Bombay High Court
Vishal Pradeep Torne vs The State Of Maharashtra on 13 January, 2025
Author: R. G. Avachat
Bench: R. G. Avachat
2025:BHC-AUG:785-DB
1 APEAL629.2021J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 629 OF 2021
WITH
CRIMINAL APPLICATION NO. 2529 OF 2024
Vishal Pradeep Torne,
Age : 32 years, Occu. Agri & Labour,
R/o. Tornewadi, Padhegaon,
Tq. Shrirampur, Dist. Ahmednagar. ...Appellant
Applicant
Versus
The State of Maharashtra ...Respondent
.....
Mr. Nilesh S. Ghanekar - Advocate for the Appellant/Applicant
Mrs. Kalpalata Patil Bharaswadkar - Addl. P.P. for Respondent/State
.....
AND
APPLICATION FOR LEAVE TO APPEAL BY STATE NO. 53 OF 2021
The State of Maharashtra,
through Shrirampur Taluka Police Station ...Applicant
Versus
Manisha Vikas Pawar,
Age : 30 years, Occu. Labour,
R/o. Krushnawadi, Padhegaon,
Tq. Shrirampur, Dist. Ahmednagar. ...Respondent
.....
Mrs. Kalpalata Patil Bharaswadkar - Addl. P.P. for Applicant/State
......
CORAM : R. G. AVACHAT
AND
NEERAJ P. DHOTE, JJ.
DATE OF RESERVING THE JUDGMENT : 06th JANUARY, 2025
DATE OF PRONOUNCING THE JUDGMENT : 13th JANUARY, 2025
2 APEAL629.2021J.odt
JUDGMENT [ Per Neeraj P. Dhote, J. ] : -
1. The present Appeal filed under Section 374(2) of the Code
of Criminal Procedure [hereinafter referred to as 'Cr.P.C.'], is directed
against the Judgment and Order dated 24th May, 2021 passed by the
learned Additional Sessions Judge, Shrirampur, in Sessions Case
No.18/2018, convicting the Appellant for the offence punishable under
Section 302 of the Indian Penal Code [hereinafter referred to as 'IPC']
and sentencing him to suffer Rigorous Imprisonment for life and pay
fine of Rs.10,000/-, in default, to suffer Rigorous Imprisonment for six
(6) months.
2. The Prosecution's case as revealed from the Police Report, is
as under :-
2.1. Vikas Indrabhan Pawar (hereinafter referred to as
'Deceased') and his wife Manisha Vikas Pawar (Accused No.2) were in
the employment of the Appellant as the Labourers. Deceased was
suspecting intimate relations between the Appellant and Accused No.2.
In the evening of 05.04.2018, Accused No.2 had come to the house of
Appellant. Deceased came to the house of the Appellant in search of
Accused No.2. Deceased banged the entrance door of Appellant's house.
The Appellant opened the door. Deceased saw Accused No.2 inside the
house. Scuffle took place between the Appellant and Deceased. The
3 APEAL629.2021J.odt
Appellant hit the Deceased with the wooden stick/log. Deceased came
out of the house. The Appellant again assaulted him with the wooden
stick/log. Deceased suffered several injuries to which he succumbed.
The next day morning, the brother of Deceased came to know that, the
dead body of the Deceased was lying near the house of Appellant. He
reached the said spot and called his other relatives. He went to the
Police Station at Shrirampur and lodged report, pursuant to which
Crime bearing No.41/2018 came to be registered for the offence
punishable under Section 302 read with Section 34 of the IPC against
the Appellant and Accused No.2.
2.2. The Inquest and Post mortem of the dead body was done.
The Spot Panchanama came to be prepared. The statements of witnesses
were recorded. The Appellant and Accused No.2 came to be arrested.
They were referred for medical examination. The articles seized during
the course of the investigation were sent for Chemical Analysis. In the
post mortem report, the cause of death was revealed as ' due to multiple
injuries'. On completion of the investigation, the Appellant and Accused
No.2 came to be charge-sheeted for the offence punishable under
Sections 302 r/w 34 of the IPC and Section 4 r/w 25 of the Indian Arms
Act.
