Khandu S/O Ravan Shinde vs State Of Maharashtra

@Judgmenttag-Judgment,,,

 Vibha Kankanwadi, J.)",,,

 1. Present appeal has been filed by the appellant-original accused challenging the Judgment and Order of his conviction in Sessions Case No. 36 of,,,

2013 by the Additional Sessions Judge, Majalgaon, District Beed, dated 29-05-2015, for the offence punishable under Section 302 of the Indian Penal",,,

Code, 1860 (for short, “IPCâ€​).",,,

  2. Brief facts of the prosecution case are as under :-,,,

 The informant Akram Khayyum Quadri is the son of deceased Khayyumkhan. He is having three brothers and two sisters. They are resident of,,,

Zaregalli, Dharur, Taluka Dharur, District Beed. Deceased Khayyumkhan was serving as a Driver in the Maharashtra State Road Transport",,,

Corporation (“MSRTCâ€). The informant was at home around 10.00 p.m. on 12-01-2013, when he received information that his father is lying on",,,

the ground in injured condition near the well in Khanawal Lane. Therefore, he alongwith brothers and others went to said place. He found that his",,,

father was lying in unconscious state in injured condition. He had sustained injuries to his head, back, face and on neck. Since father was seriously",,,

injured, the informant and others took him to Hospital of Dr. Hazari. After giving preliminary treatment, he was referred to Swami Ramanand Tirth",,,

Rural (SRTR) Hospital, Ambajogai. Again he was referred to Ashwini Hospital at Latur. All the while, Khayyumkhan was unconscious, therefore, did",,,

not speak with anybody. But, then informant Akram lodged First Information Report (FIR) vide Crime No. 03 of 2013 under Section 307 of the IPC",,,

against unknown person.,,,

3. On the basis of said FIR, further investigation was undertaken. The panchnama of spot was carried out, certain articles like simple earth and",,,

earth mixed with blood was seized from the spot. On the same day, statements of witnesses namely Fulchand Eknath Mulay and Balasaheb Fulchand",,,

Mulay came to be recorded. From the statement of those two persons who stated to be an eye witnesses, it was revealed that when PW.2 Fulchand",,,

and deceased Khayyumkhan were chitchatting in Khanawal Lane, at that time, accused No. 1 came and demanded money for consuming liquor to",,,

PW.2 Fulchand. Accused No. 1 was alongwith other two persons at that time. Fulchand refused to give money to accused No. 1. Thereupon, accused",,,

No.1 had abused and caught hold him. He had then shouted loudly. After hearing shout, his son namely Balasaheb came from the house, which was at",,,

a distance to 100 to 150 Meters from that spot and took P.W. 2 Fulchand to house, after rescuing. Khayyumkhan was still there, and thereafter, it is",,,

stated that Khayyumkhan was assaulted by the accused persons by means of stick. As involvement of the accused persons was revealed, further",,,

investigation was also undertaken. One ASI Suryawanshi was deputed for recording statement of Khayyumkhan. But, after he went to the Ashiwini",,,

Accident and Neuro Care Center, Latur, it was revealed by Doctor that patient was not in a position to make a statement. Similarly, said Hospital had",,,

given written communication to the Police Station on 15-01-2013 informing about admission and later-on death of Khayyum at about 9.10 a.m. on 15-,,,

01-2013. Said intimation was given to Shivajinagar Police Station, Latur. On the basis of it, Accidental Death No. 00 of 2013 came to be registered",,,

under Section 174 of the Code of Criminal Procedure, 1973 (Cr.P.C.). Again, ASI Suryawanshi was sent to Latur to prepare inquest panchnama and",,,

take the dead body of deceased Khayyumkhan for post-mortem. Accordingly, inquest panchnama was prepared in presence of two panch witnesses",,,

and dead body of deceased Khayyumkhan was sent to the Civil Hospital, Latur, for post-mortem. Medical papers were collected. Accused persons",,,

came to be arrested. The clothes of accused No. 1 and 2 came to be seized under seizure panchanama with the help of two panchas. During the,,,

period of police custody, accused No.1 had given memorandum before two panchas and discovered the stick, which he had concealed in his house.",,,

