[Cites 23, Cited by 0]
Bombay High Court
Sanjay S/O. Haridas Gawrane And One vs The State Of Maharashtra Thr. P.S.O., ... on 5 December, 2025
2025:BHC-NAG:13717-DB
1 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 793 OF 2019
Gajanan S/o Haridas Gawrane,
Aged about 31 Yrs., Occ. Nil,
R/o. Mungsaji Nagar, Lohara, Tahsil
& District Yavatmal (In Prison). APPELLANT
Versus
The State of Maharashtra,
Thr. Police Station Officer,
P.S. Lohara, District Yavatmal. RESPONDENT
WITH
CRIMINAL APPEAL NO. 719 OF 2018
1. Sanjay S/o Haridas Gawrane,
Aged about 35 Yrs., Occ. Labour,
2. Mahesh S/o Haridas Gawrane,
Aged about 35 Yrs., Occ. Labour,
Both R/o. Mungshaji Nagar, Lohara,
Tah. & District Yavatmal. APPELLANTS
Versus
The State of Maharashtra,
Thr. Police Station Officer, Police
Station Lohara, District Yavatmal. RESPONDENT
2 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
-----------------------------------------------
Mr. V.D. Awchat, Advocate for the Appellant/s.
Ms. Shamsi Haider, APP for the Respondent No.1/State.
-----------------------------------------------
CORAM : URMILA JOSHI PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 17th NOVEMBER, 2025.
PRONOUNCED ON : 05th DECEMBER 2025.
ORAL JUDGMENT :- (PER : URMILA JOSHI PHALKE, J.)
1. Both these Appeals arising out of the judgment and
order of sentence passed by the Additional Sessions Judge,
Yavatmal in Sessions Trial No.82/2016 dated 24.10.2018 by
which the accused No.1/Gajanan Haridas Gawrane is convicted
of the offence punishable under Section 302 of the Indian Penal
Code (for short "IPC") and sentenced to suffer imprisonment for
life and to pay a fine of Rs.5,000/-, in default to undergo further
Rigorous Imprisonment for 6 months.
2. The accused No.1/Gajanan Haridas Gawrane,
accused No.2/Sanjay Haridas Gawrane and accused
No.3/Mahesh Haridas Gawrane are convicted of the offence
punishable under Section 307 read with Section 34 of IPC for
3 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
attempting to murder Subhash Gawrane and sentenced to suffer
Rigorous Imprisonment for 10 years and fine of Rs.2,000/-
each, in default to further suffer Rigorous Imprisonment for 6
months.
3. They are also convicted of the offence punishable
under Section 307 read with Section 34 of IPC for attempting to
murder Ashok Gawrane and sentenced to suffer Rigorous
Imprisonment for 10 years and fine of Rs. 2,000/- each, in
default to further suffer Rigorous Imprisonment for 6 months.
4. Criminal Appeal No.793/2019 is preferred by
accused No.1/Gajanan Haridas Gawrane, whereas Criminal
Appeal No. 719/2018 is preferred by accused No.2/Sanjay
Haridas Gawrane and accused No. 3/Mahesh Haridas Gawrane.
5. Brief facts of the prosecution case emerges from the
Police papers and recorded evidence are as under:
5(i). The Informant Sunita Ashok Gawrane has lodged
report alleging that deceased Durga @ Panchfula was her
mother, whereas injured Ashok Gawrane is her father and
another injured Subhash Gawrane is her brother. The accused
4 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
Nos. 1 to 3 are cousin brothers and are residing adjacent to her
house.
5(ii). On 27.06.2016 in the morning there was a quarrel
between accused No.3/Mahesh and injured Subhash, as accused
No.3/Mahesh suspected that injured Subhash has stolen his
wallet having Rs.350/- and ATM Card. On that count, there was
a quarrel between them. Around 04.00 p.m., all accused came
besides the house of Informant and again started to quarrel with
injured Subhash by suspecting theft by him and accused Nos. 2
and 3 i.e. Sanjay and Mahesh started beating injured Subhash.
Injured Ashok intervened in it, therefore he was also assaulted.
At the relevant time, the accused No.1/Gajanan came there and
there was altercation of words and accused No.1/Gajanan again
went to his house, brought knife and gave two blows of that
knife on the abdomen of injured Ashok and blow of knife on the
abdomen of injured Subhash. The accused Nos. 2 and 3 started
beating both the injured by kicks and fist blows and by brick. To
save the injured deceased Durga @ Panchfula came out of the
house with chilly powder and thrown the said powder on the
person of the said accused and ran towards the road. The
accused No.1/Gajanan chased her and gave a blow of knife on
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her neck, therefore she fell down and died on the spot.
5(iii). The Police persons immediately came on the spot
and moved the injured persons to the Hospital. The daughter of
injured Ashok and deceased Durga @ Panchfula namely Sunita
lodged the report about the incident. On the basis of the said
report, the crime was registered against the accused persons
under Sections 302 and 307 read with Section 34 of IPC and
Section 4/25 of the Indian Arms Act.
5(iv). After registration of crime the wheels of
investigation started rotating. The Investigating Officer visited
the spot of incident, drawn the spot panchnama, seized the
clothes of the injured, deceased and accused persons, seized the
blood samples of deceased, injured and accused persons and
drawn the inquest panchnama and referred the dead body for
post mortem examination. The accused persons were arrested.
On the basis of the memorandum statement of accused
No.1/Gajanan, the incriminating articles blood stained knife
and his shirt was recovered by drawing the panchnama. All the
articles collected during the spot panchnama were seized
through various seizure memos and recovered articles at the
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instance of accused No.1/Gajanan were forwarded to CA. After
completion of investigation, the charge-sheet was submitted.
5(v). The learned Additional Sessions Judge, Yavatmal
framed the Charge vide Exh. 17 against the accused persons to
which they pleaded not guilty and claimed to be tried.
5(vi). In support of the prosecution case, the prosecution
has examined in all 10 witnesses, as follows:
(i) PW-1 Sunita Ashok Exh.30 Informant
Gawrane
(ii) PW-2 Subhash Ashok Exh.35 Injured eyewitness
Gawrane
(iii) PW-3 Rameshwar Exh.44 Villager.
Pandurang Kolhare
(iv) PW-4 Ashok Shamrao Exh.50 Injured eyewitness
Gawrane
(v) PW-5 Satish Ashok Exh.55 Panch on spot,
Chaudhary inquest panchnama
and various seizure
memos.
(vi) PW-6 Ravi Ajabrao Kulsange Exh.72 Panch on
memorandum
statement and
recovery
panchnama.