2.3. On committal, the learned Trial Court framed the Charge
against both the accused for the offence punishable under Section 302
4 APEAL629.2021J.odt
r/w 34 of the IPC and Section 4 r/w 25 of the Indian Arms Act, vide
Exh.4, to which both the Accused pleaded not guilty and claimed to be
tried. To prove the Charge, Prosecution examined in all thirteen (13)
witnesses and brought on record the relevant documents. After the
Prosecution closed its evidence, the statement of both the Accused came
to be recorded under Section 313(1)(b) of the Cr.P.C. Both the Accused
denied the case and evidence of the Prosecution. The Appellant stated
that, Deceased had come to his house in an inebriated state, kicked the
door of his house, and assaulted him with the stick. At that time, three
persons assaulted Deceased with the stick and the incident took place in
self-defence. By the impugned Judgment and Order, the learned Trial
Court convicted the Appellant as referred above in the opening
paragraph and acquitted Accused No.2.
3. It is submitted by the learned Advocate for the Appellant
that, the Prosecution examined three (3) eye-witnesses. Their testimony
is unbelievable as their statements were recorded after seven days from
the incident. One of the eye-witnesses was one of the Suspects in the
incident which resulted in the death of Deceased. One of the eye-
witnesses did not support the Prosecution. The First Information Report
is lodged on Suspicion. No blood was found on the stick seized during
the investigation. The other evidence on record is not sufficient to prove
the Charge. The learned Trial Court did not appreciate the evidence in
5 APEAL629.2021J.odt
its correct perspective. The Appellant was entitled for acquittal.
4. The learned Additional Public Prosecutor submitted that,
the case is based on the consistent testimony of the eye-witnesses. One
wooden log was broken in four pieces, which shows the extent of
assault. The injuries on the Deceased were multiple, which shows the
intention to kill. The evidence available on record in its entirety proved
the Charge and the learned Trial Court has rightly convicted the
Appellant and the Appeal be dismissed.
4.1. The learned Additional Public Prosecutor further submitted
that, the learned Trial Court committed an error in acquitting Accused
No.2, as she was present on the spot of incident and instigated the
Appellant to eliminate her husband. The Application filed by the State
for Leave to Appeal against acquittal of Respondent/Accused No. 2, be
allowed.
5. Heard both the sides. Scrutinized the evidence on record.
The witnesses can be categorized as under : -
[i] Informant. [ii] Eye witnesses.
[iii] The panch witnesses. [iv] Carrier of Muddemal.
[v] Medical Evidence. [vi] Photographer.
[vii] The Investigating Officer.
6 APEAL629.2021J.odt
HOMICIDAL DEATH : -
6. As regards the homicidal death of Vikas Indrabhan Pawar is
concerned, the relevant evidence is that of his Brother, the Inquest
Panch, the Medical Officer and the Investigating Officer, who are
examined as PW1, PW2, PW6 and PW13, respectively.
6.1. The evidence of PW1 - Annasaheb Indrabhan Pawar show,
that, he was the brother of the Deceased and in the morning of
06.04.2018, the Police Patil of the village called him and informed that
the dead body of his brother was lying near the house of Appellant.
Accordingly, he went on the spot and saw the dead body of his brother
with injuries on the head and hands and blood on the clothes. He
approached Shrirampur Taluka Police Station and lodged report at
Exh.28. Nothing has come in the cross-examination to doubt his
testimony. This witness set the criminal law in motion.
6.2. The evidence of PW2 - Sachin Shamrao Gaikwad shows
that, on 06.04.2018, he was called by the police on the spot where the
dead body was lying and accordingly, he went there. He noticed injuries
on the head and blood on the face of Deceased. The Inquest at Exh.30
was prepared. The cross-examination could not create any dent in his
testimony.
7 APEAL629.2021J.odt
6.3. The evidence of PW13 - Vasant Mahadu Patve, the
Investigating Officer, corroborates the testimony of PW2 - Sachin
Shamrao Gaikwad, Panch, in respect of the Inquest at Exh. 30. His
further evidence show that the dead body was referred for post mortem.
