Bombay High Court
Afsar Khan Haider Khan vs State Of Mah., Thr. P.S.O. Ps Washim ... on 8 October, 2025
Author: Anil L. Pansare
Bench: Anil L. Pansare
2025:BHC-NAG:10447-DB
1 jg.cri.appeal 8 & 94.2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR.
Criminal Appeal No. 8 of 2020
Ganesh S/o Pralhad Thengade
Aged about 32 years, Occ : Labour,
R/o. Bhivani Nagar, Washim,
Tq. & Distt. Washim. ... Appellant
- Versus -
The State of Maharashtra, through
Police Station Officer, Police Station,
Washim (City), District Washim. ... Respondent
-----------------------------------------------------
with
Criminal Appeal No. 94 of 2020
Afsar Khan Haider Khan
Aged about 57 years, Occ : Labour,
Resident of Devpeth, Washim. ... Appellant
- Versus -
(1) State of Maharashtra, through
P.S.O., P.S. Washim City,
Washim.
(2) Akash Pralhad Thengade,
Aged 22 years, Occ : Labour,
(3) Vishal Kisan Ingale,
Aged 23 years, Occ : Labour,
(4) Pralhad Ganpat Thengade,
Aged about 70 years, Occ : Labour,
Respondent nos. 2 to 4 R/o Bhavani Nagar,
Washim, Dist Washim. ... Respondents
2 jg.cri.appeal 8 & 94.2020.odt
-----------------------------------------------------
Mr. A. M. Jaltare, Advocate for the appellant in Cri. Appeal 8/2020
Mr. M. N. Ali, Advocate for the appellant in Cri. Appeal 94/2020 (and
for assist to prosecution in Cri. Appeal 8/2020)
Mr. K. R. Lule, APP for the State/respondent no. 1
Mr. R. S. Kurekar with Ms. K. M. Shekhar, Advocates for respondent
nos. 2 to 4 in Cri. Appeal 94/2020
-----------------------------------------------------
CORAM : ANIL L. PANSARE AND
SIDDHESHWAR S. THOMBRE, JJ.
Date of reserving judgment : 03-10-2025
Date of pronouncing judgment : 08-10 2025
JUDGMENT (Per : ANIL L. PANSARE, J.)
These appeals arise out of the judgment and order dated
2-11-2019 passed by learned Additional Sessions Judge, Washim in
Sessions Case No. 44/2018 thereby convicting the appellant - Ganesh
Pralhad Thengade in Criminal Appeal No. 8/2020 and acquitting the
respondent nos. 2 to 4 in Criminal Appeal No. 94/2020 for the offence
punishable under Section 302 read with Section 34 of the Indian Penal
Code (IPC). The respondent nos. 2 and 3 were, however, convicted for
the offence punishable under Section 324 of IPC, whereas respondent
no. 4 was convicted for the offence punishable under Section 323 of
IPC. Accordingly, Ganesh Thengade has preferred appeal being
Criminal Appeal No. 8/2020. The informant (father of victim) has
preferred appeal, being Criminal Appeal No. 94/2020 under Section
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372 of the Code of Criminal Procedure, 1973 (for short 'the Code')
against the judgment of acquittal.
2. The appellant in Criminal Appeal No. 8/2020 and
respondent nos. 2 to 4 in Criminal Appeal No. 94/2020 shall be
hereinafter referred to as accused nos. 1 to 4 respectively. Thus, by the
impugned judgment, accused no. 1 was convicted for the offence
punishable under Section 302 of IPC whereas accused nos. 2 to 4 were
convicted for a lesser offence.
3. Briefly stated, the case of the prosecution was that on
7-4-2018, the informant lodged report with Police Station, Washim City
stating therein that his brother's wife Najama informed him that in
front of country liquor shop at Bhavaninagar, some persons have beaten
her son, namely, Wasim Khan and he was taken to Washim Critical
Hospital. The informant directly proceeded to the said hospital and met
Wasim Khan. He had sustained injuries on head, abdomen and neck.
The informant asked him about the incident, to which, Wasim
responded by saying that at about 8.15 p.m. when he was returning by
his car, the accused persons assaulted him by iron rod, iron pipe and
knife. He also informed that the incident was witnessed by Sachin Ufale
and Ibrahim Qureshi. Based on information, police registered offence
against the accused under Section 307 read with Section 34 of the IPC
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vide Crime No. 138/2018. During treatment, Wasim Khan expired in
Icon Hospital, Akola and, accordingly, offence under Section 302 of the
IPC was added.