(vii) PW-7 Dr. Ashish Diliprao Exh.83 Medical Officer
Uke
7 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
(viii) PW-8 Dr. Kapildev Sahdev Exh.89 Medical Officer
Patil
(ix) PW-9 Dr. Ratnadip Exh.96 Medical Officer
Shantaram Sonone
(x) PW-10 Abhay Murlidharrao Exh.117 Investigating
Ashtikar Officer
5(vii). Besides the oral evidence, the prosecution placed
reliance on Report-Exh. 31, FIR-Exh. 32, Seizure Memo as to the
clothes of injured Subhash-Exh. 33, Statement of injured
Subhash under Section 164 of Cr.P.C.-Exh.36, Statement of
injured Ashok under Section 164 of Cr.P.C.-Exh. 51, Spot
panchnama-Exh. 56, Inquest panchnama-Exh. 57, Seizure
memos-Exhs. 62 to 67, Letter to Circle Officer-Exh. 69, Seizure
memos-Exhs.73 to 75, Memorandum statement of accused
No.1/Gajanan-Exhs.76 & 78, Recovery panchnama-Exhs. 77 &
79, Letter by Medical Officer to P.I.-Exhs. 84 and 85, Letter to
Medical Officer-Exh. 86, Query Report Exh. 87, Letter to
Medical Officer-Exh. 88, PM Notes-Exh. 91, Letter to Head of
Department-Exh. 92, Query to Medical Officer-Exh. 93,
Discharge Card-Exhs. 97 and 98, Letter to Medical Officer-
Exh. 99, Progressive Injury Report-Exhs. 100 and 101, Arrest
Memo Exhs. 105 to 107, Station Diary Entry-Exh. 118, Letter to
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CA-Exhs. 128 to 130, CA Reports-Exh. 132 to 140.
5(viii). After appreciating the evidence, the learned Trial
Court held that the death of the deceased is homicidal one and
caused by the blow of knife by accused No. 1/Gajanan and
accused Nos. 1 to 3 in furtherance of their common intention
caused injuries to PW-2/Subhash and PW-4/Ashok and
attempted to commit their murder and thereby held them guilty
and sentenced them as aforestated.
5(ix). Being aggrieved and dissatisfied with the same, the
present Appeals are preferred by the accused persons.
6. Heard Mr. Awchat, learned Counsel for the accused
persons, who submitted that the evidence on record shows that,
till the date of incident there was no previous enmity between
the accused persons and the family of the deceased.
PW-1/Sunita Gawrane admitted during cross-examination that,
the accused No.1/Gajanan helped her brother in securing the
job. During the sudden quarrel between the injured Subhash
and accused Nos. 2 and 3, the deceased and injured have
sustained the grievous injuries. There was no intention to
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commit the murder of the deceased.
7. He also submitted that, the defence of the accused
persons is of a total denial, however, even accepting the case as
it is during sudden fight sudden quarrel, the death of the
deceased is caused and the two injured have sustained the
injuries. Therefore, the case of the accused No.1/Gajanan covers
under the Exception sudden fight sudden quarrel, whereas the
allegation against the accused Nos.2 and 3 is only to the extent
that they have assaulted the injured by fist and kick blows.
There is no evidence on record to show that there was a
common intention of all the accused persons and in furtherance
of their common intention they have caused the death of the
deceased and injuries to the injured. Therefore, at the most
offence under Section 323 of IPC would attract against the
accused Nos. 2 and 3. In view of the facts and circumstances,
the impugned judgment and order is erroneous and liable to be
quashed and set aside.
8. Per contra, Ms. Haider, learned APP submitted that,
the entire case of the prosecution is rested upon the direct
evidence of PW-1/Sunita and two injured eyewitnesses
10 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
PW-2/Subhash and PW-4/Ashok. Admittedly, there was no
previous enmity, and therefore, there was no reason for the
prosecution witnesses to implicate them falsely. The evidence of
these injured eyewitnesses is on higher pedestal and which is
not shattered during the cross-examination. There is no reason
for them to shield the real culprit and falsely implicate the
accused persons. As far as the accused No.1/Gajanan is
concerned, who went at his house, brought the knife and gave
repeated blows on the person of the injured and cut the throat
of the deceased, shows his intention to commit murder. The
defence taken by the accused as to the sudden fight sudden
quarrel is not attracted as there was a preparation and intention
on the part of the accused No.1/Gajanan. The accused Nos. 2
and 3 shared common intention with the accused No.1.
Therefore, the Appeals are devoid of merits and liable to be
dismissed.
9. After hearing both the sides, we have gone through
the entire record with the help of learned APP and the defence
Counsel.
10. The first and the foremost question arises whether
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the prosecution succeeded in proving that the death of the
deceased Durga @ Panchfula is homicidal death. To prove the
death of the deceased is homicidal one, the prosecution has
placed reliance on the evidence of PW-8/Dr.Kapildev Patil
examined vide Exh. 89. As per his evidence he was attached to
the forensic medicine department in Government Hospital
Yavatmal. On 28.06.2016, the dead body of Durga @ Panchfula
was referred to him for conducting post mortem examination
alongwith the requisition Letter Exh. 90. He alongwith
Dr. Sharad Kuchewar and Dr. Kranti Raut conducted the post
mortem examination. On seeing the dead body they noted the
clothes of the deceased were wet and stained with blood. They
packed the clothes separately and handed over to NPC B.No.
1853 who was on duty. On examination of the dead body, they
found post mortem lividity was fixed on body. Neck and upper
part of chest was having blood stains. On examination they
found following injuries on the person of the deceased:
i) There was evidence of stab wound over anterior
aspect of neck, which was obliquely placed of size 2
cm. x 0.5 cm. x cavity deep. (On approximation 2.3
cm. in length) it's upper end is 9.8 cm. below chin,
12 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
lower end is 4.00 cm. above supra sterunal notch. and
15 cm. Medial to left acromian process. Upper angle
is acute and lower angle of obtuse. It is directed
downwards, inwards and laterally towards left. The
Track of said injury is from skin- subcutaneous
tissues-muscle- below left clavicle- left pleura- left
pleural cavity-substance of upper lobe of left lung.
ii) Abrasion over dorsum of left hand, which was
obliquely placed of size 1.00 cm. X 0.5 cm., reddish in
color.
11. As per his evidence both injuries were ante-mortem
and fresh. On internal examination they found left lung was
collapsed with evidence of stab injury over upper lobe of left
lung of size 1.8 c.m. X 0.2 c.m. X tissue deep, corresponding to
injury No.1 mentioned in column No.17. The said injury is
sufficient to cause death in the ordinary course of nature. Cause
of death was shock and hemorrhage following stab injury over
left lung. Accordingly, they prepared the post mortem notes
Exh. 91. They have also collected the samples and handed over
to the Police.
12. The cross-examination of this witness shows that, it
was suggested that, the knife must have blood stains in case of
13 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
the injury No.1 but the witness explained that if the knife is
recovered after the incident immediately. He further admits
that, the injury No. 2 is possible by fall on rough surface. Thus,
as far as the injuries sustained by the deceased are concerned,
nothing incriminating is brought on record to shatter the
evidence of this Medical Officer. Besides the PM Report, the
inquest panchnama is proved through the evidence of
PW-5/Satish Chaudhary by the prosecution. As per his evidence,
on the person of the dead body he has seen the saree and blouse
which are seized by the Police. The recitals of the inquest
panchnama shows the injury was seen on the neck of the
deceased.