Said weapon was seized. Similar statement was given by accused No.2 before two panchas and he has also led discovery of a stick stated to have,,,

been used in the commission of crime. The map of the spot of incident got prepared through Revenue Circle Inspector, Dharur. Certain documents",,,

were collected. After completion of investigation, charge-sheet came to be filed against original accused No. 1 and 2 as well as one absconding",,,

accused.,,,

4. Both accused persons were not released on bail, therefore, they have been produced before the Court from Jail time to time. After they both",,,

were produced before the learned trial Court, charge was framed. The contents of the charge were read and over and explained to the accused in",,,

vernacular. They pleaded not guilty and claimed for trial. Trial has been conducted.,,,

 5. Prosecution has examined in all fourteen (14) witnesses to bring home the guilt of accused. After considering the evidence on record and,,,

hearing both sides, learned Additional Sessions Judge, Majalgaon has held accused No.1 guilty of committing offence punishable under Section 302 of",,,

the IPC and has been sentenced to suffer Rigorous Imprisonment for life and to pay fine of Rs.2000/- (Rs. Two Thousand) in default of payment of,,,

fine to suffer further Simple Imprisonment for six (6) months. Accused No.2 has been acquitted of the offence punishable under Section 302 read,,,

with Section 34 of the IPC. Hence, the present appeal has been filed by original accused No.1.",,,

 6. Heard Shri. S. J. Salunke, learned Advocate for the appellant and Smt. D. S. Jape, learned APP for respondent-State. Perused the record and",,,

proceedings.,,,

 7. It has been submitted on behalf of the appellant that PW-1 Akram is the son of deceased, who filed FIR. Admittedly, he was not present on",,,

the spot at the relevant time. Even report was lodged under Section 307 of the IPC against unknown persons. PW-2 Fulchand is the eye witness to,,,

the incident. He has supported the prosecution till quarrel between himself and  accused No.1, for further events he has turned hostile. Learned trial",,,

Court has considered his evidence also under the principle of last seen together. PW-3 Balasaheb, who is son of PW-2 Fulchand, has supported his",,,

father till quarrel between his father and accused No.1, which was resolved by him. It is to be noted that PW-3 Balasaheb in his testimony has stated",,,

that even Khayyumkhan had gone to the house of PW-2 Fulchand, after PW-3 Balasaheb started to take Fulchand with him. Under such",,,

circumstances, after Khayyumkhan went from the house of Fulchand, if anybody had attacked him, it cannot be stated that accused No.1 is behind the",,,

act. Both these witnesses have not identified accused No.2. Prosecution has also tried to rely on the testimony of PW-7 Mohammad Umar, however,",,,

he has been disbelieved by the trial Court. His name is not appearing in the FIR. It is stated that accused No.1 has been falsely implicated and it has a,,,

political angle. The wife of deceased was a Councilor of Municipal Council, Dharur, who had won the election as candidate of Bhartiya Janata Party",,,

(BJP). Dr. Hazari was also having political connection, so also, PW-7 Mohammad Umar's brother is also having political connection. Therefore, PW-7",,,

Mohammad Umar appears to be a planted witness.,,,

 8. It has been further submitted on behalf of appellant that Prosecution has thereafter relied on testimony of PW-4 Syed Shaker, who was panch",,,

to the memorandum panchnama. He has supported the prosecution case, but when eye witnesses turned hostile and has not identified the stick to be",,,

the weapon used in the commission of offence, discovery cannot be believed. PW-5 Syed Afez is son-in-law of deceased Khayyumkhan. He was not",,,

present at the time of incident. PW-6 Sadek is a panch of spot panchnama. PW-8 Dr. Rahul Umbare is the Medical Officer, who has conducted post-",,,

mortem. He had noticed fourteen (14) injuries and had stated that they were sufficient to cause the death. Here, prosecution was having burden to",,,

prove that accused No.1 was the author of crime.,,,

 9. It has been further submitted by him that, PW-9 Santosh Khade was in the employment of informant, therefore, he was",,,

 interested witness. PW-10 Angat Sudke, PW-11 Akhileshkumar Singh, PW-12 Bhagwat Suryawanshi, PW-13 Dinkar Shinde and PW-14 Baburao",,,

Rathod are the Police Officers, who have carried out part of the investigation. CA Report produced on record does not show the group of blood",,,

