1 APEAL489.18.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

: NAGPUR BENCH : NAGPUR.

CRIMINAL APPEAL NO. 489 OF 2018

APPELLANTS : 1] Amol S/o Dhakusingh Rathod,

Aged about 38 years, Occu. Pvt. Job.
R/o Venkatesh Industry, Bhawani Nagar,
Pardi, Nagpur.

2] Smt. Ranju Ramesh Banewar,

Aged about 30 years, Occu. Labour,
R/o Aradhana Society, Near Chery Company,
Bidgaon, Nagpur.

VERSUS

RESPONDENT : State of Maharashtra,

through Police Station Officer,
Police Station, Nandanwan, Nagpur.

------------------------------------------------------------------------------------------------------
Mr. Mahesh Rai and Ms. Sonali B. Khobragade, Advocates for the
appellants.
Mr. V. A. Thakare, A. P. P. for the respondent/State.
-----------------------------------------------------------------------------------------------------

CORAM : V. M. DESHPANDE and AMIT B. BORKAR, JJ.

DATE : SEPTEMBER 29, 2021.

ORAL JUDGMENT [Per V. M. Deshpande, J.]

Being dissatisfied by the verdict given to the appellants

by the learned Additional Sessions Judge-5, Nagpur in Sessions Trial

No. 13 of 2016 on 16.02.2017, the appellants have filed the present

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appeal. By this appeal, the appellants are challenging the conviction

and sentence imposed upon them by the learned Additional Sessions

Judge. Learned Judge found that the prosecution has proved its

charge against both the appellants for the offence punishable under

Section 302 read with Section 34 and under Section 201 read with

Section 34 of the Indian Penal Code. On account of their conviction

for the offence punishable under Section 302 of the IPC, sentence of

life imprisonment was imposed and they were also directed to pay a

fine of Rs.5,000/- by each of them with default clause. Insofar as

their conviction for the offence punishable under Section 201 of the

IPC is concerned, sentence of rigorous imprisonment for three years

was imposed along with payment of fine of Rs.1,000/- by each of

them along with default clause.

2. The prosecution case starts with a telephonic message

from PW3 Nitesh Khobragade to Police Station, Nandanwan, Nagpur.

PW3 Nitesh states that on 19.09.2015, he came to his house after

finishing his duty and since there was a bad smell that was emitting

from the house abutting to his house and the said house was locked

from outside, he made a phone call to Police Station, Nandanwan.

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3. PSI Mahendrasingh Thakur (PW10) corroborates the

phone call from Nitesh. After the phone call was received, PSI

Mahendrasingh’s evidence shows that he took entry of the said fact

in the station diary and thereafter he proceeded to the spot along

with the staff. On the spot, he met with Nitesh. The locked house

was shown by him. PSI Mahendrasingh (PW10) called two

panchas, the lock was broke open and the police party along with the

panchas took entry inside the house. Strong bad odor was there in

the entire house. PSI Mahendrasingh also found that there was new

flooring in the house and bad smell was coming through the said

flooring. Therefore, he with the help of the persons gathered there,

excavated the pit to notice dead body of one male person. The body

was naked and decomposed. The body was took out. PSI

Mahendrasingh poured water on the said body and cleaned it. PW3

Nitesh and others identified the said body as the body of Ramesh

Banewar. Thereafter, PSI Mahendrasingh prepared spot panchanama

in presence of panch witness PW2 Vishwas Bhaladhare. The spot

panchanama is at Exh.50. PSI Mahendrasingh sent the dead body to

the medical hospital. It would be useful to mention here that the

spot panchanama was drawn in respect of the enquiry i.e. Station

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Diary No. 41/2015, obviously under which police officer left the

police station and reached to the spot. After the spot panchanama,

PW3 Nitesh came to police station and lodged his report. His oral

report is at Exh.23.