13. Thus, the evidence of PW-8/Dr. Kapildev Patil
sufficiently shows that, the death of the deceased is due to
injury sustained by the her on the vital part of her body i.e. on
the neck. The injury was sufficient to cause death in the
ordinary course of nature. He has also witnessed the
corresponding injury on thoracic cavity as he has witnessed the
left pleura torn, left lung was collapsed. No adverse evidence is
brought on record that there was any reason for causing such
injuries.
14 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
14. Now it is well settled that, the evidence of PW-8/Dr.
Kapildev Patil is not only an opinion evidence but also his
evidence is in the nature of direct evidence as he had an
opportunity to see the injuries on the person of the deceased.
15. A medical witness, who performs a postmortem
examination, is a witness of fact though he also gives an opinion
on certain aspects of the case. This proposition of law has been
stated by the Hon'ble Apex Court in the case of Smt. Nagindra
Bala Mitraand Vs. Sunil Chandra Roy and another, reported in
1960 SCR (3) 1, wherein the Hon'ble Apex Court observed that
"the value of a medical witness is not merely a check upon the
testimony of eyewitnesses; it is also independent testimony,
because it may establish certain facts, quite apart from the other
oral evidence. If a person is shot, at close range, the marks of
tatooing found by the medical witness would show that the
range was small, quite apart from any other opinion of his.
Similarly, fractures of bones, depth and size of the wounds
would show the nature of the weapon used. It is wrong to say
that it is only opinion evidence; it is often direct evidence of the
facts found upon the victim's person." Thus, the testimony of
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medical witness is very important and it can be safely accepted.
The evidence adduced by the Medical Officer corroborated by
the inquest panchanama shows that the deceased died
homicidal death.
16. In the recent judgment also, the Hon'ble Apex Court
in the case of Anuj Singh @ Ramanuj Singh @ Seth Singh Vs.
The State of Bihar, reported in 2022 Live Law (SC) 402 , dealt
with the evidentiary value of the medical evidence and observed
that the evidentiary value of a medical witness is very crucial to
corroborate the case of prosecution and it is not merely a check
upon testimony of eyewitnesses, it is also independent
testimony, because it may establish certain facts, quite apart
from the other oral evidence. It has been reiterated by this
Court that the medical evidence adduced by the prosecution has
great corroborative value as it proves that the injuries could
have been caused in the manner alleged.
17. Thus, the prosecution has succeeded in proving that
the death of the deceased is homicidal one.
18. To prove the charges against the accused persons
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that the accused Nos. 1 to 3 in furtherance of their common
intention assaulted the injured PW-2/Subhash and PW-4/Ashok
and accused No. 1/Gajanan caused the death of the deceased by
assaulting her on the vital part of the body with an intention to
commit her murder, the entire prosecution case rested upon the
evidence of PW-1/Sunita the Informant and two injured
eyewitnesses PW-2/Subhash and PW-4/Ashok.
19. PW-1/Sunita is the daughter of deceased Durga @
Panchfula and PW-4/Ashok. As per her evidence, the incident
took place on 27.06.2016 at about 04.00 p.m. There was
altercation between accused No.3/Mahesh, her brother
PW-2/Subhash and father PW-4/Ashok on account of allegation
that PW-2/Subhash has committed the theft of wallet of accused
No.3/Mahesh. At the relevant time, accused No.1/Gajanan and
accused No.2/Sanjay also came there. The accused No.2/Sanjay
and accused No.3/Mahesh assaulted her brother and father by
fist and kick blows. The accused No.1/Gajanan went to his
house, brought the knife and gave a blow of knife on the
stomach of her brother as well as her father. At the relevant
time, she was at home and witnessed the incident. Due to
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assault, both the injured were fallen down and were raising
shouts, due to which her mother to save both the injured from
the accused went towards them by taking chilly powder in her
hand and her mother thrown chilly powder on the person of the
accused and ran away towards road. The accused No.1/Gajanan
followed her mother, caught her and gave blow of knife on her
throat, due to which she fallen down and died on the spot. The
said incident was witnessed by Ankita Pandurang Gawrane,
Nanda Pandurang Gawrane and Pandurang Gawrane.
19(i). Her evidence further shows that, the Police came at
the spot and moved her brother and father to the Hospital. She
also approached to the Lohara Police Station and lodged Report
(Exh.31) and FIR (Exh.32). The Police seized the shirt of her
brother Subhash of sky blue colour i.e. Article-A vide seizure
memo Exh. 33 which is identified by her.
19(ii). During her cross-examination, some omissions are
brought on record by the defence. Her cross-examination shows
that, her brother got the employment in Cotton Spinning Mill
with the help of accused No.3/Mahesh. She further admits that,
on the day of incident there was function of Housewarming
18 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
(Wastu Shanti) at the house of Maroti Gawrane and many
relatives were present in that function but she denied that she
was also present in that function. From the cross-examination
the attempt was made to show that she has not stated before
the Investigating Officer while recording her report that, the
accused No.1/Gajanan went to his home and bring the knife.
However, it is not an omission but it was stated by her in a
different manner. Therefore, the contention of the defence that
it is a material omission, is not sustainable. The another
omission brought is that the accused cut the throat of her
mother, is also not an omission but she has specifically stated
that the blow was given on the neck of her mother.
20. To corroborate the version of PW-1/Sunita,
PW-2/Subhash is examined by the prosecution, who is also an
injured eyewitness. His evidence corroborates the version of
PW-1/Sunita on material particulars that, there was a quarrel
between him and accused No.3/Mahesh as accused
No.3/Mahesh alleged that he has stolen his wallet and all the
accused beat him by fist and kick blows. The accused
No.1/Gajanan brought the knife and gave blow on his stomach
19 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
as well as also assaulted his father on his abdomen. On seeing
the incident, his mother came and thrown chilly powder on the
person of the accused and ran away and the accused
No.1/Gajanan followed her and gave a blow of knife on the
neck of her mother, due to which she sustained injury and died
on the spot. He as well as his father also sustained the injuries
and this incident was witnessed by his sister PW-1/Sunita.
20(i). His further evidence shows that, he was admitted in
Government Hospital for 8 to 10 days and surgery was
performed on him. He also identified the knife Article-B which
was shown to him. During his cross-examination, an attempt
was made to show that, he has got the employment with the
help of accused No.3/Mahesh but he denied the same. It came
on record during his cross-examination that, Nanda Gawrane
and Pandurang Gawrane are his relatives and their houses are
adjacent to his house. However, he denied that there were
quarrel between himself and his parents on account of partition
of agricultural land. Further attempt was made to show that,
the Informant has stated the contents of the FIR to him as well
as his father which is admitted by him. He further admits that,
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on 29.06.2016 the Police came to the Hospital to enquire with
them, at that time his sister was present.
