Bombay High Court

The State Of Mah.Thr.Telhara P.S. vs Ab.Ajij Sk.Mehboob And 22 Others. on 24 November, 2025

2025:BHC-NAG:12915-DB




              Judgment

                                                           494 apeal42.02

                                            1

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

                         CRIMINAL APPEAL NO.42 OF 2002

              The State of Maharashtra, through
              Telhara Police Station, Telhara,
              District Akola.                   ..... Appellant.

                                  :: V E R S U S ::

              1. Ab.Ajij Sk.Mehboob,
              (Original accused No.5).

              2. Sherkha Jarifkhan, DEAD
              (Original accused No.8).

              3. Sk.Mehboob Sk.Nabi,
              (Original accused No.13).

              4. Sk.Bannu Sk.Ismail, DEAD
              (Original accused No.15).

              5. Yusuf Patel Tamiz Patel,
              (Original accused No.16).

              6. Sk.Rahis Sk.Mustafe,
              (Original accused No.20).

              7. Bismillakhan Khalilkhan,
              (Original accused No.22).

              8. Tayarsha Maqboolsha,


                                                                  .....2/-
 Judgment

                                     494 apeal42.02

                            2

(Original accused No.23).

9. Rafikhan Meheboobkhan,
(Original accused No.24).

10. Sk.Tayab Sk.Munaf,
(Original accused No.25).

11. Amadkhan Subhankhan, DEAD
(Original accused No.26).

12. Sidharth Shankar Wankhade,
(Original accused No.29).

13. Mohd.Afazal Mohd.Aslam, DEAD
(Original accused No.32).

14. Sk.Bashir Sk.Mahatu, DEAD
(Original accused No.41).

15. Inayatkhan Serfarajkhan,
(Original accused No.44).

16. Amrullakhan Sarfarajkhan, DEAD
(Original accused No.46).

17. Sk.Nabi Sk.Supadu,
(Original accused No.52).

18. Sk.Abdul Sk.Bismilla, DEAD
(Original accused No.58).

19. Sk.Mansab Sy.Yusuf,
(Original accused No.61).
                                            .....3/-
 Judgment

                                                494 apeal42.02

                             3



20. Ajmatkhan Mehemoodkhan,
(Original accused No.64).

21. Sk.Mehmoob Daula Kasai, DEAD
(Original accused No.66).

22. Sk.Ajij Sk.Hanif, DEAD
(Original accused No.71).

23. Majroddin Najiyoddin, DEAD
(Original accused No.72).

All resident of Panchagavan,
Police Station, Telhara, district Akola. ..... Respondents.

Shri M.J.Khan, Additional Public Prosecutor for the
Appellant/State.
Mrs.Maira Ateeb, Counsel for the Respondents.

CORAM : URMILA JOSHI-PHALKE &
        NANDESH S.DESHPANDE, JJ.

CLOSED ON : 15/10/2025
PRONOUNCED ON : 21/11/2025

JUDGMENT ( Per : Urmila Joshi-Phalke)

1. By this appeal, the appellant (State) has

challenged judgment and order dated 30.9.2000 passed

.....4/-

Judgment

494 apeal42.02

by learned Additional Sessions Judge, Akola (learned

Judge of the trial court) in Sessions Trial No.166/1991.

2. By the said judgment impugned, learned Judge

of the trial court acquitted the respondents (the accused)

for offences under Sections 143, 147, 148, 302, 307, 324,

326, and 341 read with Section 149 of the IPC.

3. Total 104 accused persons were put to trial

before learned Judge of the trial court. The present

appeal is preferred against 23 accused persons by the

State challenging their acquittal.

4. Brief facts of the prosecution case are as

under:

Baburao Shyamrao Kharapkar and Mangesh

Krushnarao Deshmukh are residents of village

Panchagavan, taluka Telhara, district Akola. The said

village is comprised of five localities known as Khel

.....5/-

Judgment

494 apeal42.02

Narshipur; Khel Krushnaji; Khel Mukadam; Khel Satwaji,

and Khel Deshpande. It is alleged that 60-70%

population in village Khel Narshipur is of Mohammedan

community and the most of the persons are agriculturists

by profession. The persons belonging to Mohammedan

community, as per the allegations, are having dominance

in the village and they are indulged in illegal businesses,

forcibly taking cattle from other agriculturists slaughtered

them, forcibly recovering money from the persons of

other communities, and various illegal activities. The

said people are harassing the people who are in minority

in the said village. To get relief from such harassment,

the villagers of Hindu community decided to form "Shiv-

Sena Branch" at their village and, therefore, they

consulted Prashant Purushottam Mahajan, Chief of "Shiv-

Sena Branch", taluka Telhara and fixed date as 5.6.1988

to inaugurate the branch of political party "Shiv-Sena" in

.....6/-

Judgment

494 apeal42.02

their village. The leaders of the said political party from

Akola district had consented to attend the function and,

therefore, they arranged the said function in village Khel

Narshipur on 5.6.1988. The villagers of Khel Narshipur

also invited villagers of adjacent villages to attend the

said function. The said function was to be held at Khel

Narshipur, near Hanuman Temple at 5:00 pm. Villagers

namely Baburao Shyamrao Kharapkar and Mangesh

Krushnarao Deshmukh were looking after the

arrangement of the said function under the supervision of

Prashant Purushottam Mahajan. They have also reported

to the concerned Police Station and also requested them

to make appropriate arrangement for "Bandobast" and

for maintaining public peace. The meeting was also held

under the supervision of Police Sub Inspector Shri

Kulkarni and all the community members have attended

the said meeting and they were informed to maintain

.....7/-

Judgment

494 apeal42.02

public peace in the village during the said function.

Baburao Shyamrao Kharapkar, who was looking after the

said function, deputed the other villagers to escort the

other villagers who are coming to attend the said

function at various spots in Khel Narshipur village. One

Devidas Rothe was directed to attend at Ner-Dhamna

Road to receive and lead the persons coming from other

villages. Whereas, Gajanan Mahore and Motiram

Zaparde were sent to Khel Deshpande locality to receive

and lead the persons coming to attend the said function.

5. On the day of the incident, i.e. 5.6.1988, at

about 5:00 pm, when preparation of the function was in

progress and Police Constable Shri Rane was also present

at the spot of the function, at the relevant time, they

witnessed mob of about 100-150 Mohammedan persons

holding sticks, spears, swords, iron pipes etc. in their

hands. They were giving slogans against the "Shiv-Sena"

.....8/-

Judgment

494 apeal42.02

party in protest and also disclosing their objection for

opening "Shiv-Sena" branch in the village. Villager

Narayan Deshmukh and Police Head Constable Shri Rane

and Arbat Patwari approached the said mob and have

given them an understanding not to harm anybody and

villagers who gathered would go to home peacefully after

the function is over. Police Head Constable Shri Rane has

given a clear understanding to the mob that they have to

maintain public peace, otherwise they have to face

consequences and, thereafter, the mob dispersed.

6. The second incident alleged is that, when

Gajanan Mahore and Motiram Zaparde were waiting at

Khel Deshpande locality for persons coming to attend the

function, 35-40 persons came in a tractor from the

adjacent villages at about 4:00 pm to 4:30 pm. When

they reached near Ram Temple and two additional

persons boarded in the said tractor, at some distance,

.....9/-

Judgment

494 apeal42.02

they proceeded, at the relevant time, they came across

two persons and out of them, one person gave whistle

and mob of 15-20 persons came there and assaulted the

persons who were travelling in the said tractor. In the

said assault, one Avachitrao Kukde, Shriram Gavande,

and Digambar Kukde sustained grievous injuries and

succumbed to the injuries. One Sheikh Gafar Sheikh

Najim also reported to be dead in the alleged riot. It is

alleged that the persons who came in the tractor were

assaulted by the mob who were holding sticks, spears,

swords, iron pipes etc. and caused grievous injuries and

four persons died due to the injuries in the said incident.

7. The third incident has happened at Ner

Dhamna Road when some persons came in bullock-cart.

At the relevant time, the mob of the persons holding

weapons in their hands reached the spot and assaulted

inmates of the bullock-cart. In the said incident, one

.....10/-

Judgment

494 apeal42.02

Shriram Bhambere sustained grievous injuries and died

on the spot. The persons in the bullock-cart have

sustained injuries.

8. In all these three incidents, allegedly, 22

persons sustained injuries and 5 persons lost their lives.

Out of the assailants, respondent No.1 Ab.Ajij

Sk.Mehboob (original accused No.5), respondent No.9

Rafikhan Meheboobkhan (original accused No.24), and

respondent No.10 Sk.Tayab Sk.Munaf (original accused

No.25) were arrested from the spot at Khel Deshpande

Road along with blood stained weapons like spears and

sticks in their hands.

9. Regarding the said incident, PW46 Gangadhar

Dhore lodged the report. On the basis of the said report,

the crime was registered against 104 accused persons.

.....11/-

Judgment

494 apeal42.02

10. During investigation, the investigating officer

has drawn spot panchanama at the site of the function at

Khel Deshpande Road as well as Ner Dhamna Road. The

injured were referred for the medical examination and

some of the injured fled away from the spot in injured

condition and approached to the Government Hospital at

Telhara who were treated there. The investigating officer

has collected their medical certificates during the

investigation. The investigating officer carried out

various house search panchanamas and various weapons

were recovered during the said house search

panchanamas. All five dead persons were referred to the

Government Hospital at Akola for conducting their

postmortem examination. Their postmortem reports are

collected and included in the investigation papers. The

blood stained clothes of the deceased persons, blood

stained weapons are also seized and forwarded to

.....12/-

Judgment

494 apeal42.02

Chemical Analyzer. The memorandum statements of

some of the accused persons are recorded and their

instance also, the weapons were recovered.

11. After completion of the investigation,

chargesheet is filed against 104 accused persons in the

Court of learned JMFC. As the offence under Section 302

of the IPC was exclusively triable by the Court Sessions,

learned Magistrate committed the case to the Court of

Sessions. Learned Judge of the trial court framed charge

vide Exh.72.

12. To prove the first incident occurred near the

spot of the function, 11 witnesses are examined, which

are as follows:

  PW                Names of Witnesses               Exh.
  Nos.                                               Nos.
      1    Baburao      Shyamrao       Kharapkar,    194
           eyewitness



                                                    .....13/-
 Judgment

                                                494 apeal42.02



      6    Kashinath Tulshiram Khopale, pancha on      214
           panchanama as to the spot of the
           incident
      7    Mangesh      Krushnarao      Deshmukh,      216
           eyewitness
   11      Shiolal Kisanlal Jaiswal, eyewitness and    222
           injured
   24      Prashant     Purushottam       Mahajan,     242
           eyewitness

13. To prove the second incident occurred on Road

in the vicinity of Khel Deshpande in front of the house of

Matin Baig, following 18 witnesses are examined:

  PW                 Names of Witnesses               Exh.
  Nos.                                                Nos.

      4    Gajanan Shaligram Mahore, eyewitness        205


                                                      .....14/-
 Judgment

                                                  494 apeal42.02



      5    Rameshwar       Atmaram          Belorkar,    206
           eyewitness

      9    Gopal Mahadeo       Patharkar,    injured     220
           eyewitness

eyewitness and driver of the tractor 16 Subhash Punjabrao Kukde, injured 230 eyewitness 17 Harischandra Janrao Nerkar, eyewitness 232

20 Laxman Vishvanath Gawande, 237 eyewitness

22 Prabhakar Nathuji Randhe, injured 239 eyewitness

eyewitness

14. As to third incident occurred at Ner Dhamna

Road, in all 6 witnesses are examined, which are as

follows:

.....15/-

 Judgment

                                               494 apeal42.02






  PW                 Names of Witnesses              Exh.
  Nos.                                               Nos.


      3    Dyandev Tulshiram Mahore, eyewitness       204
   36      Balwan Pandharinath Dinkar, eyewitness     291
   44      Mohan Govind Bhambhere, eyewitness         348
   51      Jaggu Singh Ishwar Singh Thakur, Police    400
           Head Constable

15. Besides the oral evidence the prosecution also

relied upon the medical evidence and to prove the injury

certificates of various injured persons, relied upon the

evidence of Medical Officer PW48 Sattadeo Raut vide

Exh.368. Whereas, PW12 Prakash Laxmanrao Joshi was

examined vide Exh.224 to prove the postmortem report

of Sk.Gaffar and PW50 Dr.Ajay Keshavrao Jawarkar is

examined vide Exh.394 to prove the postmortem reports

.....16/-

Judgment

494 apeal42.02

of Digambar Wamanrao Kukde, Shriram Wamanrao

Bhambere, Avachitrao Kukde, Shriram Gavande.

16. During the investigation, the investigating

officer has drawn various panchanamas and to prove the

said panchanamas, the prosecution has examined PW1

Baburao Shyamrao Kharapkar Exh.194 who acted as a

pancha on seizure of stick from respondent No.1 Ab.Ajij

Sk.Mehboob (original accused No.5) Exh.195, seizure of

stick from respondent No.10 Sk.Tayab Sk.Munaf (original

accused No.25) Exh.196, seizure of stick from respondent

No.9 Rafikhan Meheboobkhan (original accused No.24)

Exh.197, spot of the incident in the midst of Khel

Deshpande and Khel Narshipur Exh.198, inquest

panchanama of dead body of deceased Avachitrao Kukde

Exh.207, inquest panchanama of dead body of deceased

Shriram Wamanrao Bhambere Exh.209, inquest

panchanama of deceased Shriram Gavande Exh.210,

.....17/-

Judgment

494 apeal42.02

inquest panchanama of deceased Digambar Kukde

Exh.211 and PW6 Kashinath Tulshiram Khopale Exh.214,

pancha on spot at Ner Road Exh.215, PW30 Tulshiram

Govida Mahore Exh.249 acted as a pancha on various

house search panchanamas Exhs.250 to 264, PW31

Bharat Sakharam Solankhe pancha on seizure memos,

PW32 Rajendra Shrikrushna Exh.270 acted as a pancha

on various house search panchanamas Exhs.271 to 284,

PW33 Gajanan Pandhare Exh.285 pancha on house

search panchanama Exh.281, PW34 Ajabrao Sontakke

Exh.287 pancha on seizure of blood stained clothes of

deceased Shriram Vitthal Gavande, seizure memo

Exh.288, PW37 Dayaram Motiram Rothe Exh.294 pancha

on various house search panchanamas Exhs.295 to 302,

PW38 Vitthal Ramchandra Tekade Exh.303 pancha on

house search panchanamas Exhs.304 to 313, PW39

Shankar Laxman Nand Exh.317 pancha on house search

.....18/-

Judgment

494 apeal42.02

and recovery panchanamas Exhs.318 to 325, PW40

Mahadev Isaji Khade Exh.326 pancha on memorandum

statement of accused Mobin Sk. Exh.327 and seizure

memo Exh.328, PW41 Balkrishna Shamrao Agarkar

Exh.329 pancha on house search panchanama Exhs.330

to 336, PW44 Devrao Gangaram Kharabkar Exh.337

pancha on house search panchanamas Exhs.330 to 336,

PW43 Sukhdev Motiram Niwane Exh.338 pancha on

house search panchanama Exhs.339 to 347, and PW45

Wasudev Motiram Dande pancha on house search

panchanamas Exhs.351 to 352.

17. The prosecution has also examined police

witnesses namely carrier PW47 Shashikant Sakharkar

Exh.364, ASI PW49 Shankar Rane Exh.391 incharge of

police outpost Panchagavan, Exh.51 Jaggu Singh Ishwar

Sigh Thakur Exh.400 writer of PSI Kulkarni, Investigating

Officer PW52 Dyandev Omkar Pinjarkar Exh.408,

.....19/-

Judgment

494 apeal42.02

Investigating Officer Police Inspector PW53 Rupchand

Ratan Chhagalani Exh.410, and Investigating Officer

PW54 Mohan Rathod Exh.412.

18. After appreciating the evidence adduced,

learned Judge of the trial court acquitted the accused

persons by holding that the prosecution miserably failed

to prove the charges against the accused persons. Being

aggrieved and dissatisfied with the said observation, the

present appeal is preferred by the State.

19. Heard learned Additional Public Prosecutor

Shri M.J.Khan for the State and learned counsel

Mrs.Amaira Ateeb for the accused persons.

20. Learned Additional Public Prosecutor for the

State submitted that acquittal of the accused persons is

on the ground that no specific act is attributed to them.

There are inconsistencies in the evidence of the

.....20/-

Judgment

494 apeal42.02

prosecution witnesses. He submitted that learned Judge

of the trial court ignored an aspect that the accused

persons were members of the unlawful assembly and in

pursuance of the common object of the same, the act was

executed by some of the accused persons. However,

being members of the unlawful assembly, all the accused

persons are responsible for the act of the other accused

persons. He submitted that as per the prosecution, three

incidences occurred. As far as the first incident is

concerned, it took place near spot of the function. To

prove the said incident, the prosecution has examined in

all 11 witnesses. The evidence of PW1 Baburao

Shyamrao Kharapkar; PW24 Prashant Purushottam

Mahajan; PW25 Sahebrao Bhagwantrao Patil; PW26

Vishwas Shriram Pimpare; PW28 Vasant Motiram

Niwane; and PW11 Shiolal Kisanlal Jaiswal is consistent

which is also supported by the police witness PW49

.....21/-

Judgment

494 apeal42.02

Shankar Rane who was also deputed on duty at the spot

of the incident. Perusal of the judgment impugned

reveals that self contradictory findings are given by

learned Judge of the trial court.

21. The second incident occurred on the road of

Khel Deshpande between the house of Matin Baig. To

prove the said incident, the prosecution has examined in

all 18 witnesses and out of that 18 witnesses PW9 Gopal

Mahadeo Patharkar; PW13 Bhaskar Mahadeo Raut;

PW14 Anil Wasudeo Dabadghave; PW15 Rambhau

Gopalrao Bahakar; PW20 Laxman Vishvanath Gawande;

PW4 Gajanan Shaligram Mahore; and PW35 Nandkishor

Mahadeo Bhagat are injured eyewitnesses. Their

evidence is further supported by PW5 Rameshwar

Atmaram Belorkar; PW17 Harischandra Janrao Nerkar;

and PW18 Vinayak Mahadeo Bhise. The evidence of

these witnesses shows that they were assaulted by the

.....22/-

Judgment

494 apeal42.02

mob of people belonging to the Muslim community. As

far as respondent No.1 Ab.Ajij Sk.Mehboob, respondent

No.9 Rafikhan Meheboobkhan, and respondent No.10

Sk.Tayab Sk.Munaf, who were arrested on the spot, are

concerned, they are identified during the evidence. The

weapons of the offence are also recovered at their

instance. Thus, involvement of these accused persons is

clearly established by the prosecution. There is no

explanation from these respondents how they were found

at the spot. From the house of the rest of the accused

persons, their weapons are recovered by the prosecution.

Thus, the respondents were members of the unlawful

assembly and in furtherance of their common object, they

assaulted the persons who came at the spot to attend the

function. In the said incident, four persons namely

Avachitrao Kukde, Shriram Bhambere; Shriram Gavande,

and Digambar Kukde died. Whereas, 22 persons

.....23/-

Judgment

494 apeal42.02

sustained injuries. The death of Avachitrao Kukde,

Shriram Gavande, and Digambar Kukde occurred in the

second incident took place at Khel Deshpande Road.

22. Third incident occurred at Ner Dhamna Road

when the witnesses were approaching to the spot of the

function. To prove third incident, the prosecution has

examined in all six witnesses PW1 Baburao Shyamrao

Kharapkar; PW2 Devidas Motiram Rothe; PW3 Dyandev

Tulshiram Mahore; PW36 Balwan Pandharinath Dinkar,

PW44 Mohan Govind Bhambhere; and PW51 Jaggu

Singh Iswar Singh Thakur. The evidence of these

witnesses also discloses about the occurrence of the

incident and the evidence of these witnesses is not

shattered during the cross examination. Mere suggestion

cannot take place of proof. As far as identification is

concerned, identification of the accused persons is

.....24/-

Judgment

494 apeal42.02

substantial evidence. The prosecution witnesses have

identified the accused persons before the court.

23. Thus, besides the oral evidence, circumstantial

evidence that recovery of the weapons at the instance of

respondent No.1 Ab.Ajij Sk.Mehboob; respondent No.9

Rafikhan Meheboobkhan; and respondent No.10

Sk.Tayab Sk.Munaf who were found on the spot is also

established. The weapons are also recovered from the

house of the accused persons.

