[Cites 16, Cited by 0]
Bombay High Court
Vishal Ashok Kamble vs The State Of Maharashtra on 19 December, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-AS:57858-DB
SAYALI SAWANT /Sagar Appeal-1568.2018 (2).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1568 OF 2018
Vishal Ashok Kamble
Convict No.C/16789
Yerwada Central Prison,
Age 29 years, Occ-Rickshaw driver,
R/o. 108/109 Anand Nagar,
Ramtekdi, Pune. ... Appellant
(Orig. Accused)
V/s.
The State of Maharashtra,
(Notice to be served on the
Public Prosecutor, High Court,
(Appellate Side), Bombay. ... Respondent
______________________
Smt. Sonia S. Miskin, Appointed Advocate through High Court Legal Services.
Smt. Madhavi H. Mhatre, A.P.P. for the State.
______________________
CORAM : A. S. GADKARI AND
RANJITSINHA RAJA BHONSALE, JJ.
RESERVED ON : 26th SEPTEMBER 2025
PRONOUNCED ON : 19th DECEMBER 2025
JUDGMENT [Per : RANJITSINHA RAJA BHONSALE, J] :-
1) By the present Appeal, the Appellant seeks to challenge the
Judgment and Order dated 3rd February, 2014, passed by the learned Sessions
Judge, Pune in Sessions Case No. 475/2010 whereby the Appellant has been
convicted for the offence punishable under Section 302 read with Section 34
of the Indian Penal Code and sentenced to suffer imprisonment for life and to
pay a fine of Rs.2,000/- in default to undergo further rigorous imprisonment
for six months. The Appellant has been acquitted for the offence under
Section 4 punishable under Section 25 of the Arms Act and under Section
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37(1) punishable under Section 135 of the Bombay Police Act.
2) Prosecution case in brief, is as under.
2.1) On 29th March, 2010 Aruna Mahendra Shinde (PW-2), sister of
deceased lodged complaint with the Wanwadi Police Station stating that, one
year ago there was quarrel between her brother Shrinath @ Bhultu Sakharam
Gaikwad and the Accused No.1 Vishal Ashok Kamble and his brother Krushal
(juvenile in conflict with law). During the said quarrel, the Appellant Vishal
and his brother Krushal assaulted Shrinath @ Bhultu Sakharam Gaikwad on
his head by a blade. That, initially a complaint was filed, which was then
compromised. Appellant Vishal and his brother Krushal used to demand
money from Shrinath for drinking liquor. On the refusal of Shrinath to pay
any amount, the accused used to give threats to kill him. That, Shrinath had
informed these facts to the PW-2.
2.2) On the date of the incident i.e. 29th March, 2010, the
Complainant went for her work and on return inquired with her mother about
Shrinath, when she was informed that, Shrinath had gone out. That, at about
3.45 p.m., Babita, sister of PW-2 came and told her that, the Appellant
Vishal and his brother Krushal have assaulted Shrinath by some weapon and
that he was lying in a pool of a blood. PW-2 immediately rushed to the spot
and saw her brother Shrinath lying in the pool of blood, with injuries on his
face and head. The police arrived at the spot and injured Shrinath was taken
to Sassoon Hospital, Pune where he was declared dead before admission.
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2.3) On receipt of the Complaint, a crime was registered as Crime No.
85 of 2010 for the offences punishable under Section 302 read with Section
34 of the Indian Penal Code. Investigation was carried out by Dattatraya Mane
(PW-9), who visited the spot, prepared Spot Panchanama (Exhibit 36) in the
presence of panch witness Chandrakant Gholap - PW4. The spot of incident is
in front of grocery shop in a small lane having width of 5 feet to 5 ½ feet.
Blood samples were collected, hair found on the spot was collected. Inquest
Panchanama (Exh-37) was drawn up. Ajit Ramchandra Khadke (PW-10) took
over the investigation, recorded the statement of witnesses including PW-2
Aruna Mahendra Shinde (Complainant), PW-3 Raheman Ismail Shaikh
(person who heard conversation between the Accused), PW-4 Chandrakant
Baliram Gholap (Panch), PW-5 Anita Laxman Gaikwad Eye-witness (Hostile),
PW-6 Shivaji Maruti Waghmare (Eye-witness), PW-7 Amir Husain Sayyad
(Recovery Panch), PW-8 Sudhakar Genu Deshmukh (Panch for clothes of
Accused).
