Bombay High Court
State Of Mah. Thr. P.S.O. P.S. Kurkheda, ... vs Avinash S/O Keshav Bhagat And Anr on 14 November, 2025
2025:BHC-NAG:12099-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.5 OF 2010
APPELLANT : State of Maharashtra,
Through Police Station Officer, Police Station
Kurkheda, Distt. Gadchiroli.
..VERSUS..
RESPONDENTS : 1. Avinash S/o Keshav Bhagat,
aged about 24 years,
2. Anjirabai w/o Keshav Bhagat,
aged about 59 years,
Both R/o. Shripur, Dist. Gadchiroli.
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Mr N. Joshi, Addl. P. P. for Appellant.
Mr B. M. Kharkate, Advocate for Respondent Nos.1 and 2.
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CORAM : URMILA JOSHI-PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 7th NOVEMBER, 2025.
PRONOUNCED ON : 14th NOVEMBER, 2025.
JUDGMENT (PER : NANDESH S. DESHPANDE, J.)
. Heard.
2. This is an appeal challenging the judgment passed
by the Sessions Judge, Gadchiroli in Sessions Case No.111 of
2006 thereby, acquitting the respondents herein for the offences
punishable under Sections 302 and 203 read with Section 34 of
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the Indian Penal Code, 1860 (hereinafter referred to as "the
I.P.C.").
3. Facts in nut-shell as per the case of the prosecution and
as depicted from the record are as under :
The original accused No.1 i.e. respondent No.1 herein is
step brother and original accused No.2 i.e. respondent No.2
herein is step mother of deceased - Prashant Bhagat. They faced
trial for committing murder of one Prashant Keshav Bhagat in
furtherance of their common intention. Keshav Bhagat was the
father of deceased. He had two wives. Deceased Prashant and
Sumant are the sons from first wife whereas, respondent No.1 is
the son from second wife. Late Keshav was serving in forest
department and he was the owner of the agricultural land which
was partitioned. However, there were certain disputes in
between deceased Prashant and accused persons. There is one
house (Wada) having certain rooms and in one part of it,
deceased Prashant was staying and in the remaining part, the
accused are residing. It is further stated that the deceased and
original accused No.1 are addicted to liquor and they were
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quarreling frequently. Priyanka who is the widow was staying
with deceased - Prashant in the part of that house (Wada). On
22.08.2006, she had been to her parents house at Waghada on
the eve of Pola festival. Deceased Prashant was alone in his
house. On 24.08.2006, the deceased and accused No.1 being in
drunken condition were quarreling and there was exchange of
words due to which scuffle ensued. The original accused No.1
was beating the deceased while sitting on the chest and giving
fists and kick blows. Thereafter, both of them went inside the
house and after some time, deceased was found hanging and his
body was removed from the same condition. The mother had
called the panchas, Police Patil and thereafter, an information
was given to widow i.e. Priyanka.
4. On the basis of these facts, an accidental death
(A.D.) was registered. During enquiry, the statements of
witnesses were recorded and the spot panchanama and enquiry
were conducted. On 25.08.2006, dead body was referred to the
postmortem wherein doctors noticed multiple abrasions bruise
and swelling over left ear bruise as well as mark of a rope mark.
4 J Cri. Appeal-5-2010.odt
Since, there was multiple hemorrhage below the left temporal
frontal region, brain matter was congested resulting in bleeding
from cerebral arteries which led the doctors to opine that the
cause of death was intra cranial hemorrhage due to head injury.
Because of these facts, the enquiry officer came to the conclusion
that the death of the deceased was not suicidal but, it was a
homicidal one and was in fact a murder having committed by
the accused for land dispute which led him to file a complaint
and then submit a charge-sheet.
5. The Magistrate thereafter committed the case and
charge was framed by the Sessions Court at Exhibit - 21. Since
the accused refuted the charge and pleaded denial, the matter
was tried in accordance with law.
6. In support of the prosecution case, nine witnesses
were examined. Details of which are as under :
i) P.W.1 - Priyanka Prashant Bhagat, widow of deceased -
Prashant.
ii) P.W.2 - Laharidas Boarkar, Panch on spot panchanama and
seizure panchnama.
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iii) P.W.3 - Reshim Gaikwad, panch of seizure memo.
iv) P.W.4 - Sumant Keshavrao Bhagat, real brother of deceased.
v) P.W.5 - Vistari Motiram Sahare, neighbor of deceased.
vi) P.W.6 - Dhananjay Nanuji Meshram, eye witness of the
incident.
vii) P.W.7 - Anil Shankar Gopal, Investigating Officer.
viii) P.W.8 - Dilip Shrihari Bode, Head Constable and
ix) P.W.9- Ramkrushna Namdeo Pawar.
7. Thereafter, the prosecution had closed the evidence
but again summons was issued to the doctor namely Nilesh
Chandekar who was examined as witness No.10 at Exhibit - 56.
The witnesses were cross-examined by the defence and the
learned Sessions Judge after evaluating the entire material on
record vide its judgment dated 18.09.2009 found the accused
not guilty and therefore, acquitted them. It is this judgment
which is impugned in the present appeal on the following
grounds among others by the State.