24. To corroborate the version of the prosecution

witnesses, the medical evidence is also adduced by the

prosecution. PW48 Sattadeo Raut examined vide

Exh.368 has proved injury certificates of Amrutrao

Bahekar. PW9 Gopal Mahadeo Patharkar; PW22

Prabhakar Nathuji Randhe; PW19 Madhukar Gangaram

Metkar; PW16 Subhash Punjabrao Kukde; PW21 Ganesh

.....25/-

Judgment

494 apeal42.02

Kashinath Nerkar; Ramlal Haridas Pandav; PW20 Laxman

Vishvanath Gawande; PW35 Nandkishor Mahadeo

Bhagat, and PW12 Prakash Laxmanrao Joshi were

examined to prove the postmortem report of Sk.Gaffar

Exh.225. Whereas, PW50 Dr.Ajay Keshavrao Jawarkar is

examined to prove the postmortem reports of deceased

Avachitrao Kukde and Shriram Bhambere and

postmortem report of Shriram Vitthal Gavande. PW1

Baburao Shyamrao Kharapkar was also examined as a

pancha on seizure of stick from respondent No.1 Ab.Ajij

Sk.Mehboob, seizure of stick from respondent No.10

Sk.Tayab Sk.Munaf and seizure of stick from respondent

No.9 Rafikhan Meheboobkhan. He also acted as a

pancha on spot panchanama regarding the spot of the

incident occurred at Khel Deshpande Road. The inquest

panchanama of dead body of deceased Avachitrao Kukde,

Shriram Gavande, Digambar Kukde, and Shriram

.....26/-

Judgment

494 apeal42.02

Bhambere. PW6 Kashinath Tulshiram Khopale was

turned hostile, but his evidence can be appreciated which

shows that there was formation of unlawful assembly.

PW30 Tulshiram Govinda Mahore and PW31 Bharat

Sakharam Solankhe are acted on various panchanamas as

to the seizure of weapons from the houses of the accused

persons. PW32 Rajendra Shrikrushna Bobade; PW33

Gajanan Pandhare Kherkar; PW37 Dayaram Motiram

Rothe; PW38 Vitthal Ramchandra Tekade; PW39 Shankar

Laxman Nand; PW41 Balkrishna Shamrao Agarkar; PW44

Mohan Govindrao Bhambere; PW43 Sukhdev Motiram

Niwane; and PW45 Wasudev Motiram Dande are acted as

panchas on various search panchanamas. Whereas,

PW34 Ajabrao Sontakke acted as a pancha on seizure of

blood stained clothes of deceased Shriram Gavande.

PW38 Vitthal Ramchandra Tekade acted as a pancha on

memorandum statement of accused Abed Khan and

.....27/-

Judgment

494 apeal42.02

recovery panchanama of memorandum statement of

accused Sk.Naseem and recovery panchanama at whose

instance weapon like axe is recovered. PW40 Mahadev

Isaji Khade also acted as a pancha on memorandum

statement of accused Mobin Sheikh and seizure

panchanama. Thus, various panchanamas are proved by

the prosecution.

25. The prosecution has also adduced the evidence

of the investigating officer and police witnesses. PW47

Shashikant Sakharkar acted as a carrier who has handed

over the articles by the medical analyst. PW49 Shankar

Rane who was incharge of police check-post of

Panchagavan also witnessed the mob which came near

the spot of the function. PW51 Jaggu Singh Iswar Singh

Thakur was writer of PSI Kulkarni in whose presence

respondent No.1 Ab.Ajij Sk.Mehboob, respondent No.9

Rafikhan Meheboobkhan, and respondent No.10

.....28/-

Judgment

494 apeal42.02

Sk.Tayab Sk.Munaf were arrested along with the

weapons. PW52 Dyandev Omkar Pinjarkar; PW53

Rupchand Ratan Chhagalani; and PW54 Mohan Rathod

are investigating officer who have investigated the crime.

He submitted that the entire evidence of the prosecution

sufficiently shows involvement of the accused persons in

the alleged crime wherein five persons died and 22

persons were injured. The entire judgment of the trial

court is perverse and self contradictory reasons are given

and, therefore, the judgment impugned deserves to be

quashed and set aside. He further submitted that

requirement of law in criminal trials is not to prove the

case beyond all doubts, but beyond reasonable doubt and

such doubts cannot be imaginary, fanciful or merely a

possible doubt but a fair doubt based on reasons and

common sense. If the allegations against the respondents

in the light of the evidence is taken into consideration,

.....29/-

Judgment

494 apeal42.02

the prosecution has proved their involvement in the

alleged incident and, therefore, their acquittal is perverse.

He submitted that the witnesses cannot be expected to

possess a photographic memory and, therefore, some

inconsistencies ought to have been there. What is to be

seen is that whether those inconsistencies are shattered

the core of the prosecution which is absent here. In view

of that the entire judgment of the trial court deserves to

be quashed and set aside.

26. In support of his contentions, learned

Additional Public Prosecutor for the State placed reliance

on following decisions:

(1) Goverdhan and anr vs. State of Chhattisgarh, reported in (2025)3 SCC 378;

(2) Suresh s/o Purushottam Astankar vs. State of Maharashtra, reported in 2015(3) Mh.L.J. (Cri.) 424;

.....30/-

Judgment

494 apeal42.02

(3) State of UP vs. Krishna Gopal and anr, reported in (1988)4 SCC 302;

(4) Sushil Kumar Tiwari vs. Hare Ram Sah and ors, reported in 2025 LiveLaw (SC) 864;

(5) Nathu Manchhu vs. The State of Gujarat, reported in AIR 1978 Gujarat 49;

(6) Sarwan singh vs. State of Punjab, reported in (2003)1 SCC 240;

(7) State of UP vs. Nahar Singh (dead) and ors, reported in (1998)3 SCC 561;

(8) Shrawan Bhadaji Bhirad and ors vs. State of Maharashtra, reported in (2002)10 SCC 56;

(9) State of UP vs. Farid and ors, reported in (2005)9 SCC 103;

(10) Mahabir vs. State of Delhi, reported in (2008)16 SCC 481;

(11) Rajendra Shantarma Todankar vs. State of Maharashtra and anr, reported in (2003)2 SCC 257;

.....31/-

Judgment

494 apeal42.02

(12) The State of MP vs. Bacchudas alias Balaram and ors, reported in AIR 2007 SC 1236;

(13) State of Goa vs. Sanjay Thakran and anr, reported in 2007 AIR SCW 2226;

(14) Punjabrao vs. State of Maharashtra, reported in (2002)10 SCC 371;

(15) Dani Singh and ors vs. State of Bihar, reported in (2004)13 SCC 203;

(16) Bhargavan and ors vs. State of Kerala, reported in (2004)12 SCC 414;

(17) Ram Dular Rai and ors vs. State of Bihar, reported in (2003)12 SCC 352;

(18) Shri Gopal and anr vs. Subhash and ors, reported in 2004 Cri.L.J. 3349;

(19) Daya Singh vs. State of Haryana, reported in AIR 2001 SC 1188; and

(20) Chandra Shekhar Bind and ors vs. State of Bihar, reported in AIR 2001 SC 4024.

.....32/-

Judgment

494 apeal42.02

27. Per contra, learned counsel for the accused

persons submitted that there was no previous

acquaintance between the witnesses and the accused

persons. The identification parade was held, but no

evidence is adduced to prove the identification parade

panchanama. The witnesses have admitted that they

have not identified the accused persons during

identification parade. Therefore, the identification before

the court is of no consequence. The possibility of

forgetting the names of the accused persons cannot be

ruled out as the evidence was recorded after 12 years of

the incident. Thus, involvement of the accused persons

in the alleged incident is concerned is not established by

the prosecution and, therefore, learned Judge of the trial

court has rightly considered the evidence that

involvement of the accused persons is not established and

acquitted the accused persons. There is no reason to

.....33/-

Judgment

494 apeal42.02

interfere with the judgment impugned in the appeal. In

view of that, the appeal deserves to be dismissed being

devoid of merits.

28. In support of her contentions, learned counsel

for the accused persons placed reliance on following

decisions:

(1) Criminal Appeal No.1162/2011 (Mallappa and ors vs. State of Karnataka) decided by the Supreme Court on 12.2.2024;

(2) Criminal Appeal No.51/2010 (State of Maharashtra vs. Raju Wamanrao Duf and ors) decided by this Court on 25.9.2005;

(3) Criminal Appeal No.1187/2014 (Zainul vs. State of Bihar) decided by the Supreme Court on 7.10.2025 along with connected matters;

(4) Wahid vs. State Government NCT of Delhi (Criminal Appeal No.201/2020) decided by the Supreme Court on 4.2.2025;

(5) Dana Yadav @ Dahu and ors vs. State of Bihar, reported in AIR 2002 SC 3325;

.....34/-

Judgment

494 apeal42.02

(6) Criminal Appeal Nos.2828-2829/2023 (Allarakha Habib Memon etc. vs. State of Gujarat) decided by the Supreme Court on 8.8.2024, and

(7) Criminal Appeal No.176/2014 (Venkatesha and ors vs. State of Karnataka) decided by the Supreme Court on 9.1.2025.

29. The present appeal is preferred by the State

against 23 accused persons out of 104 accused. During

the pendency of the appeal respondent No.2 Sherkha

Jarifkhan is reported to be dead. Respondent No.4

Sk.Bannu Sk.Ismail; respondent No.11 Amadkhan

Subhankhan; respondent No.13 Mohd.Afazal

Mohd.Aslam; respondent No.14 Sk.Bashir Sk.Mahatu;

respondent No.16 Amrullakhan Sarfarajkhan; respondent

No.21 Sk.Mehmoob Daula Kasai; respondent No.22

Sk.Ajij Sk.Hanif; and respondent No.23 Majroddin

Najiyoddin are reported to be dead and, therefore, the

.....35/-

Judgment

494 apeal42.02

appeal against them is abated. To prove the guilt of the

accused persons, the prosecution has examined in all 54

witnesses. As per the prosecution, three incidents

occurred at three different places. The first incident

occurred near spot of the function. As per the

prosecution case, the function of inauguration of opening

of branch of political party "Shiv-Sena" was organized on

the day of the incident i.e. 5.6.1988 at village Khel

Narshipur. PW1 Baburao Shyamrao Kharapkar was

examined vide Exh.194. PW7 Mangesh Deshmukh;

PW24 Prashant Purushottam Mahajan; PW26 Vishwas

Shriram Pimpare, and PW28 Vasant Motiram Niwane are

material witnesses. As per their evidence, village

Panchagavan is consisted of five localities i.e. Khel

Narshipur; Khel Krushnaji; Khel Mukadam; Khel Satwaji,

and Khel Deshpande. At Panchagavn, population of

Muslim community is about 60-70% and remaining 25%

.....36/-

Judgment

494 apeal42.02

is of other communities. As per the allegations, the

persons belonging to Mohammedan community are

having dominance in the village and they are indulged in

illegal businesses, forcibly taking cattle from other

agriculturists slaughtered them, forcibly recovering

money from the persons of other communities, and

various illegal activities and, therefore, villagers decided

to form a branch of "Shiv-Sena" at the village. With the

consultation of the leaders, they have arranged the

function of formation of "Shiv-Sena" branch on 5.6.1988.

The said function was to be held at Khel Narshipur near

Hanuman Temple. They have prepared a stage and made

other arrangements and villagers from the adjoining

villages were also invited. Some of the villagers also

gathered there. PW1 Baburao Shyamrao Kharapkar was

looking after the arrangement. He deputed PW23

Motiram Zaparde and PW4 Gajanan Shaligram Mahore

.....37/-

Judgment

494 apeal42.02

at Khel Deshpande locality to guide villagers coming from

the other villages to lead them towards the spot of the

incident. Whereas, PW2 Devidas Motiram Rothe was

deputed at Ner Dhamna Road. The evidence of these

witnesses further shows that at about 5:00 pm, when

they were present at the spot of the function, a mob of

100-125 persons of Muslim community came near the

spot of the function and the mob was holding weapons

like sticks, spears, swords, iron pipes etc. in their hands

and were giving slogans. Narayan Deshmukh and Police

Head Constable Shri Rane and Arbat Patwari approached

the said mob and have given understanding not to harm

anybody and villagers who gathered would go to home

peacefully after the function is over. Police Head

Constable Shri Rane has given a clear understanding to

the mob that they have to maintain public peace,

otherwise they have to face consequences and, thereafter,

.....38/-

Judgment

494 apeal42.02

the mob dispersed from the said place. This evidence of

the witnesses is further corroborated by PW29 Wasudev

Pandhari Arbat who deposed that at the relevant time, he

was serving as Talathi of village Panchagavan at Telhara.

The incident occurred on 5.6.1988. The function of

opening of branch of "Shiv-Sena" was organized. The

spot of the function was at Khel Narshipur locality. He

was present in the same village. On that day, in the

morning, at about 10:00 am to 11:00 am, PSI Kulkarni

had called a meeting in a school building and the persons

from all communities of that village were present in the

said meeting. PSI Kulkarni put a proposal in the meeting

that villagers have to maintain peace as the function as to

opening of "Shiv-Sena" branch in the village is organized.

He has also asked the villagers as to whether anybody

was having any objection for opening of branch of

"Shiv'Sena" in the village. At the relevant time,

.....39/-

Judgment

494 apeal42.02

respondent No.1 Ab.Ajij Sk.Mehboob and one Baba Patel

were present in the same meeting. His evidence further

shows that at about 5:30 pm, a mob of 100-150 people of

Muslim community came near the spot of the function.

He along with Narayan Deshmukh and Police Constable

Rane approached the mob and they gave them

understanding. Thereafter, the mob left the place.

30. To corroborate the said version, PW49 Shankar

Rane who was deputed at Panchagavan Check-Post is also

examined by the prosecution whose evidence also shows

that at the relevant time, he was incharge of Check-Post

of Panchagavan. On 5.6.1988, the function of

inauguration of "Shiv-Sena" branch at Khel Narshipur

was organized. The majority population 75% is of Muslim

community and remaining of other communities. As

there was likelihood of occurrence of public peace, he

requested PSI Kulkarni to keep police bandobast in the

.....40/-

Judgment

494 apeal42.02

village. He along with 5-6 police men went to village

Panchagavan. PSI Kulkarni also held a meeting of the

responsible persons from the various communities and

requested them to keep peace in the village. He along

with five police constables was deputed at the spot. They

were patrolling in the village. However, they were having

apprehension of breach of public peace. At about 5:00

pm, he was near the spot of the function. At the relevant

time, a mob of 100-150 Muslim community holding

weapons in their hands came at the spot. They were

giving slogans. He along with PW29 Wasudev Pandhari

Arbat and Narayan Deshmukh approached to the mob

and gave them understanding not to cause any breach of

peace and, therefore, the mob dispersed.

31. PW1 Baburao Shyamrao Kharapkar; PW7

Mangesh Deshmukh, and PW22 Prabhakar Nathuji

Randhe, and PW24 Prashant Purushottam Mahajan are

.....41/-

Judgment

494 apeal42.02

cross examined. Eyewitnesses PW11 Shiolal Kisanlal

Jaiswal; PW25 Sahebrao Bhagwantrao Patil; and PW27

Gopal Nana Vaichol have turned hostile. Cross

examination of PW1 Baburao Shyamrao Kharapkar shows

that he admitted that the offence was registered against

him by the police for contravening Section 135 of the

Bombay Police Act and the offence was registered against

him as well other 62 persons, but he denied that on the

same day, he was arrested in the said incident.

32. Another eyewitness as to the incident is PW7

Mangesh Deshmukh. His evidence regarding the

incident, is identical to the evidence of PW1 Baburao

Shyamrao Kharapkar. During his evidence, he has

identified respondent No.1 Ab.Ajij Sk.Mehboob,

respondent No.8 Tayarsha Maqboolsha, respondent No.9

Rafikhan Meheboobkhan, and respondent No.10

Sk.Tayab Sk.Munaf before the court. As far as cross

.....42/-

Judgment

494 apeal42.02

examination regarding the first incident is concerned,

nothing incriminating is brought on record. He denied

that on the day of the incident, the offence was registered

against him for breach of peace and for contravention of

Section 135 of the Bombay Police Act. However, he

admitted that he was one of the accused amongst 62

accused persons against whom the offence as to unlawful

assembly is registered.

33. PW24 Prashant Purushottam Mahajan is also

eyewitness to the first incident. His evidence is also

identical to PW1 Baburao Shyamrao Kharapkar and

PW7 Mangesh Deshmukh as far as first incident occurred.

He was cross examined on identification of the accused

persons who stated that he identified the accused persons

as they are residents of village Panchagavan who used to

came and go at Telhara. He knows the persons by their

names and some are known by their faces. He has

.....43/-

Judgment

494 apeal42.02

identified respondent No.1 Ab.Ajij Sk.Mehboob. He also

identified respondent No.9 Rafikhan Meheboobkhan and

respondent No.10 Sk.Tayab Sk.Munaf. During the cross

examination, he admitted that except the fact that his

house is situated on the way of Panchagavan, there is no

other reason to identify the accused persons. It further

confirmed during the cross examination that since the

accused persons used to go and come by the same way to

Telhara, their names are known to him. Regarding the

first incident, his cross examination shows that he has

seen the mob of Muslim persons near the house of PW1

Baburao Shyamrao Kharapkar. They were on the same

spot for about half an hour. After giving understanding

to them, they dispersed within fifteen minutes.

34. Two independent witnesses i.e. PW29 Wasudev

Pandhari Arbat serving as Talathi in the said village was

also present at the spot of the incident and has narrated

.....44/-

Judgment

494 apeal42.02

that one meeting was held in the morning on 5.6.1988

wherein respondent No.1 Ab.Ajij Sk.Mehboob was

present. In his presence, PSI Kulkarni enquired as to

whether anybody has objection, but none has taken

objection. The evidence further shows that at about 5:30

pm, near the spot of the function, a mob of 100-150

people along with weapons in their hands came. He

along with PW49 Shankar Rane gave them an

understanding and, thereafter, they dispersed. As far as

his cross examination is concerned, it came on record

that he has narrated the incident to the police and also

stated names of the accused to whom he has witnessed.

It also came in his cross examination that he is having

acquaintance with the villagers as he is serving in the

village as Talathi. He further stated that the land of

respondent No.1 Ab.Ajij Sk.Mehboob is adjoining to the

land of his nephew. Thus, reason brought on record

.....45/-

Judgment

494 apeal42.02

during the cross examination is sufficient to show that

there is a reason for this witness to have acquaintance

with respondent No.1 Ab.Ajij Sk.Mehboob. The cross

examination of PW29 Wasudev Pandhari Arbat, who was

also present at the time of the incident, i.e. the first

incident, who has also narrated about the meeting held in

the morning under the supervision of PSI Kulkarni and he

was present in the said meeting. He also narrated about

the incident of gathering of 100-150 persons along with

weapons in their hands at the spot of the function.

35. Thus, as far as the evidence of these witnesses

regarding the first incident is concerned, which is to the

extent that PSI Kulkarni conducted the meeting in the

morning on the day of the function and enquired as to

whether anybody is having objection as to inauguration

of branch of "Shiv-Sena" in the village. At the relevant

time, respondent No.1 Ab.Ajij Sk.Mehboob was present.

.....46/-

Judgment

494 apeal42.02

He has not raised any objection at the relevant time. As

there was apprehension of breach of public peace, the

police were deputed at the spot of the function. When

PW49 Shankar Rane was present at the spot of the

incident, a mob of 100-150 people of Muslim community

came at the spot along with weapons in their hands.

They were given understanding and, therefore, the said

mob was dispersed.

36. Thus, presence of mob of 100-150 people of

Muslim community near the spot of the incident is

established by the prosecution. PW1 Baburao Shyamrao

Kharapkar; PW7 Mangesh Deshmukh; PW24 Prashant

Purushottam Mahajan; and PW28 Vasant Motiram

Niwane identified some of the accused persons. As far as

identification is concerned, appreciation of the evidence

as to the identification would be discussed in further part

of the judgment.

.....47/-

Judgment

494 apeal42.02

37. As per the prosecution, second incident

occurred in the vicinity of Khel Deshpande near the river

when the villagers from the adjacent locality were

coming in village Narshipur for attending the function of

inauguration of "Shiv-Sena" branch at village Narshipur.

As per the prosecution, in the said incident, three persons

Avachitrao Kukde, Shriram Gavande, and Digambar

Kukde sustained grievous injuries and succumbed to the

injuries due to the assault by the mob of the persons.

Whereas, 22 persons were injured.

