Bombay High Court

Mayur Keshavrao Thamke vs State Of Mah. Thr. Pso Ps Wardha (City) ... on 17 November, 2025

2025:BHC-NAG:12208


                                            1

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             NAGPUR BENCH : NAGPUR


                             CRIMINAL APPEAL NO. 719 OF 2023


        1)   Mayur Keshavrao Thamke,
             Age-34 years, Occ: Business,
             R/o Gond Plot, Kejaji Chowk. Tah. &
             Dist. Wardha.

       2) Akash Chandrao Ingale,
             Age-33 years, Occ: Labour,
             R/o-Gond Plot, Subhash Chowk, Wardha,
             Tah. & Dist. Wardha.

       3) Vikas Chandrao Ingale,
             Age-31 years, Occ: Service,
             R/o Subhash Chowk, Gond Plot, Wardha,
             Tah. & Dist. Wardha.

       4) Ankit Vijayrao Ninave,
             Age-21 years, Occ: Business,
             R/o Subhash Chowk, Gond Plot, Wardha,
                                                          ...Appellants
             Tah. & Dist. Wardha.


                                      // VERSUS //


             State of Maharashtra, Through Police
             Station Officer, Police Station, Wardha
                                                         ... Respondent
             (City), Tah. & Dist. Wardha.
                                          2

Mr. D.R. Bhoyar, Advocate for the appellant.
Ms. Sonia Thakur, Addl.P.P for the respondent no.1/State.
                            CORAM: NIVEDITA P. MEHTA, J.


Reserved on     : 10th November, 2025
Pronounced on : 17th November, 2025.


JUDGMENT :

Challenge in this appeal is to the judgment and order of conviction dated

13th September, 2023, passed by the learned Additional Sessions Judge,

Wardha, in Sessions Case No. 201/2013, whereby the appellants were

convicted for the following offences-

 NAME OF THE ACCUSED                OFFENSE        PUNISHMENT/
                                    CHARGED        IMPRISONMENT FOR
                                    UNDER IPC
 Accused      No.    1        Mayur 143 IPC        Simple imprisonment for
 Keshavrao Tamke, Accused No.                      One month and pay a fine
 3   Akash    Chandrao       Ingale,               of Rs. 500 each in default,
 accused      No.    4,        Vikas               they will suffer from 7
 Chandanrao Ingale          accused                days' simple imprisonment.
 No.5, Ankit Vijayrao Ninave


 Accused      No.   1        Mayure 148 IPC        Simple imprisonment for
 Keshavaro Thamke, Accused                         six months and pay a fine
 No. 3 Akash Chandrao Ingale,                      of Rs. 1000 each in default,
 accused      No.       4      Vikas               they shall suffer simple
 Chandanrao     Ingale,      accused               imprisonment of 1 month.
 No.5, Ankit Vijayrao Ninave


 Accused     No.    1    Mayure 307 read with Rigorous imprisonment for
 Keshavaro Thamke, Accused 149 IPC                7 years and pay a fine of
 No. 3 Akash Chandrao Ingale,                     Rs. 5000 each in default,
 Accused       No.4-       Vikas                  they shall suffer rigorous
 chandanrao Ingale & Accused                      imprisonment of 4 months
 No. 5 Ankit Vijayrao Ninave

Accused No.2 Amol Yadav Choudhari expired during the trial on

08/02/2020; his Death Certificate was brought on record before the trial Court

through Exhibit 120; hence, the appeal against conviction is preferred by the

rest of the accused persons.

2. The prosecution's case, in brief, is that informant Sunil Vasantrao

Mangekar (hereinafter referred to as 'complainant') lodged a report in Wardha

(City) Police Station stating that he is residing at Kejaji Chowk, Gond Plot,

Wardha. On 25.04.2013 at about 10.30 p.m., there was a programme of

Mahaprasad on the occasion of Hanuman Jayanti in the Hanuman Temple near

the complainant's house. At the relevant time, Akash Ingale created a nuisance

under the influence of alcohol; therefore, Raju Dhote asked Akash Ingale why

he was disturbing the programme. At that time, Akash Ingale started abusing.

The complainant intervened in the matter. Then, instruction was given to

Akash Ingale to leave the spot.

Akash Ingale left the spot, and within 23 to 30 minutes, Akash Ingale

came back in a white Jipsey at the spot where the Mahaprasad programme was

conducted, which was 100 feet away from the complaint spot. Akash, along

with others, was standing in front of the complainant's house. Vikas Ingale,

Ankit Ninawe, and three other unknown persons (the complainant knows them

by face, but does not know their names) came along with Akash Ingale. They

stepped down from the vehicle. Akash was holding a sword, Vikas Ingale was

holding a knife, and Ankit Ninawe was holding an iron rod in their hands. The

other three unknown persons were carrying an iron rod and a hockey sticks.

The accused persons came near to complainant's house and asked why

instruction was given to Akash Ingale to leave the spot. The accused persons

got into a quarrel with the complainant. Vikas Ingale assaulted the

complainant with a knife below the right eye. Blood was oozing from the

injury. His brother Hemant Mangekar came to rescue quarrel. When Akash was

intending to assault with a sword, his brother, with a view to save, intervened

with his hand, due to which his brother sustained injury to his left thumb.

It is further mentioned in the report that after hearing the noise, Raju

Dhote and Vilas came there. Vikas Ingale was assaulted with a knife on the

neck of Hemant Mangekar. All the Accused persons assaulted Raju Dhote with

a sword, knife, rod and hockey stick and caused him injuries. When wife of

Raju Dhote came there, they scuffled with her and assaulted Vilas with a rod.

Raju Dhote was lying unconscious on the spot. Then all the accused left the

spot in white colour Jipsy. Complainant, along with the help of others, shifted

Raju Dhote to General Hospital and lodged report against the accused persons.

