
The PW-6 Dr. Shivaji Vishnu Kachare (Exh. 25) in his
evidence has deposed that the cause of death is due to
the head injury. The expert witness has also deposed
that all the injuries were in the nature of Contused
Lacerated Wound & could have been caused by a
weapon like hammer.
32. The chemical analysis report (Exh.10) of the
forensic science laboratory indicates that there were
stains of human blood on the hammer matching with
the blood group of the deceased i.e. ‘A’ group.”
14. The learned A.P.P. meant to say that, while
appreciating the evidence of a witness, the approach must be
whether the evidence of a witness read as a whole, appears to
have a ring of truth. She brought our attention to Point No. (I)
to (XIII) quoted in para 27 of the judgment relied on. According
to her, minor discrepancy on trivial matters not touching the
core of the case and not going to the root of the matter should
not ordinarily permit rejection of the evidence as a whole. She
would further submit that, the medical evidence on record
corroborates the ocular version. The C.A. reports reinforce the
prosecution case. She also relied on para 13 of the judgment
Cri.Appeal No.197/2021
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delivered by the very Court in case wherein A/1 was the victim
and deceased Azhar and P.W.4 Masiyoddin were the accused.
She also placed on record copy of evidence of that case. It
needs no mention that, evidence of one case cannot be read in
the other that too for the first time in appeal.
15. The learned Advocate representing the victim
made similar submissions and placed on record written notes
of his arguments along with the following authorities :-
(1) Pattu Rajan Vs. The State of Tamil Nadu
2019 2 ACR 1087(2) Joy Devaraj Vs. State of Kerala
2024 0 Supreme (SC) 537(3) Sanjay Puran Bagde & anr. Vs. The State of
Maharashtra [ 2022 7 Supreme 755 ](4) Sudha Renukaiah & ors. Vs. State of A.P.
2017 4 Supreme 275(5) Amar Singh Vs. Balwinder Singh & ors.
2003 1 Supreme 353
(6) Nand Kumar Vs. State of Chhattisgarh
2015 1 Suypreme 616
(7) Prahalad Patel Vs. State of Madhya Pradesh
2011 2 Supreme 210
(8) Rakesh & another Vs. State of Madhya Pradesh
2011 6 Supreme 630
(9) Kartik Malhar Vs. State of Bihar
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1995 0 Supreme (SC) 1152
(10) Omkar Singh Vs. Jaiprakash Narain Singh & anr.
2022 2 Supreme 637
(11) State of Karnataka Vs. K. Yarappa Reddy
1999 8 Supreme 496
16. We have perused the above authorities. The notes
of arguments is a summary of the evidence of prosecution
witnesses. According to learned Advocate, in case of a faulty
investigation, if any, the rest of the evidence must be
scrutinized independently. Criminal justice should not be made
the casualty for the wrongs committed by the investigating
officers in the case. He then took us to Section 34 of the
Indian Penal Code to indicate each and every appellants who
shared common intention and even if one of them has played a
little role, he would equally be liable to be punished and
sentenced provided for the main offence.
No one can dispute the legal proposition in that
regard.
17. So far as regards other judgments relied on by the
learned Advocate are concerned, in our view, there can hardly
be a precedent in criminal cases which are mainly decided on
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facts obtainable therein. We are also conscious of the fact that
it is the quality and not quantity of that matter. Conviction can
be based on the evidence of a solitary witness. There is,
however, a rider that such a witness should be of sterling
quality. Without detaining us to the submissions advanced by
the learned Advocates, we propose to advert to the evidence
on record and appreciate the same.
18. P.W.1 Nilesh and P.W.2 Devraj are the panchas to
the crime scene panchanama (Exh.55). The same was drawn
from 2.45 p.m. to 6.00 p.m. on 14/12/2015. The learned
Senior Advocate for the appellants referred to the said
panchanama to bring to our notice that there is nothing to
indicate availability of electric supply. The reading of the
panchanama indicates it to be a place at a cattle shed. Three
she buffaloes were tethered. There was a pool of blood. A
chocolate colour Chappal pair was found on the spot. The
same was seized besides seizure of earth and blood mixed
earth. Evidence of both the panchas and the police officer
Sudhakar Jagtap (P.W.18) who drew the same suggest the
articles seized were sealed on the spot and brought to the
police station.