4. As per his report (Exh.23), first informant Nitesh stays at

Azad Nagar. At the back side of his house, deceased Ramesh

Banewar used to reside since last 5 years along with his wife Ranjana

(appellant no.2) and their one son and one daughter. As per the

report, since two houses were abutted to each other, every noise from

the house of Ramesh used to be heard in the house of the first

informant. As per the report, quarrel between deceased and

appellant no.2 Ranjana was a daily routine. Since, the talk in

between them used to be clearly heard by Nitesh, in his FIR

statement, he narrates that the cause of their dispute was regarding

character of Ranjana and Ranjana used to threaten daily to the

deceased to kill him.

On 12.09.2015 at 6.30 in the evening, the first

informant came from his work. At that time, deceased Ramesh met

him near the house. He told Nitesh that he also came from finishing

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his work. Thereafter, he went inside his house. After 15-20 minutes,

a quarrel erupted in between the couple, however since it was a

routine affair, the first informant did not pay any heed to the same.

As per the first information report, after the said meeting with him,

the deceased was never seen by him. The first information report

further states that on 15.09.2015 at about 8.00 O’clock in the

morning, he noticed three unknown persons and appellant no.2

along with her children. The first information report further states

that on 19.05.2015 at 6.30 in the evening when he came back from

his work, his wife Usha told that during noon time, the persons of the

locality were gathered in front of the house of deceased since it was

emitting very bad smell. Such information was also given to him by

Vishwas (PW2). Therefore, there was a suspicion in the mind of the

first informant and he informed the said fact to police on telephone.

He also disclosed his identity and address to the police. After some

time police came and after the lock was broke open, fresh flooring

was found and after excavating the same, the dead body was fished

out. In the first information report, Nitesh (PW2) states that he

identified the dead body of Rameh, his neighbour. He, therefore,

lodged complaint against the wife of deceased and 2-3 unknown

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persons.

5. Investigation of Crime No. 365/2015 was entrusted to

API Lokesh Kanse (PW12). His evidence would show that he verified

all the documents. His suspicion was towards the wife of the

deceased. He, therefore, called DB squad to search her. After the

search, appellant no.2 and appellant no.1 with two children were

brought before API Kanse (PW12). He arrested both of them. Arrest

memo of appellant no.1 Amol is at Exh.31, whereas arrest memo of

appellant no.2 Ranjana is at Exh.32. During their arrest,

Investigating Officer API Kanse seized two mobile phones from both

of them under seizure panchanama (Exh.35).

During the police custody remand, on 22.09.2015,

appellant no.1 Amol gave his disclosure statement in presence of

PW4 Kishor Mathurkar. The admissible portion of his statement is at

Exh.27. By the said statement, he agreed to show the place from

where he purchased the hoe, salt, cement and the place where he

kept the rope and bag carrying the salt. After giving statement, he

led the police party firstly to a shop known as Snehal Tradelink

Material Supplier, from where he had purchased the cement. He also

took the police party to his work place from where he took out a bag

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containing some salt. Also he took them to a place from where he

took out the rope. In pursuance to the memorandum statement

(Exh.27), he led police party to the shop from where he purchased

hoe for digging and cement for flooring. Also he took them to the

place from where he purchased salt. Thereafter, he took the police

party and panchas to his house from where he produced hoe and

spade. Those were seized and sealed on the spot. So also, from his

house, a saree and petticoat of appellant no.2 were also seized.

Similarly, appellant no.2 Ranjana also gave her

statement to show the place where she burnt the clothes of the

deceased, towel and pillow. The admissible portion of her

memorandum statement is at Exh.35. She accordingly took police

party to a place where the clothes were burnt.

6. The Investigating Officer also recorded the statement of

Payal (PW1), daughter of deceased and appellant no.2. He also took

steps to record the statement of Payal under Section 164 of the Code

of Criminal Procedure. After completion of the other usual

investigation, charge-sheet was filed.

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7. After the case was committed to the Court of Sessions,

the learned Additional Sessions Judge framed the Charge against

both the appellants for the offence punishable under Sections 302,

201 read with Section 34 of the Indian Penal Code. They denied the

charge and claimed for their trial.