3. On the basis of the report, Crime No.194/2013 (Exhibit 59) was

registered on 26-04-2013 at Police Station, Wardha (City), Tah. & Dist Wardha.

The investigation was carried out by A.P.I. Gajanan Bhimrao and the accused

were arrested. The accused nos. 1, 2, 4 and 5 in police custody, made a

memorandum statements and furnished the respective weapons used at the

time of the commission of the crime. The weapons recovered were a stick of

baseball, a sword, a steel rod, a knife and a hockey stick seized under the

memorandum statement under section 27 of the Evidence Act. At the instance

of the accused, weapons were seized under the seizure panchanama (Exhibit

54). Police seized a white colour shirt from Hemant which was having blood

stains. Seizure panchnama (Exh.66) of said shirt was prepared in his presence.

On the same day blood stained blackish-white shirt, blue colour night pant,

sando baniyan of the complainant was seized under seizure panchnama

(Exh.60). A blue jeans pant and blue T-shirt were seized under seizure

panchnama (Exh.67). On 07.05.2013 clothes of Vikas Ingale, Ankit Ninave

were also seized under seizure panchnamas (Exh 68 and 69). It is further seen

that black colour chappal, pink colour sleeper and one dot-pen were seized in

his presence under seizure panchnama (Exh.70). Police seized a bottle of blood

sample under seizure panchnama (Exh.71). Police collected the samples of

simple soil, blood mixed soil, blood stained cotton from the spot of incident

and prepared seizure panchnama (Exh.72) in the presence of the panch

witnesses. Articles those were recovered and forwarded to C.A., brought before

the Court through Exhibit 181-188, along with a letter (Exhibit 180). Upon

completion of the investigation, a charge-sheet was filed before the learned

Trial Court. The learned Trial Court framed a charge under Sections 143, 148

and 307 read with 149 Indian Penal Code (hereinafter referred to as the ' IPC'),

to which the accused pleaded not guilty and claimed to be tried.

4. During the course of the trial, the prosecution examined eight witnesses,

including PW1 Rajendra Madhukar Malode (Exhibit 48) (Panch Witness),

PW2- Sunil Vasantrao Mangekar (Exhibit 57) (complainant), P.W.3 Swapnil

Suereshrao Thakre (Exhibit 65) (Panch witness), P.W.4 Dr Madan Kisan Chafe,

(Exhibit 95) (MO), P.W.5 Hemant Vasantrao Mangekar (Exhibit 131), P.W.6

Sangita Rajendra Dhote (Exhibit 165), P.W.7 Rajendra Gulbrao Dhote (Exhibit

174) and P.W.8 Shri. Gajanan Bhimrao Jadhav (Exhibit 175).

5. Upon closure of prosecution evidence, the appellants were examined

under Section 313 of the Code of Criminal Procedure (Exhibit Nos 192-195),

wherein they denied all incriminating circumstances and claimed false

implication.

6. After appreciation of the evidence on record, the learned Additional

Sessions Judge concluded that the appellants specifically accused Nos. 1, 3 to 5

and deceased accused No.2 Amol have formed unlawful assembly, armed with

deadly weapons and in prosecution of their common object came to the spot

and assaulted to the informant and others with such intention or knowledge,

and under such circumstances that, act of accused persons would have caused

death of informant and others. Therefore, ingredients of offence under sections

143, 148 and 307 read with 149 of the IPC are made out.

7. Considering the nature of the weapons, the manner and location of

injuries, and the conduct of the appellants, the Trial Court concluded that the

appellants had the requisite intention and knowledge to cause death, and

accordingly convicted them for the offence punishable under Sections 143, 148

and 307 read with 149 IPC. The present appeal is thus directed against the

conviction and sentence imposed by the learned Trial Court.

I now proceed to consider the present appeal preferred by the

appellants, which is directed against the judgment and order of conviction and

sentence passed by the learned Trial Court under Sections 143, 148 and 307

read with 149 IPC.

8. Learned Counsel for the appellants contended that the medical evidence

on record does not support the prosecution's case of grievous and life-

threatening injuries. In particular, it is submitted that P.W.4- Dr. Madan Kisan

Chafe, who initially examined the injured, stated that the injuries were not of

such a nature to cause death. Thus, section 307 will not be attracted in the

case, but the case can be made out under section 324 of the IPC.

9. Learned counsel for the appellants further submitted that the trial Court

failed to appreciate that there are discrepancies in the evidence of injured and

eye-witnesses. The informant PW-2 Sunil Mangekar deposed contradictorily in

respect of the weapons used and injuries sustained to the evidence given by

Hemant Mangekar PW-5, Sangita Dhote PW-6 and Rajendra Dhote PW-7, due

to which the prosecution failed to prove case beyond reasonable doubts.

Appellants' counsel further submitted that the wife of Raju Dhote, namely

Sangita Dhote, PW6, in her deposition has not narrated the incident and has

given an altogether different version which clearly demonstrates that the case

of prosecution creates doubt as regard to the alleged incident.

10. It was further argued by the appellants' counsel that the assault on the

date of the incident i.e. on 25/04/2013, a program of Mahaprasad on the

occasion of Hanuman Jayanti was going on, and a number of people had

gathered near the temple, and suddenly a quarrel broke out between the

groups of people. Therefore, under such circumstances, no case under Sections

143, 148 and 307 read with 149 IPC, is made out, since the quarrel was of a

sudden nature and there were a group of people who had gathered for the

Mahaprasad occasion; therefore it cannot be said to be an unlawful assembly.