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19. P.W.9 Dr. Rahul conducted the autopsy on the
mortal remains of Azhar. He noticed injuries at front side on
right hypocondyle region of Azhar, his small and large intestine
came out of abdomen. Due to said injury 13 cm. small and
large intestine came out. Second injury was at right chest 5
cm. from nipple right side over the sternum (middle portion of
chest). The size of injury was 3 cm. long, 1 cm. wide and 2
cm. deep. Third injury was on right 3 x 1 cm. Fourth injury was
right shoulder of 4 x 1 cm.
P.W.9 Dr. Rahul also noticed some injuries on back
of deceased Azhar. Those were
(1) mid scapular region on vertebral column having 2 cm
long, 1 cm wide and 5 cm deep horizontal towards leg.
(2) Second injury was below right shoulder 4 cm long, 1 cm
wide and 5 cm deep.
(3) Third injury was left shoulder 3 x 1 cm.
(4) Next injury was on base of neck on right side above
sterno clavicular angle 5 x 2 cm.
20. According to him, he could not explain whether the
injuries were ante mortem or post mortem as no space was
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available in the report and due to some heavy work, he forgot
to mention the same. We have no reason to disbelieve his
claim. In his opinion, the deceased died of “Cardio respiratory
arrest due to hypovolmic shock due to multiple stab injuries
with lung rupture.” The post mortem report is at Exh.125.
21. During his cross-examination, it has been brought
on record that, the post mortem report did not bear Outward
Number. It also did not bear endorsement of the Civil Surgeon
asking him to do the post mortem examination. There is
correction in the date from 13 to 14 in Column No.4. The post
mortem report is silent that he collected (sealed) and handed
over clothes of the deceased to a responsible police officer.
Rest of the questions were general and in the nature of
medical literature.
22. P.W.9 Dr. Rahul is an independent witness. His
evidence lead us to agree with his conclusion i.e. the cause of
death of deceased Azhar.
23. P.W.11 Dr. Sonali examined P.W.4 Masiyoddin on
13/12/2015. She was a Casualty Medical Officer on duty that
time. She noticed two stab injuries. First was on left abdomen
Cri.Appeal No.197/2021
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of size 6 x 5 x 5 cm., it was grievous in nature. Second injury
was on left chest of size 3 x 2 x 6 cm., it was grievous in
nature. Both the injuries were on vital part, caused by sharp
object within six hours.
She issued the injury certificate (Exh.134). The
same corresponds with her oral evidence in examination-in-
chief regarding the injuries on the person of P.W.4 Masiyoddin.
According to her, the Medico Legal Certificates are silent to
record history. She explained that had the injured given the
history, she would have recorded the same. She further
admitted that, on the same day she examined A/1 Raisoddin.
He had suffered incise and grievous wound, those were also
caused by sharp object. Age thereof was within 6 hours and
even may be within 1 hour. She issued the certificate three
months after examination of Raisoddin. She had no difficulty
to issue the same immediately. The injury certificate of
Masiyoddin indicates that he was referred to Nanded for
further treatment. Both Azhar and Masiyoddin were brought to
the hospital by Fasiyoddin.
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24. P.W.12 Dr. Sayed Qadri was a Veterinary Doctor.
He examined she buffaloes on 15 December. He found injury
to her udder.
25. The prosecution appears to have not examined any
Medical Officer from Civil Hospital, Nanded, wherein
Masiyoddin was admitted. No medical papers of his
examination at the said hospital have also been produced and
admitted in evidence.
26. Let us now turn to the ocular evidence. It is in the
evidence of P.W.3 Khijar (informant) that a month before the
incident, he had given 40 PVC pipes to A/1 Raisoddin for
watering his wheat crop. By 5.30 p.m. on 13/12/2015, he
asked Raisoddin to give back his PVC pipes. He (A/1)
thereupon made a demand of cost of fodder supplied. Khijar,
in turn, informed him the same to have already been paid by
his father. Appellant Raisoddin thereupon went back after
abusing him (Khijar).