8. The prosecution has examined in all 12 witnesses and

also relied upon various documents duly proved during the course of

the trial. After the closure pursis was filed by the learned Public

Prosecutor, in-charge of the trial, statements of both the appellants

under Section 313 of the Code of Criminal Procedure were recorded

by the learned Judge of the trial Court. The appellants did not

examine any defence witness.

9. According to the defence of appellant no.1 Amol, he is

falsely implicated in the crime, whereas as per the defence of

appellant no.2 Ranjana, because there were disputes in between her

and her sister-in-law and therefore, she tutored her daughter Payal to

depose false against her. After appreciating the prosecution

evidence, the learned Judge delivered the judgment, which is

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impugned in this appeal.

10. We have heard Mr. Mahesh Rai with Ms. S.B.

Khobragade, learned counsel for both the appellants and Mr. V.A.

Thakare, learned Additional Public Prosecutor for the State. With

their able assistance, we have also gone through the paper book and

the record and proceedings.

11. It was the submission of Mr. Rai, learned counsel for the

appellants that the appellants are falsely implicated in the crime at

the behest of Payal. He submitted that she being a child witness,

much importance cannot be attached to her evidence. He submitted

that if evidence of Payal is kept aside, then there is hardly any

evidence against any of the appellants. Alternatively, he submitted

that from the evidence of Payal, it is clear that there was a quarrel in

between appellant no.2 and the deceased and in that quarrel which

erupted all of a sudden, scuffle took place in which Ramesh died.

Therefore, he submitted that the offence be scaled down to one

punishable under Section 304 Part II of the Indian Penal Code.

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12. Per contra, Mr. Thakare, learned Additional Public

Prosecutor for the State vehemently opposed the submissions

advanced by the learned counsel for the appellants. He submitted

that evidence of Payal is trustworthy and it can be the basis for

recording conviction. He also submitted that dead body was found

not only inside the house of appellant no.2, but it was buried and

there is no explanation for the same from any of the accused. He,

therefore, submitted that the appeal be dismissed.

13. PW7 is Dr. Nitin Barmate. At the relevant time, he was

Assistant Professor in the Department of Forensic Medicine at

Government Medical College, Nagpur and till he performed the post

mortem over the dead body of Ramesh, he already performed post

mortem on 2000 dead bodies. It shows that this Doctor was a very

experienced Autopsy Surgeon. His evidence would show that when

the dead body was brought, there were no clothes on the body.

Rigor mortis passed off and sign of decomposition were present in

the form of body swollen, adepocere formation present over chest

and other parts of the body. Peeling of skin was found at various

places. His evidence would show that on external examination, he

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found following injuries, which are mentioned in Column 17 of the

Post Mortem report :

1. Contusion present over right side of neck and front

of neck, 6 cm below chin, oblique, 5 x 1 cm,
bluish.
2. Contusion present over right side of neck, 8 cm
below chin and 9 cm front tip of right mastoid, 4
x 1 cm, bluish.
3. Abrasion present over left side of neck, 7 cm below
chin, 2 x 1 cm, reddish.
4. Abrasion present over left side of lateral aspect of
neck, 9 cm below tip of left mastoid, 2 x 1 cm,
reddish.
5. Abrasion present over right side of face, 5 cm
below right eyebrow, 9 x 5.5 cm, reddish.
6. Abrasion present left side of forehead, 4 cm above
left eyebrow 5 x 3 cm, reddish.
7. Abrasion present over right side of chest, 6 cm
above right nipple, 3 x 2 cm, reddish.
8. Abrasion present over left side o chest, 5 cm above
left nipple, 5 x 3 cm, reddish.
9. Abrasion present over middle 1/3rd of right arm,
anterio medicilly, 6 x 4 cm, reddish.
10. abrasion present over lower 1/3rd of right thigh,
anteriomedicilly, 6 x 5 cm, reddish.
11. Abrasion present over lower 1/3rd of left thigh,
anteriorly 10 x 7 cm, reddish.
12. Contusion present over back of neck on left side, 7
cm below external occipital protrubance, oblique,
3.5 x 1 cm, bluish.”