6.4. The evidence of PW6 - Dr. Jame Basheer M. Farooqui, who
was working as a Medical Officer, shows that, on 06.04.2018, he
received the dead body of Vikas Indrabhan Pawar for autopsy. The body
was averagely built, eyes and mouth partly open, tongue inside the oral
cavity, no secretion through nostril, mouth and ears and face and neck
stained with dried blood. He performed post mortem and found the
following external injuries.
1. Lacerated wound over the left frontal region near hairline,
2.7 cms above the mid of left eyebrow, star shape 2.9 X 2
X 0.7 cms after dissection linear fracture of length 4.3
cms.
2. Incised looking lacerated wound over 2 cms right to
occipital protrubrance, obligely present, 3.9 X 1 X 0.8 cms
after dissection linear fracture seen underneath the wound
of length 3.1 cms.
3. Abraded contusion over right upper scapular region, 1.3 X
1 cms.
4. Scratch abrasion over the right scapular region, obliquely
placed above downward, 8.7 cms.
5. Contusion over the right side of the chest wall extending
from angle of mandible to spinal column, 18 X 14 cms.
8 APEAL629.2021J.odt
6. Abraded contusion over right arm, outer aspect, above
downward, 5.3 X 3.8 cms.
7. Abraded contusion over the right shin mid, 4 X 0.7 cms.
6.5. His further evidence shows that, all the injuries were bright
red in colour and were ante-mortem. As regards internal injuries, he
deposed that, subgleal hematoma over the frontal region in the vicinity
of injury No.1 of column No.17 and fracture of skull mentioned in the
column No.17. He also found contusion over frontal lobe of left side, 3 X
2 cms. There was injury over lung i.e. contusion over all the lobes, over
postero lateral aspect. He noticed edematous contusion over upper lip
intra-orally having teeth mark 3 X 1.2 cms.
6.6. His evidence further shows that, after the entire
examination, he opined the probable cause of death ' due to multiple
injuries'. He prepared the post mortem report at Exh. 35. He deposed
that if someone is beaten or assaulted with Articles 1 to 3 and 4, which
were the pieces of the wooden stick, the internal and external injuries
found on the body were possible. The cross-examination shows that the
injuries found on the dead body were possible by hard and blunt object.
Nothing is there in the cross-examination of the Medical Officer to
discard his testimony. The post mortem report at Exh. 35 corroborates
the testimony of the Medical Officer.
9 APEAL629.2021J.odt
6.7. On the basis of the above referred evidence, particularly the
medical evidence, the Prosecution has established that Vikas Indrabhan
Pawar met with Homicidal death. Evaluation of evidence on record
indicate that, Homicidal death is not seriously disputed.
EYE - WITNESSES :-
7. PW3, PW4 and PW5 are examined as the eye-witnesses to
the incident. Scrutiny of their evidence shows that, though they claimed
to have witnessed the incident, their statements were recorded belatedly
after a period of seven (7) days. Strangely, they did not disclose the
incident to the Police who had come to the village at the spot of the
incident and these witnesses were knowing the same. PW5's evidence
shows that, he was arrested in this case and after his arrest, his
statement came to be recorded. Surprisingly, the statements of all the
three eye-witnesses were not recorded immediately though they were
the residents of the same village where the incident took place. No
reason is forthcoming for recording belated statements of these
witnesses though they were the eye-witnesses to the incident. Under
such circumstances, it is not possible to rely on the testimony of these
three eye-witnesses and their testimonies are discarded.
CIRCUMSTANTIAL EVIDENCE : -
DISCOVERY OF DEAD BODY AT THE INSTANCE OF THE APPELLANT :
8. The evidence of PW13 - Vasant Mahadu Patve shows that,
10 APEAL629.2021J.odt
on 06.04.2018, he was attached to Shrirampur Taluka Police Station as
the Police Inspector. The investigation of this Crime was handed over to
him. In the morning of 06.04.2018, at 07:00 am, the Appellant came to
the Police Station and informed him about the incident of assault. The
evidence in respect of the Appellant informing the Police about the
incident between him and the Deceased would be hit by Section 26 of
the Indian Evidence Act, and not admissible. His further evidence shows
that, the Appellant took them to the spot which was in the field Gut No.
445, where the dead body of Vikas Indrabhan Pawar was lying. He
prepared the Inquest and referred the body for post mortem. In his
further evidence, the Station Diary Entry is brought on record at Exh.