It is further in his evidence that, by 6.30 p.m. all the
appellants along with Amiroddin (since deceased) came
together. A/1 Raisoddin was armed with a knife (Khanjir).
Cri.Appeal No.197/2021
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Amiroddin (since deceased) was holding a sword. A/3 Gauribi
was having iron pipe. They started abusing him (Khijar) and
his family members. His brother Azhar (deceased) tried to
reason with them. A/1 Raisoddin thereupon assaulted on the
stomach of Azhar with knife (Khanjir). A/3 Gauribi inflicted
blow on his head with iron pipe. When his father intervened to
rescue Azhar, A/2 Amiroddin thrusted sword in his stomach.
A/3 Akbar beat up Masiyoddin with kicks and fist blows. He
called autorickshaw and took his brother and father to
Government Hospital. The Medical Officer there declared
Azhar dead. His father was shifted to Civil Hospital, Nanded.
He then went to Mondha Police Station and lodged F.I.R.
(Exh.77). He identified the articles knife, sword and iron pipe
shown to him before the Court. According to him, he saw the
incident in the electric light, at buffalo shed.
27. He was subjected to a searching cross-
examination. A family tree (genealogy) was first brought on
record. Then it has also been brought on record that lands Gut
Nos.250 and 255 were inherited property from forefathers.
The appellants too were in possession of some portion in both
the lands. The lands had N.A. potential. Even a lay-out of
plots was drawn in land Gut No.250.
Cri.Appeal No.197/2021
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28. It has further been brought on record that, he took
education in Urdu medium school. In examination-in-chief, he
stated to have lodged the F.I.R. in Marathi language. He
admitted in the cross-examination that he did not understand
Marathi words since he took education in Urdu. He went on to
admit that he always converse in Hindi or Urdu. He was then
called upon to read out the F.I.R., which is in Marathi. He
admitted that, he could not read the contents of the F.I.R.
because of it being in Marathi language. According to him, he
could have read the F.I.R. if it were in Urdu language.
29. It has further been brought on record that the
appellants did not have their Akhada on the land. They live at
Qadrabad Plot. Qadrabad is towards West of Parbhani city.
While land Gut No.250 was to the East of Parbhani city.
Before reaching Civil Hospital, none of them approached
Mondha Police Station or Nanalpeth Police Station which were
on the way to Civil Hospital. According to him, police did not
seize his clothes since those were not stained with blood. The
clothes of the injured were only stained with blood. He went
on to admit that there was police outpost in front of Casualty
Ward on the premises of Civil Hospital, Parbhani. The
Cri.Appeal No.197/2021
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information is given at the Police Outpost. He volunteered to
state that, he had been there but it was not accepted. He,
however, admitted that, his F.I.R. is silent to state the same.
He went on to admit that, Fasiyoddin was his uncle. He was
present outside the Court. He had accompanied him to the
Court on each and every date. It was further in his evidence
that, he did have a cell phone with him while the incident took
place. He did not inform his relatives about the incident. His
father was unconscious. He admitted that, none of the
appellants were left handed (lefty). He admitted that, his report
to the police is silent to state therein that he saw the incident in
electric light at cattle shed. He did not state the police the
exact abusive words hurled by the appellants. He denied
appellant Rsisoddin’s right hand had suffered incised wound
on the given day.
30. P.W.4 Masiyoddin testified on the lines of the
evidence of P.W.3 Khijar. We, therefore, do not reproduce his
evidence in examination-in-chief. His evidence suggests that,
he intervened to rescue his son Azhar. Amiroddin (since
deceased) thrusted sword in his stomach. His intestine
protruded. According to him, A/3 Akbar caught hold of him and
beat with fists and kicks. He became unconscious. Appellant
Cri.Appeal No.197/2021
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Gauribi is his real sister. His evidence further disclose that his
police statement was first time recorded at Civil Hospital,
Nanded on 25 December i.e. 12 days after the incident.