On internal examination, he found following injuries, which were

mentioned in Column No. 20C :-

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“Larynx, trachea and bronchi – Neck dissection,

contusion present over right side of strip muscle 4
x 2.5 cm, contusion present over both sterno clido
mastoid muscle 3 x 2 cm, contusion present over
both sterno thyroid muscle 2.5 x 2 cm., contusion
present over below right sub-mendibular salivary
grand 3 x 1.5 cm, fracture of right sided greater
horn of hyoid bone, fracture of right sided superior
cornu of thyroid cartilage, fracture margins
irregular and blood extravasuted.”

14. According to the evidence of PW7 Dr. Barmate, injury

nos.1, 2, 3, 4 and 12 mentioned in column 17 were corresponding to

the injuries mentioned in column no.20C and they were sufficient in

ordinary course of nature to cause death. He gave the cause of death

as throttling. As per his evidence, the death must have caused 5-7

days prior to post mortem examination. His evidence would show

that in respect of injury nos. 9,10 and 12, possibility of causing the

same by tying the hands and legs by rope cannot be ruled out. His

evidence would show that if a person stands on the neck of the body

of deceased, the injuries mentioned in Column no. 20-C are possible.

According to him, throttling is mostly homicidal and not suicidal.

15. In view of the evidence of PW7 Dr. Nitin Barmate and

the post mortem report (Exh.44) and the opinion of the Doctor, it is

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clear that Ramesh met homicidal death. Even before this Court

dispute in respect of nature of death was not agitated by the learned

counsel for the appellant.

16. According to the prosecution, the appellants are

responsible for homicidal death of Ramesh. In order to prove its

case, the prosecution has examined in all 12 witnesses –

1] Ku. Payal Banewar (PW1), the daughter of deceased and

appellant no.2 Ranjana. This witness is an eye-witness

and star witness in this prosecution case.

2] PW2 is Vishwas Bhaladhare. He acted as a panch and

proved spot panchanama (Exh.15).

3] PW3 is Nitesh Khogragade, who made first telephonic call

to police station, Nandanwan and thereafter lodged his

oral report (Exh.23) on the basis of which the crime was

registered.

4] PW4 is Kishor Mathurkar, another panch witness in

whose presence memorandum statement of accused

were recorded.

5] PW5 is Maneshkumar Channe. He also acted as a panch

and he proved arrest panchanama of appellant no.2

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Ranju (Exh.67) and also arrest memo (Exh.31) of

appellant no.1 Amol and arrest memo (Exh.32) of

appellant no.2 Ranjana. He also proved the

memorandum statement of accused Ranjana (Exh.35).

He also proved the scene recreation panchanama

(Exh.37).

6] PW6 is Amol Dhawde, who runs a shop, from whose

shop 20 KG salt was purchased on by appellant no.1

14.09.2015.

7] PW7 Dr. Nitin Barmate, who conducted post mortem .

8] PW8 is Suresh Audhankar, from whose shop on

14.09.2015 appellant Amol purchased hoe and on

15.09.2015, he purchased one bag of cement.

9] PW9 is Shilpa Khobragade. She is the neighbour and on

the day of the incident she heard noise of quarrel

amongst the deceased and his wife Ranjana (appellant).

10] PW10 is PSI Mahendrasingh Thakur, who registered the

offence.

11] PW11 is Preeti Kudmethe, PSI. She recorded the

statement of Payal in civil dress.

12] PW12 is API Lokesh Kanse, Investigating Officer.

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17. Success or failure of this prosecution case rests on the

evidence of PW1 Payal. According to Mr. Rai, learned counsel for the

appellants, Payal being a child witness, her evidence is required to be

discarded. It is also his submission that she not disclosing the

incident immediately to anybody though she was attending the

school, raises strong suspicion about possibility of tutoring to her.