4. The police swung into the action. They visited the spot and
prepared panchanama, seized clothes of the accused, prepared inquest
panchanama and referred the body for postmortem. The police
recovered weapons viz. shock-up rod and iron pipe under Section 27 of
the Indian Evidence Act. The blood stained clothes of accused and
witnesses were also seized and sent to chemical analysis. The police
also seized the car in which the Wasim was taken to hospital. The
statements of witnesses were recorded. The accused were arrested and
referred to medical examination. After complete investigation, the
police filed charge-sheet which was registered as R.C.C. No. 152/2018.
5. Learned Magistrate committed the case to the Sessions
Court in terms of Section 207 of the Code. The Sessions Court framed
charge vide Exhibit 9. The accused pleaded not guilty and claimed to
be tried. The prosecution then examined eight witnesses to bring home
guilt of the accused. Statements of accused under Section 313 of the
Code came to be recorded. The defence of the accused is of total denial
and false implication. They did not examine any witness in defence.
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6. The trial Court considered the evidence led before it as also
the arguments made by the parties. The trial Court found that there is
sufficient evidence against accused no. 1 for committing offence under
Section 302 of IPC, however against accused nos. 2 to 4, the case was
made out for a lesser offence under Section 324 and 323 of the IPC.
Accordingly, the trial Court convicted the accused no. 1 for the offence
punishable under Section 302 of the IPC and others for lesser offence.
7. We have heard Mr. A. M. Jaltare, learned counsel for
accused no. 1, Mr. R. S. Kurekar, learned counsel for accused no. 2 to 4,
Mr. M. N. Ali, learned counsel for the informant and Mr. K. R. Lule,
learned Additional Public Prosecutor (APP) for the State/respondent
no. 1. We have gone through the evidence, documents and judgments
placed before us. We will refer to the same to the extent necessary to
decide the following points that arise for our consideration. We have
recorded our findings thereon for the reasons to follow.
Sr. Points Findings
No.
1. Has the prosecution proved that In the affirmative.
Wasim Khan Ajij Khan suffered homicidal
death ?
2. Has the prosecution proved that on In the affirmative.
7-4-2018, in front of country liquor shop
at Bhavaninagar, Washim, accused persons
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in furtherance of their common intention,
caused death of Wasim Khan Ajij Khan
intentionally and knowingly by assaulting
him by iron pipe and knife ?
3. Whether interference is called for in the In the affirmative,
as per final order.
impugned judgment, if yes, to what
extent ?
4. What order ? As per final order.
REASONS
8. These points being interlinked are decided by common
reasoning. The prosecution was under obligation to prove that Wasim
Khan suffered homicidal death and that the death has been caused by
the accused persons. The learned trial Court relied upon postmortem
report, Exhibit 53, which was admitted by the accused. As per the
postmortem report, following injuries were found on the body of Wasim
Khan.
"1] Stitched wound over left parietal region of size 11 cm x 9 cm
2] Stitched wound over left Occipital region of size 1 cm x 5 cm.
3] Two abrasion just above the medial end of right eyebrow of size
1cm x 0.5cm and 1 cm x 0.3 cm
4] Abrasion over right cheek of size 3cm x 2.5cm
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5] Abrasion over lower back on left side of Size 3cm x 3cm
6] Intravenous puncture mark (as a part of treatment).
7] Under-scalf haematoma over right teporo-Posterio-Parital region
of 15 cm x 13cm and left posterios-parito-occipital region
14cm x 13cm.
8] Linear undisplaced fracture of left occipital bone extending over
posterior fossa left side of length 9 cm.
9] Evidence of subdural hemorrhage over right cerebral hemisphere
of size 19 cm x 9cm.
10] Evidence of subarachnoid hemorrhage over right fronto temporo
parietal region of sized 16 cm x 7 cm."
The cause of death of Wasim Khan was shown as 'head injury'. The
injuries were antemortem. The testimony of witnesses will disclose,
how the above injuries were caused.
9. P.W. 1 is the informant. He deposed in terms of the report
lodged by him with the police. His evidence as regards incident is
hearsay because his sister-in-law Najama had informed him about the
incident. He had not seen accused beating Wasim. His evidence on the
point of occurrence of incident, therefore, is inadmissible. What is
admissible is that upon receiving information of the incident, he
proceeded directly to Washim Critical Hospital. He met Wasim at the
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hospital and inquired about the incident. Wasim said that Ganesh
Thengade (accused no. 1) had assaulted him with shock-up rod, Akash
(accused no. 2) had beaten him with iron pipe, Vishal (accused no. 3)
with iron pipe and Pralhad Thengade (accused no. 4) had beaten him
with hands and kicks. P.W. 1 then approached police station and lodged
report, Exhibit 27. Thus, the First Information Report (FIR) has been
promptly lodged. P.W. 1 then deposed that Wasim Khan expired. He
identified the accused before the Court.