75. His cross-examination that, he visited the spot of incident before the
registration of the crime, supports his evidence that the spot where the
dead body was lying was discovered at the instance of the Appellant.
The cross-examination could not create any dent in the testimony of this
witness. The suggestion that no statement was made by the Appellant,
is denied.
9. Section 27 of the Indian Evidence Act provides that, the
discovery in consequence of information received from the accused of
any offence, in the custody of a Police becomes relevant. On this point,
useful reference can be made to the judgment of Hon'ble Apex Court in
Perumal Raja alias Perumal Vs. State represented Inspector of Police;
11 APEAL629.2021J.odt
2024 SCC Online SC 12, wherein, the following observations are made
in Paragraph Nos.19 to 29:
"19. The prosecution's case, in the absence of eye witnesses, is based
upon circumstantial evidence. As per Section 25 of the Indian
Evidence Act, 18728, a confession made to a police officer is
prohibited and cannot be admitted in evidence. Section 26 of the
Evidence Act provides that no confession made by any person whilst
he is in the custody of a police officer shall be proved against such
person, unless it is made in the immediate presence of a Magistrate.
Section 27 of the Evidence Act is an exception to Sections 25 and 26
of the Evidence Act. It makes that part of the statement which
distinctly leads to discovery of a fact in consequence of the
information received from a person Accused of an offence, to the
extent it distinctly relates to the fact thereby discovered, admissible in
evidence against the Accused. The fact which is discovered as a
consequence of the information given is admissible in evidence.
Further, the fact discovered must lead to recovery of a physical object
and only that information which distinctly relates to that discovery
can be proved. Section 27 of the Evidence Act is based on the doctrine
of confirmation by subsequent events - a fact is actually discovered in
consequence of the information given, which results in recovery of a
physical object. The facts discovered and the recovery is an assurance
that the information given by a person Accused of the offence can be
relied.
20. In Pulukuri Kottaya v. King Emperor10, the Privy Council held
that the fact discovered embraces the place from which the physical
object is produced and the knowledge of the accused as to this, and
the information given, must distinctly relate to this fact.
21. In State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru 11,
this Court affirmed that the fact discovered within the meaning of
Section 27 of the Evidence Act must be some concrete fact to which
the information directly relates. Further, the fact discovered should
refer to a material/physical object and not to a pure mental fact
relating to a physical object disassociated from the recovery of the
physical object.
22. However, we must clarify that Section 27 of the Evidence Act,
as held in these judgments, does not lay down the principle that
discovery of a fact is to be equated to the object produced or found.
The discovery of the fact resulting in recovery of a physical object
exhibits knowledge or mental awareness of the person accused of the
offence as to the existence of the physical object at the particular
place. Accordingly, discovery of a fact includes the object found, the
place from which it was produced and the knowledge of the accused
12 APEAL629.2021J.odt
as to its existence. To this extent, therefore, factum of discovery
combines both the physical object as well as the mental consciousness
of the informant accused in relation thereto. In Mohmed Inayatullah v.
State of Maharashtra12, elucidating on Section 27 of the Evidence Act,
it has been held that the first condition imposed and necessary for
bringing the section into operation is the discovery of a fact which
should be a relevant fact in consequence of information received from
a person accused of an offence. The second is that the discovery of
such a fact must be deposed to. A fact already known to the police will
fall foul and not meet this condition. The third is that at the time of
receipt of the information, the accused must be in police custody.
Lastly, it is only so much of information which relates distinctly to the
fact thereby discovered resulting in recovery of a physical object
which is admissible. Rest of the information is to be excluded. The
word 'distinctly' is used to limit and define the scope of the
information and means 'directly', 'indubitably', 'strictly' or
'unmistakably'. Only that part of the information which is clear,
immediate and a proximate cause of discovery is admissible.
23. The facts proved by the prosecution, particularly the admissible
portion of the statement of the accused, would give rise to two
alternative hypotheses, namely, (i) that the accused had himself
deposited the physical items which were recovered; or (ii) only the
accused knew that the physical items were lying at that place. The
second hypothesis is wholly compatible with the innocence of the
accused, whereas the first would be a factor to show involvement of
the accused in the offence. The court has to analyse which of the
hypotheses should be accepted in a particular case.