38. To prove the second incident, the prosecution

placed reliance on the evidence of PW1 Baburao

Shyamrao Kharapkar examined vide Exh.194. As per his

evidence, when he was present near the spot where the

function was scheduled to be held, he sent PW23

Motiram Zaparde and PW24 Prashant Purushottam

Mahajan to Khel Deshpande locality for guiding the

.....48/-

Judgment

494 apeal42.02

villagers to approach the spot of the function. At about

5:00 pm, he received a message that persons who are

coming in tractor were attacked by the mob of 100-125

persons. In the said mob, respondent No.1 Ab.Ajij

Sk.Mehboob; respondent No.9 Rafikhan Meheboobkhan;

and respondent No.10 Sk.Tayab Sk.Munaf were present.

After receipt of the message, that villagers came from the

way of Khel Deshpande village, they were attacked by the

mob. He immediately rushed to the spot of the incident.

The police vehicles also came there and the above three

accused persons were caught at the spot. He has also

identified the persons who were present in the said mob

before the court. He specifically stated that he can

recognize faces of the accused persons. His evidence

further shows that he noticed that some persons from the

mob, who had come on the spot of the function, went

towards Ner Dhamna Road from Khel Deshpande locality.

.....49/-

Judgment

494 apeal42.02

Three accused persons were arrested by the police on the

spot itself along with weapons in their hands. He has

also witnessed that Avachitrao Kukde and Shriram

Gavande were lying in unconscious condition having

bleeding injuries on their persons. Similarly, Shriram

Bhambere was also lying injured on the spot. He made

an attempt to have communication with Shriram

Gavande, but he was not in a position to speak. During

that period, the police have brought one injured persons

from the thorny bushes at the same spot.

39. PW4 Gajanan Shaligram Mahore was sent by

PW1 Baburao Shyamrao Kharapkar in the vicinity of Khel

Deshpande to escort the villagers who are coming from

the adjacent villages to attend the function. Therefore,

he and PW23 Motiram Zaparde were present in Khel

Deshpande locality. When they were waiting for the

persons waiting from outside, a tractor arrived there. 30-

.....50/-

Judgment

494 apeal42.02

35 persons were sitting in the said tractor. His further

evidence disclosed that the said villagers came from

Pathardi and they also boarded in the said tractor to

proceed towards the spot of the function. When they

crossed riverbed of Vidrupa river by the tractor, the

tractor was halted because of mechanical defect. After

some time, they proceeded by the tractor. At that time, a

mob of 100-125 persons holding weapons in their hands

rushed towards the tractor. The said mob came from side

of thorny bushes and started assaulting the persons

sitting in the tractor by sticks, axes, and spears etc..

Respondent No.1 Ab.Ajij Sk.Mehboob is identified by him

as one of assailants. He has also identified Ab.Hamid

Sk.Mehaboob, Amadkhan Subhankhan, Israilkhan

Ahamadkha, Yusufkha Ahmadkha, Amrulakha

Sarfarajkha, and Sk.Tayab Sk.Munaf.

.....51/-

Judgment

494 apeal42.02

40. The evidence of PW23 Motiram Zaparde is also

on the same line and corroborates as far as the incident

of assault is concerned.

41. PW5 Rameshwar Atmaram Belorkar is another

eyewitness examined vide Exh.206 who testified that on

5.6.1988, he was at his house as his calf was missing and,

therefore, he was searching it in Khel Deshpande locality

in forest beside Vidrupa river. At about 6:00 pm, when

he had been to the area, he witnessed that the mob of

100-125 persons were possessing spears, axes, and sticks

in their hands. He has also witnessed one tractor coming

from Khel Deshpande locality. The tractor proceeded

towards the house of Mehboob Daula. At the relevant

time, 2-3 persons gave whistle and, thereafter, 100-125

persons rushed from the house of Mehboob Daula

towards the tractor and assaulted persons who were

travelling in the tractor by weapons spears and axes. He

.....52/-

Judgment

494 apeal42.02

has identified some persons from the mob namely

Sk.Hamid, Sk.Aziz, Daula Kasai, Bajirao Wakhede,

Ramesh Wankhede, Pundlik Wankhede, Sadashiv,

Tulshiram, and Rama Wankhede. During the evidence,

the persons pointed out by the witness have disclosed

their names as narrated by the witness.

42. PW8 Nagorao Sadashio Avatade is also

eyewitness to the said incident, who testified that he is

resident of village Pathardi. He along with 30-35 persons

of village Pathardi decided to attend the function at

Panchagavan and, therefore, they proceeded from village

Pathardi. After drinking water at Khel Deshpande, they

proceeded by the same tractor. When they reached near

Vidrupa river, due to mechanical defect, the tractor was

parked. After giving push to the tractor, it again started

and they proceeded ahead. At the relevant time, a mob

of 100-125 persons came from out from Katwan holding

.....53/-

Judgment

494 apeal42.02

weapons like sticks, spears, axes, and swords in their

hands assaulted them. He has also sustained a blow of

iron pipe on his forehead. On receiving the blow of iron

pipe, he fell down. He also witnessed that spear was

thrusted on the person Avachitrao Kukde. Ab.Ajij

Sk.Mehboob thrusted the said spear to Avachitrao Kukde.

The other villages who were in tractor also sustained

injuries.

Thus, role of respondent No.1 Ab.Ajij

Sk.Mehboob is concerned, it is specifically narrated by

this witness that with the help of spear, he has given blow

on Avachitrao Kukde. He has also identified some of the

assailants that Pundlik Wankhede, Anisoddin Alimoddin,

Jamroddin Riyasoddin, respondent No.9 Rafikhan

Meheboobkhan, respondent No.10 Sk.Tayab Sk.Munaf,

Sk.Mehbood Sk.Nabi, Shamsoddin Khan Fakhrulla Khan,

Yasim Khan, and Sk.Shabbir Sk.Gaffar.

.....54/-

Judgment

494 apeal42.02

43. PW9 Gopal Mahadeo Patharkar; PW13 Bhaskar

Mahadeo Raut; PW14 Anil Wasudeo Dabadghave; PW15

Rambhau Gopalrao Bahakar; PW16 Subhash Punjabrao

Kukde; PW17 Harischandra Janrao Nerkar; PW18

Vinayak Mahadeo Bhise; PW19 Madhukar Gangaram

Metkar; PW20 Laxman Vishvanath Gawande; PW21

Ganesh Kashinath Nerkar; and PW22 Prabhakar Nathuji

Randhe are injured eyewitnesses. Their evidence shows

that they are residents of Pathardi. They were proceeding

in tractor to attend the function. When they reached in

the vicinity of Khel Deshpande, after crossing Vidrupa

river, three persons holding sticks in their hands came

before their tractor. They gave whistle. At the relevant

time, mob of 100-125 people rushed towards the tractor

from the front side of the house. Those persons were

holding weapons axes and spears in their hands. They

assaulted them. In the said assault, they sustained

.....55/-

Judgment

494 apeal42.02

injuries. As per the Medical Officer the injury might have

been caused by blunt and hard object.

44. PW13 Bhaskar Mahadeo Raut, another injured,

has also narrated the incident on the similar lines. He

has also identified respondent No.1 Ab.Ajij Sk.Mehboob,

respondent No.22 Sk.Ajij Sk.Hanif who is now dead. His

medical certificate is at Exh.385. The injuries might have

been caused by blunt and hard object within six hours.

45. PW14 Anil Wasudeo Dabadghave is another

injured eyewitness. His evidence also shows in what

manner the alleged incident has taken place and his

evidence corroborates the evidence of PW9 Gopal

Mahadeo Patharkar as well as PW13 Bhaskar Mahadeo

Raut as far as occurrence of the incident is concerned.

His medical certificate is at Exh.384. As per the medical

.....56/-

Judgment

494 apeal42.02

officer all the injuries might have been caused within six

hours.

46. The evidence of PW15 Rambhau Gopalrao

Bahakar, who was driver of the said tractor, shows that

when he has witnessed that a mob of 100-125 persons is

approaching to the tractor, he jumped from the tractor

and fled away from the spot. Though he stated that he

has sustained the injuries in the incident, his medical

certificate is not on record. His evidence is also on the

similar line that when they reached at the locality of Khel

Deshpande, after crossing Vidrupa river, the mob of 100-

125 people attacked them and they have sustained

injuries and the villagers have also sustained injuries.

47. PW16 Subhash Punjabrao Kukde is another

injured eyewitness. His evidence also corroborates the

narration of PW9 Gopal Mahadeo Patharkar; PW13

.....57/-

Judgment

494 apeal42.02

Bhaskar Mahadeo Raut; and PW14 Anil Wasudeo

Dabadghave. In the said incident, he has also sustained

injuries. His injury certificate is at Exh.373. All the

injuries caused by blunt object are within six hours.

48. PW17 Harischandra Janrao Nerkar is another

injured eyewitness. His evidence is also on the similar

line that they were assaulted by the mob of 100-125

people when they were proceeding towards the spot of

the function. In the said incident, he has also sustained

injuries. His injury certificate is at Exh.387. The injury

sustained by him is contusion on back over lumber region

6 cm x 3 cm. The injury might have been caused by hard

and blunt object within six hours.

49. PW18 Vinayak Mahadeo Bhise is also one of

injured eyewitnesses who has also narrated in what

.....58/-

Judgment

494 apeal42.02

manner the alleged incident has occurred and how he

sustained injuries. His injury certificate is at Exh.386.

50. PW19 Madhukar Gangaram Metkar is another

eyewitness who has also sustained injury in the said

incident. His medical certificate is at Exh.372. As per the

medical officer PW48, the injuries might have been

caused by hard and blunt object caused within six hours.

51. PW20 is Laxman Vishvanath Gawande whose

medical certificate is at Exh.378.

52. PW21 Ganesh Kashinath Nerkar also narrated

about the incident who is also another eyewitness. His

injury certificate is at Exh.374. The injuries might have

been caused by sharp object within six hours and would

be healed within 15-21 days and he was referred to

General Hospital at Akola for further treatment.

.....59/-

Judgment

494 apeal42.02

53. PW22 Prabhakar Nathuji Randhe is also

another injured eyewitness. As far as his evidence is

concerned, the same is on the similar line. His medical

certificate is at Exh.371. All the injuries were bleeding

profusely.

54. PW35 Nandkishor Mahadeo Bhagat is another

eyewitness who has also sustained the injuries in the said

incident and his evidence discloses the manner in which

the alleged incident has taken place. His medical

certificate is at Exh.381. This witness has also identified

respondent No.17 Sk.Nabi Sk.Supadu, respondent No.9

Rafikhan Meheboobkhan, respondent No.3 Sk.Mehboob

Sk.Nabi, respondent No.22 Sk.Ajij Sk.Hanif who is now

dead.

55. Besides the evidence of these injured

eyewitnesses, the prosecution further placed reliance on

.....60/-

Judgment

494 apeal42.02

the evidence of PW46 Gangadhar Dhore who was also

present at the spot of the incident and witnessed the

incident. He has also lodged the report about the said

incident. His evidence is also on the similar line of the

injured eyewitnesses. During the evidence, he has

identified respondent No.1 Ab.Ajij Sk.Mehboob,

respondent No.9 Rafikhan Meheboobkhan, and

respondent No.10 Sk.Tayab Sk.Munaf. These three

accused persons were arrested on the spot of the incident

itself by the police during the riot. The evidence of PW46

Gangadhar Dhore further discloses that regarding the

incident, he has lodged the FIR which was reduced into

writing by the police.

56. Coming to the aspect of defence of the accused

persons, as far as the evidence regarding the incident and

injuries sustained by these witnesses are concerned,

admittedly, it is not shattered during the cross

.....61/-

Judgment

494 apeal42.02

examination. The tenure of the cross examination was

regarding the identification of the accused persons before

the court. Some omissions are also brought on record,

which are trivial in nature.

57. Though PW9 Gopal Mahadeo Patharkar was

cross examined, nothing incriminating is brought on

record as far as his cross examination is concerned.

As observed earlier, the evidence of PW1

Baburao Shyamrao Kharapkar, as far as second incident is

concerned, which is not shattered during the cross

examination.

58. Though PW4 Gajanan Shaligram Mahore

admitted during the cross examination that he was

frightened and, therefore, he went to his house, the fact

that he witnessed the incident remained intact. As far as

identification of the accused persons are concerned,

.....62/-

Judgment

494 apeal42.02

admittedly, the evidence of this witness is recorded after

12 years of the incident. It also came in his evidence that

he disclosed to the police that if the assailants are

brought before him, he can identify the said persons.

59. Thus, though extensive cross examination is

conducted, as far as the incident and the injuries

sustained by the injured eyewitnesses are concerned, it is

not shattered during the cross examination.

60. Similarly, the evidence of PW5 Rameshwar

Atmaram Belorkar is concerned, who has also witnessed

the incident. He has identified some of the accused

persons. His cross examination shows that after

witnessing the incident, he went to his house. The

distance between his house and the spot of the function is

of five minutes. He further admitted that he did not

notice any policemen at the spot of the incident. He has

.....63/-

Judgment

494 apeal42.02

also admitted that no policemen arrived at the spot of the

incident in his presence. Thus, an attempt was made to

show that no police persons were present when the

alleged incident has taken place.

61. PW8 Nagorao Sadashio Avatade is also one of

eyewitnesses who came from Pathardi to attend the

function. His cross examination shows that there is direct

route from Pathardi to Khel Deshpande locality. The

distance between two villages is about 6-7 kilometers. As

far as witnessing the incident is concerned, his evidence

remained unshattered.

62. PW13 Bhaskar Mahadeo Raut is another

injured eyewitness. His evidence is mainly to challenge

identification by him. He admitted that at the time of the

identification, the persons to whom he has identified

were not present in the court, however he specifically

.....64/-

Judgment

494 apeal42.02

denied that for the first time he has identified the persons

in the court. Rest of the cross examination is general in

nature as to the geography of the spot of the incident.

63. PW14 Anil Wasudeo Dabadghave is also

injured eyewitness whose cross examination shows that

when the mob was at a distance of 50 feet, the driver of

the tractor shouted and ran away from the spot. There

were 35-40 persons in the trolly of the tractor. His cross

examination further shows that as soon as the driver

shouted, they attempted to jump down from the trolly.

He has also admitted during the identification parade, he

has identified some persons who were not present before

the court.

64. PW15 Rambhau Gopalrao Bahakar, the driver

of the tractor, also stated during the cross examination

that by sitting the trolly the inmates cannot see outside.

.....65/-

Judgment

494 apeal42.02

The mob was seen by him at a distance of 100 feet from

the tractor. After seeing the said mob, he stopped the

tractor and shouted towards inmates in the trolly for

giving them signal and then he ran from the spot.

65. PW16 is Subhash Punjabrao Kukde. His entire

cross examination is as to the identification of the

accused persons and some omissions and contradictions

are brought on record. As to the identification, he stated

that he does not remember date of occurrence of the

incident. He was called by the police for identification of

the accused persons.

66. PW17 Harischandra Janrao Nerkar is one of

eyewitnesses. He also stated that he was called for

identification parade. His cross examination further

shows that before occurrence of the incident, persons

who assaulted were not known to him. Thus, from the

.....66/-

Judgment

494 apeal42.02

cross examination, the identification by him before the

court was questioned.

67. The evidence of PW18 Vinayak Mahadeo Bhise

shows that after occurrence of the incident, he had

occasioned to go to village Panchagavan. He used to to

Panchagavan by interval of 4-6 months. After occurrence

of the incident, he had been to Panchagavan on 9.6.1988.

He has also admitted that he could not identify the

persons in the incident.

68. PW19 Madhukar Gangaram Metkar, has also

sustained injuries in the said incident. His cross

examination is in the denial form.

69. PW20 Laxman Vishvanath Gawande stated

that for the first time, he narrated the incident on

14.6.1988. He admitted that during the identification

parade he did not identify anybody. None of the persons

.....67/-

Judgment

494 apeal42.02

in mob are known to him by their faces. Before

conducting the identification parade, no photograph was

shown to him by the police.

70. PW21 Ganesh Kashinath Nerkar stated about

the incident, but he denied the contention that there was

darkness at the time of the incident due to sunset.

71. PW22 Prabhakar Nathuji Randhe stated

during the cross examination that the said incident was

over within five minutes and the assailants fled away.

Before occurrence of the incident, he has not seen the

assailants at the time of identification. The persons

identified were not present before the court, but he

denied that first time he has identified the persons.

72. PW23 Motiram Zaparde, who was sent by

PW1 Baburao Shyamrao Kharapkar to escort the villagers

to reach at the spot of the function, is also cross

.....68/-

Judgment

494 apeal42.02

examined, who stated that on 7.6.1988 for the first time

he disclosed the incident to the police. Some omissions

are also brought on record during his cross examination.

73. The evidence of PW35 Nandkishor Mahadeo

Bhagat, one of injured eyewitnesses, shows that when he

regained consciousness, he was in the hospital. The

police recorded his statement on 14.6.1988. He had told

to the police that he can identify persons by their faces

who assaulted him. He has taken to the Central Jail for

identification of those persons. He identified about 17

accused persons in the court. He further stated that the

spot of assault is at a distance of 50-60 feet from the river

bank and after arrival of those persons towards them,

immediately they started assaulting them. The incident

of beating was going on for 10-15 minutes.

.....69/-

Judgment

494 apeal42.02

74. PW46 Gangadhar Dhore is informant

regarding the alleged incident. His cross examination

shows that an attempt was made to show that he is not

knowing any persons from the village Panchagavan as he

never visited the said village to give physical education.

As to the incident, though he is cross examined, nothing

is brought on record to shatter his evidence.

75. Thus, after going through the evidence of these

witnesses as to the incident is concerned, PW1 Baburao

Shyamrao Kharapkar, PW4 Gajanan Shaligram Mahore,

PW5 Rameshwar Atmaram Belorkar, and PW8 Nagorao

Sadashio Avatade are the eyewitnesses. Whereas, PW9

Gopal Mahadeo Patharkar; PW13 Bhaskar Mahadeo Raut;

PW14 Anil Wasudeo Dabadghave; PW15 Rambhau

Gopalrao Bahakar, PW16 Subhash Punjabrao Kukde;

PW17 Harischandra Janrao Nerkar; and PW18 Vinayak

Mahadeo Bhise; PW19 Madhukar Gangaram Metkar;

.....70/-

Judgment

494 apeal42.02

PW20 Laxman Vishvanath Gawande; PW21 Ganesh

Kashinath Nerkar; and PW22 Prabhakar Nathuji Randhe

are injured eyewitnesses. Their evidence consistently

shows that they are from village Pathardi. They came to

attend the function of inauguration of "Shiv-Sena" branch

and when they were proceeding towards the spot of the

function, a mob of 100-125 persons attacked them and

assaulted and in the said incident, they sustained injuries.

As far as identification of the accused persons is

concerned, several witnesses have identified respondent

No.1 Ab.Ajij Sk.Mehboob, respondent No.9 Rafikhan

Meheboobkhan, and respondent No.10 Sk.Tayab

Sk.Munaf. These accused persons were also arrested by

the police at the spot of the incident during riot along

with weapons in their hands.

76. Coming to the last incident took place at Ner

Dhamna Road, the prosecution examined PW1 Baburao

.....71/-

Judgment

494 apeal42.02

Shyamrao Kharapkar; PW2 Devidas Motiram Rothe; PW3

Dyandev Tulshiram Mahore; PW36 Balwan Pandharinath

Dinkar, and PW44 Mohan Govind Bhambhere, who are

eyewitnesses, and PW51 Jaggu Singh Iswar Singh

Thakur, who was working as Writer of the PSI Kulkarni at

the relevant time.

77. As far as third incident is concerned, the

evidence of PW1 Baburao Shyamrao Kharapkar is to the

extent that when he was at the spot in the vicinity of Khel

Deshpande Road, he came to know that at Ner Dhamna

Road also, the villagers were assaulted by some persons.

Thus, the evidence of this witness is concerned, it is only

to the extent that he received information that at Ner

Dhamna Road, when some of the villagers were coming

in bullock cart, they were also assaulted by the mob.