10. In the cross-examination, the informant deposed that prior
to the incident, he had an opportunity to go to Washim Critical
Hospital. The defence has then brought on record that when the
treatment was being given to Wasim Khan in ICU, he himself
(informant) and other relatives were present in the said room. He also
deposed that family members of other brothers and their children
were also present. Similarly, couple of doctors and five nurses were
present in ICU. He denied the suggestion that when he reached Critical
Hospital, Wasim Khan was unconscious due to head and neck injury.
He deposed that Wasim was then referred to Akola within 30 minutes of
the treatment. He also deposed that at that time, doctors informed
them that Wasim's condition is highly serious and accordingly he is
being referred to Akola. The defence has then brought on record a vital
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evidence, where informant said that Wasim told him about assault by
accused only because he reached the hospital first. It is also brought on
record that when he reached hospital, doctors were suturing wounds of
Wasim.
11. Thus, the defence has brought on record that Wasim was
given treatment at the hospital, namely, Washim Critical Care Center.
He was in the hospital for about 30 minutes. Wasim narrated the
incident to him (P.W. 1). His condition was serious. Thus, the defence
has admitted that prior to death, Wasim has disclosed to informant
the details of the incident wherein he not only named each accused, but
has assigned a specific role to each one of them. Oral dying
declaration is accordingly substantiated by the defence. According to
dying declaration, accused no. 1 Ganesh assaulted Wasim with shock-up
rod, accused Akash and Vishal had beaten him with iron pipe and
accused Pralhad had beaten him by hands and kicks.
12. P.W. 2 is a panch witness to spot panchanama. He said that
spot of incident was between Patni Chowk to Shivaji Chowk i.e.
Bhavaninagar. He has also deposed that the blood mixed soil, stones
containing blood stains and CCTV camera was seized by police. He is
also panch to the seizure of clothes of the accused. He has identified
their clothes. In the cross-examination, he said that there is country
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liquor shop near the spot of incident and that the said shop is situated
in a residential area having thick population. He also deposed that
informant was present with them on the spot. Nothing more has been
brought on record through this witness.
13. Mr. A. M. Jaltare, learned counsel for accused no. 1 and
Mr. R. S. Kurekar, learned counsel for accused nos. 2 to 4 argued that
CCTV camera was not produced before the trial Court and, therefore,
vital evidence is concealed. Learned APP submits, and rightly so, that
merely because CCTV camera was not produced before the trial Court, it
would not affect the case of prosecution in as much as neither the
witness deposed in chief- examination that he has seen CCTV footage
covering the incident nor has defence put up a case that CCTV camera
seized by police contained the footage of the incident. He submits that,
had the footage of incident captured in CCTV camera, the prosecution
would have placed it before the trial Court. Thus, merely on the ground
of non production of CCTV camera, one cannot jump to the conclusion,
firstly, that the incident was captured in CCTV footage and secondly, the
accused persons were not seen in the CCTV footage. In fact, such case
is not put up by defence.
14. P.W. 3 is the panch witness to the disclosure of the weapon
at the instance of accused. Discovery is under Section 27 of the Indian
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Evidence Act. He deposed that Ganesh was in police station and said
that he would take out the iron pipe which he had concealed. The
panchanama is at Exhibit 39. Ganesh led them to his house situated
behind the country liquor shop at Bhavaninagar. He took out the
shock-up rod from his house. Police seized the same under seizure
panchanama, Exhibit 41. The witness then testified about recovery of
iron pipe at the instance of Akash. It was recovered from his house.
The iron pipe was also seized under panchanama, Exhibit 42. Similar is
the status of Vishal. He also took out iron rod from his house. It was
seized under panchanama, Exhibit 43. The witness identified these
three weapons. In the cross-examination, the witness said that accused
did not sign panchanama and memorandum statement in his presence.
Witness then denied the suggestion that accused did not show their
willingness to show any place nor any weapon seized at their instance.
15. The argument of defence is that discovery of weapon is not
proved because the witness has not specified the place where the
weapons were concealed. The witness has only deposed that each
accused had kept the weapon in the house and brought the same from
their house. The witness also stated that panchanama and
memorandum statement were not signed by the accused in his
presence. Thus, according to defence, recovery is doubtful.
