IMPORTANT POINT
Murder and hurt – Merely because witnesses are relatives of deceased and as such are interested witnesses that alone cannot be a ground to discard their testimony – Only requirement is that testimony of such witnesses has to be scrutinized with greater caution and circumspection.

JUDGMENT

B.R. GAVAI, J.

1. The present appeal challenges the final judgment and order dated 10th August 2021, passed by the Division Bench of the High Court of Judicature at Bombay in Criminal Appeal No. 88 of 2013, whereby the High Court dismissed the appeal filed by the Appellant (Accused No.2) thereby affirming the judgment and order dated 5th December 2012 rendered by the Additional Sessions Judge-I, Malegaon, District Nashik (hereinafter referred to as “the trial court”) in Sessions Case No.76 of 2009 thereby convicting the appellant under Section 302 read with Section 34 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and sentencing him to undergo rigorous imprisonment for life along with fine of Rs.1,000/-, in default whereof rigorous imprisonment for two months. The appellant was also convicted under Section 324 read with Section 34 of the IPC and sentenced to undergo rigorous imprisonment for two years along with fine of Rs.500/-, in default whereof rigorous imprisonment for one month.

2. Shorn of details, the facts leading to the present appeal are as under :

2.1 The case of the prosecution is that Bapu Motiram Achat (complainant), Motiram Deoram Achat (deceased), Sudam Prabhakar Achat (appellant herein) and Prabhat Deoram Achat (co-accused) are all residents of Sitane, Taluka Malegaon, District Nashik. The deceased and the co-accused were brothers. Their agricultural fields were situated adjacent to each other with a common boundary and a common well. Further, the complainant is the son of the deceased and the appellant is the son of the co-accused.

2.2 On 15th July 2009, when the complainant had gone to his field, the appellant hurled abuses at the complainant with respect to the use of common boundary (Bundh) to operate the electric pump on the well. The complainant returned home and narrated the incident to his parents. Thereafter, the complainant and his parents went to the field at 12:00 Noon and asked the appellant an explanation as to why he was obstructing the complainant. Upon such confrontation, the appellant and the co-accused became aggressive. The co-accused armed with an axe and the appellant armed with a stick assaulted the deceased and the complainant.

2.3 The complainant and the deceased both sustained injuries. The people working in the nearby field namely, Chhagan Krishna Achat (PW-1), Krishna Deoram Achat and mother of the complainant i.e. Sojabai (PW-7), separated and took the complainant and the deceased to the Government Hospital, Malegaon. The report of the complainant was recorded at 4:15 PM and Crime Case No.171 of 2009 was registered under Sections 323, 326, 504 and 506 read with Section 34 of the IPC. The deceased was thereafter shifted to Government Hospital, Dhule. However, he succumbed to injuries on the same night and Section 302 of the IPC was added.

2.4 The Investigating Officer, Mahindra Ahire (for short, “IO”) prepared a spot panchnama (Exhibit 26). The appellant was arrested on the next day i.e., 16th July 2009. Further, inquest panchnama (Exhibit 20) was drawn, clothes of the deceased were seized under panchnama (Exhibit 21), postmortem was carried out and the report (Exhibit 15) was prepared. The co-accused in police custody, gave a memorandum statement (Exhibit 11) which resulted in the recovery of the axe and stick (Exhibit 12). At the request of the IO, evidence of eye-witnesses were recorded under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter, referred to as “CrPC”) by the Judicial Magistrate.

2.5 After completion of the investigation, chargesheet was filed by the IO in the Court of Judicial Magistrate, FC, Malegaon and was registered as R.C.C. No.578 of 2009. Since the case was exclusively triable by the Sessions Court, it was committed to the Sessions Court. The trial court framed charges against the appellant and co-accused. The charges were read over and explained to both of them to which they pleaded not guilty and claimed to be tried. The