11. It was argued by the appellants' counsel with respect to the injuries that

P.W. 4 - Dr. Madan Kisan Chafe, Medical Officer pointed out that Sunil

Mangekar has the following injuries on his person. Incised injury over face

right side below right eye placed obliquely of size 10 cm x 2 cm by bone deep,

caused by sharp object, healing period about 7 to 8 days under surgical

intervention if no complication occurs. Linear abrasion over the nose at upper

septum of size 4 cm, caused by a hard and blunt object, healing period is 4 to 5

days under surgical intervention if no complication occurs. PW 7-Rajendra

Dhote suffered an injury of a lacerated wound over the right side of the

forehead (10 cm x 1 cm x bone deep) vide Exhibit 100. PW 5-Hemant

Mangekar suffered three injuries i.e. injury on two linear abrasions over the

neck (8 cm and 6 cm), incised injury over the right side of the neck (6 cm x 0.5

cm) & abrasion over the right cheek (3 cm x 2 cm) vide Exhibit 103. Vilas

Kolhe suffered injury of contused swelling over the left side of the forehead (4

cm x 3 cm) vide Exhibit 104. All caused by a hard and blunt object.

The healing period was estimated to be 3 to 4 days, thereby clearly

indicating that the injuries were simple in nature and not grievous.

It was argued by the learned counsel for the appellants that no vital

organ had been damaged, which clearly shows that there was no intention for

murder, nor there were grievous injuries sustained by the injured. Further, it is

contended that Dr. Chafe opined, fresh injuries, no cut injuries were suggested;

therefore, the injuries were of a simple nature; hence offence under section

307 IPC cannot be attracted over simple injuries.

12. It was lastly argued by the appellants' counsel that the trial Court has

failed to take into account the chemical analyser report, whereby the blood on

the knife is inconclusive.

13. The appellant has relied on the following case laws (1) Jage Ram and

Others Vs State of Haryana, (2015) 11 SCC 366, (2) State Of Maharashtra Vs.

Nina Trambak Tadas, [2015(4) Mh.L.J. (Cri.) 522].

14. Per contra, it was argued by the learned Additional Public Prosecutor

that the assembly was premeditated and the nature of the weapons used were

such that it would have caused death.

15. The prosecution argued that Chemical Analysis Report, which revealed

that the blood found on the knife recovered from the Akash Ingle (appellant

no.3), and the sword (Exhibit 53) recovered, matched the blood group "O",

which is also the blood group of PW2- Sunil Vasantrao Mangekar (Exhibit

182). It was submitted that this constitutes clinching forensic evidence

connecting the appellants to the offence.

16. The learned Addl.P.P. further argued that both injured witnesses, P.W.2

and P.W.5, gave a consistent and cogent account of the incident, which

remained unshaken during cross-examination. Their ocular testimonies were

further corroborated by the medical evidence adduced by the medical witness

(P.W.4).

17. As regards the plea of absence of criminal antecedents, the learned

Addl.P.P. submitted that the gravity of the offence and the nature of the injuries

inflicted cannot be diluted merely on that ground, particularly when the

intention to kill is evident from the use of a deadly weapons and the targeting

of vital parts of the body. She further contends that the wife of Raju Dhote

arrived on the spot after hearing the noise of her husband and tried to

intervene. Therefore, she, being a witness to the earlier scuffle/assault, and

she was consistent with her testimony.

18. Before arriving at a final analysis and conclusion, it is necessary to

carefully evaluate the depositions of the prosecution witnesses and the

evidence led before the trial Court. The credibility, consistency, and reliability

of the testimonies must be scrutinised in light of the facts presented. Particular

attention must be given to whether the witnesses were able to provide a

coherent and truthful account of the events in question, and whether any

documentary or physical evidence corroborated their testimonies. Any

contradictions, inconsistencies, or material omissions must also be weighed in

assessing the overall strength of the prosecution's case.

19. PW1 Rajendra Madhukar Malode is examined as panch witness vide

Exhibit 48. The witness confirms his role in several police procedures,

including spot inspections, memorandum recordings, and recoveries of

weapons. The witness was first called on April 26, 2013, to act as a panch at

the spot of the incident near Maruti Mandir, Kejaji Chowk. The police seized

simple clay and clay mixed with blood from the spot, and a Spot Panchanama

(Exh. 49) was prepared in his presence. Subsequently, the witness was

involved in multiple recovery and memorandum procedures. On April 30,

2013, the witness attended the police station where accused No.1-Mayur

Thamke made a confessional statement leading to the recovery of a stick of

baseball from behind a grain box at his house (Exh. 50). On the same date,

accused No.2-Amol Yadavrao Choudhari made a confessional statement

leading to the recovery of a steel rod from below a bed in his room (Exh. 51).

On May 8, 2013 the witness was present when accused No.4-Vikas Ingle made

a memorandum stating he gave a knife to Akash Ingle (Exh. 52). Accused

No.5- Ankit Ninave also made a memorandum stating he gave a hockey stick to

Akash Ingle and parked the Gypsy vehicle at the Circus ground (Exh. 53). On

the same day accused No.3-Akash Ingle made a confessional statement and

subsequently produced a hockey stick, a sword, and a knife from the loft of his

house. He also confirmed parking the Gypsy vehicle at the Circus ground. The

recovery panchanama (Exh. 54) was prepared for these seizures.

The witness affirmed that the contents of all the panchanamas and

memorandums (Exhs. 49-54) are correct and bear his signature, the signatures

of the other panch, and the respective accused. In the cross-examination by the

defence counsel, the witness admitted that he was not given written notice to

act as a panch and repeatedly stated that he did not remember the exact time

consumed for recording confessional statements, preparing panchanamas, or

visiting the accused's houses. The witness denied the defence's suggestions that

his signatures were obtained in the police station itself (suggesting the

searches/recoveries did not happen at the spot), that he signed the documents

at the instance of the police, or that the accused never made a confessional

statement and nothing was recovered at their instance. He also denied

deposing only after reading the panchanamas before the Court. There was no

question put to the witness as to whether he knew the accused persons

beforehand; this would have meant that the panch witness was an independent

witness for investigation.