12 jg.cri.appeal 8 & 94.2020.odt
16. The submissions appears to us to be relevant. The
prosecution, if intends to rely on discovery of weapon under Section 27
of the Indian Evidence Act, it is under obligation to prove that the place
where weapon was concealed was within the exclusive knowledge of
the accused. In that sense, the details of the space including its location
within the house should have been brought on record. The house of
accused is otherwise accessible to all other family members and,
therefore, cannot attribute exclusive knowledge of the house to the
respective accused. The recovery of weapons will have to be, therefore,
ignored.
17. P.W. 4 is an eye witness. He is also friend of Wasim.
According to him, the incident occurred on 7-4-2018 at 8.00 p.m. He
and Wasim met at pan shop. Thereafter Wasim proceeded to his house
in four wheeler. P.W. 4 was on way to his house on two wheeler. He
took a turn near country liquor shop at Bhavaninagar. The witness
proceeded further. When he reached Dighewadi Square, he received
phone from Wasim saying that quarrel occurred between him and
Ganesh. Accordingly, Wasim called him. The witness then proceeded
towards spot. In between, Sachin Ufade met him and accordingly, both
went towards spot. When they reached spot, they saw all the accused
beating Wasim. Having seen him(witness), the accused nos. 2 to 4 fled
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away. However, Ganesh continued beating Wasim by shock-up rod.
He (witness) obstructed Ganesh by pulling him. He saw Wasim had
sustained bleeding injury on his head. Wasim's cousin was passing by
said road, accordingly, the witness, Sachin and Wasim's cousin Mujju
removed the injured to hospital. While on way to hospital, Wasim told
the witness that the accused assaulted him on the ground of removal of
motorcycle from the road. Wasim was admitted to Critical Hospital.
Wasim's uncle came to hospital.
18. Thus, P.W. 1's presence in the hospital is substantiated by
the testimony of P.W. 4. Apart from that, he has witnessed the incident.
He identified the accused in the Court. The defence brought on record
that incident took place at about 8.00 p.m. It is then brought on record
that on way to spot, the witness informed Sachin Ufade that there
occurred quarrel between Wasim and some persons. It is then brought
on record that when the witness reached spot, 10 to 15 persons were
already present there and Wasim was lying on the ground. The witness
picked up Wasim and took him to hospital. He denied the suggestion
that he (Wasim) was unconscious. He then showed ignorance to the
case put up by defence that there occurred quarrel between Datta Walke
and Wasim.
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19. The defence has, through aforesaid cross-examination,
made an attempt to show that P.W. 4 has not seen the incident and
secondly, that there occurred quarrel between Datta Walke and Wasim
on the same day at the same time. In doing so, the defence has brought
on record that the witness reached the spot and that Wasim was lying
on the ground. Thus, the presence of witness at the spot has been
certified and along with it, was certified that Wasim sustained injuries.
Such a cross-examination coupled with what the witness has deposed
in chief-examination will support the prosecution's case that P.W. 4
had seen the accused beating Wasim. Accused nos. 2 to 4 fled away
whereas accused no. 1 continued beating Wasim by shock-up rod.
20. Thus, involvement of accused persons in the crime has been
well established through the testimony of this witness. Further, his
testimony, if read with testimony of P.W. 1, not only the involvement
of all accused in the crime is established but also the role played by each
one of them. P.W. 4 has seen all the accused beating Wasim. He has
also seen Ganesh beating Wasim by shock-up rod. Said part of the
incident has been corroborated by P.W. 1. In addition, P.W. 1 has, in the
form of dying declaration, spelt out the role played by other three
accused. Thus, evidence of P.W. 4 is significant. The only issue is
whether on the same day and at the same time, there occurred quarrel
15 jg.cri.appeal 8 & 94.2020.odt
between Datta Walke and Wasim, and if such quarrel occurred, whether
there is evidence to show that Datta Walke is the one, who has
committed Wasim's murder.
21. P.W. 5 is a Doctor attached to Icon Hospital, Akola. He
deposed that Wasim Khan was admitted in the hospital on 7-4-2018
with the history of head injury. The Doctor has treated him and has
given information that injuries sustained by Wasim might have been
caused by heavy, hard and blunt object, resulting into intracranial
hemorrhage, which ultimately resulted into his death. In the cross-
examination, the defence got the admission that injuries sustained by
Wasim may lead to his health deteriorating to Coma and that patient
can become unconscious and/or go into Coma immediately after the
injuries. The doctor further admitted that Wasim was brought to Icon
Hospital in unconscious condition. He also admitted that the injuries
sustained by Wasim can be caused, if he fails on hard and blunt object.