.....72/-

Judgment

494 apeal42.02

78. The evidence of PW2 Devidas Motiram Rothe

shows that on 5.6.1988, i.e. on the day of the incident,

function of formation of "Shiv-Sena" branch was to be

held in the village. The said programme was arranged

near Hanuman Temple at Narshipur. The arrangement

for the said programme was made. PW1 Baburao

Shyamrao Kharapkar has sent him to Ner Dhamna Road

to lead the persons coming for attending the function and

to bring them to the spot. Then, he went to Ner Road

and was waiting for the persons coming to attend the

said function. At that time, one bullock-cart was coming

towards village Panchagavan and 5-6 persons were

travelling in the said bullock-cart. When the said bullock-

cart was coming from Ner Dhamna Road towards

Panchagavan, some persons coming from the side of Khel

Deshpande locality, 60-70 persons holding weapons in

their hands like sticks, spear, axes, and iron pipes

.....73/-

Judgment

494 apeal42.02

assaulted the persons who were in the bullock-cart. After

witnessing the incident, he fled away and went to the

field of Kumbhar wherein thorny bushes were there. He

concealed himself and witnessed the incident. Due to the

assault, some persons from the bullock-cart fell down and

some of them fled away. He has identified some of the

persons who assaulted the villagers travelling in the

bullock-cart. He has identified accused respondent No.1

Ab.Ajij Sk.Mehboob and another accused Abdul Khudus,

Hamid, Jamir Data, Tamij Patel, Ansarbeg, Matinbeg,

Sadashio Wankhade, Bashir, Nasir, Jamir Patel, Bajirao

Wankhade, Ramesh Wankhade, Dadarao Wankhade,

Ahmad Khan Subhan Khan, Pundlik Wankhade, and Baba

Patel. His evidence shows that the assault on the persons

who were travelling in the bullock-cart took place at

about 6:30 to 7:00 pm. His cross examination shows that

when he was waiting there, his saw persons of mob firstly

.....74/-

Judgment

494 apeal42.02

at a distance of 100 feet. He further admitted that sunset

has been taken place. The persons from the mob who

were approaching to the bullock-cart by running towards

the bullock-cart. He also admitted that he fled away and

was hiding himself at a distance of 15-20 feet from the

spot of the incident. He denied that on arrival of the said

bullock-cart, it was surrounded by those persons of the

mob. He also denied that a police jeep arrived at the

spot. He admitted that the persons of mob ran away

from the spot at the same direction by which they came.

79. PW3 Dyandev Tulshiram Mahore is another

eyewitness whose evidence is on the similar line as PW2

Devidas Motiram Rothe that the mob of 70-80 persons

assaulted the persons who came in the bullock-cart and

they were giving slogans. He has also identified some of

the accused, but his chief examination further shows that

the incident occurred prior to last 12 years and,

.....75/-

Judgment

494 apeal42.02

therefore, he is unable to identify the persons of that mob

by faces. During his cross examination, he admitted that

PW1 Baburao Shyamrao Kharapkar, PW7 Mangesh

Deshmukh, and PW24 Prashant Purushottam Mahajan

are known to him. He has also admitted that a case was

also filed by some villagers for beating to the police in the

same night. He further admitted that there were number

of houses near the house of Sk.Mehmoob Daula Kasai.

He was charged for the offence under Section 392 of the

IPC.

80. Thus, by the cross examination, an attempt

was made to impeach his creditworthiness of the witness.

81. PW36 Balwan Pandharinath Dinkar is also

eyewitness to the third incident which took place at Ner

Dhamna Road. His evidence shows that he is resident of

Ner Dhamna and they have decided to go to Panchagavan

.....76/-

Judgment

494 apeal42.02

to attend the function and, therefore, they were

proceeding in bullock-cart. The distance between villages

Dhamna and Panchagavan is of 6-7 kilometers. When

they reached at the spot known as Dasra Chowk which is

joint road of Khel Deshpande rod and Narshipur road, at

the relevant time, 40-50 Muslim persons arrived there

and assaulted by sticks, axes, spears, and swords. They

surrounded and assaulted them. He has sustained

injuries on his back due to the assault by stick. He fled

away from the spot. He has identified some of the

accused persons before the court which are Gowardhan

Shivram Gawarguru, Sk.Tayyab Sk.Munaf, Sk.Rauf

Sk.Kadir, Shafioolakha Ibrahimkha, Sk.Rahis Sk.Mustafa,

Ab.Mohasin Ab.Kadir, Sharafatoolakha Jabiollakhan and

Matinbeg Mujafarbeg. However, during the cross

examination he admitted that he is unable to identify the

said persons before the court. He has also explained that

.....77/-

Judgment

494 apeal42.02

as the faces of those persons are changed, he is unable to

identify them. Thus, as far as his evidence regarding to

the incident is concerned, it is not shattered, but the

evidence as to the identification of the accused persons is

shattered during the cross examination as he has

specifically admitted he is unable to identify the persons

who were assailants due to the lapse of time.

82. PW44 Mohan Govindrao Bhambere is another

eyewitness to the incident which took place at Ner

Dhamna Road. His evidence is also on the similar line

that when they reached near slum in village

Panchagavan, they were attacked by 40-50 persons by

weapons. He has narrated the names of two persons who

were assailants. His cross examination shows that his

statement was recorded by the police and some omissions

are brought on record to the extent that has narrated

.....78/-

Judgment

494 apeal42.02

before the police that Shriram Bhambere was assaulted

with spear which is appearing in his statement.

83. Thus, the evidence of PW36 Balwan

Pandharinath Dinkar and PW44 Mohan Govindrao

Bhambere shows that in the incident took place at Ner

Dhamna Road, Shriram Bhambere sustained the grievous

injuries and succumbed to the injuries.

84. PW51 Jaggu Singh Iswar Singh Thakur, who is

police constable working as Writer of PSI Kulkarni, has

narrated about the two incidents which took place at

Khel Deshpande Road as well as at Ner Dhamna Road.

His evidence, regarding Ner Dhamna Road, is concerned,

shows that along with PSI Kulkarni he visited the said

spot. Various house search panchanamas are also drawn

in his presence and the weapons are recovered from the

houses of various accused persons. As far as his cross

.....79/-

Judgment

494 apeal42.02

examination is concerned, his evidence is not shattered as

to the incident at Ner Dhamna Road. His cross

examination is on procedural aspect as to whether he has

made an entry in the station diary before leaving the

police station, but as far as the incident is concerned, his

evidence remained unshattered to the extent that initially

he visited in the locality of Khel Deshpande where

respondent No.1 Ab.Ajij Sk.Mehboob, respondent No.9

Rafikhan Meheboobkhan, and respondent No.10

Sk.Tayab Sk.Munaf are arrested along with weapons in

their hands.

85. The cross examination of PW2 Devidas

Motiram Rothe and PW3 Dyandev Tulshiram Mahore is

concerned, the same shows that a police jeep arrived at

the spot in their presence. They also admitted that they

identified the accused persons before the court, but their

full names are not known to them. PW2 is the person

.....80/-

Judgment

494 apeal42.02

who was deputed by PW1 Baburao Shyamrao Kharapkar

at Ner Dhamna Road to escort the villagers to bring them

at the spot of the incident. His cross examination shows

that when he was waiting, nobody else has passed in his

presence. The cross examination confirms that the

persons of that mob were coming by running towards

them. He ran away from the same place as he was

scared. The cross examination further shows that as soon

as the bullock-cart came on the spot, the persons from

the mob assaulted them. Thus, the cross examination of

this witness also shows persons coming in the bullock-

cart were assaulted by the mob.

86. The evidence of PW3 Dyandev Tulshiram

Mahore regarding the incident is consistent with PW2

Devidas Motiram Rothe. As far as his cross examination

is concerned, nothing is brought on record to show that

his evidence is not creditworthy.

.....81/-

Judgment

494 apeal42.02

87. Besides the oral evidence, of these witnesses as

to the incident, as the prosecution has come with a case

that the alleged incident has taken place on 5.6.1988 and

in 22 persons are injured in all three incidents, the

evidence of injured witnesses is already discussed while

the incident No.2 which took place in the vicinity of Khel

Deshpande. Undisputedly, four persons lost their lives in

the said incident.

88. To prove the injury certificates of injured

persons, the prosecution has examined PW48 Dr.Sattadeo

Raut who is medical officer who examined who are

referred by the police for their medical examination. The

evidence of the said witness shows on 5.6.1988, he was

medical officer at Rural Hospital, Telhara. On that day,

injured from Telhara Police Station was brought to him

by the police. One of injured Amrutrao Bahekar was

examined by him who has sustained contusion on left

.....82/-

Judgment

494 apeal42.02

shoulder 6 cm x 2 cm and contusion of left side of chest 3

cm x 2 cm. The injuries were caused by blunt and hard

substance. He issued medical certificate Exh.370. He

examined PW9 Gopal Mahadeo Patharkar who has

sustained lacerated injury on top of head 6 cm x 2 cm

bone deep having excessive bleeding from the injury. He

referred the said patient to the General Hospital and the

injury might have been caused by blunt and hard

substance like stick. He also examined PW22 Prabhakar

Nathuji Randhe who has sustained in all five injuries (i)

lacerated injury on top of head 10 cm x 3 cm bone deep;

(ii) lacerated injury on back of head 3 cm x 2 cm bone

deep; (iii) lacerated injury on right eyebrow 3 cm x 2 cm

x 1 cm, (iv) lacerated injury on left side above 3 cm of

left ear, 6 cm x 2 cm x 2 cm; and (v) lacerated injury on

forehead 3 cm x 2 cm x 1 cm. All the injuries were with

profused bleeding. The pulse of the patient was low. He

.....83/-

Judgment

494 apeal42.02

has issued medical certificate Exh.371. The said patient

was referred by him after treatment to the Government

Hospital.

PW48 Dr.Sattadeo Raut has also examined

PW19 Madhukar Gangaram Metkar who has sustained

three injuries (i) lacerated injury on top of head 6 cm x 3

cm bone deep with excessive bleeding; (ii) contusion of

left side of forehead 3 cm x 3 cm, and (iii) contusion on

right shoulder 3 cm x 1 cm. All the injuries might have

been caused by hard and blunt object. The said patient

was referred to the General Hospital. The medical

certificate is at Exh.372.

As per evidence of PW48 Medical Officer,

PW16 Subhash Punjabrao Kukde who has sustained two

injuries i.e. contusion of left eyebrow 3 cm x 2 cm and

left eye was black and contusion on back of head 3 cm x

.....84/-

Judgment

494 apeal42.02

3 cm. Both the injuries might have been caused by hard

and blunt object. Accordingly, he issued medical

certificate Exh.373.

PW21 Ganesh Kashinath Nerkar has sustained

injuries namely incised penetrating injury on right arm,

anterior 3 cm x 2 cm and incised injury on tip of middle

of forehead 2 cm x 0.5 cm. Both the injuries might have

been caused by sharp object. The patient was referred to

the General Hospital. His medical certificate is at

Exh.374. He has also opined that both the injuries

sustained by the said patient can be caused by spear.

Ramlal Haridas Pandav is also examined who

has sustained contusion of back of head 5 cm x 3 cm and

contusion on back of right scapula 6 cm x 3 cm. Both the

injuries might have been caused by substance like hard

.....85/-

Judgment

494 apeal42.02

and blunt substance like stick. The medical certificate is

at Exh.375.

Jagannath Ramchandra Bhise is examined who

has sustained contusion on forehead left 3 cm x 3 cm,

contusion of dorsal side of right arm 2 cm x 6 cm. The

medical certificate is at Exh.376. The injuries might have

been caused by hard and blunt substance like stick.

Namdev Yewarkar is examined and the doctor

found injuries on his person; contusion on right elbow 3

cm x 2 cm, contusion of right side of back 6 cm x 3 cm.

The injuries might have been caused by blunt and hard

substance. His medical certificate is at Exh.377.

PW20 Laxman Vishvanath Gawande is

examined on whose person the doctor witnessed

contusion on left arm 4 cm x 4 cm. The medical

certificate is at Exh.378.

.....86/-

Judgment

494 apeal42.02

Patient by name Suresh Awatade is examined

vide Exh.379. On his person, he witnessed lacerated

injury on forehead 6 cm x 2 cm bone deep. There was

excessive bleeding and contusion on nose 2 cm x 1 cm.

The medical certificate is at Exh.379.

Patient by name Vishwanath Gangaram Metkar

is examined and lacerated injury on right elbow 2 cm x 2

cm x 1 cm and incised injury on right arm above right

elbow 3 cm x 1 cm with excessive bleeding are found on

his person. The injury might have been caused by hard

and blunt object and injury No.2 by sharp object. His

medical certificate is at Exh.380.

PW35 Nandkishor Mahadeo Bhagat is

examined and on his person the doctor has found incised

penetrating injury on top of head 4 cm x 2 cm x 1 cm

with excessive bleeding and incised penetrating injury on

.....87/-

Judgment

494 apeal42.02

right arm 4 cm x 1 cm x 1 cm, incised injury on right

buttock 3 cm x 4 cm x 3 cm with excessive bleeding. The

injuries might have been caused by sharp object like

spear. His medical certificate is at Exh.381.

The doctor examined Pralhad Vitthal Akhare

and Ramesh Shende whose medical certificates are at

Exh.382 and 383. They are not examined as prosecution

witnesses.

PW14 Anil Wasudeo Dabadghave is examined

by the doctor and on his person lacerated injuries on

right side forehead 3 cm x 2 cm x 0.5 cm, and contusion

on left arm 3 cm x 3 cm and contusion on back over

lumber region 6 cm x 3 m are found. All the injuries

might have been caused by hard and blunt object like

stick. His medical certificate is at Exh.384.

.....88/-

Judgment

494 apeal42.02

The medical officer examined PW13 Bhaskar

Mahadeo Raut on his person lacerated injury on right

side of head 2 cm x 0.5 cm x 0.5 cm and contusion back

over right scapula 6 cm x 3 cm were found. Injuries

might have been caused by blunt and hard substance like

stick. His medical certificate is at Exh.385.

Injured Vinayak Uike on whose person the

Medical Officer found contusion on back over lumber

region 6 cm x 3 cm is found. The injury might have been

caused by hard and blunt object like stick. His medical

certificate is at Exh.386.

On examination, PW17 Harischandra Janrao

Nerkar on his person contusion back over lumber region

6 cm x 3 cm is found. The injury might have been caused

by blunt and hard substance like stick. His medical

certificate is at Exh.387.

.....89/-

Judgment

494 apeal42.02

On examination of injured Baliram Shaligram

Ghongare and on his person contusion on left elbow 6 cm

x 4 cm with abrasion of 2 cm x 2 cm was found. The

injury might have been caused by hard and blunt object.

His medical certificate is at Exh.388. Said Baliram is also

not examined as prosecution witness.

On examination of Vijay Mhasal, on whose

person lacerated injury on left side of head 3 cm above

left ear 3 cm x 1 cm x 0.5 was found, who is also not

examined as a prosecution witness. His medical

certificate is at Exh.389.

89. PW48 Dr.Sattadeo Raut shows that he has also

examined Shriram Gavande on whose person he found

huge bleeding with huge laceration on back of head 10

cm x 10 cm x 6 cm. The patient was totally unconscious.

The doctor referred him to the General Hospital at Akola.

.....90/-

Judgment

494 apeal42.02

He issued medical certificate Exh.390. The injuries might

have been caused by blunt and hard object like iron bar.

His evidence further shows that injuries found on all

these persons are by sticks, spears, and iron bars. This

witness is cross examined by learned counsel for the

accused and attempted to show that the injuries like

contusions and lacerations are simple injuries, which is

admitted by the witness. He also admitted that he has

not mentioned edges of injuries in the medical

certificates. His cross examination shows that he

examined each and every injured personally. He also

admitted that he did not ask any history to the patients.

90. Thus, as far as injuries on the person of these

injured are concerned, the same remained unshattered.

91. Another Medical officer is PW12 Prakash

Laxmanrao Joshi examined vide Exh.224, who has

.....91/-

Judgment

494 apeal42.02

conducted the postmortem on deceased Sk.Gaffar

Sk.Nazir. As per his evidence, on 20.6.1988, the dead

body of the said deceased was referred to him. On

conducting the postmortem, he found sutured and healed

wound about 5 cm on the persons of the deceased and

death of the deceased is caused due to celebral vascular

with consolidation of lungs. Thus, as far as death of the

deceased Sk.Gaffar is concerned, which is not homicidal

death.

92. PW50 Dr.Ajay Keshavrao Jawarkar is examined

vide Exh.394. He is another medical officer who has

conducted the postmortem on the dead body of deceased

Avachitrao Kukde, Shriram Gavande, Digambar Kukde,

and Shriram Bhambere. His evidence shows that dead

body of Digambar Kukde was brought to the Government

Hospital at Akola. On examination the dead body, he

found oblique stabbed wound on mid auxiliary line 2 cm

.....92/-

Judgment

494 apeal42.02

x 1 cm x 4 cm deep between 4 th and 5th internal postal

space on right side of thorax. A large collection of blood

in thoraic case. There was rupture of auxiliary artery and

destruction of practical plexus. The cause of death of the

said deceased was due to shock due to bleeding in right

thoraic cage with rupture of practical vessel. These

injuries are sufficient to cause death. The said doctor

issued PM Notes which are at Exh.395.

He also conducted postmortem on the dead

body of Shriram Bhambere. On examination, he noticed

injuries on his person namely (i) abrasion 2 x 2 on

anterial part of upper 1/3rd of right leg with fracture of

both tibia and fabula; (ii) fracture on radio ulnarijoint

lower 1/3rd part of both hands; (iii) fracture of 10 th, 11th,

and 12th ribs at mid-auxillary line; (iv) lacerated wound

over right parietal bone 2 x 1 x 2 deep, and (v) above

wound No.4 and 3 above there is lacerated wound 3 x 2

.....93/-

Judgment

494 apeal42.02

oblique in direction. He also noted injuries on head

namely (i) lacerated wound over right parietal bone 2 x 1

x 2 deep and (ii) lacerated wound above injury NO.1 3 x

3 x 3 oblique in direction. On internal examination, he

found compound fracture of right parietal bone. There is

a large size of haematoma with ¼th liter of blood between

meninges and skull volt. On examination of brain,, he

found lacerated below the injury and there is formation

of heamatoma 4 x 4 below the fracture bone. The cause

of death of the deceased was due to injury to cerebrum.

Cause of this fracture is of right parietal bone. Large

haematoma with profused blood of about half liter

between meninges and beneath brain matter which might

have led to shock and death. There were multiple

fractures which are contributory in precipitating the

shock. Accordingly, he issued PM Notes Exh.396. The

said injuries can be caused by blunt and hard substance

.....94/-

Judgment

494 apeal42.02

and are sufficient to cause death in the ordinary course of

nature.

He conducted postmortem examination on the

dead body of Avachitrao Kukde who was referred to him.

On examination, he noticed the injuries on his person

namely (i) stab wound in right infra clavicular region 3 x

1 x 3 oblique; (ii) stab wound below left nipple between

7th and 8th inter costal space; and (iii) cut wound in mid-

lines transverse in direction below 2 of sternum - 3 long,

1/4th breadth and 1 cm deep. Thorax was found

ruptured of right lung in upper lobe with massive

haemorrhage with thorax cavity. He also observed

bleeding peritorial cavity - massive bleeding in

abdominal cavity about half luter clotted blood in rupture

of spleen with haemorrhage about half liter each in

abdominal cavities. The cause of death of the deceased

was shock due to massive haemorrhage, due to rupture of

.....95/-

Judgment

494 apeal42.02

spleen and lung tissues due to stabbing. Accordingly, he

issued PM Notes Exh.397. The injuries sustained by him

were sufficient in the ordinary course of nature to cause

death. The said injuries can be caused by stabbing by

pointed object like spear, knife etc..

He also performed postmortem examination of

the dead body of Shriram Gavande. On examination, he

found injuries on his person namely vene section wounds

above right medial mallelous and lacerated wound over

right parietal bone 2 x 2 x 4. He found large size

haematoma on both right side 4 x 4 and left side 2 x 2

over the junction of frontal and parietal bones.

Compound fracture of frontal bone on right side with

haematoma 2 x 2 inches - compound fracture of parietal

bone on right side 1½ by 1½. Fracture of parietal bone

on right side with haematoma 2 x 2 inches on left side.

He also noted injury to meninges and brain matter under right

.....96/-

Judgment

494 apeal42.02

side of wound with heamatoma format of 3 x 3 inches

large size haematoma 3 x 3 inches under left side of

fracture between meninges and brain matter. The cause

of death of the deceased is head injury. There are

multiple compound fractures of parietal and frontal

bones with formation of multiple haematoma with half

liter of clotted blood and abrasion to meninges and brain

matter. Accordingly, he issued PM Report Exh.398. He

noted that these injuries are sufficient in the ordinary

course of nature to cause death by blunt and hard object

like sticks, axe, and pipe etc.

93. As the evidence of these medical witnesses is

not challenged by the defence, it remained unchallenged.