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8. We have heard Mr. Nikhil Joshi, learned Additional
Public Prosecutor for the appellant/State and Mr. B. M.
Kharkate, learned counsel for the respondents.
9. The learned Additional Public Prosecutor submitted that
the Trial Court committed grave error in acquitting the accused
persons as there was sufficient material on record to convict
them had the evidence been appreciated in its proper
prospective. He also submitted that P.W.1 - Priyanka w/o
Prashant Bhagat clearly stated in her deposition that it was the
accused persons who were responsible for the death of her
husband Prashant and therefore, the Trial Court ought not to
have acquitted the accused persons. It is further stated that PW-5
Vistari Motiram Sahare had corroborated the fact that the
accused and deceased were at enimical terms and there were
frequent quarrel between them. It is further submitted by the
learned A.P.P. that the time gap between quarrel and the death is
barely two hours and therefore, as per Section 106 of the Indian
Evidence Act, this circumstance was within the special
knowledge of the accused as the body was found in their house.
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Thus, the learned A.P.P. submits that the judgment of the Trial
Court in acquitting the accused is perverse and warrants
interference in appellate jurisdiction. The learned A.P.P. places
his reliance on the judgment of the Hon'ble Supreme Court in
the case of State of Rajasthan vs. Thakur Singh, reported in 2014
AIR SCW 4479 to buttress his submission.
10. Per contra, Mr. B. M. Kharkate, learned counsel
appearing on behalf of the respondents submits that the Trial
Court has correctly appreciated the evidence and the supporting
material on record and since there is no material which would
support the prosecution story has rightly acquitted the accused
persons. To buttress his submission, he places reliance on the the
following decisions :
a) Bhupatbhai Bachubhai Chavda and Another vs. State of
Gujarat, 2024 SCC OnLine SC 523,
b) Roopwanti vs. State of Harayana and Others, AIR 2023
SC 1199,
c) Mohan alias Srinivas alias Seena alias Tailor Seena vs. State
of Karnataka, (2022) 12 SCC 619,
d) Mohinder Singh vs. State of Punjab, (2018) 18 SCC 540,
e) Mohan Singh vs. Prem Singh and Another, AIR 2002 SC
3582,
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f) Thanedar Singh vs. State of M. P., AIR 2002 SC 175 and
g) State of Maharashtra vs. Smt. Satyabhama Pandurang
Raipure, 2003 ALL MR (Cri) 946.
11. In the light of these facts, we have appreciated the
matter and went through the record with the help of the learned
counsels appearing for the parties.
12. It is a settled proposition of law that the scope of
interference in appeal against acquittal is minimal since there is a
presumption of innocence in favour of the accused which has
been fortified by the judgment of the Trial Court in their favour.
Beneficial reference can be made to the judgment of the Hon'ble
Supreme Court in the case of Babu Sahebagouda Rudragoudar
vs. State of Karnataka, (2024) 8 SCC 149 wherein, the Hon'ble
Supreme Court has held which reads as under :
"39. This Court in Rajesh Prasad v. State of Bihar
encapsulated the legal position covering the field after
considering various earlier judgments and held as below: (SCC
pp. 482-83, para 29)
"29. After referring to a catena of judgments, this
Court culled out the following general principles
regarding the powers of the appellate court while
dealing with an appeal against an order of acquittal in
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the following words: (Chandrappa case³, SCC p. 432.
para 42)
42. From the above decisions, in our considered view, the
following general principles regarding powers of the
appellate court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which
the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before
it may reach its own conclusion, both on questions of
fact and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds",
"very strong circumstances", "distorted conclusions",
"glaring mistakes", etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the
nature of "flourishes of language" to emphasise the
reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind
that in case of acquittal, there is double presumption
in favour of the accused. Firstly, the presumption of
innocence is available to him under the fundamental
principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved
guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the presumption
of his innocence is further reinforced, reaffirmed and
strengthened by the trial court.
10 J Cri. Appeal-5-2010.odt
(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded
by the trial court."
13. It is a settled principle of law that the Appellate
Court cannot overturn the order of acquittal only on the ground
that another relief is possible. Thus, a judgment of acquittal can
only be interfered with when it is found to be perverse. Unless
the Appellate Court records such finding, no interference can be
made with the order of acquittal. In the light of this settled law,
we have appreciated the controversy involved.
14. P.W.1 - Priyanka who happens to be the first
informant is admittedly not an eye witness to the incident. She
has stated in her evidence that on 22.08.2006, she had gone to
her parental house at Waghada and on 24.08.2006, she learned
about the death of her husband. She further states that when she
came home on 25.08.2006, she found her husband was lying
dead. In the cross-examination, nothing concrete has been
elucidated by the defence. In the enquest panchanama at Exhibit
- 30 which is exhibited through P.W. 2 - Laharidas Namdeo
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Borkar, there is a clear finding that there is no injury on the head
and even there is no mark of any injury.