Such admissions, in the light of evidence of P.W. 1 and P.W. 4 as also
P.W. 7, which we will discuss later, will be of no consequences, rather,
will support the case of the prosecution that the assault was made with
the intention to eliminate Wasim.
22. P.W. 6 is yet another doctor. He is attached to Washim
Critical Care Center where Wasim was brought immediately after the
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incident. The doctor deposed that Wasim was brought to hospital with
history of assault but before examining and giving treatment, people
accompanying him decided to shift him to Akola for further treatment.
Accordingly, he issued certificate, Exhibit 52. In the cross-examination,
he stated that when Wasim was brought to hospital, he was appearing
unconscious.
23. The counsels for the defence harped upon his statement
that when he was brought to hospital, he was appearing unconscious.
According to defence, if Wasim was brought to hospital in unconscious
state, there was no question of P.W. 1 interacting with him.
24. Thus, according to defence, the theory of dying declaration
is washed away by the testimony of this witness. We do not find
substance in the argument in as much as the witness has not admitted
that Wasim was brought unconscious. What is said by the witness is
that Wasim was appearing unconscious. Thus, the witness was not
certain whether Wasim was unconscious or not. It appears that
P.W. 6 is running private hospital and, therefore, avoided to take
responsibility to treat the patient sustained injury in crime. His
evidence, if tested in the light of testimony of P.W. 1, will show that
he has suppressed the fact of he giving initial treatment to Wasim.
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Even the cross-examination of P.W. 1 show that Wasim was treated in
this hospital.
25. P.W. 7 is yet another eye witness, namely, Sachin Ufade.
He met P.W. 4 when he was on way to spot. He deposed that on
7-4-2018, at about 8.15 p.m., P.W. 4 came to him and told that Ganesh
was beating Wasim and accordingly, both proceeded towards the spot
viz. country liquor shop at Bhavaninagar. When they reached spot, they
saw all accused beating Wasim. He then deposed that accused nos. 2 to
4 fled away from the spot but Ganesh continued beating Wasim on his
head. P.W. 4 pushed Ganesh and rescued Wasim. Wasim sustained
injuries to his head and neck. He then deposed that they took Wasim to
Washim Critical Hospital and on way, Wasim told them that accused
assaulted him on the point of parking of vehicle. He also deposed that
in the hospital, doctor treated him on the ground floor and thereafter he
was taken to upstairs.
26. Thus, his testimony is in tune with the evidence of P.W. 4
and would further substantiate the prosecution version. In the cross-
examination, he admitted that at the time of incident, 10 to 12 persons
were present in front of country liquor shop. It is then brought on
record that when P.W. 4 and the witness were traveling on motorcycle,
P.W. 4 informed him that there occurred quarrel between Wasim and
18 jg.cri.appeal 8 & 94.2020.odt
Ganesh. Thus, the defence has supported P.W. 4's version that Wasim
told him that there occurred quarrel between him and Ganesh.
27. The argument of defence, however, is that P.W. 4 has stated
that he informed Sachin that there occurred quarrel between Sachin
and some person. Wasim did not name Ganesh whereas Sachin has
stated that P.W. 4 informed him that there occurred quarrel between
Wasim and Ganesh. In our view, such minor discrepancy in evidence of
P.W. 4 will not be sufficient to infer that P.W. 4 and P.W. 7 have not
witnessed the crime particularly when in cross-examination, defence
itself has brought on record that P.W. 4 informed Sachin about quarrel
between Wasim and Ganesh. He admitted that Wasim was lying on
the spot and was taken to hospital but denied the suggestion that he
was unconscious. Thus, the testimony of P.W.7 has strengthened the
prosecution's case.
28. P.W. 8 is the Investigating Officer. He has supported the
prosecution's theory and deposed about the evidence collected by him
during investigation. In the cross-examination, he admitted that on
7-4-2018 at about 8.30 p.m., Wasim had picked up a quarrel with
Datta Sawke, an employee of country liquor shop and had assaulted
him. The N.C. report was lodged. He further admitted that on same day
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and time, accused Vishal had also lodged report with police station
about some Muslim persons entering his house and assaulting him.
29. On the basis of aforesaid evidence, the counsels for defence
argued that there occurred quarrel between Wasim and Datta Sawke,
who is employee of country liquor shop and, therefore, the possibility of
Wasim getting injured in the said quarrel cannot be ruled out.