18. We are afraid that we can accept the submission of the

learned counsel for the appellant that Payal being a child witness, her

evidence is required to be discarded. Consistently, various High

Courts and the Hon’ble Apex Court is of the view that child witness is

also a competent witness to depose before the Court. There cannot

be any discrimination while evaluating the evidence of any adult

witness and the child witness. The Court should be at guard and

evidence of said child witness should be scrutinized closely. In the

recent decision in Hari Om alias Hero .vs. State of Uttar Pradesh ,

reported in (2021) 4 SCC 345, the Hon’ble Apex Court, has observed

as under :

“The evidence of child witness cannot be rejected

per se, but the court, as a rule of prudence, is
required to consider such evidence with close scru-

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tiny and only on being convinced about the qualiry

of the statements and its reliability, base conviction
by accepting the statement of the child witness. If
the child witness is shown to have stood the test of
cross-examination and there is no infirmity in her
evidence, the prosecution can rightly claim a
conviction based upon her testimony alone.
Corroboration of the testimony of a child witness is
not a rule buta measure of caution and prudence.
Some discrepancies in the statement of a child
witness cannot be made the basis for discarding the
testimony. Discrepancies in the deposition, if not in
material particulars, would lend credence to the
testimony of a child witness, who, under the normal
circumstances, would like to mix up what the
witness saw with what he or she is likely to imagine
to have seen. While appreciating the evidence of
the child witness, the Courts are required to rule
out the possibility of the child being tutored. In the
absence of any allegation regarding tutoring or
using the child witness for ulterior purposes of the
prosecution, the courts have no option but to rely
upon the confidence inspiring testimony of such
witness for the purposes of holding the accused
guilty or not. The evidence of the child witness
must be evaluated more carefully and with greater
circumspection because a child is susceptible to be
swayed by what others tell him and thus an easy
prey to tutoring. The evidence of the child witness
must file adequate corroboration before it is relied
upon, as the rule of corroboration is of practical
wisdom than of law.”

17. Evidence of PW1 Payal would show that she is not a

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toddler, but she was 11 years old. Not only that, she was taking

education in 6th standard. It shows that Payal could understand the

happening around her. Her evidence would show that her two

brothers are younger than her. From her evidence, it is clear that

their used to be the visits of her family to the house of appellant no.1

with appellant no.2. This particular evidence is not at all challenged

by the defence. If that be so, no exception can be taken for

identification of appellant no.1 by her.

Her evidence would show that when her father, the

deceased, was out of station, appellant no.1 used to visit her house.

Her evidence would show that appellant no.2 asked her not to

disclose visit of appellant no.1 to their house in absence of deceased.

As per evidence of PW1 Payal, on the day of ‘tanha pola’,

she went for playing and she came at 4.00 O’clock to her house.

That time, she noticed that appellant no.1 came in tempo vehicle

along with one person to whom she was not knowing. Thereafter

appellant no.1 parked the tempo in front of her house and took entry

in her house.

18. At that time, not only the parents of Payal, but she was

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also present in her house. Her evidence would show that deceased

was beating appellant no.2 and appellant no.1 was giving

understanding to the deceased. Thereafter, appellant no.2 prepared

tea for uncle (appellant no.1) and another person and thereafter,

both went away. Payal thereafter states that deceased started asking

appellant no.2 that who were those persons and why they came to

his house and again started beating appellant no.2. Again at 4.45

p.m. appellant no.1 came and gave understanding to the deceased

not to beat appellant no.2 and he went away. Evidence of Payal

further shows that deceased went out and came back at about 6.00

pm. Again appellant no.1 came along with two persons and they

gave understanding to the deceased. Other two companions of

appellant no.1 took the deceased out of house by pushing him and

thereafter the appellant no.1 and his two companions went away.

Her evidence further shows that at 8.00 pm again appellant no.1

came at her house. Appellant no.2 brought two chairs. Appellant

no.1 sat on one chair and the deceased sat on another chair. As per

her evidence, that time deceased asked the appellant no.1 that

“rq esjs ?kj ckj ckj D;q vk jgk gS”.

As per the evidence of Payal, on that quarrel took place in between

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appellant no.1 and the deceased. They started beating each other.