20(ii). In further cross-examination attempt was made to
show that the accused beat them, his mother came to rescue
them with chilly powder and threw it on the person of the
accused and thereafter accused No.1/Gajanan went home and
brought the knife which is denied by him. He stated that, the
contents of the statement that his mother thrown chilly powder
and accused No.1/Gajanan went home and brought the knife is
correct. Rest of the cross-examination is in the denial form.
21. The evidence of PW-4/Ashok another injured
eyewitness is also on a similar line and corroborates the version
of PW-1/Sunita and PW-2/Subhash. During his
cross-examination he admitted that, the father of the accused is
his real brother and he is possessing the joint agricultural land
with his real brother. He also stated that, there is no dispute
between him and his brother regarding the agricultural land.
Thus, the attempt was made to show that there was no previous
enmity. During cross-examination it came on record that after
throwing chilly powder on the person of the accused by his
21 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
wife, accused No.1/Gajanan gave blows to them by knife. Thus,
as far as the incident is concerned, the evidence of PW-1/Sunita,
PW-2/Subhash and PW-4/Ashok is consistent that the accused
No.1/Gajanan went to the house, brought the knife and gave
blow initially on the person of PW-2/Subhash and PW-4/Ashok
and thereafter on the neck of the deceased. All the three
witnesses have identified the weapon of the offence.
22. Though prosecution has examined
PW-3/Rameshwar Kolhare but he is not the eyewitness. His
evidence is only to the extent that on the day of incident when
he was at home accused No.1/Gajanan came to his house
washed his face and went away.
23. Besides the oral evidence of these witnesses
prosecution placed reliance on the medical evidence. As far as
the homicidal death of the deceased Durga @ Panchfula is
concerned, which is already discussed.
24. PW-8/Dr. Kapildev Patil also deposed as to the
nature of the weapon. His evidence shows that vide requisition
dated 29.07.2016 he was asked to opine whether the injuries
22 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
sustained by the deceased are possible by the knife which was
referred to him. He deposed that, he received the weapon in a
sealed condition. The weapon was a pointed knife with plastic
handle having shape of horse face. The total length of knife was
30.5 c.m., and its blade was of metal, having pointed tip and
one edge sharp of 18 c.m., in length and 3 c.m., in width. He
observed dried mud and rust stains over the knife. He opined
that injury Nos. 1 and 2 mentioned in PM report is possible by
such type of weapon. Injury No.1 mentioned in column No.17
was having corresponding internal injuries mentioned in
column No. 20 of PM report which is sufficient to cause death in
the ordinary course of nature. He has also drawn the sketch of
the weapon and forwarded his report vide Exh. 93 signed by
him and his colleagues Dr. Kuchewar and Dr. Raut.
25. As far as the cross-examination is concerned, the
evidence of Medical Officer on the nature of the weapon and
the injuries is not shattered. Only he has admitted that the
injury No.2 can be possible by fall on rough surface.
26. PW-7/Dr. Ashish Uke has examined injured Ashok
and Subhash. As per his evidence on 27.06.2016 both the
23 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
injured were admitted to his Hospital. On the same day he
received the letter from Police Station Lohara for recording their
statements. Therefore, he examined the patients and opined
that they are not in a position to give a statement as their
conditions are bad. The history given to the Hospital is the
assault on 27.06.2016 at 04.30 p.m. His further evidence shows
that on 28.07.2016 he received a query from the concerned
Police Station by referring the weapon and shirt so also the
injury report of injured Ashok Gawrane and Subhash Gawrane.
He has also described the knife and stated that the article shirt
was of a white colour having blue lines, middle button of the
shirt was missing, there were blood stains on the front and mud
stains on the back and rest of the shirt. There was tear mark
which was clear cut by sharp object on the left side of the shirt
on front side below pocket. The length of the tear was 3 c.m. He
opined that, the injury mentioned in the injury reports of Ashok
and Subhash can be caused by the weapon knife. The cut mark
on the shirt can be caused by weapon knife. He has also drawn
the sketch of weapon knife and shirt. The query report is at
Exh. 87. The letter issued by him to the Police Station Lohara
stating physical condition of the injured are at Exhs. 84 and 85.
24 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
His evidence shows that, Police have also requested him to
obtain the blood samples of injured Subhash. Accordingly, he
collected the blood samples and handed over to API Abhay
Ashtekar.
His cross-examination shows that, the Medical
Officer of Surgery Department treated both the injured. He
further admits that, he has issued the Letters Exhs. 84 and 85
on the say of Medical Officer of Surgery Department but he
denied that, he has not personally examined the injured. He
also denied that, the injuries are not possible by the weapon like
knife.
27. PW-9/Dr. Ratnadip Sonone is the another Medical
Officer. As per his evidence both the injured were referred to
him by C.M.O. They both were in a critical condition. They were
having history of stab injuries on the abdomen. Injured Ashok
Gawrane received a stab wound over left hypocondrium region
of size 5 x 4 c.m. by deep up to peritoneal cavity. He was having
tenderness over left side of abdomen. Injured Subhash Gawrane
was having stab wound over left side of epigastric region of size
4 x 3 c.m. by deep up to peritoneal cavity. The edges of injuries
25 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
were sharp with upper angle blunt and lower angle acute. He
has performed the emergency exploratory laparotomy. His
evidence further shows that, on opening of cavity of patient
Ashok he observed 750 ml., collection of blood in paritonium.
There was lacerated wound over left lobe of liver of size 3 x 1
c.m. The bleeding was controlled by fibrilar patch. He has also
narrated as to the procedure performed by him was to stop the
blood.
27(i). His evidence further shows that, he has also
performed the surgery on injured Subhash who has also
sustained the injury lacerated wound over the liver. There was
perforation of stomach which was repaired. Liver bleeding was
controlled by fibrilar patch. Transverse colostomy was done. The
patients were admitted from 27.06.2016 to 06.07.2016. The
discharge cards are at Exhs. 97 and 98. The progressive injury
reports are at Exhs. 100 and 101.
27(ii). The evidence further shows that, the injuries
sustained by both the injured was caused by long, sharp, hard
weapon and grievous in nature. Those injuries can lead to death
of both the patients. He further deposed that, the injuries are
26 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
possible by knife Article-B. The clothes worn by the patients
must be cut. The cut marks appeared on Article-A shirt can be
caused due to weapon Article-B. Said cut marks are consistent
with injuries to injured Subhash. The cross-examination further
confirms that, there were many cut marks on the shirt. It further
shows that, both patients sustained the injuries on the left side
of epigastric region and they have sustained single external
injury.
28. Thus, the oral evidence of PW-1/Sunita,
PW-2/Subhash and PW-4/Ashok is corroborated by the Medical
evidence also. The cross-examination nowhere shatters either
the oral evidence of these witnesses or the medical evidence.
29. Besides the direct evidence and medical evidence,
prosecution has also placed reliance on the circumstantial
evidence like spot panchnama and memorandum statement of
accused No.1/Gajanan and recovery of weapon and blood
stained shirt at his instance.