2.4) During the investigation as per Panchanama (Exh-60) clothes of
the deceased were attached. Sample of blood of the deceased as well as
Accused were collected. Clothes of the Accused were attached by effecting
Panchanama (Exh-50). During the investigation, Appellant Vishal made
statement before Police and Panch that he was willing to show place where
weapons were hidden and led the panch and police to the spot i.e. place of
Balwadi. Axe and one sickle were recovered vide Memorandum (Exh-46) and
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Panchanama (Exh-47). In the presence of PW-7 all the seized articles, blood
and sample of hair found on the spot, weapons were sent to the Chemical
Analyzer. The Chemical Analyzer's Report is at Exhibit Nos. 72 and 73. After
completion of investigation, charge-sheet was filed against Appellant and
separate charge-sheet was filed against Krushal (juvenile in conflict with law).
2.5) The case being committed, charge was framed on 9th December,
2010 (Exhibit-5) under Section 302 read with Section 34 of the Indian Penal
Code under the provisions of Section 4 punishable under Section 25 of the
Arms Act and for offence punishable under Section 135 of the Bombay Police
Act.
3) To bring home the guilt of the Accused, the Prosecution has
examined in all 10 witnesses including eye-witness, Panchas, Investigating
Officers etc. The Prosecution has relied on the contents of Memorandum and
Recovery Panchanama at Exh-46 and 47, Spot Panchanama at Exh-36, Inquest
Panchanama Exh-37, Panchanama for seizure of clothes of deceased Exh-60,
Post Mortem Report at Exh-28, letters forwarding articles to Chemical
Analyzer at Exh-62 to 65, Chemical Analyzer's Report being Exh-70 to 73.
4) After recording the evidence, statement of Accused was recorded
under Section 313 of the Code of Criminal Procedure. The defence of the
accused is that of denial.
5) Heard Smt. Sonia S. Miskin, appointed Advocate through High
Court Legal Services for Appellant and Smt. Madhavi H. Mhatre, A.P.P. for the
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State. Perused entire record, impugned Judgment and Order dated 3 rd
February, 2014.
6) At the outset, learned counsel for the Appellant fairly pointed out
that there is material evidence against the Appellant which has been relied
upon by learned trial Court to arrive at findings of the guilt of the Appellant
and for convicting him under Section 302 of the Indian Penal Code. Learned
Advocate for the Appellant submits that, considering the facts and
circumstances the case of the present Appellant be considered either under
Exception 1 or 4 of Section 300 and the conviction be altered/modified
accordingly and sentence be reduced. In view of the said submission, we
requested the learned Advocate appearing for the Appellant, to point out from
the evidence, the facts which in her assessment could be taken into account to
consider her prayer.
7) PW-1 Dr. Satyanarayan B. Punpale has conducted Post-Mortem
alongwith Dr. Dekhane. In the examination-in-chief, this witness has
specifically stated that deceased Shrinath had 42 external injuries which were
either chopped wound or incised wounds. That, the external injuries were
possible to be caused by an axe or chopper. On internal examination, the
witness found injury on the head i.e. scalp haematoma over frontal region 8 x
4 cms and on the brain i.e. subdural haemorrhage was seen over right parietal
region posteriorly 7 x 5 cms and left parietal region middle 6 x 2 cms. The
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witness has opined that cause of death is multiple chopped wounds on head.
We have also noted that, the cross-examination of the said witness at the
hands of Appellant has not yielded any favourable result. In fact it has come in
the cross-examination that, all injuries found on dead body were on its head
and face and were abutting each other, due to which, it was not possible to
distinguish which injury was caused by axe and which injury was caused by
sickle.
7.1) PW-2 is the Complainant and sister of deceased, who lodged the
complaint on being informed by her sister Babita Kamble that deceased
Shrinath was assaulted. She has stated in her evidence that, when she reached
spot the deceased Shrinath had head injuries on his face and his face was
totally torn. In her cross-examination she has admitted that deceased
Shrinath was having several crimes registered against him.