30. We are not impressed with the argument in as much as
merely because Datta Sawke, who was employee of country liquor
shop will not mean that Wasim and Datta Sawke had quarreled in front
of country liquor shop. Further, the Investigating Officer is not an eye
witness to the said incident. He deposed on the basis of information
lodged with the police station. Most importantly, he deposed that
Wasim had assaulted Datta Sawke and, therefore, the defence cannot
argue that Datta Sawke has assaulted Wasim or that it is he who was
responsible for the injuries sustained by Wasim. As stated earlier, the
Investigating Officer is not witness to the incident that allegedly
occurred between Wasim and Datta Sawke. There is nothing on record
to show that said incident had occurred at a particular time and place.
That being so, merely because some report was lodged on the same day
of the incident, it cannot be read in isolation to overturn the well
established case of the prosecution.
20 jg.cri.appeal 8 & 94.2020.odt
31. Mr. A. M. Jaltare, learned counsel for the appellant Ganesh
argued that the evidence of eye witnesses is not trustworthy. According
to him, it is doubtful whether P.W. 4 and P.W. 7 have actually witnessed
the incident. According to him, on the date of incident, there occurred
two quarrels, that too, at the same time. P.W. 4 and P.W. 7 have not
stated anything about second quarrel and, therefore, it is unlikely that
they have witnessed the incident. Another contention is that there is
delay in lodging FIR. In support, he has relied upon following
judgments.
(1) Hallu and ors. Vs. State of M. P. [1974 Cri.L.J. 1385] . In the said
case, the appeal was against acquittal involving charge of murder. The
Supreme Court emphasized on the point, considering the evidence led
in the said case, that when there are multiple plausible interpretations
of the evidence, the Court should refrain from interfering with acquittal
decisions. The Supreme Court also highlighted the importance of
credibility and reliability of the testimony of the eye witnesses, the
significance of discrepancies in report and medical evidence and the
proper understanding of the legal requirements for reports to qualify as
first information reports. Accordingly, the Supreme Court held that
where the evidence was not conclusive for establishing guilt beyond
21 jg.cri.appeal 8 & 94.2020.odt
reasonable doubt, the Court should have exercised caution in disturbing
an acquittal.
We do not find support of the aforesaid judgment to the
appellant Ganesh. Firstly, he has been convicted by the trial Court and,
therefore, the question of giving benefit of the judgment of acquittal
will not arise. Most importantly, here is a case where not only the
prosecution, by examining two eye witnesses, whose evidence is
supported by the oral dying declaration of the deceased, has established
the guilt of accused but also the defence in the cross-examination has
cemented the prosecution's version.
As regards occurrence of two quarrels, we find that the
argument is imaginary. The Investigating Officer's evidence on this
point is hearsay and is based on the report lodged with the police.
Neither the spot of incident is disclosed nor is there cogent evidence to
believe that on that day, at the same time, there occurred two quarrels
to jump to the conclusion, firstly, that both quarrels took place at the
same place and secondly, that Wasim sustained injuries in the said
quarrel. In fact the report that was lodged with police indicates that
Wasim assaulted Datta Sawke. In the circumstances, the argument that
P.W. 4 and P.W. 7 have not witnessed the incident is without any
substance and is accordingly rejected.
22 jg.cri.appeal 8 & 94.2020.odt
So far as delay in FIR is concerned, it is well settled that there
cannot be straitjacket formula to doubt the informant's version only on
the basis of delay in lodging FIR. If the delay is justified, the Court
should consider the case accordingly.
In the present case, one cannot even argue that there is delay in
lodging FIR. The informant (P.W. 1), after receiving information of the
assault on Wasim, proceeded to the hospital where he was taken.
Informant is uncle of Wasim. It is but natural that he will first visit
hospital to enquire about Wasim's health. He has accordingly visited
the hospital, spoken to Wasim and acquired knowledge about the details
of assault on him. Thereafter Wasim was taken to Akola for further
treatment. Informant approached police station and lodged FIR. One
may visualize here that once informant approached the police station,
what will follow is the narration of incident. The same will be then
taken down and other formalities completed. This process will depend
on the capability of a person to narrate the incident in the sense it will
depend on capability of each individual to narrate the incident within
certain time. One person may narrate it within few minutes, another
may take some time. Accordingly, a pragmatic approach will have to be
taken while assessing the evidence.
The printed FIR, Exhibit 28 indicates that information was
received at police station on 7-4-2018 at 23.44 Hours. The time of
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occurrence of offence is mentioned as between 20.30 to 20.45 Hours.
In the oral report (Exhibit 27), the informant has stated that at about
8.45 p.m. (20.45 Hours) on 7-4-2018, while he was taking dinner, he
received phone call from her sister-in-law, namely, Najama saying that
her son Wasim Khan was beaten by boys of Bhavaninagar and that
Wasim has been taken to Washim Critical Hospital for treatment.
