Cri Apeal-672-2016

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 672 OF 2016

Subhash S/o. Hiraman Bedwal,

Age – 31 years, Occu: Labour,

R/o : Hivarkheda (Nandgirwadi),

Taluka Kannad, District Aurangabad. … Appellant

Versus

The State of Maharashtra

Through, Kannad Police Station,

Taluka Kannad, District Aurangabad. … Respondent

…..

Mr. J. V. Deshpande, Advocate for the Appellant

Mrs. V. S. Choudhari, APP for Respondent-State

.....

CORAM :SMT. VIBHA KANKANWADI AND

ABHAY S. WAGHWASE, JJ.

DATED : 06-07-2023

JUDGMENT [ABHAY S. WAGHWASE, J.] :

1.By invoking Section 374 of the Code of Criminal Procedure

(Cr.P.C.), appellant is taking exception to the judgment and order

passed by the learned Sessions Judge, Aurangabad in Sessions Case

No.77 of 2015 dated 20-09-2016, by which appellant – accused no.1

is held guilty for offence under Section 302 of the Indian Penal Code

(IPC) and sentenced to suffer imprisonment for life for committing

murder of Sultan Gani Pathan. ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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FACTS IN BRIEF GIVING RISE TO SESSIONS TRIAL

2.Accused, informant himself and his deceased son Sultan Gani

Pathan were all residing at Hiwarkheda in the same lane. Accused

no.2 Hiraman had taken up construction work of latrine and

bathroom at a place which was situated between house of accused

and informant. Both informant and accused staked claim over the

said piece of land and on such count there was dispute.

On 08-01-2015, finding some stones at the disputed spot,

accused no.1 Subhash alongwith co-accused namely Hiraman and

Satish went to house of informant to question the same and both co-

accused were holding sticks. Accused no.1 knocked the door of

Naved (son of informant), who is residing with his family in a room of

house of informant. As Naved was not available at home, PW7

Sumayya, daughter-in-law of informant asked from inside the room as

to who has come. At that time, informant PW1 Gani asked his

deceased son Sultan to see as to who has come. Finding accused at

the doors, deceased Sultan questioned accused. Informant PW1 Gani

also reached there. Altercation took place between accused no.1 and

Sultan. Accused whisked out knife from his pocket and stabbed

Sultan in his stomach as a result of which he collapsed. PW1 Gani,

father of deceased went to rescue and even tried to hold Sultan. At

that time, accused fled away. Injured Sultan was shifted to hospital ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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but on examination, he was declared dead and therefore, PW1 Gani,

set law into motion by lodging FIR at Kannad Police Station, on the

strength of which crime was registered. After PW10 Dnyaneshwar

Shamrao Payghan investigated the crime, chargesheet was filed

against all three accused for commission of offence under Sections

302, 323, 504 read with 34 of the Indian Penal Code.

After explaining the charge, trial was undertaken during which

prosecution adduced oral and documentary evidence. Accused -

convict denied to lead any evidence. After appreciating oral and

documentary evidence and on hearing both the sides, learned trial

Judge reached to a finding that prosecution has succeeded in

establishing offence under Section 302 of the IPC but only against

accused no.1 Subhash and thereby he was sentenced to suffer

imprisonment for life whereas accused nos.2 and 3 were both

acquitted from all the charges.

It is the above judgment and order of conviction which is now

assailed before us.

SUBMISSIONS

On Behalf of Appellant :

3.Learned Advocate for the appellant would challenge the

impugned judgment and order on following grounds : ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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GROUNDS

(a)Firstly, prosecution miserably failed to prove the case beyond

reasonable doubt.

(b)Secondly, learned trial Judge failed to consider and appreciate

oral and documentary evidence in its correct perspective.

(c)Thirdly, prosecution utterly failed to establish motive behind

the crime as no evidence whatsoever was collected with regard to

alleged civil dispute.

(d)Fourthly no independent witness but only close relatives of

deceased are examined who are interested witnesses.

(e) Fifthly there was no intention or premeditation and therefore,

charge under Section 302 of the IPC is misplaced.

(f)Sixthly, quarrel having taken place all of a sudden, at the most

case would attract offence under Section 304 (Part II) of the IPC but

definitely not offence under Section 302 of the IPC.