7.2) PW-3 Raheman Ismail Shaikh, according to prosecution is an eye-
witness. In his evidence he has stated that, he saw deceased Shrinath going
towards house of the accused with an axe in his hand. That, he had heard a
sound of quarrel and then saw deceased Shrinath being chased by Appellant
Vishal and his brother Krushal. That, Appellant Vishal was holding Koyta
(Sickle) and Krushal was holding an axe. That, after some time when the
Appellant Vishal and his brother Krushal came back, the weapons in their
hands were stained with blood. That, he heard them saying that they had
committed murder of Shrinath. The cross-examination of this witness has not
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brought out anything which is beneficial to the accused.
7.3) PW-4 Chandrakant Baliram Gholap is panch witness for the Spot
Panchanama. In his examination-in-chief he has stated that the spot of
incident was in front of Grocery Shop in a lane having width of about 5 to 5 ½
ft. That, blood and hair was found there and the walls on both sides of the
lane were stained with blood. That, samples of blood and hair were collected,
packed in plastic bags and were sealed. That, Panchanama was prepared at
the spot, sketch was drawn and the witness has admitted his signature on the
Panchanama which is at Exh-36. We have noted that, the defence has been
unsuccessful in bringing on record anything which is beneficial to it in the
cross-examination.
7.4) PW-5 Anita Laxman Gaikwad- the eye-witness of the Prosecution
has turned hostile.
7.5) PW-6 Shivaji Maruti Waghmare is an alleged eye-witness and has
stated to have known the deceased Shrinath and also the accused. That, he
works with Health Department of the Pune Municipal Corporation, leaves his
house at 5.30 a.m. to go to work and returns home at about 1.30 or 3.00 p.m.
That, on 29th March, 2010 when he returned from work and was sleeping in
his house, he heard shouting/screaming of people, therefore he came out of
the house and saw that Appellant Vishal and Krushal his brother were
assaulting one boy with axe and koyta on head. We have noted that, this
witness in the cross-examination has stated that, after getting up from his
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sleep when he came out of his house, he saw one boy was lying there and
blood was oozing from head and that said boy was not known to him. From
the evidence of this witness the fact of him being an eye-witness becomes
doubtful as he has gone back on his statement and contradicted himself. This
witness in our opinion is therefore not reliable and cannot be considered as
eye-witness.
7.6) PW-7 Amir Hussain Sayyad is Panch Witness for recovery of
weapon at the instance of accused. In his cross-examination he has stated
that he was called the Wanwadi Police Station where accused was present and
that the Police Officer in his presence had recorded say of the accused and
after which the statement was signed. That, Appellant led them to Ramtekdi
area and stopped jeep near the Blind school and led them to some distance
and climbed up Balwadi structure and took out one koyta and axe. That, the
koyta and axe were stained with blood. That, the said weapons were wrapped
by the police and label was affixed to it. The panchanama is at Exh-47 and he
identified koyta(Article 7) and axe (Article 8). That, the cross-examination of
this witness, has not revealed anything which is beneficial to the Appellant.
7.7) PW-8 Sudhakar Genu Deshmukh would act as Panch for recovery
of the clothes of the Appellant. That, at the Wanwadi Police Station, the
accused were present. The Police informed him that, the clothes worn by both
the accused were required to be seized. The accused gave their names as
Vishal Kamble and Krushal Kamble. That, another set of clothes for the
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accused were provided and worn by them. The clothes of the accused which
were stained with blood were packed in paper packets and then sealed by
applying wax seal. He identified muddemal Article 9 and 10 i.e. full pant and
shirt which were seized from Appellant. That, he identified Article 11 i.e.
jeans pant and Article 12 i.e. white shirt seized from Krunal Kamble. In his
cross-examination, this witness states that he has signed panchanama without
reading contents.
7.8) Perusal of the Chemical Analyzer's Report shows that, the clothes
of the Appellant were stained with human blood of 'B Positive' group. It is
pertinent to note that 'B Positive' blood group is blood group of the deceased.