30. PW-5/Satish Chaudhary is examined to prove the
spot panchnama. His evidence shows that, he was called by the
27 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
Police to act as a Panch. One lady has shown the spot of
incident. He was accompanied by another panch. Said spot of
incident was in front of the house of Informant. Chilly powder
was lying on the ground and also the blood stains. The water in
the tank near the bathroom was of reddish colour. In the
bathroom there was a container of chilly powder. In front of the
house of Suresh Raut one lady was lying in a dead condition
and her neck was cut. Police collected the simple earth, blood
mixed earth, chilly powder mixed earth and water from the tank
in the bottle and accordingly panchnama Exh.56 was drawn. He
identified the articles simple earth, blood mixed earth, chilly
powder mixed earth and water from the tank in bottle as
Articles-C, D, E and F. His evidence further shows that, on the
person of the dead lady there was pink colour saree and pink
colour blouse which are at Articles-G and H. Police have also
seized one shirt of sky colour which is at Article-A.
Though he was cross-examined at length nothing
incriminating is brought on record, much stress was given by
the defence Counsel on the admission that his signatures were
obtained on the labels of the seized articles in the Police Station.
28 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
He also admitted that, on the day of incident he has not seen
any shirt at the spot of incident. It is pertinent to note that, the
shirt was not seized from the spot but it was produced by
PW-1/Sunita in presence of panchas. Therefore, the said
admission is not of much relevance.
31. PW-6/Ravi Kulsange is the another panch on
memorandum statement of the accused No.1/Gajanan and
recovery at his instance. His evidence shows that, on
29.06.2016 in his presence in the Police Station, accused
No.1/Gajanan Gawrane made a statement that he is ready to
produce the knife which was hidden by him. Accordingly, the
said statement was recorded at Exh. 76 and thereafter he led
them near Railway gate of Lohara by Government Jeep. Jeep
was stopped near the Neem Tree. Towards southern side at
slope from the bushes of Palas tree, the accused took out a knife
and handed over it. The said knife was having face of horse.
Police seized the knife by drawing the panchnama vide Exh. 78.
His evidence further shows that, the accused further led them
near the Thakare Kirana Shop in Lohara area. Accused went to
the house of Rameshwar Kolhare and took out a blue colour
29 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
shirt which was kept under the tin of roof which was produced
by him. Accordingly, panchnama Exh. 79 was drawn.
His evidence further shows that, accused
No.3/Mahesh Gawrane has produced his clothes i.e. blue colour
jeans pant and black colour T-shirt stained with blood which
was seized vide seizure memo Exh. 74. The same are marked as
Articles-K & L. Accused No.2/Sanjay Gawrane also produced his
brownish colour pant and blue colour checks shirt stained with
blood were seized vide seizure memo Exh. 75. The said clothes
are marked as Articles-M & N. Accused No.1/Gajanan Gawrane
also produced the clothes i.e. blue colour shirt and black colour
night pant stained with blood which is at Exh. 73 and marked as
Articles-I & J.
32. This PW-6/Ravi cross-examined but the evidence of
this witness that the accused made a memorandum statement is
not shattered during the cross-examination. There is absolutely
no cross as to voluntariness of the statement or on the place of
recovery. Thus, the evidence as to the memorandum statement
and recovery at the instance of the accused No.1/Gajanan
remained unchallenged.
30 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
33. Exh. 63 is the seizure memo as to the blood samples
of injured Ashok and Exh. 62 is the seizure memo as to the
blood samples of injured Subhash, Exh. 64 is the seizure memo
as to the blood stained clothes of the deceased, Exh. 65 is the
seizure memo as to the blood samples of accused No.1/Gajanan,
Exh. 66 is the seizure memo as to the blood samples of accused
No.2/Sanjay and Exh. 67 is the seizure memo as to the blood
samples of accused No.3/Mahesh.
34. PW-10/Abhay Ashtikar is the Investigating Officer
who has narrated about the investigation carried out by him.
During his cross-examination it is brought on record that, the
spot of incident is surrounded by various houses. He also admits
that, from the place where the injured were lying was not
visible from the place where deceased Durga @ Panchfula was
lying. It came in the evidence that, he has not recorded the
statement of Ramesh Raut, Rameshwar Salve, Sunil Gawande,
Dipak Dongare, Kisana Yadao etc. Thus, the attempt was made
to show that, the statements of independent witnesses were not
recorded. It further came in his evidence that, he has deposited
the seized muddemal with muddemal clerk on 22.07.2016.
31 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
35. Another scientific evidence on which the
prosecution relied upon is the C.A. Report Exh. 132 which
shows that, Article-A full shirt of injured Subhash, saree of
deceased and blouse of deceased are stained with blood group
'A'. Blood is detected on soil, earth mixed with reddish powder,
full shirt of accused No.1/Gajanan, petticoat of deceased and
blouse of the deceased. Blood group of blood detected on earth
collected from spot, earth mixed with reddish powder, full shirt
of accused No.1/Gajanan and petticoat of the deceased was not
determined. As per Exh. 133, blood group of injured Subhash is
'A', blood Group of Ashok is 'O', blood group of accused
No.1/Gajanan is 'A', blood group of accused Mahesh and Sanjay
is 'A' and blood group of deceased is also 'A'. Exh.140 is the
analysis report which shows that, chilly powder is detected on
Exh.4 earth mixed with reddish powder, Exh. 5 reddish liquid in
a plastic bottle, Exh. 7 full shirt, Exh. 11 full pant and Exh. 12
full shirt.
36. Thus, after going through the evidence it is apparent
that, the entire prosecution case is rested upon the direct
evidence of PW-1/Sunita, PW-2/Subhash and PW-4/Ashok
32 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
coupled with circumstantial evidence, recovery of weapon knife
and blood stained shirt of the accused No.1/Gajanan, medical
evidence and scientific evidence as well as the spot panchnama.
37. The law is settled that while appreciating the
evidence of a witness, the approach must be whether the
evidence of the witness read as a whole appears to have a ring
of truth. Once that impression is formed, it is undoubtedly
necessary for the Court to scrutinize the evidence more
particularly keeping in view the deficiencies, drawbacks and
infirmities pointed out in the evidence as a whole and evaluate
them to find out whether it is against the general tenor of the
evidence given by the witness and whether the earlier
evaluation of the evidence is shaken as to render it unworthy.
The material thing which is to be seen whether those
inconsistencies goes to the root of the matter. While
appreciating the evidence of relatives, great weightage is to be
given to them on the principle that there is no reason for them
not to speak the truth and shield the real culprit.