20. PW2- Sunil Vasantrao Mangekar is the complainant examined at Exhibit

57. The witness stated that the incident began when the accused No.3-Akash

Ingle, arrived at the Hanuman Mandir program under the influence of liquor.

Akash began abusing the public and thereafter abused Raju Dhote. When Raju

Dhote asked Akash to stop, Akash instead initiated a quarrel and continued the

abuses. PW2, along with others, intervened, and Akash eventually left the spot.

Approximately 30 minutes later, Akash Ingle returned in a Gypsy vehicle with

five accomplices, including accused No.4-Vikas Ingle, accused No.5-Ankit

Ninave, and Choudhari. All six were heavily armed. Accused No.3-Akash Ingle

held a sword. Accused No.4-Vikas Ingle held a knife. Accused No.5-Ankit

Ninave held an iron rod. The others held iron rods and hockey sticks. They

immediately attacked PW2 near his house. Accused No.4-Vikas Ingle assaulted

PW2 with a knife near his right eye, causing a bleeding injury. When PW2's

brother, Hemant (PW 5), intervened, he sustained a thumb injury from Akash's

sword and a neck injury from Vikas's knife.

When Raju Dhote (PW 7) arrived, all six accused brutally assaulted him

with their weapons (sword, knife, iron rod, hockey sticks) on his hands, head,

and legs, rendering him unconscious. Raju's wife was pushed when she

approached. The six assailants fled in the White Gypsy. PW2 and others took

Raju Dhote to the hospital, and PW2 lodged the police report (Exh. 58/59).

Police later seized PW2's blood-stained clothes and the witness identified the

weapons used in the attack.

In cross-examination, PW2 admitted to a "hot exchange of words"

between Raju Dhote and Akash at the Mandir and that he and his brother

"tried to drive them out" when they returned. He consistently denied the

defence's suggestions that Raju Dhote or others consumed liquor and caused

problems for devotees. He denied that the witness's group had initiated the

fight or assaulted the accused. He specifically denied the fact that the accused

were unarmed. He also denied the fact that he was instigated to file the report

by Sagar Pakhare (a political contender).

21. P.W.3 Swapnil Suereshrao Thakre, panch witness is examined at Exhibit

65, who confirmed the preparation of several seizure panchanamas and

identified the recovered articles (Arts. F-O). The witness's initial statement

claimed that the police "did not do anything else before 01/05/2013" and

"after 07/5/2013." This omission of critical seizures led the Assistant Public

Prosecutor (APP) to request permission to cross-examine the witness, deeming

him hostile as he was resisting or intentionally omitting crucial parts of the

prosecution's case. During cross-examination by the A.P.P., the witness was

compelled to admit to witnessing several other crucial seizures that he had

initially omitted such as seizure of the black chappal, pink slipper, and dot pen

(re-confirmed as Exh. 70/Arts. P, Q, R), seizure of bottles of blood samples of

the injured (Exh. 71), seizure of simple mud, blood-stained mud, and a blood-

stained cotton swab from the spot (Exh. 72), seizure of the White Maruti Gypsy

Car No. MH-12-P-0763 from Akash Ingle near the Circus ground (Exh. 73). The

witness confirmed the incident location as Kejaji Chowk, near the Hanuman

Temple (2-3 houses from Sunil Mangekar's residence). He confirmed that the

police never gave him a written notice to act as a panch.

Regarding the seizures, the witness exhibited a memory lapse, admitting

he could not recall how many of Sunil Mangekar's clothes had bloodstains,

how many of Ankit's clothes had bloodstains, or whether Akash's clothes were

blood-stained at all. He also noted a slight discrepancy in the Gypsy's

registration number (stating 0768 instead of 0763) and was unsure if he went

to the police station or the Circus ground first for the vehicle seizure.

The witness denied all suggestions of bias from the defence counsel,

including the assertion that he was a "well-wisher" of the injured Mangekars or

that he went to the police station on his own accord. He insisted that

everything happened in his presence, and he was not falsely deposing.

22. PW4- Dr. Madan Kisan Chafe, (Exhibit 95), the Medical Officer was on

duty from 8:00 p.m. to 8:00 a.m. and examined four patients based on police

requisitions (Exhs. 96-99) starting around 11:15 p.m.

1. Rajendra Dhote (Exh. 100) (PW 7)

Injury: Lacerated wound over the right side of the forehead (10 cm x 1 cm x

bone deep). He concluded the cause of injury because of hard and blunt object.

Described as a fresh injury, bleeding was present, and the MO opined it may be

a fatal injury. Rajendra Dhote was referred to Sewagram Hospital for further

examination due to his unconscious condition.

2. Sunil Mangekar (Exh. 102)- suffered two injuries from a blunt object on non

non-vital part the i.e. injury over the right side of the face below the right eye,

and a linear abrasion over the nose.

3. Hemant Mangekar (Exh. 103)- suffered two injuries: two linear abrasions

over the neck, an abrasion over the right cheek and an incised injury over the

right side of the neck. Injury was caused by a hard and blunt object.

4. Vilas Kolhe (Exh. 104) contused swelling over the left side of the forehead

(4 cm x 3 cm) caused by a hard and blunt object. The MO opined the injury

was fatal. He advised X-ray skull; a blood sample was collected from Vilas

Kolhe.