7.9) PW-10 is the Investigating Officer who done initial investigation
i.e. recording of the Complaint given by PW-2. PW-10 has proved recovery of
clothes of the accused, proved Panchanama of seizure of clothes of the
deceased and recovery of weapons at the instance of the Accused. In the
cross-examination PW-10 has admitted that, the Appellant and his brother
Krushal were injured and sent to Sassoon Hospital Pune for medical
treatment. That, the distance between house of the Accused and place of
incident was about 250 to 300 ft. That, being illiterate has put his thumb
impression.
7.10) PW-9 is the Investigating Officer who had effected Spot
Panchnama and collected sample of blood and hair. He also issued request
letter to Sassoon Hospital for collecting samples for blood and scalp hair of
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deceased Shrinath. He has sent Krushal Kamble to Sassoon Hospital, Pune.
8) We have carefully perused the entire evidence, particularly the
evidence of PW-1 Dr. Satyanarayan Badrinarayan Punpale, PW-2 the
Complainant, PW-3 Raheman Ismail Shaikh, PW-4 Chandrakant Baliram
Gholap, PW-5 Anita Laxman Gaikwad, PW-6 Shivaji Maruti Waghmare and
PW-7 Amir H. Sayyad.
8.1) The perusal of evidence of PW-1 Doctor, who conducted Post
Mortem Report, reveals that the deceased had 42 external incised and
chopped injuries, which were possible by an axe and chopper. The cause of
death of deceased Shrinath is "multiple chopped wounds on head". That,
there were corresponding internal injuries in the head, brain and subdural
hemorrhage was seen over right parietal region posteriorly 7 x 5 cm and left
parietal region middle 6 x 2 cm. It is noted that all the 42 injuries were found
concentrated on the region of the head and face of the deceased, to such an
extent that the injuries were abutting/overlapping each other, and the doctor
was unable to distinguish which injury was caused by sickle. From the nature
and description of the injuries as given by this witness, the intention and
intensity of the attack is clearly evident. By no stretch of imagination, it can be
said that the reaction of the Appellant was measured or proportionate.
According to us, the conduct of the Appellant cannot be termed as "without
the offender having taken undue advantage". In fact the acts of the Appellant
amounts to act of cruelty or acting in a cruel or unusual manner. According to
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us the Appellant has with a cruel intention, in an unusual manner and with
knowledge and awareness of the outcome of his acts. The possibility of
Exception IV of section 300 being invoked and made applicable is therefore
ruled out. So also the Appellant has exceeded his right of private defence.
8.2) PW-2 Aruna M. Shinde is the Complainant and sister of the
deceased Shrinath, who has deposed as to the past disputes between the
deceased and the Appellant, which were settled. She has also deposed that,
the Appellant used to demand money from the deceased for drinking liquor
and on being meet with a refusal used to threaten the deceased. This witness
has seen the deceased lying in the pool of blood with head injuries at the spot
of the incident. That, the face of the deceased was totally torn.
8.3) PW-3 Raheman Ismail Shaikh, has deposed that he saw the
deceased Shrinath going towards house of the Appellant with axe in his hand
and that he heard some quarrel. He has stated that, after some time he saw
Shrinath being chased by the Appellant and his brother Krushal who was
having the bleeding head injury. The Appellant was holding a koyta (Sickle)
and Krushal was holding an axe. After sometime the Appellant Vishal and his
brother Krushal came back, at which time the weapons they had were stained
with blood. He has heard the conversation between the Appellant and his
brother, wherein they mentioned that they had committed murder of
Shrinath.
8.4) PW-4 Chandrakant Baliram Gholap is panch witness for the Spot
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Panchanama. This witness has stated that spot of incident was in front of
Grocery Shop in a lane having width of about 5 to 5 ½ ft., blood and hair was
found there and the walls on both side of the lane were sustained with blood.
That, samples of blood and hair were collected, packed/sealed in plastic bags.
The witness has deposed that the Panchanama was prepared at the spot and
sketch was drawn. This witness has admitted his signature on the
Panchanama which is at Exhibit 36. We have noted that, the defence has been
unsuccessful in bringing on record anything which is beneficial to it in the
cross-examination.