Thereafter, he proceeded to the hospital where he saw that his nephew
Wasim was being treated for injury which is sustained on neck and
stomach. Thereafter Wasim informed that he was beaten by four
accused by means of iron rod, iron pipe, knife etc. Names of four
accused were also mentioned. The description of weapon has been also
stated. It is nobody's case that informant has acquired this knowledge
from any other source. Informant then approached police and lodged
report saying that four accused made an attempt to kill Wasim.
Accordingly, FIR under Section 307 read with Section 34 of the IPC was
lodged.
Thus, informant received information at about 8.45 p.m. He
then proceeded to Washim Critical Hospital. He met Wasim at hospital,
who narrated the incident. Wasim was given initial treatment.
Thereafter, informant proceeded to police station and lodged report at
about 11.45 p.m. In this process viz. receiving information of incident
while taking dinner, till reaching police station, he spent three hours,
24 jg.cri.appeal 8 & 94.2020.odt
which appears to us to be probable. We are, therefore, of the firm
view that there is absolutely no delay in lodging FIR. The informant
was not even aware that Wasim Khan has in fact succumbed to the
injuries while he was taken to hospital at Akola and accordingly, he
lodged FIR alleging attempt to murder. Such a prompt reporting of FIR
will not only inspire confidence but will also meet the requirement of
valid dying declaration. The report also mentions of presence of P.W. 4
Sachin and P.W. 7 Ibrahim at the spot and they having witnessed the
incident. Thus, names of accused, weapons used by them in assault and
the persons who have witnessed the incident is all mentioned in the oral
report that was lodged by P.W. 1. This report having been lodged
promptly and since there is nothing to indicate that P.W. 1 had received
this information from any other source, his statement is significant to
establish the nexus of accused with the crime.
(2) Jamuna Chaudhary and others Vs. State of Bihar [1974 Cri.L.J.
890]. This judgment is cited in support of the argument that the duty of
Investigating Officer is not merely to bolster up a prosecution case with
such evidence as may enable the Court to record a conviction but to
bring out the real unvarnished truth.
The aforesaid finding is given by the Supreme Court in the
background of the case where large scale violence occurred, many
25 jg.cri.appeal 8 & 94.2020.odt
individuals including the appellant therein were accused of participating
in an attack resulting in multiple injuries and death. The Supreme
Court scrutinized the evidence and noted that many witnesses did not
mention the injuries to the deceased or specific role of appellant in
causing injury. The Court found that evidence was not sufficient to
prove guilt of appellant for causing death beyond reasonable doubt.
Accordingly, his conviction was reduced from murder to rioting.
Such is not the case here. Evidence led by the prosecution here
has established involvement of the accused persons in the crime as also
the manner in which they have played a role. This is not a case where
many individuals were involved in the crime or that the evidence is
vague as regards involvement of accused in the crime.
(3) State of Karnataka Vs. M. S. Basappa and others [(2019) 16 SCC
242]. This judgment is cited in support of argument that FIR was
lodged after 4 Hours despite police party have reached the scene of
occurrence immediately after the incident. We have gone through the
judgment. The High Court there identified several discrepancies in
the prosecution's case which included inconsistent and delayed
registration of FIR as also unnatural conduct of witnesses, contradictory
versions regarding the time and place of the incident etc. It is, in the
aforesaid background, the delay in registration of FIR was found
26 jg.cri.appeal 8 & 94.2020.odt
significant. Thus, this is not a case where conviction has been set aside
only on the ground of delay in lodging FIR. In any case, we have noted
that there is no delay in lodging FIR. Further, the police arriving at a
spot on receiving information is one thing and lodging FIR is another.
The normal conduct of police and all concerned will be to control the
situation and/or to attend the victim and try to save his life. Thus, the
first priority will be to take the victim to the hospital for treatment.
Thus, multiple activities will occur on in such a situation which is a
normal conduct. In that context, we would reiterate that there is
absolutely no delay in lodging FIR and no benefit could be drawn by the
accused on this count.
(4) Mahtab Singh and another Vs. State of Uttar Pradesh [(2009) 13
SCC 670]. This judgment is also relied upon on the point of benefit
to be extended to the accused where there is delay in lodging FIR. In
the said case, FIR was lodged in 45 minutes after the incident. The
argument is that despite lodging FIR in 45 minutes, the Supreme Court
found that it was not prompt reporting of the FIR and therefore, the
case of prosecution should be not believed. We have gone through the
judgment to find that the Supreme Court's views about delay in lodging
FIR were altogether in different context.
