Kuklal @ Kishor Motilal Kale And Anr. vs The State Of Mah And Ors.
2025 Latest Caselaw 8765 Bom

Bombay High Court

Kuklal @ Kishor Motilal Kale And Anr. vs The State Of Mah And Ors. on 15 December, 2025

2025:BHC-AUG:35085


                                            *1*             apeal178o05 ACQUITTAL


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                            CRIMINAL APPEAL NO.178 OF 2005

                1.    Kuklal @ Kishor Motilal Kale,
                      Age : 30 years, Occ : Agril,
                      R/o Moharwadi, Tq. Shrigonda,
                      Dist. Ahmednagar.

                2.    Arun Nathu Bhosale,
                      Age : 30 years, Occ : Agril,
                      R/o Pimpalgaon Pisa,
                      Tq. Shrigonda, Dist. Ahmednagar.
                                               ...Appellant/ accused Nos.1 and 2

                      - Versus -

                The State of Maharashtra.
                                                     ...Respondent/ State.

                                              ...
                Shri Sagar P. Mahale, Advocate for appellant No.1.
                Shri Rajendra Temkar, advocate for appellant No.2.
                Shri Vivek M. Lomte, APP for the respondent/ State.
                                              ...

                                   CORAM : SUSHIL M. GHODESWAR, J.

                                   Reserved on : 24 November 2025
                                   Pronounced on : 15 December 2025


                JUDGMENT :

-

1. The accused were charged for offences punishable

under Sections 395 and 397 of the Indian Penal Code ( for short,

"the IPC"). By this appeal filed under Section 374(2) of the Code *2* apeal178o05 ACQUITTAL

of Criminal Procedure (for short, 'the CrPC'), the appellants/

accused challenge the judgment and order dated 03.02.2005

passed by the learned 3rd Ad-hoc Additional Sessions Judge,

Ahmednagar, in Sessions Case No.139/2004. Relevant operative

portion of the impugned judgment reads thus:-

"The accused no.1 Kuklal @ Kishor Motilal Kale is convicted u/s.235 of Cri.P.C. for the offence punishable u/s.395 of I.P.C. and is sentenced to suffer R.I. for 7 years and to pay a fine of Rs.500/-. In default of payment of fine, he shall suffer further R.I. for 6 months.

Accused no.1 Kuklal @ Kishor Motilal Kale is further convicted for the offence punishable u/s.397 of I.P.C. and he is sentenced to suffer R.I. for 7 years.

Accused no.2 Arun Nathu Bhosale is convicted u/s.235 of Cri.P.C. for the offence punishable u/s.395 of I.P.C. and he is sentenced to suffer R.I. for 7 years and to pay a fine of Rs.500/-. In default of payment of fine, he shall suffer further R.I. for 6 months.

Accused no.2 Arun Nathu Bhosale is further convicted for the offence punishable u/s. 397 of I.P.C. and he is sentenced to suffer R.I. for 7 years.

Both the substantive sentences to run concurrently. Accused no.1 Kuklal is entitled for set of his pre-detention period u/s.428 of Cri.P.C.. He was in jail from 22/5/2004 t 3/2/2005.

Accused no.2 Arun is entitled for set off of his pre- detention period u/s.428 of Cri.P.C. He was in jail from 22/5/2004 to 3/2/2005.

All muddemal property be preserved for the trial of absconding accused."

2. The brief facts leading to filing of the present appeal *3* apeal178o05 ACQUITTAL

are as under:

The prosecution case is that PW-3 Lankabai Vitthal

Wagh was residing at Waghmala, Burudgaon, along with her

husband PW-4 Vitthal Jagannath Wagh and their sons PW-7

Gahininath Vitthal Wagh and Navnath Vitthal Wagh. Navnath is

having his wife. One Mangal Jagtap, daughter of PW-3's sister,

was also staying with them. On 18.05.2004, after dinner, the

family retired to sleep. PW-4 Vitthal and PW-7 Gahininath slept

in the courtyard (locally called "Padhavi") whereas, Navnath and

his wife slept in one room, while PW-3 Lankabai and Mangal

slept in another. At about midnight, PW-3 woke up on hearing the

shouts and when she opened the door, she saw four persons

armed with sickles. Two of them were assaulting PW-4 (Vitthal)

and PW-7 (Gahininath). When PW-3 Lankabai attempted to shut

the door, however, two of the assailants forced it open, entered

the house, threatened them with sickles, and robbed their

ornaments valuables including mangalsutra, nose-ring, earrings,

silver anklets, and cash of about ₹40,000/-. After committing the

robbery, the assailants fled. The injured were taken to Dr.

Deshpande's hospital. According to the prosecution, six *4* apeal178o05 ACQUITTAL

assailants committed the dacoity. On the basis of the complaint,

investigation commenced.

3. During the course of investigation, a spot

panchnama (Exh.21) was drawn. PW-7 (Gahininath) produced

his blood-stained banyan under panchnama (Exh.23). The

appellants/ accused were arrested and the recoveries were made

at the instance of the accused. Vide seizure panchnamas (Exh.32

and 34). PW-8 Ulhas Dayaram Pawar (Executive Magistrate)

conducted the test identification parade and his reports are at

Exhibits 39 to 42. PW-9 Prakash Karbhari Pawar conducted the

investigation. On completion of the investigation, the charge-

sheet was filed. Since offences were triable by the Sessions

Court, the case was committed to the Sessions Court. The learned

Additional Sessions Judge framed charge at exhibit-3 against the

appellants/ accused. The appellants/ accused pleaded not guilty

and claimed to be tried. The prosecution has examined in all nine

witnesses as under:-

PW No. Name of witness Significance/ role PW-1 Bapusaheb Dnyandeo Panch to the spot panchnama Kulat PW-2 Dnyandeo Namdeo Panch to seizure of banyan of Shelke injured PW-7.

                             *5*              apeal178o05 ACQUITTAL


PW-3     Lankabai      Vitthal Informant/ eyewitness
         Wagh
PW-4     Vitthal    Jagannath Eyewitness
         Wagh
PW-5     Dr. Vijaykumar        Medical Officer, issued injury
                               certificates at exhibits 28 and 29
PW-6     Pandharinath          Panch to recovery of articles
         Narayan Landge
PW-7     Gahininath    Vitthal Eyewitness. Injured son of the
         Wagh                  informant PW-3
PW-8     Ulhas       Dayaram Special Executive Magistrate,
         Pawar                 who conducted the identification
                               parade.
PW-9     Prakash      Karbhari Investigating Officer
         Pawar

4. Learned advocates appearing for the appellants

submitted that only two accused are prosecuted and both of them

are convicted for the offences punishable u/sec.395 and sec. 397

of I.P.C., however, the impugned judgment is silent on the

involvement of other accused persons. For convicting the

accused under Sections 395 and 397, there should be at least 5

persons. However, in the present case, none of eyewitnesses has

stated that the number of accused was more than four. On the

number of accused also, there is no corroboration.

5. According to the learned advocates for the

appellants, the Trial Court has erred in holding that eyewitnesses *6* apeal178o05 ACQUITTAL

PW 3, PW 4, and PW 7 have identified the accused persons

during the incident, by ignoring the fact that the informant PW-3

in the FIR has specifically stated that, she was very scared and

she did not minutely see the accused persons and therefore, she is

unable to state the details of accused persons. Even I.O. PW 9

has admitted that all eyewitnesses have stated that they could not

identify the accused persons during the incident. During the test

identification parade, Navnath, who was locked inside the room,

was called as witness and he had no occasion to see the

assailants. Similar is the case of witness Mangal. Both Navnath

and Mangal are not examined by the prosecution. Therefore, the

identification parade has no evidentiary value and it was only

farce to implicate the accused.