Eye-witness further states in her evidence that when

appellant no.1 was beating deceased, that time appellant no.2 was

present. Due to beating when deceased fell down on cot, appellant

no.1 continued his beating and that time deceased was shouting

“Gaikwad, Gaikwad”. As per the evidence of Payal, at this stage,

appellant no.2 put towel inside the mouth of deceased. Therefore,

deceased bite her finger. Appellant no.1 continued her beating.

Thereafter, as per the evidence of Payal, appellant no.2 tide towel

around the mouth of the deceased very tightly and thereafter, she

stood on the person of the deceased. Resultantly, the movements of

deceased were stopped. Thereafter, appellant no.2 brought rope,

tide hands and legs of the deceased and then he was covered by bed

sheet. As per the evidence, thereafter, everyone slept in the house.

In the morning, appellant no.2 prepared break-fast and tea, however

appellant no.1 took only tea and went away by tempo. As per

evidence of Payal, the deceased was lying on the bed. After the

lunch, she was taken by appellant no.2 to the house of appellant no.1

and they remained there. Her evidence further shows that on the

next day in the evening, appellant no.2 alone went to her house and

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at 3.00 a.m. both the appellants came to appellant no.1’s house and

thereafter they slept.

19. PW1 Payal’s evidence further shows that on the next day,

appellant no.2 took her and her brother to the school. From school,

they were brought to the house of appellant no.1 and thereafter,

again both the appellants went to her house by taking spade and

hoe. That day Payal slept in appellant no.1’s house only. Her

evidence would show that at 3.00 O’clock in the morning both the

appellants came back and that time appellant no.1 asked Payal to

sprinkle water upon his purse, money and mobile. She noticed that

out of house garbage was burning and when she went out she

noticed that her mother (appellant no.2) was burning baniyan and

underwear of her father. Her evidence would further show that on

the next day morning when appellant no.2 was combing her hairs,

that time she asked appellant no.2 whether they have killed her

father and burnt him. Upon that as per the version of Payal,

appellant no.2 asked her not to speak like that. Her evidence further

shows that appellant no.2 again took her to school and after they

returned from the school, appellant no.2 again went to her house. At

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about 8.00 p.m., appellant no.1 went and he returned along with

appellant no.2 at 12.00 O’clock in the night. Her evidence would

show that appellant no.1 told that on the next day they will go to

Hyderabad, however in the morning police came and apprehended

them.

20. Evidence of PW1 Payal would show that police recorded

her statement. She further states that her statement was also

recorded in the Court of learned Judicial Magistrate, First Class,

under Section 164 of the Code of Criminal Procedure. The said

statement is at Exh.12.

21. PW1 Payal was thoroughly cross-examined by the

learned defence counsel. Her evidence would show that her

evidence is free from omissions and contradictions. From her cross-

examination, defence was able to bring on record that the deceased

was addicted to liquor and due to that on previous occasion,

appellant no.2 took her and her brother to her mother’s house.

22. In cross-examination, it was brought on record that

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nobody visited her house in spite of shouts of quarrel. PW3 Nitesh in

the first information report (Exh.23) and also in his substantive

evidence deposed that since quarrel and noise of quarrel was routine

affair from the house of the deceased, he did not pay any heed to the

same.

In his cross-examination, it was brought on record that

after this child witness started residing with appellant no.1, on third

day for the first time, she went to the school. Criticism is made that

Payal (PW1) did not disclose the incident to anybody immediately.

True it is, but merely because of that we are of the view that the

Court should not bring her evidence under the shadow of doubt.

23. We cannot forget that this prosecution witness is

between the age of kid and adolescent. In her presence, drastic

incident has occurred. Her evidence clearly shows that on the next

day of the incident, she was removed from her house by appellant

no.2 and she was brought to the house of appellant no.1 and she

stayed there till both the appellants were apprehended by the police.

In her evidence she did state that she asked her mother whether they

have killed her father. That time an understanding was given to her

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by her mother (appellant no.2) that she should not speak like that.