In support of above grounds and submissions, learned Advocate

for the appellant seeks reliance on the ruling of Hon’ble Apex Court in

the case of Rampal Singh v. State of Uttar Pradesh; (2012) 8

Supreme Court Cases 289 and Kala Singh @ Gurnam Singh v. State

of Punjab; (2021) 10 SCC 744. ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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On Behalf of APP :

4.Countering the above submissions, learned APP for the

respondent State pointed out that prosecution has clearly made out a

case for commission of offence under Section 302. That death is

shown to be homicidal one. Secondly, there was motive which too

has been cogently established by prosecution. There is both, direct as

well as circumstantial evidence, which is sufficient to fasten the guilt.

That occurrence was witnessed by father, brother, sister-in-law of the

deceased and they all are unanimous and consistent and lending

support to each other on the points of arrival of accused to their

house, raising dispute, initially abusing and indulging in altercation

and thereafter, having come armed with knife, appellant put the same

to use by stabbing deceased Sultan in the vital part of the body like

stomach, death had taken place and merely few hours of assault,

there is proper complaint. There is recovery of weapon at the very

instance of appellant, blood stains over the knife were proved to be of

deceased and therefore, with such quality of evidence, it is submitted

that learned trial Judge has committed no error whatsoever in

recording guilt and conviction of the appellant. Lastly, it is submitted

that there is no merit in the appeal and same deserves to be

dismissed. ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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5.This is an appeal under Section 374 of the Cr.P.C. which

prompts this First Appellate Court, which is also last fact finding

Court to re-appreciate, re-evaluate and re-examine the entire oral and

documentary evidence and also test the legality of the judgment

under challenge. Accordingly, we undertake the said exercise.

EVIDENCE ON BEHALF OF PROSECUTION

6.On going through the evidence on record, it seems that, to

prove guilt of the accused, prosecution has examined as many as 10

witnesses . Their status and role during the trial are as under :

7.PW1 Gani Begu Pathan is father of deceased and informant.

His evidence is at Exh.23. He gave the account of whatever he claims

to have seen during the visit of accused persons to his house at

around 09:30 p.m. He narrated about he himself, deceased son Sultan

attending accused, who raised dispute, indulged in altercation and

thereafter, stabbed deceased Sultan with knife in the stomach.

8.PW2 Shaikh Babu Sk. Gafoor is panch to memorandum of

recovery under Section 27 of the Indian Evidence Act. It is at Exh.27

and 28 and panch to seizure of clothes Exh.29. His evidence is at

Exh.26. ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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9.PW3 Javed Gani Pathan is brother of deceased Sultan. His

evidence is at Exh.30. He stated that at around 09:30 p.m. on

08-01-2015 while he was sleeping, he heard abuses being hurled and

shouts of accused to his brother. So he and other neighbours came

out of house, at that time he states convict inflicted knife in stomach

of his brother Sultan and ran away, whereas Hiraman and Satish

assaulted this witness with sticks.

10.PW4 Balasaheb Wamanrao Magar is panch to clothes of

deceased Exh.33. His evidence is at Exh.32.

11.PW5 Dr.Shaikh Rizwan Shaikh Mannan is Autopsy Doctor, who

conducted post mortem on dead body. His evidence is at Exh.37. He

narrated external and internal injuries noted by him on dead body.

According to him, death was due to shock and hemorrhage due to

stab injury. He answered that knife shown to him is capable of

causing such injuries.

12.PW6 Syed Rafik Syed Amin is another panch to memorandum

of recovery under Section 27 of the Evidence Act.

13.PW7 Sumayya Naved Pathan, sister-in-law of deceased Sultan. ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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She stated that accused knocked the door of their house. Her brother-

in-law Sultan answered the call and came out of the house. She

stated about accused no.1 abusing her brother-in-law Sultan.

According to her, after altercation between accused no.1 and

deceased, she heard accused issuing threats to kill and thereafter

when her father-in-law also came out of the house, she stated that she

saw her brother-in-law Sultan lying in injured condition and her

father-in-law had caught-hold of him. Her father-in-law informed her

that accused no.1 Subhash dealt a blow of knife on the stomach of her

brother-in-law Sultan. Her another brother-in-law came and he

chased accused. She also named accused Hiraman and Satish for

slapping and giving fist blows.

14.PW8 Sk. Riyaz Sk. Munir is another brother of deceased. His

evidence is at Exh.43. He stated that on hearing shouts, he came out

of house and according to him, he saw in street lights that his brother

deceased Sultan lying on ground in injured condition. According to

him, he saw appellant convict running holding knife in his hand and

his brother being taken to the hospital.