24. Section 27 of the Evidence Act is frequently used by the police,
and the courts must be vigilant about its application to ensure
credibility of evidence, as the provision is vulnerable to abuse.
However, this does not mean that in every case invocation of Section
27 of the Evidence Act must be seen with suspicion and is to be
discarded as perfunctory and unworthy of credence.
25. The pre-requisite of police custody, within the meaning of
Section 27 of the Evidence Act, ought to be read pragmatically and
not formalistically or euphemistically. In the present case, the
disclosure statement (Exhibit P-37) was made by the appellant -
Perumal Raja @ Perumal on 25.04.2008, when he was detained in
another case, namely, FIR No. 204/2008, registered at PS Grand
Bazar, Puducherry, relating to the murder of Rajaram. He was
subsequently arrested in this case, that is FIR.No.80/2008, which was
registered at PS Odiansalai, Puducherry. The expression "custody"
under Section 27 of the Evidence Act does not mean formal custody. It
includes any kind of restriction, restraint or even surveillance by the
police. Even if the accused was not formally arrested at the time of
giving information, the accused ought to be deemed, for all practical
13 APEAL629.2021J.odt
purposes, in the custody of the police.
26. Reference is made to a recent decision of this Court in Rajesh &
Anr. v. State of Madhya Pradesh 13, which held that formal accusation
and formal police custody are essential pre-requisites under Section
27 of the Evidence Act. In our opinion, we need not dilate on the legal
proposition as we are bound by the law and ratio as laid down by the
decision of a Constitution Bench of this Court in State of U.P. v.
Deoman Upadhyaya14. The law laid down by this Court in a decision
delivered by a Bench of larger strength is binding on any subsequent
Bench of lesser or coequal strength.15 This Court in Deoman
Upadhyay (supra) observed that the bar under Section 25 of the
Evidence Act applies equally whether or not the person against whom
evidence is sought to be led in a criminal trial was in custody at the
time of making the confession. Further, for the ban to be effective the
person need not have been accused of an offence when he made the
confession. The reason is that the expression "accused person" in
Section 24 and the expression "a person accused of any offence" in
Sections 26 and 27 have the same connotation, and describe the
person against whom evidence is sought to be led in a criminal
proceeding. The adjectival clause "accused of any offence" is,
therefore, descriptive of the person against whom a confessional
statement made by him is declared not provable, and does not
predicate a condition of that person at the time of making the
statement.
27. Elaborating on this aspect, a three judge Bench of this Court in
Aghnoo Nagesia v. State of Bihar16has held that if the FIR is given by
the Accused to a police officer and amounts to a confessional
statement, proof of the confession is prohibited by Section 25 of the
Evidence Act. The confession includes not only the admission of the
offence but all other admissions of incriminating facts related to the
offence, except to the extent that the ban is lifted by Section 27 of the
Evidence Act. While dealing with the admission of part of confession
report dealing with motive, subsequent conduct and opportunity, this
Court rejected the severability test adopted by some High Courts. The
statement can, however, be relied upon and admitted to identify the
Accused as the maker, and the portion within the purview of Section
27 of the Evidence Act is admissible. Aghnoo Nagesia (supra) has
been applied and followed by this Court in Khatri Hemraj Amulakh v.
State of Gujarat.
28. The words "person Accused of an offence" and the words "in the
custody of a police officer" in Section 27 of the Evidence Act are
separated by a comma. Thus, they have to be read distinctively. The
wide and pragmatic interpretation of the term "police custody" is
supported by the fact that if a narrow or technical view is taken, it will
be very easy for the police to delay the time of filing the FIR and
arrest, and thereby evade the contours of Sections 25 to 27 of the
Evidence Act. Thus, in our considered view the correct interpretation
14 APEAL629.2021J.odt
would be that as soon as an Accused or suspected person comes into
the hands of a police officer, he is no longer at liberty and is under a
check, and is, therefore, in "custody" within the meaning of Sections
25 to 27 of the Evidence Act. It is for this reason that the expression
"custody" has been held, as earlier observed, to include surveillance,
restriction or restraint by the police.
