Kashinath Shankar Pandit And Ors vs State Of Maha
2025 Latest Caselaw 6579 Bom

Bombay High Court

Kashinath Shankar Pandit And Ors vs State Of Maha on 8 October, 2025

2025:BHC-AUG:28103


                                             *1*                 apeal492o04acquit


                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                 BENCH AT AURANGABAD

                            CRIMINAL APPEAL NO.492 OF 2004

                1.    Kashinath s/o Shankar Pandit
                      Age : 50 years, Occ : Labour,
                      R/o Zanjarwadi, Tq.Gangapur,
                      Dist. Aurangabad.

                2.    Mattu s/o Kashinath Pandit,
                      Age : 24 years, Occ : Labour,
                      R/o as above.

                3.    Vitthal s/o Kashinath Pandit,
                      Age : 22 years, Occ : Agril,
                      R/o as above.
                                                      ...Appellants/ accused

                      - Versus -

                The State of Maharashtra.
                                                      ...Respondents/ State.

                                                ...
                Shri S.G. Ladda, Advocate for the appellants/ accused.
                Shri Sunil B. Jadhav, APP for the respondent/ State.
                                                ...


                                   CORAM : SUSHIL M. GHODESWAR, J.

                                   DATE : 08 October 2025


                ORAL JUDGMENT :-

1. By this appeal filed under Section 374(2) of the

Code of Criminal Procedure (for short, 'the CrPC'), the *2* apeal492o04acquit

appellants/ accused challenge the judgment and order dated

28.07.2004 passed by learned 2nd Ad-hoc Additional Sessions

Judge, Aurangabad, in Sessions Case No.215/2003 by which,

they have been convicted for offences punishable under Sections

304 Part-II r/w Section 34 of the Indian Penal Code, 1860 (for

short, 'the IPC') and each of them is sentenced to suffer rigorous

imprisonment for five years and to pay fine of Rs.1000/- (Rupees

One Thousand) each, in default of payment of fine, each of them

is to suffer further rigorous imprisonment for 15 days. They have

been acquitted for offences punishable under Sections 302, 325

and 324 of the Indian Penal Code.

2. The brief facts leading to filing of the present appeal

are as under:

The prosecution case is that on 21.07.2003 Crime

No.97/2003 was registered with Gangapur Police Station,

District Aurangabad, for offences punishable under Sections 302,

325, 324, 323 r/w Section 34 of the Indian Penal Code against

the appellants/ accused. The said FIR was registered on the basis

of complaint (exhibit 16) lodged by Kadubal Honaji Rodge (PW-

1), who is son of the deceased Honaji. As per the said complaint, *3* apeal492o04acquit

one year prior to 21.07.2003, quarrel had taken place between

PW-1 Kadubal Honaji Rodge and Kadubal s/o Raosaheb Pandit,

who is nephew of appellant No.1 Kashinath on account of

grazing sheep. When Kadubal Pandit informed about this quarrel

to his uncle appellant No.1 Kashinath, again quarrel took place

between appellant No.1 and deceased Honaji Khandu Rodge and

both of them had abused each other. On 20.07.2003 at about

07:00 to 07:30 pm, PW-1 Kadubal Rodge as usual left his sheep

in his threshing floor and came to his house. In the way his father

deceased Honaji met him and told to go home and take meal.

When PW-1 Kadubal Rodge was sitting after taking meal, his

father Honaji came there at about 08:00 to 08:30 pm and told

him that when Honaji was passing infront of the house of

appellant No.1, at that time, exchange of words and scuffle took

place between him and appellant Nos.1 to 3 and they had beaten

him. Thereafter, the deceased Honaji took his meal and at about

10:00 PM left his house towards threshing floor where his sheep

were kept. Immediately thereafter, PW-1 Kadubal Rodge heard

commotion and his father was shouting saying 'dead dead'.