31. He too was subjected to a searching cross-
examination. He admitted to have filed a civil suit against
Amiroddin (since deceased) and his own father. He never
used wrist watch. According to him, Kamlakar (P.W.6) told him
about the time of the incident. According to him, he gained
somewhat consciousness two days after the incident. He went
on to admit that, Shafiyoddin informed him about the incident.
He denied to have not been in the know of the incident until 25
December and therefore, did not give statement to police. He
was suggested that some quarrel took place in the village and
therein he suffered the injury. He admitted that, the quarrel
took place between appellant Raisoddin and his son by 5.30
p.m. He, however, denied that, Raisoddin sustained injury in
the said incident. He denied to have assaulted appellant
Raisoddin with a spade.
32. P.W.5 Sharifoddin is not an eye witness to the
incident. He claimed to have joined the injured and P.W.3
Khijar while they were on way to hospital in autorickshaw. He,
Cri.Appeal No.197/2021
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however, admitted to have not himself reported the matter to
the police.
33. P.W.6 Kamlakar’s evidence is to the effect that he
had been to the cattle shed (crime scene) to buy milk. It was
little past 6.00 p.m. He saw the incident. He reiterated the
incident as has been given in evidence by the informant –
P.W.3 Khijar. Therefore, we do not reproduce the same.
34. He is a witness to the panchanama of seizure of
clothes of appellant Raisuddin. According to him, the clothes
were seized in his presence under panchanama (Exh.108). It
was drawn on 14 i.e. next day of the incident. It is further in his
evidence that, again on the following day, he was summoned
to the Police Station and in his presence clothes of Masiyoddin
which were brought from the hospital, were seized under
panchanama (Exh.109).
35. In the cross-examination, he admitted to have not
intervened to subside the quarrel. When he had been to the
Police Station on 14 and 15 i.e. on the next day of the incident,
he on his own did not relate the police to have witnessed the
incident. Same happened on 15 i.e. on the second day after
Cri.Appeal No.197/2021
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the incident. His evidence further indicates that it was only on
18 December i.e. 5 days after the incident his police statement
was recorded.
36. We here itself discard the evidence of P.W.6
Kamlakar as regards what has been deposed to by him as an
eye witness account. His conduct is grossly unnatural. On
two consecutive days immediately next after the incident, he
had been to the Police Station and acted as a panch witness,
still he did not relate the police about having witnessed the
incident. Even on 18 i.e. on the day on which his police
statement was recorded, he went to the Police Statement and
gave statement only after police summoned him and not
visiting the Police Station on his own. It is reiterated that,
these facts rendered him unreliable witness.
37. P.W.7 Sayyed Sardar is a witness to the inquest
panchanama (Exh.116). We do not propose to dilate much on
his evidence. P.W.8 Kazi Gaffroddin is a witness to various
panchanamas (Exh.119 to 122) relating to seizure of clothes of
Amiroddin, Akbaroddin, Gauribi and Raisoddin. His evidence
is silent to indicate that the clothes were seized after removing
them from the body of respective persons. According to him,
Cri.Appeal No.197/2021
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police asked him to put signature on the panchanamas relating
to seizure of clothes. The same indicates that, clothes were
there already available and simply packed in his presence.
The evidence of this witness, therefore, does not carry much
relevance to further the prosecution case.
38. The evidence of P.W. 10 Jivan is not referred to
since his evidence simply pertains to drawing of sketch of the
crime scene 3-4 days after the incident. He was a revenue
officer at the relevant time. P.W.13 Kailash is a panch witness
to two disclosure statements, one made by A/1 Raisoddin and
second made by Amiroddin (since deceased). We do not
propose to refer to his evidence in relation to the disclosure
statement made by the deceased accused.
It is in his evidence that, on 17 December, he went
to Mondha Police Station. Appellant Raisoddin stated in his
presence to have kept a knife in bushes in the Jayakwadi area
of Parbhani. He also told that he would take them to that place
and take out the knife. His statement was accordingly
recorded. It is at Exh.141. His evidence further indicates that,
accordingly, he along with other panch, police officials and
appellant Raisoddin went to area known as Kalyan Mandapam
Cri.Appeal No.197/2021
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at Jayakwadi area. The vehicle was stopped there. The
appellant led them to a place of bushes. He took out a knife
therefrom. It was seized under seizure panchanama Exh.141.