Thus, the prosecution has established that the death of

deceased Avachitrao Kukde, Shriram Gavande, Digambar

Kukde, and Shriram Bhambere is caused due to the

injuries sustained by them. The oral evidence shows that

.....97/-

Judgment

494 apeal42.02

Avachitrao Kukde, Shriram Gavande, and Digambar

Kukde have sustained the injuries in the second incident

took place at Khel Deshpande when they were proceeding

in a tractor and resulted into their death. Regarding the

incident, the oral evidence further shows that respondent

No.1 Ab.Ajij Sk.Mehboob, respondent No.9 Rafikhan

Meheboobkhan, and respondent No.10 Sk.Tayab

Sk.Munaf were arrested on the spot at the locality of

Khel Deshpande along with weapons in their hands. As

far as death of Shriram Bhambere is concerned, which

took place during third incident occurred at Ner Dhamna

Road. The evidence of witnesses also shows that

involvement of respondent No.10 Sk.Tayab Sk.Munaf

reveals from the evidence of PW3 Dyandev Tulshiram

Mahore and PW36 Balwan Pandharinath Dinkar. Thus, it

is not in dispute that the death of these four persons is

homicidal death due to the assault by the mob.

.....98/-

Judgment

494 apeal42.02

94. Another piece of evidence on which the

prosecution relied upon is, the evidence of various

pancha witnesses. PW1 Baburao Shyamrao Kharapkar

has acted as a pancha on seizure of stick from respondent

No.1 Ab.Ajij Sk.Mehboob. The panchanama is at

Exh.195. He also acted as a pancha on seizure of stick

from respondent No.10 Sk.Tayab Sk.Munaf and pancha

on seizure of stick from respondent No.9 Rafikhan

Meheboobkhan. The panchanamas are Exhs.196 and 197

respectively. He has also acted as a pancha on the spot of

the incident took place in the midst of Khel Deshpande

and Narshipur and also pancha on inquest panchanamas

on the dead bodies of deceased Avachitrao Kukde,

Shriram Gavande, Digambar Kukde, and Shriram

Bhambere. The evidence of PW1 Baburao Shyamrao

Kharapkar as to the panchanamas is concerned, it shows

that the mob from Khel Deshpande Road proceeded

.....99/-

Judgment

494 apeal42.02

towards Ner Dhamna Road. In the meantime, the police

came in jeep from Khel Deshpande. Three accused

persons respondent No.1 Ab.Ajij Sk.Mehboob; respondent

No.10 Sk.Tayab Sk.Munaf, and respondent No.9 Rafikhan

Meheboobkhan were arrested by the police. His evidence

shows that the police have seized spears and two sticks

from these three persons who were arrested by the police.

The police seized spear from respondent No.1 Ab.Ajij

Sk.Mehboob by drawing seizure memo. The spear was

stained with blood. The seizure memo is at Exh.195.

Similarly, the police seized stick from respondent No.10

Sk.Tayab Sk.Munaf and stick from respondent No.9

Rafikhan Meheboobkhan. The seizure memos are at

Exhs.196 and 197. Before the court, he could not

identify the spear as it was not found in muddemal. He

has also not identified the sticks. As far as the cross

examination on the aspect of the seizure of the weapons

.....100/-

Judgment

494 apeal42.02

is concerned, except denial, nothing is brought on record.

He admitted during the cross examination that the police

told him that when three persons were seen by them in

the custody of the police, one of them was having spear

and two were having sticks in their hands. Except this

cross examination, nothing is brought on record. The

evidence of PW1 Baburao Shyamrao Kharapkar also

shows that he acted as a pancha on spot panchanama.

From the spot, the police collected blood stained soil and

simple soil. One blade of knife was also recovered from

the spot. This evidence remained unchallenged.

95. PW40 Mahadev Isaji Khade has acted as a

pancha on memorandum statement of accused Mobin

Sk., which is at Exh.327 and recovery panchanama is at

Exh.328, who is not respondent in the present appeal.

.....101/-

Judgment

494 apeal42.02

96. The last set of evidence adduced by the

prosecution is the evidence of police witnesses. The

prosecution has examined PW47 Shashikant Sakharkar

who acted as carrier. PW49 Shankar Rane examined

Exh.391 who was incharge of Police outpost Panchagavan

and has witnessed that the mob coming near the spot of

the function. PW51 Jaggu Singh Iswar Singh Thakur

was writer of PSI Kulkarni and his evidence is on the

aspect that three persons were arrested at the spot where

the second incident of assault took place as well as stated

about seizure of the weapons at the instance of

respondent No.1 Ab.Ajij Sk.Mehboob, respondent No.9

Rafikhan Meheboobkhan, and respondent No.10

Sk.Tayab Sk.Munaf. He has also stated as to the various

house search panchanamas and seizure of the weapons.

PW52 Dyandev Omkar Pinjarkar investigating officer is

examined vide Exh.408, PW53 Rupchand Ratan

.....102/-

Judgment

494 apeal42.02

Chhagalani investigating officer is examined vide

Exh.410, and PW54 Mohan Rathod investigating officer

is examined vide Exh.412.

97. As far as the evidence of PW47 Shashikant

Sakharkar is concerned, his evidence is to the extent that

has carried muddemal and clothes for Chemical

Analyzer's Analysis, forwarding letter is at Exh.365. As

far as his cross examination is concerned, only admission

is that the said muddemal was not seized in his presence.

Except that, nothing is brought on record.

98. The evidence of PW49 Shankar Rane is already

referred while discussing the evidence as to the first

incident. Sum and substance of his evidence is that he

was Incharge of police outpost at Panchagavan. He was

also present at the meeting held by PSI Kulkarni with the

villagers belong to various communities and villagers

.....103/-

Judgment

494 apeal42.02

were informed as to the inauguration function of "Shiv-

Sena" and asked them to keep peace. As to the first

incident, his evidence is to the extent that when he was

on duty near the spot of the incident, a mob of 100-125

people came holding weapons in their hands and giving

slogans. On giving understanding to them, they left the

place. His evidence further shows that respondent No.1

Ab.Ajij Sk.Mehboob was present in the meeting as he

noted his presence in the mob came near the spot of the

incident. Thus, he has stated about involvement of

respondent No.1 Ab.Ajij Sk.Mehboob in the mob who

came along with weapons at the spot of the incident. His

cross examination is on the point that he has not taken

any preventive action though he apprehends that there

was likelihood of breach of peace. He has also denied

that persons from different communities came at the spot

as audiences and he arrested them on the spot. Thus, an

.....104/-

Judgment

494 apeal42.02

attempt was made to show that the mob came at the spot

of the incident as audiences, which is denied by PW49

Shankar Rane.

99. PW51 Jaggu Singh Iswar Singh Thakur, who at

the relevant time, was serving as Writer of PSI Kulkarni.

His evidence is to the extent that on the day of the

incident i.e. 5.6.1988, he accompanied PSI Kulkarni at

Panchagavan. Before reaching Panchagavan, they halted

at Khel Deshpande locality and from Khel Deshpande

locality proceeded towards Narshipur whereat they saw

that persons in tractor were assaulted. They arrested

three persons from the said mob and seized one spear

and two sticks from them. Panchanamas Exhs.195-197

were drawn in his presence. The weapon like spear was

seized from respondent No.1 Ab.Ajij Sk.Mehboob, sticks

were seized from respondent No.9 Rafikhan

Meheboobkhan and respondent No.10 Sk.Tayab

.....105/-

Judgment

494 apeal42.02

Sk.Munaf. He further testified that injured were taken to

the hospital and attempt was made to search assailants.

Spot panchanama was also drawn in his presence. Some

of accused persons were arrested during night hours. He

also narrated about various weapons recovered during

the house search panchanamas of various accused. Thus,

he has narrated the entire investigation which is carried

out by the investigating officers. His evidence is on the

point that whether he has made any entry in the police

station diary before leaving the police station. He

admitted that if the police station is to be left by any

police officer, he has to inform PSO. He has also

admitted that in his presence PSI Kulkarni has not

received any message from police constable Rane. Except

this cross examination, nothing incriminating is brought

on record as far as arrest of three accused persons and

seizure of weapons from them by the investigating officer.

.....106/-

Judgment

494 apeal42.02

100. PW3 Dyandev Tulshiram Mahore is also

investigating officer who has narrated about the

investigation that on 5.6.1988, PW46 Gangadhar Dhore

came to the police station and lodged the report. He has

recorded the said report. On the basis of the same, the

crime was registered. He admitted that none of the

injured was brought to Telhara Police Station.

101. PW53 Rupchand Ratan Chhagalani is another

police officer who has arrested one of absconding

accused.

102. PW54 Mohan Rathod another investigating

officer has narrated about the entire investigation carried

out by him. During his evidence, portion marks "A" and

"B" of the evidence of PW25 Sahebrao Bhagwantrao Patil

are proved, which are at Exh.414. The omissions came

on record are also put to the witness and proved. He has

.....107/-

Judgment

494 apeal42.02

also admitted that PW17 Harischandra Janrao Nerkar

has stated portion mark "A" and it was recorded as per his

narration, which is at Exh.320. As far as his cross

examination is concerned, the omissions and

contradictions are proved by the defence.

103. On the basis of the above said evidence, the

prosecution claimed that the prosecution has proved its

case beyond reasonable doubt against the accused

persons.

104. Before appreciating the evidence and entering

into the merits of the appeal, it is necessary to consider

the law regarding the appeal against acquittal.

105. It is well settled that while exercising the

appellate powers, especially while dealing with appeals

against acquittal, cardinal principle to be kept in mind is

that there is a presumption of innocence in favour of

.....108/-

Judgment

494 apeal42.02

accused, unless the accused is proved to be guilty. The

presumption continues and finally culminates into a fact

that when case ends in acquittal. The possibility of two

views in criminal cases is not an extraordinary

phenomenon while considering appeals against acquittal.

A fact cannot be lost sight of the same. The trial court

has appreciated the entire evidence and reversal of the

order of acquittal is not to be based on mere existence of

different views or mere difference of opinion. Normally,

while exercising the appellate jurisdiction, it is the duty

of the appellate court to see whether decision is correct

or incorrect on law or facts. While dealing with appeals

against acquittal, the court cannot examine impugned

judgment only to find out whether view was taken

correct or incorrect. After re-appreciating the oral and

documentary evidence, the appellate court must decide

whether trial court's view was possible view. The

.....109/-

Judgment

494 apeal42.02

appellate court cannot overturn acquittal only on the

ground that after re-appreciating the evidence, it is of

view that guilt of the accused is established beyond

reasonable doubt.

106. No doubt, an order of acquittal is open to

appeal and there is no quarrel about that. It is also

beyond doubt that in exercise of the appellate powers,

there is no inhibition of the High Court to re-appreciate

or re-visit the evidence on record. However, the powers

of this Court to re-appreciate the evidence is qualified

power especially when the order under challenge is of

acquittal. The first and foremost question to be asked is

whether the Trial Court thoroughly appreciated the

evidence on record and gave due consideration to all

material pieces of evidence. The second point for

consideration is whether the finding of the Trial Court is

illegal or affected by an error of law or fact. If not, the

.....110/-

Judgment

494 apeal42.02

third consideration is whether the view taken by the Trial

Court is a fairly possible view. A decision of acquittal is

not meant to be reversed on a mere difference of opinion.

What is required is an illegality or perversity.

107. Learned Additional Public Prosecutor for the

State place reliance on catena of decision in respect of

law regarding appeal against acquittal.

The Hon'ble Apex Court in the case of State of

UP vs. Krishna Gopal and anr supra held that the powers

of the appellate Court, in an appeal against the acquittal,

are not different from or inconsistent with those that the

appellate Court has in an appeal against a conviction.

The Hon'ble Apex Court in the case of State of

UP vs. Nahar Singh (dead) and ors supra by referring

catena of decisions it is held that the principle with

regard to interference in the appeal against acquittal

.....111/-

Judgment

494 apeal42.02

under Section 378 CrPC are well established. While

dealing with the power of the High Court to reverse an

order of acquittal on a matter of fact, Lord Russell of

Killowen, speaking for the Privy Council, in Sheo Swarup

vs. King Emperor, reported in AIR 1934 PC 227 (II), 1934

All LJ 905 observed thus:

"There is in their opinion no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower court has 'obstinately blundered', or has 'through incompetence, stupidity or perversity' reached such 'distorted conclusions as to produce a positive miscarriage of justice', or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been

.....112/-

Judgment

494 apeal42.02

tricked by the defence so as to produce a similar result.

Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his .....113/-

Judgment

494 apeal42.02

trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this however is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice."

On the similar point, he placed reliance on the

decisions in the cases of The State of MP vs. Bacchudas

alias Balaram and ors supra; State of Goa vs. Sanjay

Thakran and anr supra; and Girja Prasad (Dead) By Lrs.

v. State of M.P., reported in 2007(7) SCC 625, wherein

after considering various decisions, certain general

principles regarding powers of the appellate court in

.....114/-

Judgment

494 apeal42.02

dealing with appeal against order of acquittal are laid

down, which are as follows:

"From the above decisions, in our considered view, the following general principles regarding powers of 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 Code of Criminal Procedure, 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;

.....115/-

 Judgment

                                                     494 apeal42.02



           (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 emphasize 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 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.

.....116/-

Judgment

494 apeal42.02

Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court, and

(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."

108. Learned counsel for the accused persons has

placed reliance on the decision in the case of Mallappa

and ors vs. State of Karnataka wherein also similar

principles are laid down.

109. Coming to the judgment impugned in the

appeal, learned Judge of the trial court, while

appreciating the evidence of these witnesses, observed

that the question remains that the said assembly was

.....117/-

Judgment

494 apeal42.02

unlawful assembly in prosecution of common object. It is

further held that no doubt, individual act of each of the

accused is not stated by the prosecution, but their

testimony shows that some of the persons in the assembly

were holding weapons like sticks, spears, swords, iron

pipes etc. in their hands. An assembly of more than 5

persons holding the above said weapons and making

assault on the aforesaid persons and causing them

injuries, as discussed above, which is proved through

Medical Officer PW48 Sattadeo Raut, it leads to hold that

persons were members of unlawful assembly. Their

identification for the first time in the court certainly is the

matter of argument, but the fact of they being members

of unlawful assembly is undoubtedly proved by the

witnesses about which there may not be any doubt of

suspicion. It is further observed that, occurrence of death

due to assault in the unlawful assembly is proved through

.....118/-

Judgment

494 apeal42.02

these witnesses and the medical officer. As per the

evidence of the above said witness, three persons namely

Avachitrao Kukde, Shriram Gavande, and Digambar

Kukde were with them in the tractor and Shriram

Bhambere was with PW36 Balwan Pandharinath Dinkar,

PW44 Mohan Govind Bhambhere in the bullock-cart

whose death occurred at Ner Dhamna Road. PW50

Dr.Ajay Keshavrao Jawarkar is examined vide Exh.394

and his evidence shows that injuries sustained by these

deceased were sufficient to cause death in the ordinary

course of nature and such injuries can be caused by

weapon like spear found on the person of deceased

Digambar Kukde. It is also observed that as far as injuries

on the person of other three deceased are concerned, the

evidence of medical officer shows that they have

sustained the injuries and the injuries are sufficient to

cause death in the ordinary course of nature. The

.....119/-

Judgment

494 apeal42.02

evidence of this medical officer remained unchallenged.

Therefore, the death of deceased persons are due to

injuries sustained by them is undisputed and the evidence

of witnesses shows that at the relevant time, these

deceased persons were with them and in the same

incident assault was made on them with spears and

sticks. So, on the evidence of above 11 witnesses and the

medical officers, it is clear that death of four persons

occurred due to the injuries sustained by them in the said

incident. Another doctor's evidence already shows that

the injuries also sustained by the injured in the said

incident. Thus, the trial court held that death of the

deceased and the injuries sustained by the deceased

caused due to assault by the members of the unlawful

assembly.

110. Another point taken for consideration by the

trial court is that whether unlawful assembly and in

.....120/-

Judgment

494 apeal42.02

pursuance of common object is proved and the trial court

held that the prosecution has proved that the unlawful

assembly was formed and in pursuance of the common

object of that assembly, the villagers were assaulted and

death of four persons is caused. In initial part of the

judgment, the finding was given that the prosecution has

proved that the villagers formed an unlawful assembly

and in pursuance of the common object of that assembly,

persons came in the village to attend the function were

assaulted, but in the next part of the judgment, the trial

court observed that the prosecution failed to prove

beyond reasonable doubt the common object of the

assembly. It is further held that the prosecution failed to

prove that the members of the unlawful assembly were

holding weapons in their hands and the intention of the

said assembly is also not proved by the prosecution. The

finding of the trial court, as far as identification of the

.....121/-

Judgment

494 apeal42.02

accused persons by the witnesses, is concerned, is also

contradictory as in first part of the judgment the trial

court held that respondent No.1 Ab.Ajij Sk.Mehboob was

one of the persons of that mob. The witnesses have

identified respondent No.1 Ab.Ajij Sk.Mehboob,

respondent No.9 Rafikhan Meheboobkhan, and

respondent No.10 Sk.Tayab Sk.Munaf. The witnesses are

the residents of village Panchagavan. PW1 Baburao

Shyamrao Kharapkar was resident of village

Panchagavan. At the time of occurrence of the incident,

he was the main person from village Panchagavan for

taking part in establishing "Shiv-Sena" branch. He being

resident of the same village, he could identify all the

persons of the said mob. However, in the subsequent part

of the judgment, the trial court has discarded the

evidence as to the identification.

.....122/-

Judgment

494 apeal42.02

111. Thus, perusal of the entire judgment impugned

shows that contradictory findings are noted by the trial

court. The finding of the trial court that the persons who

are known to the witnesses is reason given by the

witnesses is that his residence Telhara is on the way of

village Panchagavan and accused persons to whom he is

identified used to go and come by the same way and,

therefore, PW24 Prashant Purushottam Mahajan knows

them by their names and faces. He could recollect them

by their faces. The observation of the trial court, as far as

the act of respondent No.1 Ab.Ajij Sk.Mehboob is

concerned, is also contradictory. The trial court observed

that respondent No.1 Ab.Ajij Sk.Mehboob and one Baba

Patel were present in the meeting. Said Baba Patel is not

accused in the matter. Respondent No.1 Ab.Ajij

Sk.Mehboob has not raised any objection for formation of

"Shiv-Sena" branch and that the meeting was over. As

.....123/-

Judgment

494 apeal42.02

respondent No.1 Ab.Ajij Sk.Mehboob was not having any

grievance about formation of "Shiv-Sena" branch in the

village, otherwise he could have protested in the meeting.

Therefore, if the evidence of PW29 Wasudev Pandhari

Arbat is taken into consideration and that Mohammedan

persons attending the meeting did not object for opening

of "Shiv-Sena" branch at that village, question arises how

the mob of unlawful assembly had gathered there to

oppose the formation of "Shiv-Sena" branch. The said

observation is made by the trial court despite the

evidence that respondent No.1 Ab.Ajij Sk.Mehboob was

arrested at the spot by the investigating agency along

with weapon in his hand.

112. While appreciating the evidence of the

prosecution witnesses regarding three incidents and the

judgment impugned and re-appreciation of the evidence

adduced by the prosecution, which is already discussed in

.....124/-

Judgment

494 apeal42.02

the earlier part of the judgment, as per the prosecution

case, the accused persons were members of the unlawful

assembly and in furtherance of common object to restrain

the villages from attending inauguration of the function,

riot was committed and in furtherance of common object,

assaulted the villagers and caused death of four persons.

113. The law regarding formation of unlawful

assembly is well settled by the various decisions of the

Hon'ble Apex Court.

114. The relevant legal provision under Section 141

of the IPC defines "unlawful assembly" which says an

assembly of five or more persons as designated an

"unlawful assembly", if the common object of the persons

composing that assembly is to commit an illegal act by

means of criminal force.

.....125/-

Judgment

494 apeal42.02

Section 148 of IPC deals with rioting armed

with deadly weapons - whoever is guilty of rioting, being

armed with a deadly weapon or with anything which,

used as a weapon of offence, is likely to cause death,

shall be punished with imprisonment of either description

for a term which may extend to three years, or with fine,

or with both.

The offence of riot is defined under Section

146 of the IPC. In view of the said definition, 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.

Section 149 of the IPC says that every member

of unlawful assembly guilty of offence committed in

prosecution of common object. If an offence is

.....126/-

Judgment

494 apeal42.02

committed by any member of an unlawful assembly in

prosecution of the common object of that assembly, or

such as the members of that assembly knew to be likely

to be committed in prosecution of that object, every

person who, at the time of the committing of that

offence, is a member of the same assembly, is guilty of

that offence.