On May 29, 2013, the Medical Officer (MO) received a query letter and

two sealed weapons: a Knife (Art. E) (23.5 cm total length, 10 cm blade) and a

Sword (Art. A) (79 cm total length, 66 cm blade). The MO described both as

sharp, pointed, and dangerous, noting reddish-brown spots (suspected blood)

on the blade/edges, and advised chemical analysis. In cross-examination, he

admitted that he did not find a skull fracture or brain damage, nor did he use

the term "fatal injury" in the original certificates for Rajendra or Vilas. He

clarified his opinion on fatality was based on healing time and hospitalisation,

though this correlation was not explicitly stated in the certificates. He admitted

to using a probe and measuring tape, but did not mention the depth of deep

injuries. He used the word "incised" instead of "cut." He agreed that the injuries

could be possible if a person fell on a hard surface or during a scuffle between

two parties. He initially said the sword handle was fixed, but later admitted

they were not fixed and he couldn't explain its separation. He agreed the

weapons shown in court were rusted, suggesting this could account for the

brown spots he observed.

23. PW-5 Hemant Vasantrao Mangekar, brother of the complainant is

examined at Exh.131. The incident occurred on April 25, 2013, at 10:00 p.m.

near the Hanuman Temple. According to the witness, the confrontation began

when his younger brother, Sunil, asked Akash Ingle to leave for creating a

nuisance. Approximately 25-30 minutes later, Akash returned in a white Gypsy

with four other named accused: Mayur Thamke, Ankit Ninawe, Amol

Choudhari, and Vikas Ingle. They immediately began assaulting Sunil. Hemant

positively identified the specific weapons held by each attacker: Akash Ingle:

Sword (Art-A), Ankit Ninawe: Iron Rod (Art-B),Vikas Ingle: Knife (Art-E),

Mayur Thamke: Hockey Stick (Art-C), Amol Choudhari: Stick (Art-F)

Hemant intervened and sustained an injury to his left hand thumb. He

noted that Sunil was injured near the ear and forehead, and Raju Dhote

sustained a head injury and was taken immediately to the hospital. He

identified all the corresponding weapons shown in court (Art-A, B, C, E, and

F).

The witness confirmed the Hanuman Jayanti program and Mahaprasad,

which was funded by contributions, but denied knowing if the accused

contributed or if the dispute was related to program expenses. The defence

suggested a dispute existed between the accused and Sagar Pakhade, a

politician for whom Hemant admitted working during an election. Hemant

denied any knowledge of this alleged dispute.

The defence also repeatedly questioned him about illegal liquor sales

near the temple and Kejaji Chowk (which he corrected the distance to 70 feet).

Hemant consistently denied any knowledge of liquor sales, associated

nuisance, or that this atmosphere led to the dispute. Hemant denied seeing

the weapons for the first time in court or failing to mention the hockey stick to

the police. He confirmed a large gathering (500-1000 people) but firmly

denied that Raju Dhote and his associates created a nuisance, that the injuries

were sustained during a simple scuffle, or that he was lying due to his

relationship with the complainant.

P.W.6 Sangita Rajendra Dhote is examined at Exhibit 165. The witness

confirmed the time and place of the incident is April 2013, between 10:00 p.m.

and 10:30 p.m., near the Hanuman Temple in Gond Plot, Wardha, during the

Hanuman Jayanti program. She testified that she was inside her house and

came out after hearing her husband, Rajendra Dhote's shout. She saw her

husband lying injured on the ground, having sustained a head injury and

fainted. She stated that the accused persons were present and quarrelling with

her husband and stopping him, and that the accused assaulted him with an

iron rod. Rajendra Dhote was subsequently taken to the General Hospital,

Wardha. She confirmed in cross-examination that the location was Kejaji

Chowk and admitted there was constant nuisance due to illicit liquor shops run

by Jaiswal and Dashrath Vaidya. She also confirmed a large crowd of over

1,000 persons and that the quarrel started during the Mahaprasad. She was

unable to say who picked up the quarrel or exactly how the incident took place

at the mahaprasad. She admitted that she had not seen the accused because of

the rush of people at the time of mahaprasad. She stated that the information

that the nuisance caused at the time of mahaprasad and was told to her by

persons gathered on the spot. Critically, she stated that she was seeing the

accused before the Court for the first time, directly contradicting her earlier

testimony where she identified them.

24. P.W.7 Rajendra Gulbrao Dhote is examined at Exhibit 174 and deposed

that accused Akash Ingle came to the Mahaprasad program for Hanuman

Jayanti and started making noise while under the influence of liquor and

abusing people. Sunil Mangekar and others intervened, and Akash left the

spot. Akash Ingle returned in a white Gypsy along with four named accused

(Vikas Ingle, Ankit Ninawe, Mayur Thamke, and Amol Choudhari). The witness

specified the weapons held by the named accused: Akash Ingle: Sword, Vikas

Ingle: Knife, Ankit Ninawe: Iron Rod, Mayur Thamke and Amol Choudhari:

Iron rod and hockey sticks

The group went to the house of Sunil and started beating Sunil and

Hemant Mangekar. When the witness reached the spot (in front of the temple),

they assaulted him with an iron rod and hockey stick on his head.

The witness sustained a head injury and immediately became

unconscious. He was shifted to General Hospital, then Sewagram Hospital, and

finally to Nagpur for further treatment. He identified the accused present in

the Court, the weapons shown (Art. A to F), and his seized blood-stained shirt

and baniyan.

The cross-examination focused on the location, the initial dispute, and

the witness's lack of awareness following his injury. The witness confirmed the

incident occurred in Kejaji Chowk, Wardha, during the Hanuman Jayanti

program, where over 100 people gathered. He agreed that there was an initial

dispute in the program and that some people intervened. The witness provided

several spatial details, noting his house is 20-25 feet from the temple, and the

distance from the temple to Kejaji Chowk is about 300-400 feet. He also

mentioned nearby broken cement pipes and exposed rods, potentially

suggesting alternative sources for injuries. He confirmed that he was

discharged from Nagpur Hospital on May 1, 2013, and stayed home for a

month thereafter. Crucially, he admitted that police did not question him in the

hospital.