Nos.,"Name of Parties

in the Citations",,Reported in

I,"Hanumant Govind Nargundkar

Versus State of M.P.",..,1953 Cri. L. J. 129

II,"Rambraksh alias Jalim Versus

State of Chhatisgarh",..,2016 Cri. L. J. 2939

III,"Paulmeli and another Versus

State of Tamil Nadu Through

Inspector of Police",..,AIR 2014 SC (Supp) 1249

IV,"Salim Akhtar alias Mota Versus

State of U.P.",..,2003 Cri. L. J. 2302

prosecution story further. Again to the surprise, when cross-examination of this witness has been conducted by accused No.1, it has come on record",,,

that due to dark, at that time except Khandu, he could not see any other person, therefore, he had stated before police that when he and his father was",,,

going to their house, he heard noise of beating. It appears that said statement is omission. He could not assign any reason as to why specific statement",,,

is not appearing in his statement before police. In fact, it is the prosecution story that  PW-2 Fulchand as well as PW-3 Balasaheb had witnessed",,,

beating by the accused and other two persons to deceased. Therefore, alleged omission cannot said to be the omission going to the root of the case",,,

disbelieving the matter in entirety.,,,

 17. As regards to evidenciary value of the hostile witness is concerned, in the decision in the case of Devraj (cited supra) relied by learned APP,",,,

it has been held that, “the evidence of a witness who has been declared hostile can be relied if there are some other material on the basis of which",,,

said evidence can be corroborated. Moreso, that part of evidence of a witness as contained in examination-in-chief, which remains unshaken even",,,

after cross-examination, is fully reliable even though the witness has been declared hostileâ€. Therefore, testimony of both these witnesses (PW-2 and",,,

3) is reliable till they have stated that when they proceeded towards their house. Further inference can be safely drawn that, at that time, they heard",,,

noise of abuses and beating to deceased by accused No.1.,,,

 18. Learned Advocate for the appellant has submitted that other independent witnesses, who were having shops around the said place in",,,

Khanawal lane have not been examined. It can be countered that when PW-2 Fulchand and PW-3 Balasaheb had no relation with deceased and they,,,

were supporting to the prosecution case, to substantial extent they were examined. Non-examination of other witnesses, who might be present at",,,

the relevant time, cannot be said to be fatal to the prosecution case. There is absolutely no suggestion to these eye witnesses in the cross-examination",,,

by accused No.1 that there was any kind of enmity between these two persons and accused No.1 or between accused No.1 and deceased.,,,

 19. PW-2 Fulchand was consistent in saying that in fact accused No.1 had asked him to lend amount for consuming liquor and then he had,,,

refused. The conduct of accused No.1 is also required to be considered when PW-2 Fulchand refused to give him amount, he had abused and then",,,

had caught-hold him. Fulchand could be rescued at that time because of his shout. But, unfortunately, it can be seen that nobody came forward to",,,

rescue deceased Khayyumkhan. Under such circumstances, testimony of these two witnesses cannot be discarded in it's entirety. PW-7 Mohammad",,,

Umar has been examined by the prosecution as eye witness, but he has been disbelieved by trial Court. Under such circumstances, it will not be safe",,,

to consider his testimony in appeal.,,,

 20. Next piece of evidence on which the prosecution has relied is memorandum and discovery under Section 27 of the Indian Evidence Act, 1872",,,

('Evidence Act', for short). In order to prove the same, prosecution has examined PW-4 Syed Shaker. He has stated that he was called by Police on",,,

18-01-2013, accused Khandu was produced before him. Another panch was alongwith him. Accused Khandu gave memorandum that he is ready to",,,

discover the wooden stick, and accordingly, his statement is reduced in to writing, which was signed by him as well as another panch. Thereafter,",,,

accused had led the discovery of stick from his house in presence of panchas and police. PW-4 has proved panchnama (Exhibit-32). In the cross-,,,

examination, there is absolutely no suggestion to this witness (PW-4) that there is any kind of enmity between deceased and accused No.1. He has",,,

tried to give answer to many questions. For some questions, he has stated that he is unable to tell. As regards what he was not able to tell was",,,

concerned, those questions were whether place/house under which stick was allegedly concealed was made of tin or wood, who was owner of the",,,

house and what was the colour of house, etc. Memorandum was taken down on 18-01-2013 and his statement before Court came to be recorded on",,,

28-11-2014. Under such circumstances, possibility of not remembering these minute details cannot render his testimony unbelievable. He was",,,

consistent enough in saying that accused had given that memorandum statement before him and then led discovery of the stick as per panchnama,,,