8.5) PW-7 Amir Hussain Sayyad is Panch Witness for recovery of
weapon at the instance of Appellant. He has deposed that the accused was
present at the police station and in the presence of the Police Officer say of the
Appellant was recorded and statement or the thumb impression of the
Appellant was taken immediately at Exh-46. He deposes that the Appellant led
the team to Ramtekdi area and stopped jeep near Blind school. The Appellant
led them to some distance and then climbed up Balwadi structure and took
out one koyta and axe. He has deposed that the koyta and axe were stained
with blood. The said weapons were wrapped by the police and something
was affixed to it. The panchanama is at Exhibit 47. The witness has identified
koyta (Article 7) and axe (Article 8). The cross-examination of this witness,
has not revealed anything which is beneficial to the defence.
8.6) PW-8 Sudhakar Genu Deshmukh, is the Panch for recovery of the
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clothes of the Appellant. He has deposed that at the Wanwadi Police Station,
the Appellant was present and the Police informed him that the clothes worn
by both the accused were required to be seized. The accused gave their names
as Vishal Kamble and Krushal Kamble. He deposed that another set of clothes
for the accused were got, which were provided to the accused and worn by
them. The clothes of the accused, were stained with blood. The clothes were
packed in paper packets and sealed by applying wax seal. He has identified
muddemal Article 9 and 10 i.e. full pant and shirt which were seized from
Appellant. That, he also identified muddemal Article 11 jeans and muddemal
Article 12 white shirt seized from Krunal Kamble. In his cross-examination,
this witness states that he has signed panchanama without reading contents.
Perusal of the Chemical Analyzer's Report shows that the clothes of the
Appellant were stained with human blood of 'B Positive' group. It is pertinent
to note that 'B Positive' blood group is blood group of the deceased.
8.7) PW-6 Shivaji Maruti Waghmare has stated in his evidence that he
saw Appellant and his brother Krushal assaulting one boy with axe and koyta
on the head. That, due to assault the boy fell down and after that Appellant
and his brother Krushal ran away from the spot. In the cross-examination, PW-
6 has contradicted his statements.
9) Considering the aforesaid evidence it is clear that, the deceased in
the first instance, was seen going with an axe towards house of the Appellant.
The reason for the said act, is not clearly brought out by the evidence on
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record. As per the evidence of the Prosecution witnesses, after sometime, the
Appellant and his brother are seen chasing deceased with axe and sickle in
their hands. The evidence on record indicates that, the distance between the
house of the Appellant and spot of incident is nearly 250-300 feet, which
would also indicate that the chase was for that entire distance. One thing
which is established from the evidence on record is that, the deceased was the
initiator of the quarrel. The brother of the Appellant, was assaulted by the
deceased and suffered an injury. One may safely infer that, there was a
quarrel. The deceased assaulted the Appellants younger brother, who
sustained the bleeding injury and therefore the Appellant and his brother
chased the deceased. We have also noted that, the fact of the deceased, being
the initiator, is watered down by the acts of the Appellant and his brother, in
assaulting and causing 42 incised and chopped injuries on the face and head
of the deceased. This, act and conduct of the Appellant, is clearly indicates
the fact that, the Appellant had the knowledge that, the said acts would cause
the death of the deceased instantly. The multiple injuries, inflicted on the head
region clearly demonstrate the knowledge and intention of the Appellant that
the said act would in all possibilities culminate into the death of the deceased
or that the same would sufficient in the normal course to cause the death of
the deceased. Further, the fact that, the younger brother (Juvenile in conflict)
also chased the deceased with weapon in his hand clearly shows that, the
injury inflicted by the deceased on him was not serious or grievous. We are of
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the opinion, that had the said injury been serious or even grievous, the
younger brother of the Appellant i.e. Krushal would not have been in a
position to chase the deceased.
10) The manner of assault i.e. 42 injuries on the head and face,
according to us clearly makes out the intention of the Appellant as also the
fact that he had the knowledge that said injury will cause death. The act of
the Appellant in chasing deceased for 250 to 300 feet and then committing
the gruesome and brutal murder clearly will not fall under Exception 1 or 4 of
Section 300 of the Indian Penal Code. According to us the present case, is not
a case which can attract any of the exceptions of the section 300. According to
us, even the defence of appellant i.e. right of private defence is ruled out, due
to the said extreme disproportionate aggression, manner and intensity of the
assault.