The witness affirmed that when police recorded his statement, he told

them there were three unknown persons in addition to the accused. He

admitted that the unknown persons were also possessing weapons (an iron

rod, a knife, and a sword) and that an unknown person assaulted him on the

head. He confirmed that, as he was unconscious, he was unaware of what

happened thereafter.

25. P.W.8 Shri. Gajanan Bhimrao Jadhav is examined at Exhibit 175. He was

attached to the Wardha (City) Police Station in 2013. The Police Sub-Inspector

(PSI) detailed the investigation steps following the lodging of the complaint

and the registration of Crime No. 194/2013 (Exhibit 59) on April 26, 2013.

The accused were arrested under panchanamas (Exh. 176 and 177). Crucially,

the PSI oversaw the discovery of two weapons based on the accused's custodial

statements. Accused Mayur Thamke furnished a memorandum (Exh. 50) and

led the police to the second room of his house at Gond Plot, producing and

facilitating the seizure of a black coloured baseball stick (Exh. 178). And

Accused Amol Choudhari furnished a memorandum (Exh. 51) and led the

police to his rented house at Gond Plot, producing and facilitating the seizure

of a steel rod (Exh. 179). The investigation also included the seizure of clothes

from the injured parties, complainant Sunil Mangekar: used shirt, night pant,

and baniyan (Exh. 60 / Art. F, G, H) and Hemant Mangekar: Produced his

clothes (Exh. 66 / Art. I, J, K).

Additionally, various samples were recovered from the spot, including

soil, blood-stained soil, cotton swabs, a chappal, and a dot pen. These were

sent to the Chemical Analyser (C.A.) for analysis (Exh. 180), and the resulting

C.A. reports (Exhs. 181 to 188) were placed on record. A query letter (Exh.

105) was also sent to the Medical Officer regarding the weapons. During cross-

examination, the PSI confirmed recording the statements of multiple key

witnesses. However, he admitted that he did not record the statement of a

witness named Sunil Mangekar.

26. The evidence of the informant - Sunil Vasantrao Mangekar (PW 2) and

that of the injured witnesses namely Hemant Vasantrao Mangekar (PW 5) and

Rajendra Gulabrao Dhote (PW 7) have brought on record that on 25-04-2013,

around 10:30 pm, initially, the accused No.3-Akash Ingale had created

nuisance under intoxication during the Mahaprasad Programme on the

occasion of Hanuman Jayanti at the Hanuman Temple situated near the house

of complainant. Altercations took place between Raju Dhote and Akash Ingale

and accused Akash Ingale had started furling abuses. Akash Ingale was asked

to leave the spot. The complainant intervened into the matter.

After around 1/2 an hour, Akash Ingale came back in White Jipsey

alongwith 5-6 co-accused persons on spot. They came infront of the

complainant's house and quarrelled with the complainant. The accused No.3-

Akash Ingale was holding a Sword and accused No.4- Vikas Ingale was holding

a Knife and Accused No.5- Ankit Ninawe was holding an Iron Rod and other

co-accused were carrying Iron Rod and Hockey Sticks into their

hand.

The accused No.4- Vikas Ingale assaulted the complainant Sunil (PW-2)

with Knife below the right eye. The accused No.3-Akash Ingale assaulted the

complainant's brother Hemant (PW-5) with Sword on his left thumb and

Accused No.4-Vikas Ingale assaulted Hemant (PW-5) with Knife on his neck.

Further, Raju Dhote (PW-7) was assaulted with Sword, Knife, Rod and Hockey

Sticks by all the accused due to which he felt unconscious on spot. The wife of

Raju Dhote who intervened was manhandled by the accused. The ocular

testimonies of these injured witnesses are corroborated with medical evidence

on record. The weapons were recovered at the instance of the accused and

were identified by PW-5 & PW-7. The panch witnesses have supported

prosecution on respective panchanamas.

Significantly, the evidence would reveal that, after creating nuisance and

hurling abuses, the accused No.3- Akash Ingale left the spot and then again

came back after 1⁄2 an hour in a white colour Jipsey alongwith 5-6 co-accused

persons, only with an intent to assault the injured witnesses and thereby, to kill

them. The accused had in fact seriously injured them with dangerous weapons.

Thus, evidence would show that, the accused were present on spot in

prosecution of their common object and they were armed with deadly weapons

and by forming an unlawfully assembly, they also assaulted the witnesses on

spot and attempted to kill them. Therefore, each one of them is equally

responsible for the acts of other member of their unlawful assembly. Hence, the

prosecution has proved the ingredients of the alleged offences

against the accused beyond reasonable doubt.

27. In a case involving charges of attempt to murder and voluntarily causing

hurt with a dangerous weapon, the burden lies squarely on the prosecution to

prove the guilt of the accused beyond a reasonable doubt, primarily through

credible eyewitnesses, medical and forensic evidence, and a lawful

investigation process. In the present case, the prosecution has examined eight

witnesses, each of whom plays a significant role in building a consistent and

reliable narrative. On the ground of medical evidence on record supports the

prosecution's case of grievous and life-threatening injuries. In particular, it was

submitted that P.W.4- Dr. Madan Kisan Chafe, who initially examined the

victim, stated that the injuries were not of such a nature to cause death and

that section 307 would not be attracted in the case, is denied in toto. This

Court finds this argument to be without any merit, as it is a settled position of

the law that in cases of 307 attempted murder, the nature of the injuries is

secondary to the intention of the accused. Further, it is duly noted by the

prosecution that the injuries caused to the victims were of such a nature that

they would be cured only if medical intervention were provided to them.