Therefore, PW-1 Kadubal Rodge reached on the spot and found

that appellant Nos.1 to 3/ accused were beating his father Honaji *4* apeal492o04acquit

with sticks infront of their house. As per the prosecution,

appellant No.2 (Mattu) gave stick blow on the head of deceased

Honaji. When PW-1 Kadubal tried to rescue his father Honaji,

appellant Nos.1 and 3 caught hold of his hands and appellant

No.2 gave stick blow on his head. Meanwhile, villagers gathered

on the spot and rescued him and his father. Raghu Jagannath

Rodge (PW-6) and Appasaheb Gangadhar Rodge (PW-7) lifted

Honaji, who had bleeding injuries on his head, and took him to

his house. Sahebrao Govindrao Rodge and Abaji Govindrao

Rodge took PW-1 Kadubal Rodge to his house. PW-1 Kadubal

had dislocation of his right hand and he had bleeding injuries on

his head on account of assault caused by accused No.2 with stick.

PW-1 Kadubal was taken by Bhausaheb Bobade, Raghunath

Rodge and Appasaheb Rodge in a jeep to village Saundgaon,

Taluka Vaijapur, District Aurangabad where dislocation of bone

was set right. They left the house of PW-1 Kadubal at about 12

midnight. On 21.07.2003 at about 10:00 am in morning, when

PW-1 Kadubal came to his house from Saundgaon, he found

number of persons gathered infront of his house. He found his

father Honaji was dead. Accordingly, PW-1 Kadubal Rodge

lodged the complaint (exhibit 16) with Gangapur Police Station.

*5* apeal492o04acquit

The Investigating Officer Santosh Patil (PW-13) recorded the

complaint (exhibit 16) and took up investigation.

3. After completion of investigation, the charge-sheet

was filed on 01.09.2003. Since offences were triable by the

Sessions Court, the case was committed to the Sessions Court at

Aurangabad. The learned Additional Sessions Judge framed

charge (exhibit 3) against the appellants/ accused for offences

punishable under Sections 302 r/w 34, 325 r/w 34 and 324 r/w 34

of the Indian Penal Code. The appellants/ accused pleaded not

guilty and claimed to be tried. The prosecution has examined in

all 13 witnesses as under:-

PW   Name of witness                Their role
No.
PW-1 Kadubal Honaji Rodge           Son of deceased
                                    Eyewitness
                                    Complainant lodged FIR
PW-2 Navnath Rodge                  Panch to inquest panchanma
PW-3 Ramdas Lande                   Panch        to      seizure
                                    panchanama of clothes
PW-4 Muktabai Rodge                 Wife of deceased
                                    Eyewitness
PW-5 Baban Rodge                    Son of deceased
                                    Eyewitness
PW-6 Raghunath Rodge                Eyewitness
PW-7 Appasaheb Rodge                Eyewitness
PW-8 Dr.Gajanan Tarpe               Medical Officer
                               *6*                apeal492o04acquit


PW-9 Laxman Balaji Kolse             Panch to memorandum of
                                     panchanama
PW-10 Govindrao Gaikwad              Circle Revenue Inspector
                                     who drew the map.
PW-11 Syed Ismail                    Panch for memorandum
                                     panchanama
PW-12 Govind Rodge                   Brother of deceased
                                     Eyewitness
PW-13 Santosh Patil                  Investigating Officer

4. Out of the aforesaid 13 witnesses, PW-1, PW-4, PW-

5, PW-6, PW-7 and PW-12 are eyewitnesses. After recording

evidence and hearing the appellants and prosecution side, the

learned 2nd Ad-hoc Additional Sessions Judge, Aurangabad, was

pleased to pass the impugned judgment.

5. Learned advocate Shri Ladda appearing for the

appellants submitted that the learned Sessions Judge committed

grave error by convicting the appellants under Section 304 Part II

of the IPC as it has not properly appreciated evidence brought on

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

beyond reasonable doubt and as such, they cannot be convicted

for said offence. Learned advocate submitted that the learned

Sessions Judge, while acquitting the appellants for offence

punishable under Sections 302, 325 and 324 of the IPC, was *7* apeal492o04acquit

pleased to consider that there is no evidence of alleged

dislocation of hand of PW-1 (Kadubal Rodge) and there is total

absence of medical evidence about said dislocation. Though the

Medical Officer PW-8 in his deposition stated that PW-1

Kadubal had complained about said dislocation, however, his

certificate does not show grievous hurt injury. On the said point

of dislocation of hand due to assault made by the appellants,

learned Sessions Judge disbelieved all eyewitnesses. Therefore,

according to Shri Ladda, learned Sessions Judge ought to have

disbelieved entire testimony of all eyewitnesses as the

prosecution case proved to be shaky and unreliable. The

conviction of appellants under Section 304 Part II cannot be

sustained on the basis of statements of eyewitnesses, which are

disbelieved by the Trial Court while acquitting them for charges

under Sections 302, 325 and 324.