She was under the control of both the appellants. Therefore, some

fear must be lurking in her mind that if she disclose to anybody in

the school, something will happen to her. Obviously, she must have

gathered courage when she noticed police when both the appellants

were apprehended. There is no delay in recording the police

statement of Payal (PW1).

24. During her cross-examination, it is brought on record

that after the arrest of appellant no.2, she went to reside in the house

of Shambhukaka where she resided up to “terwi” of her father.

Though, in the cross-examination, it is tried to be suggested to her

that she is deposing on the basis of tutoring by Pratima aunt, the said

is stoutly denied by her. At this stage, the Court would like to

observe that though during her cross-examination certain omissions

were tried to be brought on record, however, those omissions were

not at all proved when the Investigating Officer was under cross-

examination.

25. There was no occasion for appellant no.2 to take Payal

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and start residing with appellant no.1 at his house. Her evidence has

shown that during her stay at appellant no.1’s house, on 2-3

occasions, appellant no.2 visited her house, but at no point of time

Payal was taken with her. After the incident when on next day she

left her house with appellant no.2 and went to the house of appellant

no.1, thereafter she never seen her father. Her evidence is also

corroborated by PW3 Nitesh that after evening of 12.09.2015, he has

never seen the deceased. Not only that, as per his evidence on

15.09.2015, he noticed appellant no.2 along with two persons along

with her children.

26. From the evidence of Payal, we are of the view that she

is witness to the truth. There is nothing on record to call her as

tutored witness. Therefore, we independently accept her evidence.

27. Chemical Analyser’s report (Exh.19) would show that

earth with white crystal and the earth collected from Exhibits 6 and 7

i.e. Axe and Spade, in respect of hue and Physico-chemical

characteristics are tallied. Also, Sodium chloride, a salt was detected

in the earth collected from the spot from where dead body was fished

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out.

27. From the evidence of Payal (PW1), it is clear that the

appellants were having some relations. PW1 Payal’s evidence has

established that when the deceased used to be out of station, that

time, appellant no.1 used to visit her house. Evidence of neighbours

also shows that there used to be quarrel in between the couple since

deceased used to take suspicion over the character of appellant no.2.

From the evidence of Payal, it is clear that on the day of the incident

on 3-4 occasions appellant no.1 visited the house of the deceased

requiring the deceased to ask appellant no.1 as to why he is

repeatedly visiting his house. In our view, the relationship between

both the appellants can be attributed as a motive for them to kill

Ramesh.

28. When police came after the report from Nitesh (PW3),

house of the deceased was found locked from outside. Lock was

broke open and in presence of the panchas, police party found that

there was fresh flooring and after excavation, dead body of Ramesh

was fished out from his house only. Thus, the dead body was

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recovered from inside the house of appellant no.2. there was no

explanation whatsoever on record offered by her as to why she was

residing with appellant no.1 after the date of the incident.

29. In our view, eye-witness account of Payal (PW1) is

inspiring and in our view, the said alone can be made the basis for

conviction of both the appellants. Insofar as alternate argument is

concerned, we are unable to persuade ourselves to the submissions

made by the learned counsel for the appellants for scaling down the

offence from punishable under Section 302 of IPC to one punishable

under Section 304 Part-II of the IPC. In the light of the unchallenged

evidence of prosecution witness Payal in respect of the actual assault

made on her father by both the appellants, we reject the same.

30. On re-appreciation of the entire prosecution case, we

have no hesitation in our mind to record a finding that the

prosecution has proved its case against both the appellants beyond

reasonable doubt. Consequently, we pass the following order :-

ORDER.

1. Criminal Appeal No. 489 of 2018 stands dismissed.

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2. The judgment and order of conviction passed by the

learned Additional Sessions Judge-5, Nagpur in Sessions

Trial No. 13 of 2016 on 16.02.2017, thereby convicting

the appellants for the offence punishable under Sections

302, 201 read with Section 34 of the Indian Penal Code,

is hereby confirmed.

3. The appellants should undergo the sentence imposed

upon them.

JUDGE JUDGE
Diwale

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