29. This Court in Deoman Upadhyay (supra), while rejecting the
argument that the distinction between persons in custody and persons
not in custody violates Article 14 of the Constitution of India,
observed that the distinction is a mere theoretical possibility. Sections
25 and 26 were enacted not because the law presumed the statements
to be untrue, but having regard to the tainted nature of the source of
the evidence, prohibited them from being received in evidence. A
person giving word of mouth information to police, which may be
used as evidence against him, may be deemed to have submitted
himself to the "custody" of the police officer. Reference can also be
made to decision of this Court in Vikram Singh and Ors. v. State of
Punjab18, which discusses and applies Deoman Upadhyay (supra), to
hold that formal arrest is not a necessity for operation of Section 27 of
the Evidence Act. This Court in Dharam Deo Yadav v. State of Uttar
Pradesh19, has held that the expression "custody" in Section 27 of the
Evidence Act does not mean formal custody, but includes any kind of
surveillance, restriction or restraint by the police. Even if the Accused
was not formally arrested at the time of giving information, the
Accused is, for all practical purposes, in the custody of the police and
the bar vide Sections 25 and 26 of the Evidence Act, and accordingly
exception Under Section 27 of the Evidence Act, apply. Reliance was
placed on the decisions in State of A.P. v. Gangula Satya Murthy 20 and
A.N. Venkatesh and Anr. v. State of Karnataka21.
10. In the light of the above referred settled legal position, on
the basis of evidence on record, the Prosecution established that, the
dead body was discovered at the instance of the Appellant and it would
be a discovery under Section 27 of the Indian Evidence Act and relevant.
INJURIES ON THE APPELLANT : -
11. The evidence of PW13 - Vasant Mahadu Patve shows that,
on arrest, the Appellant was referred for medical examination in the
15 APEAL629.2021J.odt
Rural Hospital, Shrirampur, vide communication dated 06.04.2018. The
said aspect is not challenged. The evidence of PW9 - Dr. Yogesh
Kisanrao Band, who was the Medical Officer attached to the Rural
Hospital, Shrirampur, on 06.04.2018 shows that, the Appellant was
brought by the Police for examination and on examining, he found the
following injuries on the Appellant.
[i] Blunt trauma over right hand. No visible injury.
[ii] Abrasion, 3 in no., circular, 0.2 mm diameter each reddish
superficial over right palm.
12. Both the injuries were simple in nature and might have
been caused by hard and blunt object. This evidence of Medical Officer
is corroborated by the Medical Certificate at Exh. 49. Though in his
evidence, it has come that the Injury No. 2 may be possible if someone
falls on hard surface or object, he further deposed that, such injury was
also possible if someone assaults another with hard and blunt object by
holding it in his hands. The cross-examination shows that, the injuries
were not disputed. It is further brought in cross-examination that, the
stick / wooden log may come under the category of hard and blunt
object and both the injuries on the Appellant were possible by the same.
Moreover, it has come that injuries found on the Appellant were
matching with the history given by him. This get corroboration from the
above referred medical certificate which speak of alleged history of
assault.
16 APEAL629.2021J.odt
12.1. From the above evidence it is clearly established by the
Prosecution, that there were simple injuries on the person of the
Appellant as a result of assault.
EXPLANATION BY THE APPELLANT :
13. The learned Trial Court had put the incriminating
circumstances to the Appellant under Section 313 of the Cr.P.C. to which
the Appellant stated that, the Deceased had come to his house in an
inebriated state with stick and kicked the door of his house and
assaulted him with stick. At that time, Sudhir Torne, Shekhar Torne,
Karan Thombe beat the Deceased with the stick and he (Appellant)
defended himself and was not possessing any weapon. The incident
took place when he tried to save himself.
13.1. If we see the evidence of PW1 - Annasaheb Indrabhan
Pawar, who lodged the report, it has come that, on 05.04.2018,
Deceased had come to the village in the night for Shakubaba fair from
village Devgaon and his wife i.e. Accused No. 2, was with the Appellant
and Deceased informed him that he was going to the house of the
Appellant in search of his wife. The said evidence is not challenged as
seen from the cross-examination of PW1 - Annasaheb Indrabhan Pawar.