38. The learned Counsel for the accused persons
submitted that, no independent witnesses have been examined,
33 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
and therefore, the prosecution case is doubtful. Admittedly, the
alleged incident has taken place in front of the house of
Informant. The cross-examination of the witnesses shows that,
the house of the accused is at some distance from the house of
the Informant. There was a dispute between the injured
Subhash and accused Mahesh and Sanjay as accused Mahesh
suspected that injured Subhash has committed theft of his
wallet and on that count, there was altercation. During that
altercation both the injured were assaulted. Initially the accused
No.1/Gajanan came there and assaulted both the injured and
again went to his house, brought the knife and gave the blows
of knife on the person of PW-2/Subhash and PW-4/Ashok. As
the deceased made an attempt by throwing the chilly powder on
them to save the injured, therefore the accused No.1/Gajanan
ran behind her and gave a blow of knife on her neck. The entire
incident was witnessed by PW-1/Sunita who is the daughter of
the deceased and PW-4/Ashok. Her presence at the spot was
natural one. Though some omissions were brought on record
which are minor in nature and was not affecting the core of the
prosecution case. It is vehemently submitted that, only
interested witnesses are examined. It is now well settled that,
34 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
normally close relatives of the deceased would not be
considered to be the interested witnesses who would also
mention the names of other persons as responsible for causing
injuries to the deceased.
39. A Three Judge Bench of the Hon'ble Apex Court in
the case of Hari Obula Reddy and Ors. vs. State of Andhra
Pradesh, reported in AIR 1981 SC 82 , has held that the evidence
of interested witnesses is not necessarily unreliable evidence.
Even, partisanship by itself is not a valid ground for discrediting
or rejecting the evidence of relatives. It cannot be laid down as
an invariable rule that interested evidence can never form the
basis of conviction unless corroborated to a material extent in
material particulars by independent evidence. All that is
necessary is that the evidence of interested witnesses should be
subjected to careful scrutiny and accepted with caution. On the
contrary, a close relative who is very natural witness cannot be
regarded as interested witness. The term "interested" postulates
that the person concerned must have some direct interest in
seeing that the accused person is somehow or the other
convicted either because he had some animus with the accused
35 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
or for some other reason.
40. Testing on the anvil and touchstone on the aforesaid
principles laid down by the Hon'ble Apex Court, we find that
the witnesses i.e. the daughter of the deceased PW-1/Sunita,
injured PW-2/Subhash and injured PW-4/Ashok who are the
closed relatives of the deceased have really not embellished
their versions. Their presence at the spot of the incident is also
natural as the alleged incident has taken place in front of their
house and there is nothing on record to doubt their versions on
material particulars. Even if the admission given by
PW-10/Abhay Ashtikar Investigating Officer is taken into
consideration that the place where the injured were lying from
which the place where deceased was fallen was not visible but
their evidence shows that they have witnessed the accused
No.1/Gajanan running behind the deceased. PW-1/Sunita has
witnessed the entire incident and there is no reason to doubt
her version. Moreover, the evidence of injured eyewitnesses is
on the higher pedestal and there is nothing on record to doubt
their versions. Their evidence is not only corroborated by the
medical evidence but also by circumstantial evidence that the
36 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
blood stains are found on the spot in front of their house, chilly
powder was also found in front of the house as well as on the
clothes of the accused and blood stains are also found on the
clothes of accused No.1/Gajanan.
41. The Hon'ble Apex Court in Criminal Appeal
No.56/2018 decided on 19.09.2018 (Shamin Ansari & Ors. Vs.
State (NCT of Delhi), observed that while appreciating the
evidence of witnesses, approach must be whether the evidence
of witness read as a whole inspires confidence. Once that
impression is formed, it is undoubtedly necessary for the court
to scrutinize the evidence, more particularly keeping in view the
deficiencies, drawback, and infirmities pointed out in the
evidence as a whole and evaluate them to find out whether it is
against a general tenor of the evidence and whether the earlier
evaluation of the evidence is shaken as to render it unworthy of
belief.
42. Thus, after appreciating the evidence even
considering the inconsistencies on record which are not
touching the core of the incident, and therefore, the evidence of
these witnesses requires to be accepted.
37 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
43. It is well settled that, the witnesses related to the
deceased would not shield the real culprit and implicate any
innocent.
44. On perusal of the entire evidence, as far as the
homicidal death of deceased Durga @ Panchfula is concerned at
the hands of the accused, is proved by the prosecution through
the evidence of PW-1/Sunita, injured PW-2/Subhash and
injured PW-4/Ashok. It is further corroborated by the
circumstantial evidence that, the recovery of weapon at the
hands of accused No.1/Gajanan, which is proved by the
prosecution through the evidence of PW-6/Ravi Kulsange and
PW-10/Abhay Ashtikar Investigating Officer. The evidence of
these witnesses shows that the accused No.1/Gajanan has made
a voluntary statement and in perusal of the said statement the
articles were recovered. Though the witnesses are
cross-examined but the evidence as to the voluntariness of the
statements and recovery part is not shattered. Thus, the
recovery at the instance of the accused No.1/Gajanan is proved
by the prosecution.
45. The doctrine underlined under Section 27 of the
38 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
Indian Evidence Act is founded on the principle that if any fact
is discovered as a search made on the strength of any
information obtained from a prisoner, such a discovery is a
guarantee that the information supplied by the prisoner is true.
46. Section 27 of the Indian Evidence Act is interpreted
by the Hon'ble Apex Court in the case of Subramanya Vs. The
State of Karnataka, reported in 2022 LiveLaw SC 887 , and held
that the conditions necessary for the applicability of Section 27
of the Act are broadly discussed as under:
"(i) Discovery of fact in consequence of an information
received from accused;
(ii) Discovery of such fact to be deposed to;
(iii) The accused must be in police custody when he
gave information; and
(iv) So much of information as relates distinctly to the
fact thereby discovered is admissible."
It has been further held by the Hon'ble Apex Court
that what is admissible is the information and the same has to
be proved and the opinion form it by the police officer. It has
been further held that in other words, the exact information
given by the accused while in custody which led to recovery of
the articles has to be proved. It is, therefore, necessary for the
39 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
benefit of both the accused and the prosecution that
information given should be recorded and proved and if not so
recorded, the exact information must be adduced through
evidence. The basic idea embedded in Section 27 of the
Evidence Act is the doctrine of confirmation by subsequent
events. The doctrine is founded on the principle that if any fact
is discovered as a search made on the strength of any
information obtained from a prisoner, such a discovery is a
guarantee that the information supplied by the prisoner is true.
It is further held by the statement that the accused led the
police and the witnesses to the place where he had concealed
the articles is not indicative of the information given.
47. The evidence of panch witness PW-6/Ravi Kulsange
that the knife was recovered on the basis of the statement of
accused No.1/Gajanan is further substantiated by the medical
evidence as PW-7/Dr. Ashish Uke, PW-8/Dr. Kapildev Patil and
PW-9/Dr. Ratnadip Sonone categorically stated about the
description of the weapon and also stated that the injuries on
the person of the deceased and injured Subhash and Ashok are
possible by weapon article knife. The blood stained shirt of
40 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
accused No.1/Gajanan was also recovered at his instance and
for which no explanation was put forth by the accused. It is not
the case that, the accused have also sustained the injuries, and
therefore, blood stains are appearing on their person. Therefore,
the explanation as to the blood stains was required from the
accused which he has not explained in his statement recorded
under Section 313 of Cr.P.C. also. Thus, the incriminating
circumstance brought on record by the prosecution connecting
the accused that the blood stains are found only on his clothes,
is an additional circumstance in favour of the prosecution.