6. As regards alleged recovery of the weapon/ stick,

which is alleged to have caused death of deceased and recovered

at the instance of accused No.2, learned advocate Shri Ladda

submitted that the learned Sessions Judge has specifically arrived

at a finding that the prosecution has failed to prove that the *8* apeal492o04acquit

alleged stick recovered at the instance of accused No.2, was the

weapon which is likely to cause death of the deceased. Moreover,

the said recovered stick has not been shown to the Medical

Officer and there were no blood stains on the stick. Learned

advocate Shri Ladda further submitted that as the prosecution has

failed to prove that the accused persons voluntarily caused hurt

to PW-4 Muktabai Rodge, wife of deceased, by sticks allegedly

recovered, therefore, it was not appropriate for learned Sessions

Judge to convict the appellants/ accused particularly when

alleged injuries to the victims have not been proved to have been

caused by sticks. Learned advocate also submitted that there are

lot of discrepancies in evidence of PW-1, PW-4 and PW-5, who

are family members of the deceased Honaji. According to him,

PW-1 (Kadubal Rodge) stated that accused Nos.1 and 3 caught

hold hands of deceased Honaji. However, PW-5 Baban Rodge

stated that the accused were holding sticks in their hands. PW-4

Muktabai did not disclose specific role attributed to the accused.

Therefore, there is no evidence in entire testimony of PW-1, PW-

4 and PW-5 regarding the blow given by accused Nos.1 and 3.

As such, learned Sessions Judge has rightly disbelieved evidence

of PW-4 Muktabai on this count. Evidence of PW-5 Baban does *9* apeal492o04acquit

not disclose that he had actually seen assault to his father Honaji.

Thus, according to learned advocate, there is no consistency in

evidence of alleged eyewitnesses.

7. Learned advocate for the appellants further

submitted that medical evidence also does not support the

prosecution case. There are lot of omissions, which have been

kept by the prosecution. Said omissions ought to have been taken

into account by learned Sessions Judge while convicting the

appellants. The incident has taken place infront of house of the

accused, therefore, they cannot be said to be aggressors or

provokers. Another eyewitness PW-12 Govind Rodge, who is

elder brother of deceased Honaji, in his entire evidence no

where stated as to who had assaulted Honaji. Learned advocate

submitted that the accused persons had also suffered injuries.

There is medical evidence pertaining to said injuries, however,

the prosecution has thrown no light on same. There is no

explanation offered by the prosecution as to how these injuries

caused to the accused persons. The accused persons had also

gone to the Police Station, which has come on record from

testimony of PW-4 Muktabai. However, the police, for reasons *10* apeal492o04acquit

best known to them, did not take cognizance. Therefore, the

genesis of alleged incident is suppressed. In such circumstances,

benefit is, therefore, required to be given to the appellants/

accused. Learned advocate Shri Ladda, therefore, submitted that

considering entire evidence on record, the appeal needs to be

allowed and the appellants be acquitted.

8. Per contra, learned APP Shri Jadhav strongly

opposed the submissions of Shri Ladda. According to learned

APP, there are eyewitnesses to the incident, who have proved the

assault on deceased Honaji beyond all doubts and therefore, their

evidence cannot be discarded. Merely because eyewitnesses are

family members of deceased Honaji, they cannot be termed as

interested witnesses and, therefore, their evidence cannot be

thrown aside particularly when nothing adverse has been pointed

out by the defence as regards rivalry or interest of these

eyewitnesses. Learned Sessions Judge has rightly considered

evidence of eyewitnesses and rightly convicted the appellants for

offence punishable under Section 304 Part II. Learned APP,

therefore, prayed for dismissal of the appeal.