6. Learned advocates further submitted that the

weapons were seized from the spot and the panchanama shows

that there were no blood stains. There were houses adjoining to

the spot and also there was security guard in the adjoining

company, however, no independent witness is examined by the

prosecution. According to the learned advocates, there is failure

on the part of the prosecution to prove recovery and *7* apeal178o05 ACQUITTAL

identification of seized cash and ornaments. Navnath and Mangal

who are alleged eyewitnesses, are not examined by the

prosecution. There are contradictory statements of PW-3

Lankabai because in her deposition she stated that, there were

four accused, out of them two accused were assaulting her

husband and son and two accused had entered inside and had

robbed the gold ornaments and cash amount. However, in the

FIR, she has stated that she was frightened and she could not see

the decoity property and so she is unable to give the details of the

decoity. Learned advocates, therefore, submitted that the learned

Sessions Judge committed grave error by convicting the

appellants as it has not properly appreciated evidence brought on

record. The prosecution has failed to prove guilt of the appellants

beyond reasonable doubt. As such, the appeal needs to be

allowed and the appellants be acquitted.

7. Per contra, the learned APP strongly opposed the

submissions of learned advocate for the appellants. According to

learned APP, the statements of witnesses proved the guilt of the

appellants beyond all reasonable doubts and, therefore, their

evidence cannot be discarded. Learned Sessions Judge has *8* apeal178o05 ACQUITTAL

rightly considered evidence on record and rightly convicted the

appellants. Learned APP, therefore, prayed for dismissal of the

appeal.

8. After hearing the submissions of learned advocates,

with their assistance, I have gone through evidence on record

carefully. The learned Trial Court vide the charge exhibit 3

framed the charge against the present appellants and other

absconding accused persons, namely, Ramesh Motilal Kale,

Dabhya Motilal Kale and Santosh Motilal Kale, for the offences

punishable under Sections 395 and 397 of the Indian Penal Code.

Thus, on the basis of the aforesaid charge, out of five accused

persons, only the present appellants came to be prosecuted before

the Trial Court as other three accused persons are absconding.

Therefore, in such situation, first and foremost issue arise for

consideration is whether, the appellants, who are two in number,

can be prosecuted for the offence punishable under Sections 395

and 397 of the IPC because in order to attract the offence under

Sections 395 and 397, there should be involvement of five or

more accused persons, who have conjointly committed the

offence. The definition of dacoity is provided under Section 391 *9* apeal178o05 ACQUITTAL

of the IPC, which clearly states that there should be five or more

persons who have conjointly committed or attempted or aided to

commit robbery. Now, in order to ascertain whether, there were

five or more persons, there needs finding to the effect that the

crime has been committed by five or more accused persons.

Therefore, the prosecution was required to prove before the Trial

Court that there were five or more persons have conjointly

committed the offence. The prosecution has examined as many

as nine witnesses, out of them, PW-3 Lankabai (complainant),

PW-4 Vitthal Wagh and PW-7 (Gahininath Wagh) were

eyewitnesses to the incident.

9. If deposition of PW-3 Lankabai is perused, she has

stated that the incident took place on 18.05.2004 at 12:00 in the

midnight and they had taken meal at 09:00 pm and retired for

bed. Her husband Vitthal (PW-4) and their son PW-7

(Gahininath) were sleeping in courtyard. Her another son

Navnath, who is not examined by the prosecution, and his wife

were sleeping in another room whereas, PW-3 and her sister's

daughter Mangal, who is also not examined by the prosecution,

were sleeping in next room. At midnight, PW-3 heard hue and *10* apeal178o05 ACQUITTAL

cry and therefore, woke from sleep and opened the door. She saw

four persons in the courtyard and out of them, two were

assaulting her husband (PW-4) and son (PW-7) by means of

sickle. When PW-3 tried to close the door, it was forcibly opened

by the thieves and they gave threat by showing sickle and asked

PW-3 and Mangal, not to shout. They broke open the cupboard

by iron rod and taken away the ornaments. PW-3 and Mangal

also handed over the ornaments on their persons to the said

thieves. PW-3 further stated that identification parade of the

accused persons was taken place before the Magistrate and she

had identified the accused in that identification parade. However,

in her cross-examination, she stated that she was not present for

identification parade. She has again candidly admitted that she

had not seen other dacoits apart from four accused persons. Thus,

in view of the deposition of this witness, the number of accused

persons present at the time of offence was four. PW-3 was not

present during the test identification parade to identify the

accused persons.