Further, during the recovery period, medical observation is necessary to ensure

infection does not occur in the injury. Thus, such injuries cannot be said to be

of a simple nature. The Hon'ble Apex Court has settled the position of law that

the nature of injuries is secondary the intention of the accused should be given

paramount consideration in cases of attempt of murder. The relevant case and

the said paragraph are referred below, S.K. Khaja v. The State of Maharashtra,

2023 LiveLaw (SC) 715, the Honourable Apex Court expressly observed in

para 8 as follows-

"8. As rightly submitted by the learned counsel appearing on behalf of the respondent - State, merely because the injuries sustained by the complainant - Mohammad Khan Pathan (PW-2) were very simple in nature, that would not absolve the appellant/accused from being convicted for the offence under Section 307 of the IPC. What is important is an intention coupled with the overt act committed by the appellant/accused...".

As observed above, the nature and the extent of injury caused are such

that it was life-threatening and enough to bring home the guilt of the accused.

Thus, this argument of the appellant is rejected.

28. On the ground the learned trial Court failed to take into consideration

the chemical analysis report and failed to consider the contradiction in the

deposition of the witness about the use of the weapons by the accused, this

Court is of the opinion that the contradiction should be such that it totally

invalidates the previous statement of the witness. A mere small contradiction

cannot be a ground to impeach the creditworthiness of the witness. In the

present factual matrix, the appellant has raised the ground that the witnesses,

specifically PW2 and PW5, have a contrary stand with regard to the use of

weapons. This Court finds this argument faulty as the minor changes in the

witness cannot impeach the creditworthiness. The medical examination

(Exhibits 97-99) proves that the injury caused was due to the hard and blunt

objects, which was duly corroborated by the statement of the witness. Any

contradiction on the use of the weapons and the nature of injury sustained

would be a minor contradiction as per the present factual matrix. This

observation was made by the Hon'ble Apex Court in the case of Alauddin &

Ors. Vs The State Of Assam & Anr. Criminal Appeal No. 1637 OF 2021 in para

9 as follows-

"9...It must be noted here that every contradiction or omission is not a ground to discredit the witness or to disbelieve his/her testimony. A minor or trifle omission or contradiction brought on record is not sufficient to disbelieve the witness's version. Only when there is a material contradiction or omission can the Court disbelieve the witness's version either fully or partially. What is a material contradiction or omission depends upon the facts of each case. Whether an omission is a contradiction also depends on the facts of each case".

On the contradiction by PW 6, she was consistent with her testimony

that she did not see the exact incident occurred earlier in time; she clearly

admitted that she did not see the incident unfolding; she came out after

hearing the noise of her husband. She clearly admitted that she did not see the

exact weapon used. Hence, there was no contradiction. As far as her

contradiction with regard to the identity of the accused is concerned, there

were five accused in question. In her cross-examination, she did not specify

that she was seeing all the accused persons for the first time in the Court.

Hence, this argument of the learned Counsel is rejected.

So far as the Chemical Analyser Report is concerned, it clearly specifies

that the sword, which was covered with blood stains, has 'O' positive blood on

it, and the knife used also had traces of human blood. It is inconclusive as to

which type of blood it has, but at the same time CA report (Exhibit 181) of the

blood sample revealed that it is 'O' positive and is of Sunil Vasantrao Mangekar.

This corroborates the further testimony and evidence, which further proves the

guilt of the accused.

29. It was further argued by the appellants that the weapons used were not

deadly. It was specifically pointed out by the appellants' Counsel that a hockey

stick was used, and hence it is not of such a nature that would cause a life-

threatening injury. It is to be noted here that the accused were part of an

unlawful assembly. They have committed an offence in furtherance of the

common intention. When an act is done in an unlawful assembly, the act of the

individual is not considered; rather, it is overt by the act of the unlawful

assembly. It is true that the hockey stick is not a deadly weapon unless it is

used with the intention to cause such injury to cause death of the person;

however, in this case, where another accused was using the sword and knife,

the intention of the unlawful assembly was such to cause the bodily injury

which would take the life of the person. In this regard, the Hon'ble Apex Court

has clarified the law in the case of State of Uttar Pradesh vs Subhash Alias

Pappu, (2022) 6 SCC 508. The Hon'ble Apex Court the in paras 24 & 25,

observed -

"24. It is the submission on behalf of the accused that the weapons alleged to have been used by the respondent-accused were said to be a hockey stick, which cannot be said to be a deadly weapon, and therefore, the respondent-accused cannot be punished for the offence under Section 148 also has no substance. As per Section 148 IPC, whoever is guilty of rioting, being armed with a deadly weapons or with anything which used as a weapons of offence, is likely to cause death, can be punished under that Section. The term "rioting" is defined under Section 146 IPC. As per Section 146, whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.

25. In the present case, six to seven persons were part of the unlawful assembly and they used force or violence and one of them used a deadly weapons, namely, knife and therefore, being a part of the unlawful assembly, the respondent-accused can be held to be guilty for the offence of rioting and for the use of force/violence as a member of such an unlawful assembly. Therefore, the respondent was rightly convicted by the trial court for the offence under Section 148 the IPC".

30. Lastly, it was argued that it nature of the assembly was not such that it

could turn into an unlawful assembly because everyone was gathered for the

occasion of Mahaprasad; however, this Court does not find any merit in this

argument it is well established fact that Akash was asked to leave because he

was causing a nuisance and he returned with all the accused persons after 25-

30 minutes which shows that the plan was premeditated. They had all the

weapons, and their intention was to cause such bodily injury as may cause

death of the complainant.

31. Each material prosecution witness remained steadfast during cross-

examination. There is no evidence of previous enmity that could have

motivated false implication. The depositions of the injured witnesses are

natural and credible, supported by prompt FIR lodging, forensic recoveries,

consistent medical records, and corroborative testimonies from family

members, panch witnesses, and medical professionals. No significant omissions

or contradictions were elicited during the trial to discredit the prosecution's

case. The defence has not led any substantive evidence to rebut the

prosecution's claims, nor has it provided any plausible alternative explanation

for the injuries suffered or the presence of blood at the scene.