15.PW9 Suryakant Gulabrao Bhamre is carrier. His evidence is at

Exh.45. ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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16.PW10 Dnyaneshwar Shamrao Payghan is the Investigating

Officer, who spoke about steps taken by him while investigating the

case till filing of the chargesheet.

Above is the evidence on behalf of prosecution in trial Court.

Charge being under Section 302 of the IPC, at the outset it is to be

seen that prosecution has established death of Sultan to be homicidal

one. To find the answer, we need to visit evidence of doctor. PW5

Dr.Shaikh in his substantive evidence stated about receipt of dead

body of Sultan for autopsy. He noted following external injuries :

“A single stab injury over abdomen in right iliac fossa region

measuring 3.5 c.m. breadth x 2 c.m. height cavity deep penetrating

the underline mesentry in multiple places and further penetrating the

small and large intestines cutting it at multiple places (perforating

intestine)

Above injury is directed backwards, upwards and medially with

sharp bleeding margins with small and large intestines herniating

outside abdominal cavity”

On internal examination, this witness claims to have noted

following internal injuries :

Walls - Perforated due to stab injury as mentioned in

column no. 17. ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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Peritoneum - Perforated as mentioned in column no.17.

Cavity - Abdominal cavity filled with aprox. 2 liters of

blood clots and foecal matter.

According to him, “death was due to shock and hemorrhage

due to stab injury”.

Defence questioned above medico legal expert, however, on

going through the manner of course, we are convinced that aspect of

death due to stab injury and hemorrhage has not been rendered

doubtful by any means. Taking into account the above medico legal

expert’s evidence, there is no hesitation to hold that deceased Sultan

met only and only homicidal death and as such prosecution has

proved that death is homicidal one.

17.After hearing the submissions advanced by learned Advocate

for the appellant, we have noticed that there is serious challenge on

behalf of appellant to the charge under Section 302 of the IPC. The

tenor and the manner of argument suggests that a case is tried to be

advanced that it is not at all a case of homicide, rather it would at the

most be a case of culpable homicide not amounting to murder. ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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ANALYSIS

18.We have carefully re-examined and re-analyzed available direct

evidence on behalf of prosecution. In the light of nature of case of

prosecution, in our opinion, evidence of PW1 Gani, informant is very

crucial. Likewise evidence of PW7 Sumayya, sister-in-law and other

brothers of deceased is also decisive. Evidence of father and brothers

of deceased clearly goes to show that there was a dispute over the

place of construction of latrine and there is no serious challenge to

this aspect inspite of above witnesses being cross-examined by

defence. Therefore, animosity is forthcoming. Consequently,

submission of learned Advocate for appellant that prosecution did not

prove motive has no substance. True it is that investigating

machinery has not gathered documentary evidence about dispute, but

mere failure of Investigating officer to gather documentary evidence

itself is not damaging the case of prosecution. It could be at the most

said to be a lapse on the part of the Investigating Officer. However,

informant is very categorical about annoyance of accused over

construction of latrine and this aspect has not been rendered doubtful

inspite of all witnesses cross-examined on this count. Therefore, in

our considered opinion, there is motive behind the alleged incident.

19.On carefully sifting the evidence of PW1 Gani - informant, who ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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in our opinion had a very clear occasion to see the incident at around

09:00 p.m. on 08-01-2015 and it appears that convict had himself

visited the house of Naved (son of informant). PW7 Sumayya,

daughter-in-law of informant, has spoken about knocking of door

and she questioning as to who has come. According to informant,

after hearing the knocks, he has asked deceased son Sultan to check

who has come and therefore, Sultan went ahead. Informant also

claims that he also followed Sultan. Informant spoke about accused

to be present with co-accused Hiraman and Satish. He stated that

accused started giving abuses and therefore, his deceased son

questioned accused what was he doing there and further saying that

wife of his brother Naved is alone in the house. Witness stated that

accused no.1 convict asked deceased Sultan as to who kept the stones

at their land and started abusing him in filthy words and stated that

altercation took place between accused no.1 convict and deceased

Sultan. According to informant, accused no.1 took out knife from the

pocket of his pant and stabbed in the stomach of Sultan, who shouted

loudly and collapsed on the ground. Informant stated that he

immediately caught-old his deceased son Sultan. Other sons namely

Javed, Salman and neighbours Gaffar, Shaikh Nazir, Jameel Pathan,

Shafiq, Shaikh Munir gathered there and at that time accused no.1

fled away. He stated that as Javed chased accused no.1 at that time, ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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accused nos.2 and 3 namely Hiraman and Satish gave fist blows to his

son Javed. Informant took Sultan to Government Hospital, Kannad,

where on examination Doctor held him dead and so he lodged report

at 01:30 a.m.