115. Thus, if it is a case of murder under Section

302 of the IPC, each member of the unlawful assembly

would be guilty of committing the offence under Section

302 of the IPC.

116. Section 149 of the IPC creates a constructive or

vicarious criminal liability of the members of the

unlawful assembly for the unlawful acts committed

pursuant to the common object by any other member of

the assembly. By applying this principle, every member

.....127/-

Judgment

494 apeal42.02

of an unlawful assembly to be held guilty of the offence

committed by any member of that assembly in

prosecution of the common object of that assembly. The

factum of causing injury or not causing injury would not

be relevant when an accused is roped with the aid of

Section 149 of the IPC.

117. The question which is relevant and which is

required to be answered by the court is, whether the

accused is member of an unlawful assembly or not.

118. The Hon'ble Apex Court in the case of

Rajendra Shantarma Todankar vs. State of Maharashtra

and anr observed that Section 149 of the Indian Penal

Code provides that if an offence is committed by any

member of an unlawful assembly in prosecution of the

common object of that assembly, or such as the members

of that assembly knew to be likely to be committed in

.....128/-

Judgment

494 apeal42.02

prosecution of that object, every person who at the time

of the committing of that offence, is a member of the

same assembly is guilty of that offence. The two clauses

of Section 149 vary in degree of certainty. The first clause

contemplates the commission of an offence by any

member of an unlawful assembly which can be held to

have been committed in prosecution of the common

object of the assembly. The second clause embraces

within its fold the commission of an act which may not

necessarily be the common object of the assembly

nevertheless the members of the assembly had knowledge

of likelihood of the commission of that offence in

prosecution of the common object. The common object

may be commission of one offence while there may be

likelihood of the commission of yet another offence the

knowledge whereof is capable of being safely attributable

to the members of the unlawful assembly. In either case

.....129/-

Judgment

494 apeal42.02

every member of the assembly would be vicariously liable

for the offence actually committed by any other member

of the assembly. A mere possibility of the commission of

the offence would not necessarily enable the Court to

draw an inference that the likelihood of commission of

such offence was within the knowledge of every member

of the unlawful assembly. It is difficult indeed, though not

impossible, to collect direct evidence of such knowledge.

An inference may be drawn from circumstances such as

the background of the incident, the motive, the nature of

the assembly, the nature of the arms carried by the

members of the assembly, their common object and the

behaviour of the members soon before, at or after the

actual commission of the crime. Unless the applicability

of Section 149 either clause is attracted and the Court is

convinced, on facts and in law both, of liability capable of

being fastened vicariously by reference to either clause of

.....130/-

Judgment

494 apeal42.02

Section 149 of IPC merely because a criminal act was

committed by a member of the assembly every other

member thereof would not necessarily become liable for

such criminal act. The inference as to likelihood of the

commission of the given criminal act must be capable of

being held to be within the knowledge of another

member of the assembly who is sought to be held

vicariously liable for the said criminal act. These

principles are settled. Applying these tests to the facts

found proved beyond reasonable doubt

119. In the decision of the Hon'ble Apex Court in

the case of Zainul vs. State of Bihar supra relied upon by

learned Additional Public Prosecutor for the State as well

as learned counsel for accused persons, by referring

various decision of the Hon'ble Apex Court, it is observed

that the expression "in prosecution of the common object"

means that the offence committed must be directly

.....131/-

Judgment

494 apeal42.02

connected with the common object of the assembly, or

that the act, upon appraisal of the evidence, must appear

to have been done with a view to accomplish that

common object.

120. In Charan Singh vs. State of U.P., reported in

(2004) 4 SCC 205, the Hon'ble Apex Court held that the

test for determining the "common object" of an unlawful

assembly must be assessed in light of the conduct of its

members, as well as the surrounding circumstances. It

can be deduced from the nature of the assembly, the

weapons carried by its members, and their conduct

before, during, or after the incident.

121. In the case of Vinubhai Ranchhodbhai Patel vs.

Rajivbhai Dudabhai Patel, reported in (2018) 7 SCC 743,

the Hon'ble Apex Court held that:

.....132/-

Judgment

494 apeal42.02

"in a cases where a large number of accused constituting "unlawful assembly" are alleged to have attacked and killed one or more persons, it is not necessary that each of the accused should inflict fatal injuries or any injury at all.

Invocation of Section 149 of IPC is essential in such cases for punishing the members of such unlawful assembly on the ground of vicarious liability even though they are not accused of having inflicted fatal injuries in appropriate cases if the evidence on record justifies. The mere presence of an accused in such an unlawful assembly is sufficient to render him vicarious liable under Section 149 of IPC for causing the death of the victim of the attack provided that the accused are told that they have to face a charge rendering them vicarious liable under Section 149 of IPC for the offence punishable under Section 302 of IPC."

122. In Criminal Appeal No. 1348/2014 (Nitya

Nand vs. State of U.P. & anr) decided on 04.09.2024, the

.....133/-

Judgment

494 apeal42.02

Hon'ble Apex Court observed by reproducing para No.22

of the judgment in the case of Vinubhai Ranchhodbhai

Patel vs. Rajivbhai Dudabhai Patel supra that :

"22. When a large number of people gather together (assemble) and commit an offence, it is possible that only some of the members of the assembly commit the crucial act which renders the transaction an offence and the remaining members do not take part in that "crucial act" -- for example in a case of murder, the infliction of the fatal injury. It is in those situations, the legislature thought it fit as a matter of legislative policy to press into service the concept of vicarious liability for the crime. Section 149 IPC is one such provision. It is a provision conceived in the larger public interest to maintain the tranquility of the society and prevent wrongdoers (who actively collaborate or assist the commission of offences) claiming impunity on the ground

.....134/-

Judgment

494 apeal42.02

that their activity as members of the unlawful assembly is limited."

123. Recently, in the judgment in the case of Zainul

vs. State of Bihar supra, the Hon'ble Apex Court has

held that:

"49. The expression observed that "in prosecution of the common object" means that the offence committed must be directly connected with the common object of the assembly, or that the act, upon appraisal of the evidence, must appear to have been done with a view to accomplish that common object. In Charan Singh Vs. State of U.P. reported in (2004) 4 SCC 205, this Court held that the test for determining the "common object" of an unlawful assembly must be assessed in light of the conduct of its members, as well as the surrounding circumstances. It can be deduced from the nature of the assembly, the weapons

.....135/-

Judgment

494 apeal42.02

carried by its members, and their conduct before, during, or after the incident."

It is further observed that, Section 149 of IPC

makes all the members of an unlawful assembly

constructively liable when an offence is committed by any

member of such assembly with a view to accomplish the

common object of that assembly or the members of the

assembly knew that such an offence was likely to be

committed. However, such liability can be fasten only

upon proof that the act was done in perusal of the

common object.

124. Thus, once the existence of a common object

amongst the members of an unlawful assembly is

established, it is not imperative to prove that each

member committed an overt act. The liability under this

provision is attracted once it is certain that an individual

had knowledge that the offence committed was a

.....136/-

Judgment

494 apeal42.02

probable consequence in furtherance of the common

object, thereby rendering him a "member" of the

unlawful assembly. Utmost it is important to consider

whether the assembly consisted of some members who

were merely viewers and who were there out of curiosity,

without the knowledge, then such persons cannot be said

to be members of the unlawful assembly. Thus, the

existence of a common object is to be inferred from

certain circumstances such as (a) the time and place at

which the assembly was formed; (b) the conduct and

behaviour of its members at or near the scene of the

offence; (c) the collective conduct of the assembly, as

distinct from that of individual members; (d) the motive

underlying the crime; (e) the manner in which the

occurrence unfolded; (f). the nature of the weapons

carried and used; and (g) the nature, extent, and number

of injuries inflicted, and other relevant considerations.

.....137/-

Judgment

494 apeal42.02

125. In the light of the above well settled principles,

it has to be appreciated that whether the accused persons

were members of the unlawful assembly and in

pursuance of common object of that assembly they are

responsible for the act committed by the members of the

unlawful assembly.

126. As far as the first incident is concerned, PW1

Baburao Shyamrao Kharapkar; PW7 Mangesh Deshmukh;

PW24 Prashant Purushottam Mahajan; PW26 Vishwas

Shriram Pimpare; are PW28 Vasant Motiram Niwane are

material witnesses. The first incident has occurred near

the spot where the function was arranged. As per their

evidence, when they were present at the spot of the

function, a mob 100-125 persons of Muslim community

came near the spot of the function along with weapons

like sticks, spears, swords, iron pipes etc. in their hands

and were giving slogans. The evidence further discloses

.....138/-

Judgment

494 apeal42.02

that one Narayan Deshmukh; PW49 Shankar Rane, and

PW29 Wasudev Pandhari Arbat were present who

approached to the said mob and have given them

understanding not to harm anybody. The evidence of

PW29 Wasudev Pandhari Arbat serving as Talathi of

village Panchagavan at Telhara further shows that PSI

Kulkarni hold a meeting in the village on that day to

maintain peace as the function regarding inauguration of

"Shiv-Sena" branch in the village was organized. He also

asked the villages as to whether anybody is having

objection about the same. In the said meeting,

respondent No.1 Ab.Ajij Sk.Mehboob and one Baba Patel

were present. None of the persons present in the meeting

raised an objection. His evidence further shows that

when he was present at the spot, a mob of 100-125

persons came at the spot with weapons in their hands.

.....139/-

Judgment

494 apeal42.02

An understanding was given to them and, therefore, the

mob left the place.

The said evidence is also corroborated by

PW49 Shankar Rane, who was deputed at Panchagavan

Check-Post. He was also present in the meeting held

under the supervision of Police Sub Inspector Shri

Kulkarni and all the community members have attended

the said meeting and they were informed to maintain

public peace in the village during the said function. His

evidence further shows that he was deputed at the spot of

the incident wherein a mob of 100-125 Muslim

community holding weapons in their hands came at the

spot and they gave understanding and, therefore, the

mob left the place.

127. Thus, as far as the evidence of these witnesses

is concerned, it shows that villagers from Muslim

.....140/-

Judgment

494 apeal42.02

community have formed unlawful assembly for an

unlawful object. Admittedly, regarding the first incident,

no untoward incident has occurred. The presence of

respondent No.1 Ab.Ajij Sk.Mehboob during the meeting

is narrated by the witnesses. PW7 Mangesh Deshmukh

and PW24 Prashant Purushottam Mahajan identified

respondent No.1 Ab.Ajij Sk.Mehboob; respondent No.9

Rafikhan Meheboobkhan, and respondent No.10

Sk.Tayab Sk.Munaf. According to the prosecution, they

were arrested by the police from the spot where the

second incident has occurred. Thus, not only the

evidence of PW1 Baburao Shyamrao Kharapkar; PW7

Mangesh Deshmukh; PW24 Prashant Purushottam

Mahajan; PW26 Vishwas Shriram Pimpare; and PW28

Vasant Motiram Niwane proves constitution of unlawful

assembly but also is corroborated by independent

.....141/-

Judgment

494 apeal42.02

witnesses PW29 Wasudev Pandhari Arbat and PW49

Shankar Rane serving as Talathi and ASI respectively.

128. The second incident has occurred in the

vicinity of Khel Deshpande locality and to prove the

second incident, the evidence of PW1 Baburao Shyamrao

Kharapkar, who received message as to the attack on the

persons coming in tractor in the vicinity of Khel

Deshpande locality and the villagers coming from

adjacent villages to approached the spot of the function,

shows that he received a message that the persons

coming in the tractor were attacked by the mob. He

immediately rushed to the spot of the incident where he

met PSI Kulkarni. PSI Kulkarni has already arrested

respondent No.1 Ab.Ajij Sk.Mehboob, respondent No.9

Rafikhan Meheboobkhan, and respondent No.10

Sk.Tayab Sk.Munaf. The weapons like spears and sticks

are recovered from them by the investigating officer by

.....142/-

Judgment

494 apeal42.02

drawing seizure panchanamas. PW4 Gajanan Shaligram

Mahore is eyewitness to the said incident who has also

identified respondent No.1 Ab.Ajij Sk.Mehboob being

present at the spot of the incident. The evidence of

PW23 Motiram Zaparde is another eyewitness who has

also narrated about the incident. PW5 Rameshwar

Atmaram Belorkar, is another eyewitness, who is from the

same village Khel Deshpande locality, who has also

witnessed the mob of 100-125 persons possessing axes

and sticks in their hands. He has also witnessed that

villagers came by tractor were assaulted by the said mob.

PW8 Nagorao Sadashio Avatade has also stated about the

mob assaulted villagers coming in tractor. His evidence

further shows that it was respondent No.1 Ab.Ajij

Sk.Mehboob who thrusted blow of spear on the persons

of Avachitrao Kukde. Thus, PW8 Nagorao Sadashio

Avatade has not only witnessed the incident but has

.....143/-

Judgment

494 apeal42.02

specifically narrated the role of respondent No.1 Ab.Ajij

Sk.Mehboob who has given blow of spear on the person

of deceased Avachitrao Kukde. Thus, role of respondent

No.1 Ab.Ajij Sk.Mehboob shows that with the help of

spear, he has given blow to said Avachitrao Kukde who

died in the said incident. Respondent No.9 Rafikhan

Meheboobkhan and respondent No.10 Sk.Tayab

Sk.Munaf were also identified by PW8 Nagorao Sadashio

Avatade. PW9 Gopal Mahadeo Patharkar; PW13 Bhaskar

Mahadeo Raut; PW14 Anil Wasudeo Dabadghave; PW15

Rambhau Gopalrao Bahakar; PW16 Subhash Punjabrao

Kukde; PW17 Harischandra Janrao Nerkar; PW18

Vinayak Mahadeo Bhise; PW21 Ganesh Kashinath Nerkar;

and PW22 Prabhakar Nathuji Randhe are injured

eyewitnesses. As far as assault on them by the mob of

100-125 persons is concerned, the evidence is consistent.

Their medical certificates are proved during the evidence.

.....144/-

Judgment

494 apeal42.02

PW23 Motiram Zaparde identified respondent No.1

Ab.Ajij Sk.Mehboob, respondent No.9 Rafikhan

Meheboobkhan, and respondent No.10 Sk.Tayab

Sk.Munaf. PW13 Bhaskar Mahadeo Raut has identified

respondent No.1 Ab.Ajij Sk.Mehboob and respondent

No.9 Rafikhan Meheboobkhan. Whereas, PW46

Gangadhar Dhore, who has lodged the FIR, has also

identified respondent No.9 Rafikhan Meheboobkhan and

respondent No.10 Sk.Tayab Sk.Munaf.

129. Thus, involvement of respondent No.1 Ab.Ajij

Sk.Mehboob, respondent No.9 Rafikhan Meheboobkhan,

and respondent No.10 Sk.Tayab Sk.Munaf in the

unlawful assembly is established by these witnesses who

are eyewitnesses as well as injured eyewitnesses. As far

as the evidence of PW8 Nagorao Sadashio Avatade is

concerned, he has specifically narrated the role of

respondent No.1 Ab.Ajij Sk.Mehboob giving blow by

.....145/-

Judgment

494 apeal42.02

spear to one of deceased Avachitrao Kukde. Thus, not

only involvement of respondent No.1 Ab.Ajij

Sk.Mehboob, respondent No.9 Rafikhan Meheboobkhan,

and respondent No.10 Sk.Tayab Sk.Munaf is established

by the prosecution as members of the unlawful assembly

but also their presence in the unlawful assembly along

with weapons is also established by the prosecution. This

evidence is further by the fact respondent No.1 Ab.Ajij

Sk.Mehboob, respondent No.9 Rafikhan Meheboobkhan,

and respondent No.10 Sk.Tayab Sk.Munaf were also

arrested from the spot along with weapons in their

hands. This evidence is further corroborated by the

police witness PW51 Jaggu Singh Iswar Singh Thakur

who at relevant time was along with PSI Kulkarni who

specifically stated that these three accused persons were

arrested from the spot when he and another police staff

.....146/-

Judgment

494 apeal42.02

visited the spot of riot where persons coming in the

tractor were assaulted.

130. Coming to the third incident took place at Ner

Dhamna Road, fact of forming of unlawful assembly by

some of villagers and in furtherance of common object

assaulted the persons came at the spot to attend the

function was established by PW1 Baburao Shyamrao

Kharapkar; PW2 Devidas Motiram Rothe; PW3 Dyandev

Tulshiram Mahore, PW36 Balwan Pandharinath Dinkar,

and PW44 Mohan Govind Bhambhere. The evidence of

these three witnesses further shows that the said mob

assaulted them by means of sticks and spears in their

hands. In the said incident, one injured namely Shriram

Bhambere has sustained injuries and died due to the

injuries.

.....147/-

Judgment

494 apeal42.02

131. On appreciating the evidence, as far as

involvement of respondent No.1 Ab.Ajij Sk.Mehboob,

respondent No.9 Rafikhan Meheboobkhan, and

respondent No.10 Sk.Tayab Sk.Munaf as members of the

unlawful assembly and in furtherance of common object

of the said assembly they assaulted the villagers who

came to attend the function is concerned, the same is

established by the prosecution not only on the evidence

of injured eyewitnesses but also on the basis of

independent witnesses PW29 Wasudev Pandhari Arbat

and PW49 Shankar Rane. The evidence of PW8 Nagorao

Sadashio Avatade specifically shows specific role of

respondent No.1 Ab.Ajij Sk.Mehboob. Though these

witnesses are cross examined, nothing incriminating is

brought on record.

132. In view of the observation of the Hon'ble Apex

Court in catena of decisions and settled principles of law,

.....148/-

Judgment

494 apeal42.02

Section 149 of the IPC creates a constructive or vicarious

criminal liability of the members of the unlawful

assembly for the unlawful acts committed pursuant to

the common object by any other member of the assembly.

By applying this principle, every member of an unlawful

assembly to be held guilty of the offence committed by

any member of that assembly in prosecution of the

common object of that assembly. The factum of causing

injury or not causing injury would not be relevant when

an accused is roped with the aid of Section 149 of the

IPC. The question which is relevant and which is

required to be answered by the court is, whether the

accused is member of an unlawful assembly or not.

133. By applying these principles to the present

case, the oral evidence of the eyewitnesses supported by

the evidence of PW29 Wasudev Pandhari Arbat; PW49

Shankar Rane and PW51 Jaggu Singh Iswar Singh

.....149/-

Judgment

494 apeal42.02

Thakur shows involvement of respondent No.1 Ab.Ajij

Sk.Mehboob, respondent No.9 Rafikhan Meheboobkhan,

and respondent No.10 Sk.Tayab Sk.Munaf as members of

the unlawful assembly. The specific role attributed to

respondent No.1 Ab.Ajij Sk.Mehboob is that he has given

blow of spear on the person of one of deceased namely

Avachitrao Kukde. The fact that they came on the spot

along with other members holding weapons in their

hands is sufficient to infer that they came together with

an object and in pursuance of the said common object,

they assaulted the villagers who have sustained injuries

and four persons died in the said incident. This evidence

itself is sufficient to render them as members of the

unlawful assembly.

134. Learned counsel for the accused persons

vehemently submitted that none of the accused persons

are identified during the identification parade. The best

.....150/-

Judgment

494 apeal42.02

evidence available with the investigating agency and with

the prosecution to prove involvement of the accused

persons in unlawful assembly, is that the identification by

the witnesses after 12 years of the incident is difficult to

accept. There is no dispute that the evidence as to the

identification parade was not adduced by the prosecution

and no explanation is put forth by the prosecution behind

the said non production of evidence of identification.

During the cross examination, PW3 Dyandev Tulshiram

Mahore; PW36 Balwan Pandharinath Dinkar, and PW36

Balwan Pandharinath Dinkar have specifically admitted

that they are unable to identify the said persons before

the court. PW36 Balwan Pandharinath Dinkar has

specifically stated that faces of the accused persons are

changed and, therefore, he is unable to identify them. As

far as the evidence regarding identification of the accused

persons is concerned, it is shattered during the cross

.....151/-

Judgment

494 apeal42.02

examination as except respondent No.1 Ab.Ajij

Sk.Mehboob, respondent No.9 Rafikhan Meheboobkhan,

and respondent No.10 Sk.Tayab Sk.Munaf, none of the

accused persons are identified by any of the witnesses.

135. The law regarding identification is well settled.

The identification test is primarily means for the purpose

of helping investigating agency with an assurance that

their progress in the investigation of an offence is

proceeding on the right lines. Moreover, the

identification can only be used as corroborative evidence.