32. The accused has qualified the equivocality test for attempt. The said

testimony and the evidence point out the unequivocal intention of the accused

to commit murder. It is merely by chance that the accused has failed in his

commission.

33. This Court has carefully perused the entire record of the case, including

the depositions of all prosecution witnesses, medical reports, documentary

evidence, and the findings of the learned trial Court. Upon thorough

consideration, it is evident that the prosecution has successfully established the

guilt of the accused beyond a reasonable doubt.

34. The testimonies of PW1 & PW2, the panch eyewitness and injured

victim, are direct, consistent, and reliable. Their version of events is fully

corroborated by medical evidence furnished by PW4. The sequence of events,

as narrated by these witnesses, is not only coherent but also supported by

independent witnesses such as PW1 and the Panch witnesses. No material

contradiction or omission could be elicited during cross-examination of any of

the material witnesses.

35. The recovery of a stick of baseball, a Sword, a steel rod, a Knife and a

Hockey stick seized, and bloodstained clothes at the instance of the accused,

under Section 27 of the Indian Evidence Act (Exhibit 51- 54), has been duly

proved through the testimony of PW3 and the Investigating Officer, PW8. The

seized articles were identified in Court and found to be consistent with the

injuries inflicted. The procedural compliance in the conduct of spot

panchnamas, recovery, seizure, and forwarding of forensic samples is evident

from the record.

36. The defence failed to rebut the prosecution's case. No plausible

explanation was offered for the presence of bloodstains at the scene, or for the

recovery of the weapons from the place indicated by the accused. The

suggestions put to the witnesses during cross-examination were vague,

unsubstantiated, and did not shake the credibility of the prosecution witnesses.

Further, no evidence of prior enmity or motive for false implication was

brought on record.

37. This Court would now like to briefly discuss the cases cited by the

appellants' Counsel -Jage Ram and Others Vs State of Haryana (2015) 11 SCC

366. This Court finds this case applicable to the present factual matrix, the

Hon'ble Apex Court held that the intention of the accused is to be gathered

from the circumstances like the nature of the weapons used, words used by the

accused at the time of the incident, motive of the accused, parts of the body

where the injury was caused and the nature of injury and severity of the blows

given. In present factual matrix all the accused return after 30 minutes with

such weapons which can cause such bodily injury, which can cause death of the

person. Hence, from the intention and the nature of the weapons used, it can

be said that the accused was guilty of attempted murder. This Court finds this

case law in support of the prosecution. The relevant paragraph is reproduced

below-

"12 For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and

(ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the

prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances, like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of the injury and severity of the blows given, etc."

This Court finds the second case is also in favour of the prosecution. The

appellant has cited the case of State of Maharashtra Vs. Nina Trambak Tadas

[2015(4) Mh.L.J. (Cri.) 522]. This case held that the nature of the injury can

be of assistance while deciding the cases of attempt to murder; however, it

cannot be a sole basis for convicting the accused. The relevant para is

reproduced below-

"44. Now, let us examine whether the prosecution has proved commission of offence punishable under section 307 of Indian Penal Code by the respondent/accused Nina Tadas. The prosecution has proved by its cogent and consistent evidence that the respondent/accused Nina Tadas had inflicted blow of knife on the ring finger of left palm of PW-5 Vijay Khadse, causing bleeding injury of size /4 inch x 14 inch x ½ 4 inch on his ring finger of left palm. Evidence of injured witnesses PW-5 Vijay goes to show that this injury was suffered by him when he tried to control the respondent/accused Nina Tadas in the process of saving deceased Gajanan Tadas. Evidence of PW-5 Vijay shows that his attempt to save Gajanan caused annoyance to the accused and, therefore, the accused gave blow of knife which landed on his ring finger of his

left palm. As such, it becomes clear that the respondent/accused Nina Tadas had not assaulted PW-5 Vijay with the requisite intention of causing his death. Section 307 of the Indian Penal Code requires the presence of intent coupled with some overt act for execution thereof. For holding an accused guilty of the offence punishable under section 307 of the Indian Penal Code, it is not essential that the actual injury capable of causing death should have been inflicted, though the nature of the actual injury caused may give considerable assistance in gathering the intention of the accused. In the case in hand, evidence of the injured witness PW-5 Vijay does not show that the respondent/accused Nina Tadas was intending to cause his death. However, it is proved that the respondent/accused Nina Tadas had voluntarily caused hurt to PW- 5 by a dangerous weapon, i.e. Muddemal Article No. 8 knife, an instrument for stabbing or cutting. As such, the guilt of the respondent/accused, Nina Tadas, for the offence punishable under section 324 of the Indian Penal Code is established. In the result, we have no alternative but to quash and set aside the impugned judgment and order dated 9-5-1995 passed by the 3rd Additional Sessions Judge, Jalgaon, in Sessions Case No. 338 of 1994, thereby acquitting the respondent/accused Nina Tadas, for the offence punishable under sections 302 and 307 of the Indian Penal Code".

In view of the above, this Court finds no infirmity in the conviction

recorded by the learned Additional Sessions Court. The conviction of the

accused under Section 307 read with Section 149 of the IPC, for attempting to

commit murder read with every member of an unlawful assembly responsible

for any offense committed by one member in pursuit of the assembly's common

object, and under Section 143, punishment for being a member of an unlawful

assembly and 148 of the Indian Penal Code for rioting armed with a deadly

weapon, is upheld. The sentence of rigorous imprisonment for 7 years under

Section 307 IPC, read with 149 IPC, 6 months under Section 148 IPC, and one

month under Section 143 of IPC, as imposed by the trial Court, is found to be

proportionate to the gravity of the offence and is therefore confirmed.

Accordingly, the appeal stands dismissed and the conviction granted by