9. After in-depth hearing the submissions of learned *11* apeal492o04acquit

advocates and with their assistance, after going through evidence

on record carefully, it is clear that there is no consistency in

evidence of claimed eyewitnesses. The fact remains that

eyewitnesses are disbelieved by learned Sessions Judge while

acquitting the accused for offences punishable under Sections

325 and 324 in relation to injuries caused to PW-1 (Kadubal

Rodge), however, on the basis of same testimony, the appellants

are convicted for offence punishable under Section 304 Part II. It

has been rightly pointed out by learned advocate Shri Ladd that

there are lot of discrepancies in evidence of eyewitnesses and

nobody has firmly stated about author of alleged injury caused to

the deceased Honaji on his head. The postmortem report (exhibit

31) of deceased Honaji discloses that he had received three

surface wounds and injuries as are mentioned in paragraph 17 of

postmortem report, namely, (1) he had received Contused

Lacerated Wound (CLW) over right parietal region (admeasuring

6x2x2 cms) extending from mid parietal region towards right ear;

(2) Abrasion over right thigh lower 1/3 region 3x3x1/2 cms; and

(3) Abrasion over left thigh admeasuring 3x2.5 cms lateral

aspect. On internal examination of dead body, the postmortem

report reveals hematoma under scalp from right zygomatic *12* apeal492o04acquit

region root of right ear and no evidence of skull abnormalities. It

further discloses brain oedema present. There is evidence of

cranial injury over right parietal to be of brain laceration 3x2x2

cms and hematoma present over there of size 6x4 cms. Finally,

the probable cause of death was stated to be due to head injury.

In this context, it was necessary for the prosecution to prove the

assault caused by a particular accused person on the head of

deceased Honaji, who could have been said to be author of head

injury. However, despite there being six eyewitnesses, nobody

has corroborated evidence of another witness. It was duty of the

prosecution to prove the case beyond all reasonable doubts. If

evidence of all six eyewitnesses is perused, it would reveal that

PW-1 (Kadubal) says that the accused were beating deceased

Honaji with sticks; PW-4 (Muktabai) deposed that only accused

No.2 (Mattu) hit stick on head of deceased; PW-5 (Baban) stated

that accused No.3 Vitthal hit stick on the head of deceased

Honaji; PW-6 (Raghunath) stated that accused No.2 (Mattu) and

accused No.3( Vitthal) were beating deceased Honaji; PW-7

(Appasaheb) stated that all accused were beating deceased

Honaji; and PW-12 (Govind) merely said that deceased Honaji

was beaten, however, he does not say who had given stick blow *13* apeal492o04acquit

over head of deceased Honaji. In such circumstances, it becomes

impossible to ascertain conclusively as to who is author of injury

on head of deceased Honaji.

10. To attract Section 304 Part II, the prosecution must

establish that the accused had knowledge that his act was likely

to cause death. The evidence on record neither proves such

knowledge nor a specific overt act attributable to any of the

accused. In absence of cogent medical and ocular correlation,

conviction under Section 304 Part II cannot be sustained. Insofar

as Section 34 of IPC is concerned, common intention is not

proved because no consistent role or pre-planning is attributed to

the accused persons. It is also undisputed that the accused

persons had sustained injuries in the same transaction. The

prosecution has failed to explain these injuries, which creates a

doubt about its version and strengthens the defence plea that the

prosecution suppressed the true genesis of the incident.

11. Having carefully considered the testimony of six

alleged eyewitnesses, this Court finds substantial contradictions

regarding the participation and overt acts of each accused. The

prosecution has failed to establish a consistent and trustworthy *14* apeal492o04acquit

version. Medical evidence does not conclusively connect the

head injury of the deceased with any particular accused or with

the weapon allegedly seized. The unexplained injuries on the

accused further create reasonable doubt about the prosecution

case. Hence, benefit of doubt must go to the appellants. It is well

settled principle of law that when two views are possible, the one

favourable to the accused must be adopted (see Sharad

Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622).

12. In the above facts and circumstances of the case, the

appellants/ accused cannot be held guilty for offence punishable

under Section 304 Part II read with Section 34 of Indian Penal

Code. Hence, this Criminal Appeal is allowed and the impugned

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

accused are acquitted for offence punishable under Section 304

Part II read with Section 34 of the IPC. The appellants be

released forthwith, if not required in any other case. Fine amount,

if deposited, be refunded.

kps                                   (SUSHIL M. GHODESWAR, J.)