According to him, a slip containing his signature was affixed.
39. In his cross-examination, he testified that, he was
not issued a letter by police for availing his services as panch
witness. He denied that no such thing that the appellant gave
a disclosure statement and then took out a knife from the said
place did happen.
40. P.W.14 Sushil was a photographer, who had
snapped the photos of the fact that A/1 Raisoddin was taking
out knife from the bushes he referred to those photographs on
record. In his cross-examination, however, he gave a vital
admission that no panchanama was drawn in his presence.
41. As such, his evidence runs counter to the evidence
of P.W.13 who claimed that a seizure panchanama was drawn
in his presence. Admittedly, P.W.14 Sushil was in their
company. While the A/1 Raisoddin made a disclosure
statement and led them to that very place. P.W.15 Sandip was
another photographer who snapped photographs of the dead
Cri.Appeal No.197/2021
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body. While P.W.16 Narayan was the then Police Constable
who carried the seized articles to FSL, Aurangabad on
29/12/2015 along with a forwarding letter (Exh.150). P.W.17
Rajendra is Head Constable who had brought the clothes of
deceased Azhar from the Medical Officer to the Police Station
and delivered them to investigating officer, P.I. Jagtap. P.W.19
Nivrutti was a Police Havaldar. His evidence pertains to sniffer
dog activities. According to this witness, on 17/12/2015 by
1.15 p.m. a sniffer dog was summoned. A pair of Chappal was
removed from a packet. The dog sniffed the Chappal and then
climbed on the person of A/1 Raisoddin who was made to
stand along with 6-7 other dummies.
42. In our view, this witness, instead of helping the
police, indicates that, the footwear was not in sealed condition.
There is also no evidence to indicate that, after it was availed
for sniffer dog activity, the same was again sealed and then
sent to FSL, Aurangabad. Be that as it may.
43. P.W.18 Sudhakar Jagtap did the investigation of the
crime. We do not propose to reiterate his evidence since what
activities he did or got done have already been brought on
Cri.Appeal No.197/2021
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record through the evidence of panch witnesses and Medical
Officers.
44. The C.A. reports (Exh.169 to 175) pertain to the
seized articles, blood groups of the appellants, deceased and
injured. The blood group of deceased Amiroddin (accused)
was “A”. Exh.169 indicates blood group of Mohd. Akbar was
“A” while blood group of Mohd. Amiroddin was “AB”.
45. The blood group of both Raisoddin and Masiyoddin
is “A”. the blood detected on knife and sword was human.
The blood group of the blood found on knife was “A” group.
No blood group on the iron pipe could be determined as the
result was inconclusive.
46. It is, however, not known as to why all the seized
articles were sent to FSL on 29 December i.e. 16 days after
the incident. In what condition those were kept at the Police
Station is not known. We have every reason to observe since
a pair of Chappal was removed on 17 December, there is no
evidence to indicate that it was again sealed in the presence of
panchas. Be that as it may, since the case is based on eye
witness account.