10. Another eyewitness PW-4 (Vitthal Wagh) deposed

that he and his son PW-7 (Gahininath) were sleeping in *11* apeal178o05 ACQUITTAL

courtyard. He stated that there might be three to four thieves

entered in their house and somebody assaulted him on his head

by means of sickle and he woke up. Due to the injuries, he

became unconscious. His son PW-7 was also injured by the

thieves and he also became unconscious. PW-4 stated that his

wife PW-3 informed that three dacoits were in the house and

robbed cash amount and ornaments. He also admitted that his son

Navnath was sleeping in one room, which was closed from

outside by dacoits. Though PW-4 stated that he has identified the

accused persons in test identification parade, however, he

deposed that accused No.1 broke open the lock of cupboard and

accused No.2 robbed the ornaments of his wife. Again on the

aspect of assaulting him, PW-4 has not stated as to who has given

him blow of sickle or iron rod. However, in his cross-

examination, PW-4 has admitted that due to the assault, he

became unconscious and regain consciousness after ten minutes

after opening the door of the room of his son Navnath and by that

time, thieves had fled away. At that time, his wife PW-3 told PW-

4 that dacoits had assaulted him and their son PW-7 and robbed

ornaments and cash of Rs.40,000/-. PW-4 also admitted that the

accused persons had covered their faces with clothe at the time of *12* apeal178o05 ACQUITTAL

crime and he came to know about the names of the accused

persons from the police. Thus, on the aspect of number of total

accused persons, the testimony of PW-4 is not reliable because

he became unconscious on account of assault by the thieves and

regain consciousness only after thieves left. His wife PW-3

informed PW-4 that there was dacoity. Therefore, whatever PW-4

has stated is based on hearsay evidence.

11. Likewise, another eyewitness PW-7 Gahininath has

nowhere stated as to how many accused persons were there. He

stated that at midnight somebody assaulted on his face by means

of weapon and due to which, he sustained injury. He stated that

there might be 5 to 6 thieves. PW-7 stated that when he was

taken to hospital, her mother PW-3 told him that there were

dacoity in their house committed by 5 to 6 thieves and in that

dacoity, he and his father sustained injuries. PW-7 also admitted

in cross-examination that he became unconscious on the spot and

regained consciousness on the following day. He also admitted

that the ornaments which have been recovered at the behest of

the accused persons, were not have any special identification

mark. Because PW-7 was unconscious, his statement about *13* apeal178o05 ACQUITTAL

number of thieves is not direct evidence.

12. On perusal of evidence of eyewitnesses PW-3, PW-4

and PW-7, it is clear that none of them have clearly stated as to

how many accused persons were there at the time of commission

of crime. PW-3, who is stated to have witnessed the incident, has

clearly stated that there were four accused persons. As regards

PW-4 and PW-7, their evidence is silent on the aspect of number

of accused persons. For commission of offence punishable under

Sections 395 and 397 of the IPC, the basic requirement is that the

crime should be committed by five or more persons. However,

the prosecution has failed to prove that there were more than five

accused persons. The prosecution alleges that the offence was

committed by six assailants, but the FIR and depositions do not

consistently support this number. In view the evidence brought

on record, it is not appropriate to convict the appellants/ accused

under Sections 395 and 397 of the IPC.

13. It is the matter of record that other accused persons

are absconding and only the appellants came to be tried before

the Sessions Court. The prosecution has failed to prove by

establishing cogent evidence on record that there were five or *14* apeal178o05 ACQUITTAL

more accused persons, who conjointly committed the instant

crime. In the present case, the prosecution witnesses either stated

the presence of only 3-4 assailants, or were unsure due to

unconsciousness or fear. Thus, foundational ingredient of the

offence is not proved, and consequently, the conviction under

Sections 395 and 397 IPC cannot be sustained. In view of the

above, this Court can alter charge for the offence punishable

under Sections 392 and 394 of the IPC. However, before coming

to that conclusion, it is necessary to ascertain as to whether, the

allegations are proved against the appellant so as to attract

Sections 392 and 394 of the IPC.