Merely, because the blood group is not detected, is not sufficient
to discard the evidence.
48. The Hon'ble Apex Court in the case of Kishore
Bhadke Vs. State of Maharashtra, reported in 2017 ALLMR
(CRI) 1316, wherein it is held that the presence of human blood
on clothes recovered at the instance of the accused - mere
absence of evidence regarding the blood group cannot be fatal
to the prosecution.
49. Though the learned Counsel for the accused persons
submitted that during sudden fight sudden quarrel accused
41 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
No.1/Gajanan gave a blow of knife on the person of injured
PW-2/Subhash and injured PW-4/Ashok and thereafter on
deceased, however the evidence on record shows that during
quarrel he went home, brought the knife and gave blow. It is not
came in the evidence that, the knife was lying there which was
picked up by the accused. The intention of the accused
No.1/Gajanan can be gathered from circumstances. Therefore,
the submission of the learned Counsel for the accused persons
that the case is covered under Exception 4 sudden fight and
sudden quarrel, is not sustainable.
50. The culpable homicide is defined in Section 299 of
IPC and it is genus. Whereas, the murder defined in Section 300
of IPC and it is specie. Under Section 299 of IPC, whoever
causes death with an intention or knowledge specified in that
Section, commits offence of culpable homicide. However, since
culpable homicide is only genus, it includes two forms; one is a
graver offence which amounts to 'murder' and lesser one which
does not amount to 'murder'. It can be seen that, therefore,
though the offence of culpable homicide is defined, the said
provision does not provide any punishment for that offence as
42 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
such and, for the purpose of punishment, the court has to
examine facts and find out whether the offence falls or does not
fall under the definition of murder under Section 300 of IPC. In
view of this scheme, therefore, every act of homicide falls within
the definition of culpable homicide under Section 299 of IPC.
Section 300 of IPC on the one hand mentions that a homicide is
murder. However, in that section five exceptions have been
given and these exceptions lay down the circumstances in which
the act causing death is not murder even though it may have
been done with the intention or knowledge specified in Section
300 of IPC. Therefore, it has to be seen; (1) what was the
intention or knowledge with which the act was done and what
are circumstances in which it was done, (2) if it is established
that the offence is culpable homicide, but it does not fall within
the definition of murder and if it falls under any of exceptions to
that Section, the offence is punishable under Section 304 of the
Indian Penal Code. Once, it is held that the offence falls under
Section 304 of IPC, the punishment differs, depending upon
whether the death is caused with an intention or only with the
knowledge and, therefore, if the element of intention exists, the
offence is punishable under Part-I of Section 304 of IPC,
43 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
otherwise, the offence falls under Part-II of Section 304 of IPC.
51. In the case of Anbazhagan Vs. State represented by
the Inspector of Police, 2023 SCC OnLine SC 857 also, while
considering the aspect of "intention" and "knowledge", the
Hon'ble Apex Court observed that the word "intent" is derived
from the word archery or aim. The "act" attempted to must be
with "intention" of killing a man. Intention, which is a state of
mind, can never be precisely proved by direct evidence as a fact;
it can only be deduced or inferred from other facts which are
proved. The intention may be proved by res gestae, by acts or
events previous or subsequent to the incident or occurrence, on
admission. Intention of a person cannot be proved by direct
evidence but is to be deduced from the facts and circumstances
of a case. There are various relevant circumstances from which
the intention can be gathered. Some relevant considerations are
that 1. the nature of the weapon used; 2. the place where the
injuries were inflicted; 3. the nature of the injuries caused, and
4. the opportunity available which the accused gets.
52. By referring its earlier decision in the case of
Smt. Mathri Vs. State of Punjab, AIR 1964 SC 986 , the Hon'ble
44 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
Apex Court observed that the word "intent" by its etymology,
seems to have metaphorical allusion to archery, and implies
"aim" and thus connotes not a casual or merely possible result-
foreseen perhaps as a not improbable incident, but not desired-
but rather connotes the one object for which the effort is made-
and thus has reference to what has been called the dominant
motive, without which, the action would not have been taken.
While distinguishing between "motive", "intention" and
"knowledge", "motive" is something which prompts a man to
form an intention and knowledge is an awareness of the
consequences of the act. In many cases intention and knowledge
merge into each other and mean the same thing more or less
and intention can be presumed from knowledge. The
demarcating line between knowledge and intention is no doubt
thin but it is not difficult to perceive that they connote different
things. Even in some English decisions, the three ideas are used
interchangeably and this had led to a certain amount of
confusion. A man's intention has to be inferred from what he
does. The degree of guilt depends upon intention and the
intention to be inferred must be gathered from the facts proved.
Sometimes an act is committed which would not in an ordinary
45 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
case inflict injury sufficient in the ordinary course of nature to
cause death. Proof of such knowledge throws light upon his
intention. On the other hand, awareness is termed as
"knowledge". The knowledge of the consequences which may
result in the doing of an act is not the same thing as the
intention that such consequences should ensue. Except in cases
where mens rea is not required in order to prove that a person
had certain knowledge, he must have been aware that certain
specified harmful consequences would or could follow, the
knowledge that specified consequences would result or could
result by doing an act is not the same thing as the intention that
such consequences should ensue. If an act is done by a man
with the knowledge that certain consequences may follow or
will follow, it does not necessarily mean that he intended such
consequences and acted with such intention. Intention requires
something more than a mere foresight of the consequences. It
requires a purposeful doing of a thing to achieve a particular
end.
53. With the above proposition, if the evidence in the
present case is taken into consideration and attending
46 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
circumstances sufficiently shows accused No.1/Gajanan is guilty
for culpable homicide amounting to murder.
54. Thus, the entire evidence on record as far as the
involvement of the accused No.1/Gajanan in committing the
murder of deceased Durga @ Panchfula is concerned, is
sufficient to prove the charges. Therefore, the reasoning of the
Trial Court holding him guilty for the offence punishable under
Section 302 of IPC calls no interference.
55. The accused Nos. 1 to 3 are further held guilty of
the offence punishable under Section 307 read with Section 34
of IPC. The evidence of injured witness PW-2/Subhash, injured
witness PW-4/Ashok and Informant PW-1/Sunita consistently
states that it was the accused No.1/Gajanan brought the knife
from his house and gave blow on the person of the injured on
the vital part of the body. The evidence further shows that, the
alleged incident has taken place on account of the dispute as
accused No.3/Mahesh suspected that injured PW-2/Subhash has
committed theft. The evidence further shows that, accused
accused No. 2/Sanjay and accused No.3/Mahesh assaulted both
the injured by fist and kick blows. No overt act is attributed to
47 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
them. There is no evidence that in furtherance of their common
intention all the accused persons arrived at the spot. The
evidence on record shows that initially accused No.2/Sanjay
and accused No.3/Mahesh had altercation with both the injured
and accused No.1/Gajanan came there subsequently, therefore
the evidence on record is not sufficient to show that they were
sharing a common intention. The evidence of these witnesses
nowhere shows that, they came on the spot together alongwith
weapons in their hands. The evidence shows that during the
altercation accused Nos. 2 and 3 started assaulting both the
injured by fist and kick blows and accused No.1/Gajanan also
joined them and assaulted them initially by fist and kick blows
and subsequently went to the house and brought the knife.