(Exhibit-32). As accused No.1 was knowing the place where stick was concealed, he has discovered it. Therefore, seizure panchnama (Exhibit-32) is",,,

proved and said fact is relevant fact under Section 27 of Evidence Act.,,,

 21. Now, it has been argued that though in the panchnama (Exhibit-32), it has been stated that the stick had bloodstains, yet said stick has not",,,

been sent for analysis. The fact is sufficient to note that stick was containing blood stains. It will not be out of place to mention here that CA Report of,,,

the blood samples of accused No.1, 2 and deceased Khayyumkhan has been placed on record (Exhibit-70 and Exhibit-71). It shows that blood group",,,

of accused No.1, 2 and deceased Khayyumkhan was of 'B' Group. Therefore, even if stick would have been sent for CA, it would have given blood",,,

group as 'B'. Therefore, not sending said stick for CA has not caused any prejudice to the accused.",,,

 22. PW-5 Syed Afez is son-in-law of deceased Khayyumkhan. Admittedly, he was also not present at the time of incident.",,,

 23. PW-6 Sadeq is panch to the spot panchnama. He has specifically stated that from the spot police had seized simple earth as well as earth,,,

mixed blood. Testimony of this witness is only relevant to the extent that there was blood on the spot. In the cross-examination he has stated that spot,,,

is surrounded by shops. At the cost of repetition, it can be seen here that non-examination of these shop owners is not at all fatal to the prosecution",,,

case.,,,

24. PW-8 Dr. Rahul is the Medical Officer, who had conducted post mortem of deceased. He had noticed fourteen (14) injuries at the time of",,,

external examination. No doubt, some appears to be post operative marks. But, we can see that multiple injuries were suffered by deceased. He has",,,

also given the fact that examination of skull showed Sutural fracture present at coronal suture, Fissured fracture present on left fronto-temporal-",,,

parietal bone, Fissured fracture present on left fronto-parieto-occipital region. He has categorically stated that injuries to skull and injuries to brain",,,

were sufficient to cause death. He has also given opinion that if any person is beaten by means of sticks, such as, Articles No. 11 and 6, then injuries",,,

noted by him in post mortem report are possible. Searching cross-examination has been taken place. But, said cross-examination is not sufficient to",,,

discard his opinion regarding probable cause of death i.e. head injury. Thus, it can be said that taking into consideration the injuries on the body, injuries",,,

sites chosen and the weapon used; only intention could be gathered is that to commit murder and the death was definitely homicidal in nature.,,,

25. PW-9 Santosh Khade is the Depot Manager in MSRTC, Dharur, who has stated about the employment of deceased Khayyumkhan in MSRTC.",,,

26. PW-10 P.I. Angad Sudke is the Investigation Officer. He has given account of investigation carried out by him. There are no glaring defects in,,,

his investigation. PW-11 Akhileshkumar Singh is Superintendent of Police Dhule (the then Assistant Superintendent of Police and Sub-Divisional,,,

Police Officer at Kaij) who had carried out part of investigation and given direction to PW-10 P.I. Sudke to make further investigation. So also, PW-",,,

12 ASI Suryawanshi and PW-14 Baburao Rathod (then PSI), who had carried out part of investigation and recorded statements of PW-2 Fulchand",,,

and PW-3 Balasaheb. PW-13 Dy.S.P. Shinde, was also Investigating Officer, who had forwarded seized articles to the CA.",,,

 27. Thus, from the above discussion, it can be concluded that the testimony of PW-2 Fulchand and PW-3 Balasaheb can be believed to the",,,

extent that they were supporting to the prosecution case. Further, inference can be arrived at from their testimony itself as well as it can be connected",,,

to the discovery panchnama under Section 27 Evidence Act. If evidence of such witness is allowed to be discarded then, it would be easy for the",,,

accused to win over witness or witnesses. Learned trial Court has appreciated the evidence properly and had taken a possible view. It can be,,,

concluded that prosecution has proved the guilt of the accused No. 1 beyond reasonable doubt. Under such circumstances, absolutely there is no merit",,,

in the present appeal, Â and hence, it deserves to be dismissed. In the result, we proceed to pass the following order :-",,,

 The appeal is hereby dismissed.,,,