11) Exception 1 of section 300, would be invoked only if, the act of
the accused is committed whilst he is deprived of the power of self-control, by
a grave and sudden provocation, which is given, by the very same person. In
the present case, even if it is to be assumed that, the deceased gave the
provocation by assaulting the Appellant's younger brother, the said
provocation cannot be termed as "grave and sudden" as the Appellant chased
the deceased for a distance of 250 to 300 feet and then carried out the
repetitive and gruesome assault. Firstly, the reaction of the Appellant may not
strictly fall within the ambit of being "immediate" so also as "grave and
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sudden". Pertinent to note, that the reaction is not at the same spot, were the
deceased assaulted the Appellant and his younger brother. More importantly,
one needs to keep in mind that, the assault also was not on both the Appellant
and his younger brother. It seems that, there is no direct assault on the
present Appellant. The deceased was chased by two persons, apprehended
and then a brutal, concentrated and repeated assault on a vital part of the
body i.e head was carried out in a gruesome manner. In our opinion, in the
facts of the present case, the said exception cannot be called in aid of the
Appellant.
12) We are of the opinion that, the present case also does not fall
within the Exception IV of section 300. The said exception cannot be invoked
as the ingredients thereof are not attracted. To invoke exception IV, it is the
requirement of law, that the act was committed without premeditation, in a
sudden fight, in the heat of passion upon a sudden quarrel and without the
offender having taken undue advantage or acted in a cruel or unusual manner.
In the present case, the Appellant and his brother have used an axe and sickle.
The weapons are not such as would be readily available to the Appellant and
that is not even the case of the Appellant. Further, as noted above, there are
42 chopped and incised injuries, concentrated on the head of deceased, to
such an extent that the injuries overlap each other. It is clearly indicative of
the fact that the Appellant has acted in an extremely gruesome, cruel and
unusual manner. Considering the fact that the injuries are all on the head and
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considering the number of the injuries and the concentrated attack which had
completely destroyed the face of the deceased. In these facts and
circumstances, we are clear and sure that exception IV cannot be called in the
aid of the Appellant.
13) Considering the facts of the case and the evidence, though not
argued, we have also analysed the case, from the point of view of the
Appellants right to private defence of self and or family. Considering the facts,
the chase, the weapons used and most importantly the manner and nature of
assault, we are of the opinion that the right of private defence has clearly been
over exceeded. More than the required force has been employed. We have
also taken into consideration, the fact that the deceased was chased and the
ultimate assault took place not at the original place where the brother of the
Appellant was attacked. If the first place is considered, the mitigating fact in
favour of the Appellant, to a limited extent would have been that the deceased
was the initiator.
14) We find that the prosecution evidence i.e of PW-1 and PW-3 is
reliable, trustworthy and clearly makes out a case that the Appellant is the
culprit of crime. We have also noted that, in the present case there is direct
ocular evidence of PW-3 and other witness which clearly makes out case
against Appellant. The recovery of the weapons i.e. koyta (Sickle) and axe
have been at the instance of the Appellant, which have been proved through
PW-7- Panch witness and there is nothing in the cross-examination of the
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Panch witness to disbelieve said recovery. The blood stained clothes of the
Appellant and blood of the deceased on the clothes of the Appellant i.e. blood
group 'B Positive' has been corroborated and proved. Further the weapon i.e.
koyta and axe had blood of blood group of 'B Positive' which also connect the
Appellant to the murder. We have also noted that the Appellant in his 313
statement, has only denied the prosecution case and stated nothing in his
defence.
15) Considering the aforesaid facts and circumstances and evidence
on record, we are of the opinion that, no case is made out to interfere with the
conviction under Section 302 of the Indian Penal Code and impugned
Judgment and Order dated 3rd February, 2014.
16) In view thereof, the Appeal is dismissed.
(RANJITSINHA RAJA BHONSALE, J.) (A.S. GADKARI, J.)