14. The test identification parade was conducted by the

prosecution and total three witnesses, namely, PW-4 (Vitthal), his

son Navnath and Mangal, both were not examined by the

prosecution, were taken for identifying the appellants/ accused.

The prosecution claims that these three witnesses PW-4 Vitthal,

Navnath and Mangal have identified accused No.2 Arun Bhosale

vide exhibit-39 and vide exhibit-40, PW-4 Vitthal and Navnath

have identified accused No.1 Kishor Kale. Though Navnath and

Mangal were present in the test identification parade, however, *15* apeal178o05 ACQUITTAL

they have not been examined. Though PW-4 Vitthal has been

examined and who claims to have identified the accused persons,

however, he has deposed that he was unconscious after assault on

his head and he came to know from his wife PW-3 Lankabai that

he and his son PW-7 Gahininath have been assaulted and robbed

by the accused persons. It is also important to note here that the

prosecution claims to have conducted the test identification

parade to identify the accused persons with the help of Navnath,

however, it has come on record that the said Navnath was locked

inside his room and he was not eyewitness. Therefore, the test

identification parade conducted by the prosecution is itself in

doubt. On the basis of evidence brought on record by the

prosecution, it is impossible to prove that the appellants were

involved in robbery. The direct evidence brought on record by

the prosecution connecting the appellants with the crime is not

sufficient to convict the appellants under Section 392 and 394 of

the IPC.

15. As far as circumstantial evidence is concerned, the

ornaments seized were not have special identification marks and

therefore, it is doubtful as to how those ornaments are belonging *16* apeal178o05 ACQUITTAL

to the witnesses, particularly when the prosecution has not

brought any cogent evidence on record to prove that the

ornaments seized are belonging to the witnesses. The ornaments

seized were not having any seals or signatures of the panchas.

Similar is the case with regard to recovery of the amount of

Rs.2300/-. Though this amount is shown to be seized from the

hut of appellant No.2, however, this much amount can be

available in anybody's house. Further, this amount of Rs.2300/-

was seized after 10 days. Thus, the prosecution has failed to

prove the recovery beyond all reasonable doubts. As far as

weapons seized from the spot are concerned, it has come in

evidence that there were no blood stains on weapons. The

prosecution has also failed to send the clothes of the victims and

other material having blood stains to the Chemical Analyzer.

PW-9 Investigating Officer was unable to give details of the

vehicle used by the accused persons. Thus, the prosecution has

failed to prove recovery and identification of seized cash and

ornaments.

16. In the present case, the prosecution has failed to

prove by cogent and reliable evidence the identity of the *17* apeal178o05 ACQUITTAL

assailants and the participation of the appellants in the alleged

robbery. So also, the test identification parade is unreliable, and

the alleged recoveries are wholly doubtful. In absence of credible

evidence showing either commission of robbery by the

appellants or their infliction of hurt in the course of the alleged

robbery, even the ingredients of Sections 392 and 394 of the IPC

remain unproved. Therefore, the appellants cannot be convicted

for the offences punishable under Sections 392 or 394 of the IPC

as well.

17. In view of the foregoing discussion, I am of the view

that the prosecution has failed to establish the ingredients of

Sections 392, 394, 395 and 397 beyond all reasonable doubts.

Consequently, this Criminal Appeal is allowed and the impugned

judgment and order is quashed and set aside. The appellants/

accused are acquitted for the said offence. As the appellants are

on bail, they need not surrender. The bail bond stands cancelled.

Surety, if any, stands discharged. Fine amount, if deposited, be

refunded. The record and proceedings be sent back to the

concerned Court.

kps                                   (SUSHIL M. GHODESWAR, J.)