20.Initial cross-examination of the informant is focused on number

of houses in the locality. In paragraph no.4 of the cross-examination,

he is initially asked about length and width of road and he is asked as

to whether he has given any document to the Police of land over

which construction of latrine and bathroom started. He answered it

in negative. He is asked since when there used to be quarrel between

accused and informant. Witness answered that it is taking place from

1 and ½ years prior to incident. Witness had admitted that prior to 1

and ½ years construction of latrine and bathroom in the lane was

made. He is asked as to whether he had made any complaint to Gram

Panchayat and he answered it in negative and he denied about filing

any suit against accused. Again on the point of occurrence, in

paragraph no.6 witness answered that initially his son Sultan went

out of house. He answered that he followed and his sons Javed and

Salman came out of house. He answered that at the time of

altercation, approximately 7 to 8 people have gathered. In paragraph

no.7 of the cross-examination, he is asked about distance between ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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Kannad and Hiwarkheda, while taking Sultan to hospital whether

there was blood stains on clothes and hands of this witness and

whether he signed or put thumb impression on FIR. Then he is

asked as to who accompanied him to the hospital. Rest all is denied.

21.Alongwith testimony of above witness, it is also emerging from

testimony of PW3 Javed, another son of informant, that he was

sleeping in the house and he woke up hearing shouts. His evidence

shows that when he came out, at that time, convict was running with

a knife in his hand. This witness claims that he was hit by co-accused

Hiraman and Satish by wooden sticks. His cross-examination exposes

that there are material omissions about convict dealing blow of knife

in the stomach of deceased and about co-accused hitting this witness.

However, in his cross-examination existence of dispute since 1 and ½

years due to construction activity is brought on record.

22.Similarly, testimony of PW7 Sumayya, daughter-in-law of

informant, on careful examination goes to show that she was inside

the house and whatever she has deposed is learnt from her father-in-

law i.e. informant and therefore, her evidence is hearsay.

23.Though other witness like PW8 Sk. Riyaz, cousin of deceased is ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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examined, even his evidence shows that when he came out of the

house, at that time, actual occurrence was already over.

SUMMATION ON EVIDENCE OF OCCURRENCE

24.Thus, here there is evidence of father, sons and sister-in-law of

deceased. There is serious criticism on behalf of appellant that only

near and dear once are examined and there is no independent

witness. True it is that witnesses examined by prosecution are family

members of deceased. However, it is to be taken note of fact that it is

accused who had visited the house of Naved (son of informant) and

deceased, who were residing together adjacent to each other in the

same house alongwith other brothers. Therefore, obviously the only

witnesses, who could be readily available are family members. It is

trite law that merely witnesses being close family members or

relatives, is itself not sufficient to disbelieve or discard their evidence,

rather what law expects is cautious approach while analyzing

evidence. On doing so, we are convinced that evidence of PW1 Gani

is trustworthy and credible. He was present at the time of visit of the

accused no.1. This witness spoke about appellant convict

accompanied by co-accused and he has named them. He has

categorically given sequence which ensued after accused no.1 was

questioned by deceased Sultan. Testimony of this witness about ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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taking out knife and stabbing deceased in the stomach has virtually

remained undisturbed. The manner of suggestion given to the

witness clearly shows that there is no serious dispute about previous

enmity on account of land. In cross-examination, the timeline has

been brought from the mouth of this witness. Therefore, entire

occurrence has been suggested in cross-examination thereby bringing

incriminating material against accused. As stated above, sons of

informant, who have rushed to the spot, are also categorical about

presence of accused and injury to their deceased brother in the

stomach. One of the sons has also been assaulted by co-accused.

Therefore, taking into account such evidence, we are convinced that

there is cogent and reliable evidence in the form of direct evidence.