Cri.Appeal No.197/2021
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APPRECIATION :
47. Appellant Gauribi is the real sister of P.W.4
Masiyoddin. Deceased Azhar was Masiyoddin’s son. The
crime scene panchanama (Exh.55) indicates the incident took
place in a cattle shed on the land Gut No.250. True, the
incident took place little past 6.00 p.m. As it was December,
sun set earlier. It is a case of inflicting injuries with weapons
that too by known persons. It, therefore, cannot be observed
that the injured, and so called eye witness could not see
assailants due to darkness. The cause of death of Azhar was
“Cardio respiratory arrest due to hypovolmic shock due to
multiple stab injuries with lung rupture.” While injury certificate
of Masiyoddin (Exh.134) indicate him to have suffered stab
injury in his left abdomen and another stab injury at his left
chest. Both the injuries were grievous in nature and caused
with sharp object. The age thereof was within 6 hours. He
was examined by 7.00 p.m. on 13 December itself. It is true,
at the same time A/1 Raisoddin was examined by the very
doctor, P.W.11 Dr. Sonali. She noticed him to have suffered
incised and grievous wound caused with sharp object. The
age of the said injury was even within 6 to 1 hour. The
photograph referred by learned Senior Advocate indicate his
Cri.Appeal No.197/2021
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right hand below wrist was in bandage. He meant to say that,
it was, therefore, difficult for A/1 Raisoddin to hold knife and
inflict blow therewith. No such questions were put to the
doctor, who examined A/1 Raisoddin. It is also not the case of
the defence that A/1 Raisoddin suffered the injury in the very
incident for making out a case of right of private defence or the
case that prosecution to have failed to explain the injury on his
person. It was his case that, deceased Azhar and P.W.4
Masiyoddin had assaulted him with a spade by 5.30 p.m. i.e.
the same day before the offence in question. Both of them
were prosecuted as well. They have been acquitted of the
charge. There is no appeal against acquittal. Be that as it
may. It is not at all the case of the appellants that A/1
Raisoddin suffered the said injury in the incident in question so
as to make out a case under any of the exceptions to Section
300 of Indian Penal Code.
48. The case is based on two eye witnesses. First is
the informant Khijar (P.W.3). He claimed to have been present
at the cattle shed when the incident took place. In the very
incident, his real brother died. His father too suffered grievous
injury. It should have been natural on his part to intervene in
the incident to save his father and real brother as well. Had all
Cri.Appeal No.197/2021
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the appellants and the deceased accused really been there
armed with respective weapons, there was no reason for them
to spare the informant Khijar as well. He did not suffer even a
scratch. The incident took place little past 6.00 p.m. He
claimed to have accompanied the injured to the hospital. He,
however, did not report the matter to the Police Outpost on the
premises of the Civil Hospital. The F.I.R. has been lodged by
2.00 a.m. i.e. 8 hours after the incident. There is one more
startling fact. The informant P.W.3 Khijar did not understand
Marathi. He would converse only in Hindi or Urdu. According
to him, he gave the information in Marathi language. When he
was called upon to read out the F.I.R. (Exh.77), he expressed
his inability to read it out. The police officer who recorded the
F.I.R. has not been examined. As such, there is nothing to
indicate that the F.I.R. records that it was read over to him as it
is (i.e. in Marathi) and he affirmed it to be true and correct.
Moreover, both the injured had suffered grievous injuries.
There was pool of blood at the crime scene. Then it’s difficult
to believe his case that when he took both the injured to
hospital in autorickshaw, not a drop of blood fell on his clothes.
49. It is not that no incident as has been alleged, did
take place. There is now-a-days tendency to implicate each
Cri.Appeal No.197/2021
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and every person of the family in the offence. Admittedly a
quarrel between A/1 raisoddin and informant P.W.3 Khijar had
taken place half an hour before the incident. A/1 has suffered
a grievous injury. True, we have already observed above that
in the facts and circumstances of the case it was not for the
prosecution to explain the same. the fact, however, remains
that, the prosecution witnesses are not coming clean. They are
hiding some facts.
50. Admittedly, the residential house of the appellants
was not on the land. It was at Qadrabad Plot area, i.e. to the
West of Parbhani city. While the land Gut No.250, where the
incident took place, was at the other end. The incident in
question took place within half an hour post earlier incident.