15. P.W.4 - Sumant Bhagat has stated that when he
found the body of deceased Prashant, it was lying in the
backyard of the house and there were no ligature marks around
his neck. He also sates that he only learned after the incident
that there was a quarrel between Prashant and Avinash in the
afternoon. Thus, he also does not corroborate the theory put
forth by the prosecution.
16. Furthermore, P.W.5 - Vistari Sahare states in his
evidence that the quarrel between the original accused No.1 and
deceased was going on from 03:00 p.m to 05:00 p.m. wherein,
deceased was abusing the accused and accused was threatening
him of death. In the cross-examination, even nothing
incriminating against the accused has been extracted.
17. P.W.6 - Dhananjay Meshram, who is an electrician,
also corroborates that there was a quarrel on 24.08.2006
between accused No.1 and deceased. He also states that the
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accused No.2 Anjirabai had slapped Prashant. Thereafter, even
according to him, he had left the work and was not witnessed to
the incident.
18. P.W.7 - Anil Gopal is the person who has lodged a
complaint and registered the First Information Report which is
at Exhibit - 39.
19. P.W.8 - Dilip Bode, who is the Head Constable,
took the body for postmortem. He states in his evidence that
when he noticed dead body, he found there was a rope mark on
one side of neck and not around the neck. He also noticed that
from the left side of the chick upto the ear, there was a black spot
which is of clotting of the blood.
20. In the light of this evidence, the Trial Court has
recorded a finding that the prosecution has failed to prove that
the accused has committed an offence punishable under Section
302 of the I.P.C. and since there is no cogent or incriminating
material beyond reasonable doubt to bring home the guilt of the
accused. It has therefore went on to acquit the accused persons
13 J Cri. Appeal-5-2010.odt
from the said offence. In paras 9 to 14, the Trial Court after
discussing the mode of suicidal death etc. has recorded the
finding that the prosecution has failed to substantiate its theory.
21. From the material on record, it can be safely
inferred that except for beating by fists and kicks, nothing has
been attributed even by the eye witnesses to the incident. Except
P.W.5 - Vistari, none has witnessed the fighting or assault inter-
se between the accused and deceased. Thus, in view of the
judgment of the Trial Court and in our view also, in absence of
these facts, it cannot be said that because of fists and kick blows,
there was intra cranial haemorrhage to the head. It is noteworthy
to mention that the said witness never stated that the accused
No.1 had given blows on the head so as to sustain intra cranial
haemorrhage to the head. Thus, there is clear absence of nexus
in the so called beating and sustaining of the said intra cranial
haemorrhage.
22. Furthermore, as can be seen from the medical
evidence, there was no cervical vertebra fracture negating the
possibility of suicide. Since there was multiple haemorrhage,
14 J Cri. Appeal-5-2010.odt
which was the cause of death, then the question is whether such
haemorrhage was due to assault or because of fall.
23. There is nothing on record to infer that the
haemorrhage was because of fists and kick blows. It is
noteworthy to mention that even P.W.5 does not state anywhere
that the accused No.1 gave blow on the head of deceased, so as
to sustain intra cranial haemorrhage. Doctor has opined that the
injuries may be due to hard and blunt object. Therefore, when
doubt is crept regarding nature of death, then it cannot be said
that the death was homicidal.
24. The Trial Court has also discussed in detail the
cross-examination of doctor in which suggestion was given that
the injuries are possible by fall but the same has been denied.
Even if it is assumed for a moment that there was some dispute
regarding the partition of the immovable property yet that
cannot be ipso facto lead to an interference that would be a cause
of committing murder of accused. The overt act on the part of
the accused must be proved by the prosecution but it has utterly
failed to do so. Furthermore, the accused No.2 had no role
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attributed to her even in the First Information Report and the
supporting charge-sheet nor did any witness has made any
incriminating statement against her.
25. As far as the judgment relied upon by the learned
Additional Public Prosecutor is concerned, the proposition in
the same is not disputed. The law, therefore, is quite well settled
that the burden of proving the guilt of an accused is on the
prosecution, but there may be certain facts pertaining to a crime
that can be known only to the accused, or are virtually
impossible for the prosecution to prove. These facts need to be
explained by the accused and if he does not do so, then it is a
strong circumstance pointing to his guilt based on those facts. In
the said matter, the accused and deceased were residing in one
room and there was no evidence that anybody else entered the
room. However, the facts in the case in hand are totally different
in as much as even as per prosecution, the accused and deceased
were staying in different parts of the house. In addition to this,
there were other family members. Furthermore, even as per
P.W.5, nothing more than beating by fists and blows has been
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attributed to the accused. Thus, in our view, the judgment cited
by the learned Additional Public Prosecutor can be
distinguished on facts.
26. In that view of the matter, we are of the opinion
that the Trial Court has correctly appreciated and evaluated the
material on record and therefore, in view of the parameters laid
down above, we are of the view that there is no scope for
interference in the well reasoned judgment of the Trial Court. In
that view of the matter, we pass the following order :
The appeal is rejected.
(NANDESH S. DESHPANDE, J.) (URMILA JOSHI-PHALKE, J.)
TAMBE.
Signed by: Mr. Ashish Tambe
Designation: PA To Honourable Judge
Date: 14/11/2025 18:54:15