25.Now, let us advert to the principal ground of challenge raised

before us i.e. case to be not homicidal, rather at the most case to be of

culpable homicide not amounting to murder. Learned Advocate for

the appellant is specific that it is at the most case under Section 304

(Part II) of the IPC and nothing more than that. He is very emphatic

that there is a single stab injury / single blow and that too upon

sudden quarrel and hence, no premeditated murder as claimed by

prosecution. ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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26.We are not impressed with above argument put forth by the

learned Advocate for the appellant for the simple reason that, here

going by sequence of events as narrated by PW1 Gani, whose

testimony we have accepted as inspiring confidence, it has clearly

come on record that there was dispute over land since 1 and ½ years

prior to the incident. According to PW1 Gani, accused persons used

to throw waste material in his plot and also hurl abuses to the lady

members of the family. Around 09:00 p.m. on 08-01-2015 appellant

convict accompanied by Hiraman and Satish had come to the house

of deceased. Spot panchanama indicates that occurrence has taken

place in front of house of informant.

Therefore, with such evidence it is abundantly clear that it is

accused persons who went at night hours to the house of Naved (son

of informant). PW1 Gani is very categorical about accused no.1

Subhash after altercation, taking out knife from pocket of his pant

and stabbing Sultan in the stomach as a result of which Sultan

collapsed on the spot. As discussed above, it has come in the Autopsy

Doctor’s evidence that he came across a single stab injury, which he

initially noted in column no.17 of the post mortem report and

narrated before Court in his testimony at Exh.37. The impact of the

blow goes to show that the weapon had penetrated in the small as

well as large intestine cutting it at multiple places (perforating ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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intestine). Said injury is directed backwards, upwards and medially

with sharp bleeding margins. Doctor has noted that small and large

intestines were herniating outside abdominal cavity. Therefore, it is

explicit that injury was forceful one and had turned out to be

disastrous as deceased was declared dead within two hours of

examination.

27.Learned Advocate for the appellant has tried to persuade us to

view this single blow as a result of sudden quarrel and it was not

premeditated. We are afraid whether such submission can at all be

entertained, when accused had been to the house of Naved (son of

informant) and deceased getting armed with deadly weapon like

knife. Therefore, he went there with preparation and having put said

deadly weapon to use by stabbing and penetrating at such depth that

intestine was protruded. Intention coupled with knowledge of

accused no.1 convict is writ large.

28.No doubt there was a single blow, but unfortunately it had

itself turned out to be fatal. By series of judgments, the Hon’ble Apex

Court and various High Courts have reiterated that there is no

principle that in all cases of single blow, offence of murder is not

made out. It has been held that the question with regard to the ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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nature of offence has to be gone into by taking into consideration the

facts and circumstances of each case. The nature of injury, whether it

is on vital part or non-vital part, the nature of weapon used, the

circumstances under which injury was inflicted, manner of causing

injury, are all factors which are required to be taken into

consideration and borne in mind while testing the case as to whether

it falls under Section 302 or 304 (Part II) of the IPC. Law to the

above extent has been lucidly spelt out in the cases of Mahesh

Balmiki v. State of Madhya Pradesh; (2000) 1 SCC 319, State of

Rajasthan v. Leela Ram @ Leela Dhar; (2019) 13 SCC 131 and also

recently reiterated by affirming above legal position in the case of

Stalin v. The State, represented by the Inspector of Police; (2020) 9

SCC 524.

29.We also refuse to entertain the submission that occurrence took

place all of sudden because if we take into consideration sequel of

occurrence PW1 Gani is very categorical that appellant convict

questioned and abuse deceased and after altercation he inflicted

blow with knife with which he was armed. The very fact of coming

armed with deadly weapon is indicative of the fact that it was

planned incident. Consequently, the ground raised by appellant holds

no water and is liable to be rejected. We have gone through the ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::

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citation taken recourse to. We find that the facts in those case

materially differ as regards to sequence of occurrence is concerned,

when compared to the evidence in case in hand and therefore, said

ruling does not come to rescue of the appellant.

30.To sum up, here there is legally acceptable truthful version of

eye witness account of PW1 Gani, father of deceased. This witness

has unfolded the background of the occurrence as well as narrated

whatever he saw with his own eyes at the doors of his house.

Consequently, we do not find any merit or substance in the appeal.

31.We have also gone through the impugned judgment. We are

convinced that learned trial Judge has considered and appreciated

evidence as required under law and findings have been supported by

sound reasons. No infirmity or perversity is brought to our notice in

appeal so as to interfere in the judgment and order under challenge.

Hence, we proceed to pass following order :

ORDER

(I)Criminal Appeal is dismissed.

[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]

SPT ::: Uploaded on - 17/07/2023 ::: Downloaded on - 30/08/2025 21:59:31 :::