The identification parades belong to the stage of

investigation, and there is no provision in the CrPC

which obliges the investigating agency to hold, or confers

a right upon the accused to claim a test identification

parade. They do not constitute substantive evidence and

these parades are essentially governed by Section 162 of

the CrPC. Failure to hold a test identification parade

.....152/-

Judgment

494 apeal42.02

would not make inadmissible the evidence of

identification in court. The weight to be attached to such

identification should be a matter for the courts of fact.

The identification of the accused either in test

identification parade or in court is not sine quo non in

every case if from the circumstances the guilt is otherwise

established.

136. Learned Additional Public Prosecutor for the

State placed reliance on the decision in the case of

Mahabir vs. State of Delhi supra wherein it is observed

by referring its earlier judgment in the case of Matru vs.

State of U.P., reported in (1971)2 SCC 75 that

"identification tests do not constitute substantive

evidence. They are primarily meant for the purpose of

helping the investigating agency with an assurance that

their progress with the investigation into the offence is

proceeding on the right lines. The identification can only

.....153/-

Judgment

494 apeal42.02

be used as corroborative of the statement in court. The

necessity for holding an identification parade can arise

only when the accused are not previously known to the

witnesses. The whole idea of a test identification parade

is that witnesses who claim to have seen the culprits at

the time of occurrence are to identify them from the

midst of other persons without any aid or any other

source. The test is done to check upon their veracity. In

other words, the main object of holding an identification

parade, during the investigation stage, is to test the

memory of the witnesses based upon first impression and

also to enable the prosecution to decide whether all or

any of them could be cited as eyewitnesses of the crime.

The identification proceedings are in the nature of tests

and significantly, therefore, there is no provision for it in

the Code and the Evidence Act. It is desirable that a test

identification parade should be conducted as soon as

.....154/-

Judgment

494 apeal42.02

possible after the arrest of the accused. This becomes

necessary to eliminate the possibility of the accused being

shown to the witnesses. It is trite to say that the

substantive evidence is the evidence of identification in

court. Apart from the clear provisions of Section 9 of the

Evidence Act, the position in law is well settled by a

catena of decisions of this Court. The facts, which

establish the identity of the accused persons, are relevant

under Section 9 of the Evidence Act. As a general rule,

the substantive evidence of a witness is the statement

made in court. The evidence of mere identification of the

accused person at the trial for the first time is from its

very nature inherently of a weak character. The purpose

of a prior test identification, therefore, is to test and

strengthen the trustworthiness of that evidence. It is

accordingly considered a safe rule of prudence to

generally look for corroboration of the sworn testimony

.....155/-

Judgment

494 apeal42.02

of witnesses in court as to the identity of the accused who

are strangers to them, in the form of earlier identification

proceedings. This rule of prudence, however, is subject to

exceptions".

137. Per contra, learned counsel for the defence

counsel submitted that admittedly, the prosecution

witnesses have not given any description of the accused

persons while giving their statements before the police.

The witnesses are not from the same village. Some of the

witnesses have specifically admitted that there are

changes in the faces of the accused persons and have

shown their inability to identify them. Though some of

the witnesses have identified the accused persons,

admittedly, the evidence as to the identification by them

during the identification is not before the court. On the

contrary, some of the witnesses have admitted that they

could not identify the accused persons during the

.....156/-

Judgment

494 apeal42.02

identification parade. She further submitted that it is

pertinent to note that substantial gap of 12 years raises a

doubt as to the identification. She placed reliance on the

decision in the case of Venkatesha and ors vs. State of

Karnataka supra wherein the Hon'ble Apex Court has

ruled out the evidence of identification after eight years

and observed that substantial gap of approximately eight

years raises serious concern regarding identification. If

no identification parade of the unknown persons took

place, their identification in the trial court for the first

time would cast a serious doubt on the veracity of the

prosecution case.

138. As far as the above submission of learned

counsel for the accused persons is concerned, it is

required to be taken into consideration as far as

respondent No.3 Sk.Mehboob Sk.Nabi, respondent No.5

Yusuf Patel Tamiz Patel, respondent No.6 Sk.Rahis

.....157/-

Judgment

494 apeal42.02

Sk.Mustafe, respondent No.7 Bismillakhan Khalilkhan,

respondent No.15 Inayatkhan Serfarajkhan, respondent

No.17 Sk.Nabi Sk.Supadu, respondent No.19 Sk.Mansab

Sy.Yusuf, and respondent No.20 Ajmatkhan

Mehemoodkhan are not identified during their evidence.

However, the evidence of eyewitnesses sufficiently

establishes involvement of respondent No.1 Ab.Ajij

Sk.Mehboob, respondent No.9 Rafikhan Meheboobkhan,

and respondent No.10 Sk.Tayab Sk.Munaf who are

identified by PW1 Baburao Shyamrao Kharapkar, PW7

Mangesh Deshmukh, and PW24 Prashant Purushottam

Mahajan, PW4 Gajanan Shaligram Mahore, PW46

Gangadhar Dhore, PW13 Bhaskar Mahadeo Raut, and

PW35 Nandkishor Mahadeo Bhagat and which is further

corroborated by police witness PW51 Jaggu Singh Iswar

Singh Thakur in whose presence these three accused

persons were arrested from the spot of the assault along

.....158/-

Judgment

494 apeal42.02

with weapons in their hands. The seizure panchanamas

are drawn.

139. It is cardinal principle in criminal

jurisprudence that the guilt of the accused must be

proved beyond all reasonable doubts. However, burden

is on the prosecution only to establish its case beyond all

reasonable doubts and not all the doubts. Doubts would

be called reasonable if they are free from a zest for

abstract speculation. Law cannot afford any favouring

other than truth. Doubts must be actual and substantial

doubts as to the guilt of the accused person arising from

the evidence. A reasonable doubt is not an imaginary,

trivial or a merely possible doubt; but a fair doubt based

upon reason and common sense.

140. Learned Additional Public Prosecutor for the

State placed reliance on catena of decision. In the case of

.....159/-

Judgment

494 apeal42.02

Sushil Kumar Tiwari vs. Hare Ram Sah and ors supra, the

Hon'ble Apex Court held that the principle of beyond

reasonable doubt has been misunderstood to mean any

and every doubt in the case of the prosecution. Often, we

come across cases wherein loose acquittals are recorded

on the basis of minor inconsistencies, contradictions and

deficiencies, by elevating them to the standard of

reasonable doubts. A reasonable doubt is one that

renders the version of the prosecution as improbable, and

leads the Court to believe in the existence and probability

of an alternate version of the facts. It is a serious doubt

which must be backed by reason. The underlying

foundation of the principle of beyond reasonable doubt is

that no innocent should face punishment for a crime that

he has not done. But a flipside of the same, of which we

are conscious, is that at times, owing to a mis-application

of this principle, actual culprits manage to find their way

.....160/-

Judgment

494 apeal42.02

out of the clutches of law. Such misapplication of this

principle, resulting into culprits walking free by taking

benefit of doubt, is equally dangerous for the society.

Every instance of acquittal of an actual culprit revolt

against the sense of security of the society and acts as a

blot on the criminal justice system. Therefore, not only no

innocent should face punishment for something that he

has not done, but equally, no culprit should manage an

acquittal on the basis of unreasonable doubts and

misapplication of procedure.

141. Keeping in mind the principle, which is laid

down, as far as the appeal against acquittal is concerned,

that while exercising the appellate powers, especially by

dealing with appeals against acquittal, the cardinal

principle to be kept is that there is presumption of

innocence in favour of the accused unless the accused is

proved guilty. At the same time, while exercising the

.....161/-

Judgment

494 apeal42.02

appellate jurisdiction, it is the duty of the appellate court

to see whether the decision is correct or incorrect on law

or facts. While dealing with appeals against acquittal, the

court cannot examine impugned judgment only to find

out whether view was taken correct or incorrect. After

re-appreciating the oral and documentary evidence, the

appellate court must decide whether trial court's view

was possible view. The principle to be followed by the

appellate court considering the appeal against the

judgment of acquittal is to interfere only when there are

compelling and substantial reasons for doing so. If the

impugned judgment is clearly unreasonable and relevant

and convincing materials have been unjustifiably

eliminated in the process, it is a compelling reason for

interference at the hands of the appellate is warranted.

142. On re-appreciating and re-considering the

evidence upon which the order of acquittal is founded, as

.....162/-

Judgment

494 apeal42.02

far as the acquittal of all the accused persons is

concerned, which appears to be perverse in the light of

the fact that there is a positive evidence as far as

respondent No.1 Ab.Ajij Sk.Mehboob, respondent No.9

Rafikhan Meheboobkhan, and respondent No.10

Sk.Tayab Sk.Munaf is concerned. The evidence is not

only of the injured eyewitnesses or the eyewitnesses but

also the evidence of independent witnesses i.e. PW29

Wasudev Pandhari Arbat who was present at the spot of

the function as well as in the meeting witnessed the

involvement of respondent No.1 Ab.Ajij Sk.Mehboob in

the meeting as well as in the unlawful assembly in the

mob came at the spot of the function. The involvement

of respondent No.1 Ab.Ajij Sk.Mehboob is further

established by the evidence of PW49 Shankar Rane who

corroborates the version of PW29 Wasudev Pandhari

Arbat as to the presence of respondent No.1 Ab.Ajij

.....163/-

Judgment

494 apeal42.02

Sk.Mehboob in the meeting. As already discussed that

the most of the eyewitnesses have already identified

respondent No.1 Ab.Ajij Sk.Mehboob, respondent No.9

Rafikhan Meheboobkhan, and respondent No.10

Sk.Tayab Sk.Munaf. Not only the identification of these

respondents but also PW8 Nagorao Sadashio Avatade

specifically narrated the role of respondent No.1 Ab.Ajij

Sk.Mehboob giving blow on the person of one of

deceased. There is no dispute that four persons died in

the said incident and their death is homicidal one. As far

as the evidence of PW8 Nagorao Sadashio Avatade to the

extent of giving blow by respondent No.1 Ab.Ajij

Sk.Mehboob on the person of deceased Avachitrao Kukde

is concerned, the same remained unchallenged as

nothing incriminating is brought on record to falsify the

version. Moreover, recovery of weapons from them is

established by PW51 Jaggu Singh Iswar Singh Thakur

.....164/-

Judgment

494 apeal42.02

who at the relevant time was Writer of PSI Kulkarni and

was present when respondent No.1 Ab.Ajij Sk.Mehboob,

respondent No.9 Rafikhan Meheboobkhan, and

respondent No.10 Sk.Tayab Sk.Munaf were arrested.

Seizure of the weapons was proved by PW1 Baburao

Shyamrao Kharapkar.

143. Thus, not only involvement of these

respondents as members of unlawful assembly in the

assault on the villagers is established by the witnesses but

also the specific role is narrated by PW8 Nagorao

Sadashio Avatade and the aspect of sharing of the

common object is further established from the facts that

they are involved as members of the unlawful assembly

with the weapons and their involvement in the assault is

also established by the injured eyewitnesses as well as the

independent witnesses. Admittedly, this aspect was not

considered by the trial court and self contradictory

.....165/-

Judgment

494 apeal42.02

findings are recorded by the trial court. At one breath,

the trial court has recorded that holding of the function

of formation of "Shiv-Sena" branch on the day of the

incident is undisputed. Similarly, the occurrence of the

riot in the village at the relevant time is also undisputed.

The death of four persons in the said incident and

sustaining injuries by some of the witnesses is also

remained unchallenged. The only facts seem to be

challenged are that the accused persons in the matter are

not persons or the members of the said unlawful

assembly and they have not committed any offence. The

trial court further observed that except respondent No.1

Ab.Ajij Sk.Mehboob, respondent No.9 Rafikhan

Meheboobkhan, and respondent No.10 Sk.Tayab

Sk.Munaf, who alleged to be accosted on the spot of the

incident at Khel Deshpande locality holding weapons, in

respect of the other accused, however, noting is brought

.....166/-

Judgment

494 apeal42.02

on record that individually who were holding what

weapons in their hands at the relevant time of the

incident. In fact, the evidence of PW8 Nagorao Sadashio

Avatade specifically shows that respondent No.1 Ab.Ajij

Sk.Mehboob was holding spear and he gave blow of spear

on the person of deceased Avachitrao Kukde and the said

spear was recovered from him. Two sticks were

recovered from respondent No.9 Rafikhan

Meheboobkhan and respondent No.10 Sk.Tayab

Sk.Munaf when they were present at the spot. There was

no reason for the trial court to disbelieve the evidence of

PW51 Jaggu Singh Iswar Singh Thakur who was present

along with PSI Kulkarni at the spot of the incident.

Moreover, it is not expected from the witness to narrate

exact role of each accused when the witnesses were

attacked by the mob.

.....167/-

Judgment

494 apeal42.02

144. In the case of Vinubhai Ranchhodbhai Patel vs.

Rajivbhai Dudabhai Patel supra, the Hon'ble Apex Court

has an occasion to deal with this issue and it is observed

in cases where a large number of accused constituting an

'unlawful assembly' are alleged to have attacked and

killed one or more persons, it is not necessary that each

of the accused should inflict fatal injuries or any injury at

all. Invocation of Section 149 of the IPC is essential in

such cases for punishing the members of such unlawful

assemblies on the ground of vicarious liability even

though they are not accused of having inflicted fatal

injuries in appropriate cases if the evidence on record

justifies. The mere presence of an accused in such an

'unlawful assembly' is sufficient to render him vicariously

liable under Section 149 of the IPC for causing the death

of the victim of the attack provided that the accused are

told that they have to face a charge rendering them

.....168/-

Judgment

494 apeal42.02

vicariously liable under Section 149 IPC for the

offence punishable under 302 of the IPC.

145. Similarly, the Hon'ble Apex Court in the case of

Nitya Nand vs. State of U.P. & anr supra has observed that

when a large number of people gather together and

commit an offence, it is possible that only some of the

members of the assembly commit the crucial act which

renders the transaction an offence and the remaining

members do not take part in that "crucial act" - for

example in a case of murder, the infliction of the fatal

injury. It is in those situations, the legislature thought it

fit as a matter of legislative policy to press into service the

concept of vicarious liability for the crime. Section 149

IPC is one such provision. It is a provision conceived in

the larger public interest to maintain the tranquility of

the society and prevent wrongdoers (who actively

collaborate or assist the commission of offences) claiming

.....169/-

Judgment

494 apeal42.02

impunity on the ground that their activity as members of

the unlawful assembly is limited.

146. In the present case, the trial court in paragraph

No.33 observed that nothing is on record to discard the

evidence of injured eyewitness PW9 Gopal Mahadeo

Patharkar and PW13 Bhaskar Mahadeo Raut, but in

subsequent part of the judgment discarded their evidence

while acquitting the accused persons. It is further

observed that "one thing appears from the evidence of

PW13 Bhaskar Mahadeo Raut that some of the accused

persons are identified by these witnesses. He is resident

of village Pathardi which is far away from village

Panchagavan. He has no animus with the accused so that

he will falsely identify them and, therefore, it appears

that the evidence of this witness is natural one". But, in

subsequent part, his evidence is discarded.

.....170/-

Judgment

494 apeal42.02

In paragraph No.34, at page No.1766 of paper

book, it is further observed that PW14 Anil Wasudeo

Dabadghave admits that in identification parade, he

could not identify any of the assailants at Central Jail

Akola. In this case, that is one of the lacuna in the

prosecution case. During recording the evidence, number

of witnesses have stated that they were called at Central

Jail Akola for identification parade and they could not

identify any of the accused, but record of the said

identification parade is not brought before the court.

Even, if the persons who were not identified by the

witnesses in identification parade, at the same time, it

was the duty of the prosecution to bring on record that

the accused after their arrest were placed before the

witnesses for identification parade. In the last part of the

said paragraph, it is observed by the trial court that to

remove the said doubts, the production of identification

.....171/-

Judgment

494 apeal42.02

parade, record in the matter was necessary. It is best

known to the prosecution why the said record is kept

back and not produced in the matter.

In paragraph No.37 also, the evidence of

Medical Officer PW48 Sattadeo Raut and PW19

Madhukar Gangaram Metkar is referred and observed

that the said witnesses have seen dead bodies of

Avachitrao Kukde, Shriram Gavande, and Digambar

Kukde at Telhara who had been assaulted by the said

mob. The witnesses have also deposed that the said

persons who assaulted them are not known to him by

their names, but he can identity them by their faces and

he has identified eight persons. The evidence of this

witness is independent, having no animus against the

accused persons and in his cross examination there is

nothing abnormal so that his testimony should be thrown

away.

.....172/-

 Judgment

                                                494 apeal42.02



            As   to   the   evidence    of   PW20   Laxman

Vishvanath Gawande and PW21 Ganesh Kashinath

Nerkar, in paragraph No.38, it is observed that the

testimony of theses witnesses appears to be natural. In

their cross examination, nothing is found unreliable,

contradictory or material omissions so that the testimony

should be thrown away and, therefore, testimony of these

witnesses is reliable and can be accepted as true

evidence.

147. Thus, these findings of the trial court even

findings in paragraph No.39 that for all the witnesses, the

accused are strangers. Therefore, there is no reason for

them to give false evidence against the said accused, but

finally the trial court discarded the evidence and benefit

is given to the accused persons. The findings of the trial

court ignoring the evidence of eyewitnesses who

identified specifically to respondent No.1 Ab.Ajij

.....173/-

Judgment

494 apeal42.02

Sk.Mehboob, respondent No.9 Rafikhan Meheboobkhan,

and respondent No.10 Sk.Tayab Sk.Munaf coupled with

circumstantial evidence sufficiently shows that the

material evidence is not considered by the trial court and

the benefit given to the accused persons by the trial court

is unwarranted.

148. In the light of the above discussion, we find

that involvement of respondent No.1 Ab.Ajij

Sk.Mehboob, respondent No.9 Rafikhan Meheboobkhan,

and respondent No.10 Sk.Tayab Sk.Munaf is established.

It is also established that they were members of the

unlawful assembly and in furtherance of common object

of that assembly they caused death of four accused

persons namely Digambar Wamanrao Kukde, Shriram

Wamanrao Bhambere, Avachitrao Kukde, Shriram

Gavande and caused injuries to 22 persons. Therefore,

.....174/-

Judgment

494 apeal42.02

the offences under Sections 143, 147, 148, 302, 324, and

341 read with 149 of the IPC are established.

149. As the involvement of the accused persons

Respondent No.1 Ab.Ajij Sk.Mehboob, respondent No.9

Rafikhan Meheboobkhan, and respondent No.10 Sk.Tayab

Sk.Munaf in the offences is established, we suspend our

judgment here to hear the accused persons on the point

of sentence. The accused persons shall remain present

before the court on 21/11/2025.

150. Due to mandate of Section 235(2) of CrPC, the

judgment was suspended here to hear the accused

persons on the point of sentence.

(NANDESH S.DESHPANDE, J.) (URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

.....175/-

Judgment

494 apeal42.02

151. The accused persons were informed that they

can make their submissions in detail. They can also take

a reasonable time to make their submissions and

accordingly, as per the request of the accused persons, the

matter was kept today for hearing on the point of

sentence. It is obligatory on the part of the court to hear

the accused on the point of sentence to know about age

of the accused, background of the accused, prior criminal

antecedents etc..

152. The accused persons are heard at length.

Their submissions are that now they are at the advanced

age. One of the accused persons is of 90 years and other

two accused persons are also more than 70 years.

153. Learned counsel for the accused persons

submitted that all the accused persons are at their

advanced age. The trial was conducted belatedly i.e.

.....176/-

Judgment

494 apeal42.02

after 12 years and the appeal is also decided after 25

years. On the same set of evidence, the other accused

persons are acquitted. The right of the accused of speedy

trial is also infringed and taking into consideration all

these aspects, a leniency be shown to the accused

persons. He has submitted written notes of argument on

behalf of them. In the said written of argument, it is

stated that respondent No.1 Ab.Ajij Sk.Mehboob,

respondent No.9 Rafikhan Meheboobkhan, and

respondent No.10 Sk.Tayab Sk.Munaf are at the verge of

90, 74 and 75 years respectively. The incarceration at

such vulnerable age is tantamount to physical and

psychological death sentence. He also invited our

attention towards sentencing philosophy for elderly and

submitted that the law has evolved to recognize that the

object of sentencing is not solely retributive. It

encompasses deterrence, prevention, and reformation.

.....177/-

Judgment

494 apeal42.02

When dealing with these exigencies, the scope for

reformation is negligible and need for societal deterrence

is minimal as they posed no tangible threat.