There is nothing to indicate that lady appellant Gauribi had
already been on the field along with her another son A/3
Akbaroddin. The appellant Gauribi was alleged to have
assaulted Azharoddin on his head with an iron pipe. The post
mortem examination report indicates the deceased to have not
suffered any injury to his head. As such, the medical evidence
rules out assault by appellant Gauribi with iron pipe. The pipe
was not recovered at her instance. She is not alleged to have
played any other role in the crime in question. In our view, her
Cri.Appeal No.197/2021
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presence at the crime scene even is very much doubtful, more
so, on the ground of evidence of P.W.3 Khijar. The statement
of other injured P.W.4 Masiyoddin was admittedly recorded 15
days after the incident in spite of he having been conscious
oriented earlier. He himself has admitted to have been told
about the incident by Sharifoddin. Sharifoddin was not an eye
witness. Had the entire family, namely the appellants and the
deceased Amiroddin (since deceased) had prearranged
meeting to eliminate one and all of the family members of
Gauribi’s brother Masiyoddin, all of them would have come
armed with deadly weapons. Admittedly, A/4 did not have any
weapon in his hand. He is alleged to have assaulted
deceased Azhar with fist and kick blows. The injury certificate
rules out blunt trauma or any other such injury as a result of
assault made by him. True, there being no independent eye
witness available and the evidence of injured witness carries
greater weight, here is a case of a dispute between the two
parties over agricultural land located at prime place. Both the
lands have N.A. potential. Possibility of involving appellant
Gauribi and her another son (A/3 Akbaroddin) with an ulterior
motive cannot be ruled out. To that extent, we are not relying
on the evidence of P.W.4 Masiyoddin. Even we accept the
evidence of P.W.3 Khijar, his evidence too is not relied on so
Cri.Appeal No.197/2021
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far as against these two appellants. In our view, the
prosecution has failed to bring home the charge against them
beyond reasonable doubt. Based on such quality of evidence,
the Trial Court ought not to have convicted both of them with
the aid of Section 34 of the Indian Penal Code.
51. So far as regards A/1 Raisoddin is concerned, we
rely on the evidence of P.W.4 Masiyoddin. He has committed
murder of his cousin Azhar. The Trial Court has, therefore,
rightly sentenced him to imprisonment for life. It is not the
case of the prosecution that A/1 Raisoddin has assaulted
P.W.4 Masiyoddin, his maternal uncle. He was assaulted by
the accused Amiroddin (since deceased). The injuries were on
the vital part of P.W.4 Masiyoddin. Therefore, it could be said
that it was a bid on his life as well. Since A/1 Raisoddin is was
convicted for other offence with the aid of Section 34 of the
Indian Penal Code, and admittedly he even not touched the
person of P.W.4 Masiyoddin, on whose life it was a bid, we
propose to interfere with the quantum of sentence imposed
against A/1 Raisoddin in that regard. We, however, do not find
to interfere with the conviction of the A/1 Raisoddin for the
offence under Section 4 r/w 25 of the Arms Act.
Cri.Appeal No.197/2021
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52. For the reasons given hereinabove, the appeal
partly succeeds. Hence the order :
ORDER
(i) The Criminal Appeal is partly allowed.
(ii) Conviction of the appellant No.2 Raufabegum alias
Gauribi w/o Mohd. Amorouddin and appellant No.3
Akbarouddins/o Mohd. Amirouddin, recorded by learned
Additional Sessions Judge-4, Parbhani in Sessions Case
No.41/2016 vide order dated 18/2/2021 set aside. Both of
them are acquitted of the offences punishable under Sections
302 and 307 of the Indian Penal Code.
(iii) Conviction of appellant No.1 Raisoddin alias Guddu s/o
Mohammad Amiroddin for offences punishable under Sections
302 of the Indian Penal Code and under Section 4 read with
Section 25 of the Arms Act is maintained. However, the order
directing him to undergo R.I. for two years in default of
payment of fine of Rs.10,000/- for offence punishable under
section 302 of the Indian Penal Code is reduced to three
months.
Cri.Appeal No.197/2021
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(iv) Conviction of the appellant No.1 for the offence
punishable under Section 307 of the Indian Penal Code is
maintained. However, the sentence of imprisonment is
reduced to rigorous imprisonment for one year and to pay fine
of Rs.1000/- (Rupees one thousand), in default to suffer S.I. for
one month.
(v) Conviction of the appellant No.1 for the contravention of
Section 4 of Arms Act, punishable under Section 25 of the
Indian Arms Act and the consequential sentence and fine with
default stipulation is maintained.
(vi) Clause (7) of the operative order regarding substantial
sentences to run concurrently stands unaltered.
(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-