13.2. The above unchallenged evidence of PW1 - Annasaheb
Indrabhan Pawar and the above referred contention of the Appellant, it
17 APEAL629.2021J.odt
is clear that the Deceased had gone to the house of the Appellant where
the incident had taken place. The injuries on the Appellant indicate that
fight or scuffle had taken place. The sticks collected during the course
of the investigation shows Human blood as per the Chemical Analysis
Report at Exh.83. This furthers the case of the Prosecution that the
article of assault was the wooden stick. Appreciating the above referred
circumstances, only inference which is possible is that the offence fall
short of Murder. The weapon used in the assault was a wooden stick.
What has come in the evidence of PW6 - the Medical Officer is that, the
injuries nos. 1 and 2 referred while considering the circumstance of
Homicidal death, may be possible by a single blow. The other injuries
are in the nature of contusion and abrasion. The medical evidence is
completely silent that, the injuries on the dead body were sufficient in
the ordinary course of nature to cause death. This indicates that there
was no intention to kill the Deceased. The incident was the result of
scuffle or fight. However, considering the body part where the injuries
were inflicted, the knowledge that such injury may prove fatal, can
safely be attributed to the Appellant.
13.3. In Anbazhagan Vs. The State represented by the Inspector
of Police, AIR 2023 SC 3660/MANU/SC/0782/2023, the Hon'ble
Supreme Court of India explained the fine distinction between the terms
'Intent' and 'Knowledge' and reiterated the important principles of law
18 APEAL629.2021J.odt
to be considered when the Court is confronted with the question, what
offence the Accused could be said to have committed. The provisions of
Section 299 (Culpable Homicide) and Section 300 (Murder) are
considered.
14. In view of the above observations and the result of
re-appreciation of the evidence on record, the conviction of the
Appellant for the offence punishable under Section 302 of the IPC needs
to be scaled down to Section 304 Part-II of the IPC. The Appellant is
behind the bars for a period of 6 years 9 months and 8 days. The
Appellant was 32 years of age at the relevant time. Considering the
facts and circumstances of the case, the Sentence of Imprisonment
already undergone would be appropriate punishment. From the
endorsement of the operative order of the impugned Judgment and
Order, it appears that the Appellant had not deposited the fine imposed
by the learned Trial Court, therefore, there is no question of directing
refund of fine amount.
15. As regards the Application for Leave to Appeal against the
acquittal of Accused No.2, recorded by the learned Trial Court in the
impugned Judgment and Order is concerned, except seizure of
photographs of the Appellant along with Accused No. 2, there is no
evidence to connect Accused No. 2 with the Crime. As held above, the
19 APEAL629.2021J.odt
testimony of the eye-witnesses is discarded. The said photographs
cannot form the basis to convict her for the Charge framed with the aid
of Section 34 of IPC. Hence, the Application seeking leave to Appeal
against acquittal of Respondent/Accused No. 2, deserves dismissal.
16. In view of the above discussion, we proceed to pass the
following order.
ORDER
[i] The Appeal is partly allowed.
[ii] The conviction of the Appellant recorded by the learned
Additional Sessions Judge, Shrirampur, vide Judgment and
Order dated 24.05.2021 in Sessions Case No.18/2018, for
the offence punishable under Section 302 of the Indian
Penal Code and consequent sentence, is hereby quashed
and set aside.
[iii] The Appellant is convicted for the offence punishable under
Section 304 Part-II of the IPC and sentenced to suffer
imprisonment already undergone i.e. 6 years 9 months and
8 days.
[iv] The Appellant be set at liberty, if not required in any other
case.
20 APEAL629.2021J.odt
[v] In view of disposal of Criminal Appeal, the Criminal
Application No. 2529 of 2024 for suspension of substantive
sentence and Bail no more survives and stands disposed of.
[vi] The Criminal Application No. 53 of 2021 seeking leave to
Appeal against Acquittal of Respondent/Accused No. 2, is
Dismissed.
[vii] Record & Proceeding be sent back to the learned Trial
Court.
[NEERAJ P. DHOTE] [R. G. AVACHAT]
JUDGE JUDGE
SG Punde
Signed by: Sandeep Gulabrao Punde
Designation: PS To Honourable Judge
Date: 13/01/2025 17:43:54
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