He relied upon the decision of the Hon'ble

Apex Court in the case of Basavaraj @ Benne Settapa vs.

State of Karnataka, reported in (2012)8 SCC 734 wherein

death penalty was commuted of a convict and observed

advanced age can be mitigating factor. It is emphasized

that sentencing must be individualized.

He further placed reliance on the decision of

the Hon'ble Apex Court in the case of State of Punjab vs.

Birmohan Singh, reported in (2004)13 SCC 202 wherein

it is observed that while upholding the conviction of a 75

year old, reduced his sentence, noting his advanced age

and the fact that he had been on bail for a long period.

.....178/-

Judgment

494 apeal42.02

Respondent No.1 Ab.Ajij Sk.Mehboob,

respondent No.9 Rafikhan Meheboobkhan, and

respondent No.10 Sk.Tayab Sk.Munaf are at their

advanced age and the inevitable accompanying

infirmities make them exceptionally vulnerable.

Subjecting them to the rigors of prison life would be a

punishment far exceeding the one contemplated by law,

violating the spirit of Article 21 of the Constitution, which

guarantees the right to life with dignity. The incident is

38 years old. Respondent No.1 Ab.Ajij Sk.Mehboob,

respondent No.9 Rafikhan Meheboobkhan, and

respondent No.10 Sk.Tayab Sk.Munaf have lived with

sword of damocles hanging over their heads for over

three decades. The right of speedy trial is a fundamental

right enshrined in Article-21.

The Hon'ble Apex Court in the landmark

judgment in the case of Hussainara Khatoon and ors vs.

.....179/-

Judgment

494 apeal42.02

Home Secretary, State of Bihar, reported in (1980)1 SCC

81 established that a speedy trial is a fundamental right.

Undue delay in the conclusion of a criminal trial or

appeal is a ground for a lenient view on sentence.

The Constitution Bench of the Hon'ble Apex

Court, in the case of A.R.Antulay vs. R.S.Nayak, reported

in (1992)1 SCC 225, laid down guidelines and held that

the right to a speedy trial encompasses all stages,

including appeal. While it may not always vitiate the

trial, it is a vital factor at the sentencing stage.

He further placed reliance on the decision of

this Court in criminal appeal (Sushil Arora vs. State)

decided on 8.2.2017 wherein explicitly considered the

long delay in the conclusion of the trial as a significant

mitigating circumstance for reducing the sentence.

.....180/-

Judgment

494 apeal42.02

Respondent No.1 Ab.Ajij Sk.Mehboob,

respondent No.9 Rafikhan Meheboobkhan, and

respondent No.10 Sk.Tayab Sk.Munaf were acquitted in

2000 and lived as free citizens for 24 years. The reversal

of this acquittal after such in inordinate delay has caused

immense mental agony, trauma, and uncertainty, which

itself is a form of punishment. This delay is not

attributable to respondent No.1 Ab.Ajij Sk.Mehboob,

respondent No.9 Rafikhan Meheboobkhan, and

respondent No.10 Sk.Tayab Sk.Munaf warranting

compassionate reduction in their sentence. The

psychological impact of having an acquittal overturned

after nearly two decades cannot be understated.

Respondent No.1 Ab.Ajij Sk.Mehboob, respondent No.9

Rafikhan Meheboobkhan, and respondent No.10

Sk.Tayab Sk.Munaf had rebuilt their lives under the

legitimate belief that their ordeal was over. It is

.....181/-

Judgment

494 apeal42.02

submitted that while the State's right to appeal is

unquestionable, the consequence of a successful appeal,

when it comes after the accused has enjoyed freedom for

a substantial period, must be considered by the court. To

sentence them to a full life term now would be

disproportionately harsh. The sentencing discretion must

account for this unique hardship. The principle of parity

in sentencing is well recognized. In Suresh Chandra

Bahri vs. State of Bihar, reported in 1995 Supp (1) SCC

80, the Hon'ble Apex Court held that if a co-accused in

the same crime has been awarded a lesser sentence, it is a

valid consideration for the court. Respondent No.1

Ab.Ajij Sk.Mehboob, respondent No.9 Rafikhan

Meheboobkhan, and respondent No.10 Sk.Tayab

Sk.Munaf do not challenge the acquittal of others.

However, the fact that the vast majority of the accused in

the same incident has escaped conviction is a relevant

.....182/-

Judgment

494 apeal42.02

factor for the court to ensure that the punishment is not

disproportionately severe on these three individuals alone

i.e. respondent No.1 Ab.Ajij Sk.Mehboob, respondent

No.9 Rafikhan Meheboobkhan, and respondent No.10

Sk.Tayab Sk.Munaf. It is submitted that although certain

witnesses at trial described specific roles to these

individuals, such alleged overt acts were never proved

beyond reasonable doubt. The evidence on record does

not conclusively established that respondent No.1 Ab.Ajij

Sk.Mehboob, respondent No.9 Rafikhan Meheboobkhan,

and respondent No.10 Sk.Tayab Sk.Munaf inflicted the

fatal injury, as principal perpetrators. The conviction,

therefore, does not stand on proof of individual homicidal

acts but rests entirely on the doctrine of vicarious liability

under Section 149 of the IPC. In such circumstances,

lenience be shown to the accused persons.

.....183/-

Judgment

494 apeal42.02

154. Per contra, learned Additional Public

Prosecutor for the State strongly opposed the said

contentions and submitted that the circumstance under

which the alleged incident has taken place, a certain

community has taken the entire charge and the other

community was victim at the hands of the one

community. He submitted that the entire evidence on

record sufficiently shows that even freedom of villagers

was curtailed by this community by assaulting them

mercilessly wherein four persons have lost their lives,

whereas 22 persons have sustained injuries. He fairly

submitted that it is not rarest of the rare case and,

therefore, only two options are available with this court

while awarding the punishment under Section 302 and,

therefore, minimum punishment for life imprisonment is

to be awarded.

.....184/-

Judgment

494 apeal42.02

He further invited our attention towards the

medical evidence and submitted that the medical

evidence would disclose that in what manner these four

persons and other injured persons were assaulted and

that is also on account of infringing their right to move

freely from one place to another and that is required to

be considered by the court. He submitted that when the

court is considering the advanced age of the accused

persons as a mitigating circumstance, at the same time,

the court has to consider the incident which is of a mob

lynching. In the case of mob lynching, four persons who

were residents of that village lost their lives merely

because they attended the function of inauguration of

"Shiv-Sena" branch. Thus, in that circumstances, the

only option available to the court is to award punishment

of life imprisonment.

.....185/-

Judgment

494 apeal42.02

155. Having heard both the sides and given

sufficient opportunity to the accused persons to make

their submissions on the point of sentence, at this stage,

we have re-capitalized the entire episode. It is the case

where involvement of respondent No.1 Ab.Ajij

Sk.Mehboob, respondent No.9 Rafikhan Meheboobkhan,

and respondent No.10 Sk.Tayab Sk.Munaf is established.

It is also established that they were members of the

unlawful assembly and in furtherance of common object

of that assembly they caused death of four persons

namely Avachitrao Kukde, Shriram Gavande, and

Digambar Kukde, and Shriram Bhambere and caused

injuries to 22 persons. Therefore, offences under

Sections 143, 147, 148, 302, 324, and 341 read with

Section 149 of the IPC was established against them.

156. As far as submission of learned counsel for the

accused persons regarding proving of the incident beyond

.....186/-

Judgment

494 apeal42.02

reasonable doubt is concerned, the same aspect is already

considered by us while pronouncing the judgment.

157. It is cardinal principles of criminal

jurisprudence that the guilt of the accused must be

proved beyond all reasonable doubts. However, burden

is on the prosecution only to establish its case beyond all

reasonable doubts and not all the doubts. The doubts

would be called reasonable if they are free from a zest for

abstract speculation. Law cannot afford any favourite

other than truth. To constitute reasonable doubt, it must

be free from an overemotional response. Doubts must be

actual and substantial doubts as to the guilt of the

accused person arising from the evidence, or from the

lack of it, as opposed to mere vague apprehensions. A

reasonable doubt is not an imaginary, trivial or a merely

possible doubt; but a fair doubt based upon reason and

common sense. A reasonable doubt is one that renders

.....187/-

Judgment

494 apeal42.02

the version of the prosecution as improbable, and leads

the Court to believe in the existence and probability of an

alternate version of the facts. It is a serious doubt which

must be backed by reason. The underlying foundation of

the principle of beyond reasonable doubt is that no

innocent should face punishment for a crime that he has

not done. But a flipside of the same, of which we are

conscious, is that at times, owing to a mis-application of

this principle, actual culprits manage to find their way

out of the clutches of law. Such misapplication of this

principle, resulting into culprits walking free by taking

benefit of doubt, is equally dangerous for the society.

158. As far as the present case is concerned, we

have already discussed and after re-capitalizing and re-

appreciating and re-considering the evidence upon which

the order of acquittal is founded as far as acquittal of all

the accused persons is concerned, which is held to be

.....188/-

Judgment

494 apeal42.02

perverse in the light of the fact there is a positive

evidence as far as respondent No.1 Ab.Ajij Sk.Mehboob,

respondent No.9 Rafikhan Meheboobkhan, and

respondent No.10 Sk.Tayab Sk.Munaf are concerned.

The evidence is not only is of an eyewitness but also the

evidence of independent witnesses. PW29 Wasudev

Pandhari Arbat working as Talathi was present at the spot

of the function as well as in the meeting wherein he has

witnessed involvement of respondent No.1 Ab.Ajij

Sk.Mehboob as well as in the unlawful assembly in the

mob came at the spot of the function. The involvement

of respondent No.1 Ab.Ajij Sk.Mehboob is further

established by the evidence of PW14 Anil Wasudeo

Dabadghave and PW49 Shankar Rane who corroborate

the version of PW29 Wasudev Pandhari Arbat as to the

presence of respondent No.1 Ab.Ajij Sk.Mehboob in the

meeting. As already discussed that most of the

.....189/-

Judgment

494 apeal42.02

eyewitnesses have already identified respondent No.1

Ab.Ajij Sk.Mehboob, respondent No.9 Rafikhan

Meheboobkhan, and respondent No.10 Sk.Tayab

Sk.Munaf. Not only the identification of these

respondents but also PW8 Nagorao Sadashio Avatade has

specifically narrated the role of respondent No.1 Ab.Ajij

Sk.Mehboob giving blow on one of the deceased persons.

There is no dispute that four persons have died in the

incident and their death is homicidal one. It is also not

disputed that 22 persons have sustained injuries in the

said incident, as far as the evidence of PW8 Nagorao

Sadashio Avatade to the extent of giving blow respondent

No.1 Ab.Ajij Sk.Mehboob on the persons of deceased

Avachitrao Kukde is concerned. The same remained

unchallenged as nothing incriminating is brought on

record to falsify the version.

.....190/-

Judgment

494 apeal42.02

159. Thus, considering the entire evidence i.e. the

evidence in the nature of a direct evidence substantiated

by the identification as well as substantiated by the fact

that three accused persons are arrested on the spot

holding weapons in their hands and their presence during

the riot, the evidence on record shows that prior to

execution of the act, they have formed the unlawful and

they were members of unlawful assembly and in

furtherance of the common object of that assembly the

entire act was committed. Thus, the prosecution has

proved that the accused persons have committed the said

act with preparation

160. Considering the act of the accused persons and

manner in which the act was executed by the accused

persons being members of the unlawful assembly, it is

well settled that when the offence is proved against the

accused, then treating it lightly by awarding light

.....191/-

Judgment

494 apeal42.02

punishment is affront to the society. The offence

committed by the accused is anti-social one and it is

crime against the society. It is also well settled that when

the offence is proved, the court has to award adequate

punishment. Mob lynching is a direct violation of Article-

21 of the Constitution of India, which guarantees the

right to life and personal liberty, because it denies

individuals the right to a dignified existence and life.

161. Though learned defence counsel has submitted

that considering their age, which is a mitigating

circumstance, and, therefore, lenience be shown to them.

He placed reliance on various decisions. However,

considering the provisions, only two punishments are

provided for the offence under Section 302 and discretion

is not left in the hands of the court to award a lesser

punishment than that the punishment which is provided.

There is no dispute regarding the fact that the trial was

.....192/-

Judgment

494 apeal42.02

conducted after 12 years and the appeal is also decided

after 25 years, but that cannot be a circumstance to

reduce the sentence as the said discretion is not left in the

hands of the court.

162. Section 302 of the IPC deals with punishment

for murder which states that who commits murder shall

be punished with death, or imprisonment for life, and

shall also be liable to fine.

163. Admittedly, it is not the rarest of rare case and,

therefore, question of awarding sentence regarding

capital punishment does not arise, but minimum sentence

which requires to be imposed is only the imprisonment

for life. The reducing of the sentence is only in the

circumstance if the offence is made out under the lesser

section i.e. under Section 304-I or 304-II.

.....193/-

Judgment

494 apeal42.02

164. In the light of the facts and circumstances of

the case and after considering the decisions relied upon

by learned defence counsel which are mostly on the

aspect of delay in trial. Now, the trial is already

conducted and the appeal is decided. The decisions talks

about right of the accused persons under Article 21 of the

Constitution regarding speedy trial, but while awarding

punishment, these judgments would not be helpful to the

accused persons to reduce their sentence.

165. As already observed, it is not the case of rarest

of the rare case to award capital punishment. However,

the accused persons have caused homicidal death of four

persons by giving repeated blows on their persons which

is the offence under Section 302 of the IPC and minimum

punishment provided is life imprisonment and maximum

punishment provided is capital punishment. Some of the

witnesses have also sustained grievous injuries, but as far

.....194/-

Judgment

494 apeal42.02

as the offence under Section 307 of the IPC is concerned,

which is not made out as the medical evidence nowhere

shows that any of injured has sustained the life

threatening injury. Therefore, these three accused

requires to be acquitted as far as offence under Section

307 of the IPC is concerned.

166. Considering the nature of offence, that during

the mob lynching, the accused persons, who were

members of the unlawful assembly, caused death of four

persons and caused injuries to 22 persons and the offence

is committed by preparing themselves by carrying

weapons and causing instantaneous death of four

persons, it would be just and proper to sentence them

imprisonment for life for the offence punishable under

Section 302 read with 149 of the IPC. The offences

under Sections 143, 147, 148, 324, and 341 read with

149 of the IPC are also made out against respondent No.1

.....195/-

Judgment

494 apeal42.02

Ab.Ajij Sk.Mehboob, respondent No.9 Rafikhan

Meheboobkhan, and respondent No.10 Sk.Tayab

Sk.Munaf. In the result, we proceed to pass following

order:

ORDER

(1) The Criminal Appeal is Partly-Allowed.

(2) Respondent No.1 Ab.Ajij Sk.Mehboob, respondent

No.9 Rafikhan Meheboobkhan, and respondent No.10

Sk.Tayab Sk.Munaf are hereby convicted under Section

235(2) of the CrPC for the offence punishable under

Section 143 of the IPC and sentenced to suffer rigorous

imprisonment for three months and fine of Rs.5000/- by

each of them, in default, to suffer rigorous imprisonment

for fifteen days.

(3) Respondent No.1 Ab.Ajij Sk.Mehboob, respondent

No.9 Rafikhan Meheboobkhan, and respondent No.10

.....196/-

Judgment

494 apeal42.02

Sk.Tayab Sk.Munaf are hereby convicted under Section

235(2) of the CrPC for the offence punishable under

Section 147 of the IPC and sentenced to suffer rigorous

imprisonment for one year and fine of Rs.5000/- by each

of them, in default, to suffer rigorous imprisonment for

three months.

(4) Respondent No.1 Ab.Ajij Sk.Mehboob, respondent

No.9 Rafikhan Meheboobkhan, and respondent No.10

Sk.Tayab Sk.Munaf are hereby convicted under Section

235(2) of the CrPC for the offence punishable under

Section 148 of the IPC and sentenced to suffer rigorous

imprisonment for one year and fine of Rs.5000/- by each

of them, in default, to suffer rigorous imprisonment for

three months.

(5) Respondent No.1 Ab.Ajij Sk.Mehboob, respondent

No.9 Rafikhan Meheboobkhan, and respondent No.10

.....197/-

Judgment

494 apeal42.02

Sk.Tayab Sk.Munaf are hereby convicted under Section

235(2) of the CrPC for the offence punishable under

Section 302 read with 149 of the IPC and sentenced to

suffer rigorous imprisonment for life and fine of

Rs.5000/- by each of them, in default, to suffer further

rigorous imprisonment for three months.

(6) Respondent No.1 Ab.Ajij Sk.Mehboob, respondent

No.9 Rafikhan Meheboobkhan, and respondent No.10

Sk.Tayab Sk.Munaf are hereby convicted under Section

235(2) of the CrPC for the offence punishable under

Section 324 read with 149 of the IPC and sentenced to

suffer rigorous imprisonment for two years and fine of

Rs.5000/- by each of them, in default, to suffer rigorous

imprisonment for six months.

(7) Respondent No.1 Ab.Ajij Sk.Mehboob, respondent

No.9 Rafikhan Meheboobkhan, and respondent No.10

.....198/-

Judgment

494 apeal42.02

Sk.Tayab Sk.Munaf are hereby convicted under Section

235(2) of the CrPC for the offence punishable under

Section 341 read with 149 of the IPC and sentenced to

suffer rigorous imprisonment for one year and fine of

Rs.5000/- by each of them, in default, to suffer rigorous

imprisonment for three months.

(8) Respondent No.3 Sk.Mehboob Sk.Nabi, No.5 Yusuf

Patel Tamiz Patel, No.6 Sk.Rahis Sk.Mustafe, No.7

Bismillakhan Khalilkhan, and No.8 Tayarsha Maqboolsha

and No.12 Sidharth Shankar Wankhade, No.15

Inayatkhan Serfarajkhan, No.17 Sk.Nabi Sk.Supadu,

No.19 Sk.Mansab Sy.Yusuf, and No.20 Ajmatkhan

Mehemoodkhan are hereby acquitted of the offences

under Sections 143, 147, 148, 302, 307, 324, 326, and

341 read with Section 149 of the IPC.

.....199/-

Judgment

494 apeal42.02

(9) Respondent No.1 Ab.Ajij Sk.Mehboob, respondent

No.9 Rafikhan Meheboobkhan, and respondent No.10

Sk.Tayab Sk.Munaf are hereby acquitted under Section

235(2) of the CrPC of the offences punishable under

Sections 307 and 326 read with 149 of the IPC.

(10) All the substantive sentence shall run concurrently.

(11) Respondent No.1 Ab.Ajij Sk.Mehboob, respondent

No.9 Rafikhan Meheboobkhan, and respondent No.10

Sk.Tayab Sk.Munaf are entitled for set-off under Section

428 of the CrPC.

(12) Muddemal property, if any, be destroyed after the

appeal period is over after seeking report from the

concerned as to whether the appeal is preferred or not.

(13) Office to issue conviction warrant.

(14) R&P be sent back to the trial court.

.....200/-

Judgment

494 apeal42.02

(15) The bail bonds of respondent No.1 Ab.Ajij

Sk.Mehboob, respondent No.9 Rafikhan Meheboobkhan,

and respondent No.10 Sk.Tayab Sk.Munaf stand

cancelled.

(16) Copy of this order duly authenticated be supplied to

learned counsel appearing for parties free of costs.

The appeal stands disposed of accordingly.

(NANDESH S.DESHPANDE, J.) (URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge ...../- Date: 26/11/2025 11:15:53

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The State Of Mah.Thr.Telhara P.S. vs Ab.Ajij Sk.Mehboob And 22 Others.
2025 Latest Caselaw 7915 Bom

Bombay High Court

The State Of Mah.Thr.Telhara P.S. vs Ab.Ajij Sk.Mehboob And 22 Others. on 24 November, 2025

LatestLaws Partner Event : IJJ

LatestLaws Partner Event : Smt. Nirmala Devi Bam Memorial International Moot Court Competition

The State Of Mah.Thr.Telhara P.S. vs Ab.Ajij Sk.Mehboob And 22 Others.2025 Latest Caselaw 7915 Bom

Bombay High Court

The State Of Mah.Thr.Telhara P.S. vs Ab.Ajij Sk.Mehboob And 22 Others. on 24 November, 2025

LatestLaws Partner Event : IJJ

LatestLaws Partner Event : Smt. Nirmala Devi Bam Memorial International Moot Court Competition

The State Of Mah.Thr.Telhara P.S. vs Ab.Ajij Sk.Mehboob And 22 Others.
2025 Latest Caselaw 7915 Bom