Therefore, the evidence nowhere discloses that the act of
assaulting both the injured by means of knife by accused
No.1/Gajanan was in furtherance of common intention with
other two accused.
56. The Hon'ble Apex Court in the case of Jasdeep
Singh alias Jassu Vs. State of Punjab, reported in (2022) 2 SCC
545, interpreted the word "furtherance" and held that, the word
48 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
"furtherance" indicates the existence aid or assistance in
producing an effect in future and thus it has to be construed as
an advancement or promotion. It is further held that, the
existence of common intention is obviously the duty of the
prosecution to prove. However, the court has to analyze and
assess the evidence before implicating a person under Section
34 of IPC.
57. Thus, Section 34 of IPC creates a deeming fiction by
infusing and importing a criminal act constituting an offence
committed by one, into others, in pursuance to the common
intention. The onus is on the prosecution to prove the common
intention to the satisfaction of the Court. The evidence should
be substantial, concrete, definite and clear.
58. By applying the aforesaid principles to the case in
hand, the common intention of accused Nos. 2 and 3 is not
established by the prosecution. At the most, the act committed
by accused Nos. 2 and 3 are concerned would attract under
Section 323 of IPC.
59. The involvement of the accused No.1/Gajanan in
49 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
assaulting PW-2/Subhash and PW-4/Ashok is established by the
prosecution not only by the direct evidence but also through the
medical evidence as well as the circumstantial evidence. The
evidence of PW-2/Subhash and PW/4/Ashok categorically
stated that, the accused No.1/Gajanan went at home brought
the knife and gave a blow of knife on their stomach. The
Informant PW-1/Sunita also corroborated the same. Though
these witnesses are cross-examined at length, as far as their
evidence on assault is concerned, remained unshattered. It is
further corroborated by the medical evidence as
PW-7/Dr. Ashish Uke deposed that the injury mentioned in the
medical certificate can be caused by the weapon knife. He has
also described the description of knife which was referred to
him for obtaining his opinion. The evidence of
PW-9/Dr. Ratnadip Sonone is on the aspect of nature of injury
specifically shows that, injured Ashok has sustained the stab
wound over left hypocondrium region of size 5 x 4 c.m. by deep
up to peritoneal cavity and he has performed the surgery on
him. Similarly, the injured Subhash also sustained the stab
wound over the left side of epigastric region of size 4 x 3 c.m.,
and surgery was performed on him also. He Specifically
50 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
submitted that, the injuries sustained by the injured are caused
by long, sharp and hard weapon and grievous in nature and
those injuries can lead death of both the parties.
60. By witnessing the weapon he deposed that the said
injuries are possible by weapon like Article-B. The evidence of
both these witnesses shows that, they have also examined the
shirt of injured Subhash, wherein there were tear marks and
stated that, the said tear marks are possible by Article-B. The
weapon knife was seized at the instance of accused
No.1/Gajanan. The said recovery of weapon is proved by
PW-6/Ravi Kulsange panch and PW-10/Abhay Ashtikar
Investigating Officer. Though these two witnesses are
cross-examined, nothing much significance could be gathered
from their cross-examination. It is well settled that, the version
of an injured witness stands on better footing than on ordinary
witness. Ordinarily, an injured witness is unlikely to allow the
real assailant to go scotfree. There is no rule of law that the
evidence of complainant or injured must be corroborated by
other independent witnesses. It is well settled that the
conviction can be based upon even on sole testimony of injured
51 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
and injured cannot be said to be interested witness who requires
corroboration.
61. By applying all these tests the offence under Section
307 of IPC is also established against the accused
No.1/Gajanan. As already observed that, the offence under
Section 302 of IPC is established against him. As far as the
intention to cause death is concerned, it can be gathered from
various circumstances like nature of the weapon used by him
and the blow aimed at the vital part of the body and the amount
of force employed in causing the injury. Here in the present
case, the deceased has sustained the injury on her throat and
she died instantaneously. The injured also sustained the injuries
on the vital part of the body, which was sufficient to cause death
in the ordinary course of nature. Therefore, the prosecution is
succeeded in establishing the charge under Sections 302 and
307 of IPC against the accused No.1/Gajanan. As far as accused
No.2/Sanjay and accused No.3/Mahesh are concerned, only
allegation against them is that they assaulted the injured by
means of fist and kick blows. There is no evidence that, all the
accused by sharing the common intention came at the spot.
52 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
Therefore, the accused No.2/Sanjay and accused No.3/Mahesh
cannot be held guilty for the offence punishable under Section
307 read with Section 34 of IPC. The observation of the Trial
Court that they were sharing common intention, is without any
evidence, and therefore, deserves to be quashed and set aside.
As far as the appreciation of evidence by the Trial Court holding
the accused No.1/Gajanan guilty, is proper and no interference
is called for.
62. In view of the above discussion, Criminal Appeal
No. 793/2019 deserves to be dismissed, whereas Criminal
Appeal No. 719/2018 deserves to be allowed partly. In view of
that, we proceed to pass the following order.
ORDER
i. Criminal Appeal No. 793/2019 is dismissed.
ii. Criminal Appeal No. 719/2018 is partly allowed.
iii. The judgment and order of sentence convicting
No.2/Sanjay S/o Haridas Gawrane and accused
No.3/Mahesh S/o Haridas Gawrane of the offence
punishable under Section 307 read with Section 34
of IPC and sentencing them to suffer R.I. for 10
53 CRI. APEAL.793-2019 & ANR.JUDGMENT.odt
years and fine of Rs. 2,000/- each, in default to
further suffer R.I. for 6 months, is hereby quashed
and set aside.
iv. They both are held guilty of the offence punishable
under Section 323 of IPC and sentenced to suffer
Simple Imprisonment for 01 year and fine of
Rs.1,000/- each, in default to further suffer Simple
Imprisonment for 01 month.
v. The accused No.2/Sanjay S/o Haridas Gawrane and
accused No.3/Mahesh S/o Haridas Gawrane both
have already undergone 10 months and 37 days and
they are entitled for the set off under Section 428 of
the Cr.P.C and for remaining sentence they shall
surrender before the Superintendent District Prison,
Yavatmal on 10.12.2025.
The Superintendent District Prison, Yavatmal shall
communicate to this Court if they fails to surrender.
vi. R & P be sent to the Trial Court.
63. Pending application/s, if any, shall stand disposed of
accordingly.
(NANDESH S. DESHPANDE, J.) (URMILA JOSHI PHALKE, J.)
S.D.Bhimte
Signed by: Mr.S.D.Bhimte
Designation: PA To Honourable Judge
Date: 08/12/2025 17:05:11