27 jg.cri.appeal 8 & 94.2020.odt
It was a case where trial Court had meticulously examined entire
evidence and concluded that the prosecution failed to prove the charges
beyond reasonable doubt and accordingly accused persons were
acquitted. The High Court reversed the acquittal, finding that the
evidence of prosecution witnesses was convincing. The Supreme Court
noted that High Court's decision to overturn the trial Court's acquittal
order was without sufficient and plausible grounds, particularly, when
the trial Court's findings were reasonable and supported by the
evidence. In the said case, the incident occurred at 9.00 p.m. The
deceased had been to betel shop of R to purchase bidi. While he was
returning, only few steps away, the incident had occurred. In fact P.W. 1
therein had admitted in his deposition that R's shop was hardly 2-3
steps away from the place of occurrence. The Supreme Court noted
that R though available, his statement was neither recorded under
Section 161 of the Code nor was he tendered in examination before the
Court. The Supreme Court then noted other flaws in the investigation
and thereafter commented on the time taken to lodge FIR. The
Supreme Court took note of the finding of the High Court wherein the
High Court has overturned the judgment of acquittal inter alia on the
ground that FIR was lodged merely 45 minutes after the incident. The
Supreme Court held that the High Court failed to consider that police
station was so close from the spot of incident that it was visible
28 jg.cri.appeal 8 & 94.2020.odt
therefrom and yet P.W. 1 did not go immediately to police station to
lodge report but first went to C to have a written report prepared and
then went to the police station with written report. The Supreme Court
was of the view that the first version of the incident could have been
reported at the police station within 5 minutes of its occurrence. In that
context, the Court held that P.W. 1, thereon took 45 minutes in reporting
the incident and thus creates doubt about its truthfulness, particularly
when he had grudge against the appellant therein due to some civil
dispute between them.
Thus, the context in which the finding is rendered is something
which the counsel should look into before placing reliance on a
judgment. As observed earlier, the fundamental rule is that, if delay in
lodging FIR is justified, one cannot take advantage of such delay to
argue that the prosecution's case should be disbelieved. The judgment,
therefore, will be of no help to the defence.
(5) Ashraf Hussain Shah Vs. State of Maharashtra [1996 Cri.L.J.
3147]. This is yet another judgment where the defence has highlighted
the issue of delay in lodging FIR. In the said case, two witnesses, who
had allegedly seen the incident were in fact friends of the deceased, but
failed to lodge FIR. It appears that both the witnesses were present in
the police station but remained silent for two days. Such a conduct was
29 jg.cri.appeal 8 & 94.2020.odt
found to be highly suspicious and improbable. The Court also found
contradictions in their statements and questioned whether they had
witnessed the incident, specially for their failure to report the incident
immediately. Overall, the evidence suggested that FIR might have been
lodged after deliberation rather than immediately after the incident.
Such is not the case here. As stated earlier, FIR has been lodged
at the earliest possible opportunity. The story of prosecution has been
cemented by the defence in cross-examination. The accused, therefore,
will not get any advantage of the said judgment.
(6) Suresh Maruti Shinde (Waikar) Vs. The State of Maharashtra
[2018 ALL MR (Cri) 3328]. This judgment is cited in context with
recovery of weapons at the instance of the accused persons. We need
not delve upon this judgment in as much as we have noted that
evidence on the point of recovery of weapons at the instance of accused
will have to be excluded. Our finding is mainly based on testimony of
P.W. 1, P.W. 4 and P.W. 7. It is well settled that, if the testimony of eye
witness is credible, the prosecution will be fully justified in resting its
case on such credible evidence without furnishing corroboration. The
judgment cited, therefore, will not carry any weightage in favour of the
accused persons.
30 jg.cri.appeal 8 & 94.2020.odt
32. We shall now proceed to refer to the arguments of learned
APP as also learned counsel, who appears for the victim's father.
Learned APP submits that the FIR has been lodged within reasonable
time. The names of eye witnesses were also mentioned in FIR. He
further submits that eye witnesses have supported the prosecution
version. Nothing has been brought on record in the cross-examination
to disbelieve their testimony. He further submits that postmortem
report is admitted by defence. The postmortem report itself is sufficient
proof of homicidal death. The intention of accused persons was
common while assaulting the deceased. Both the eye witnesses have
stated that Ganesh was beating deceased by means of shock-up rod on
his head. The cause of death of deceased is head injury. Accordingly, he
submitted that conviction of Ganesh may not be disturbed. He has also
supported the case of the victim's father, however, failed to justify as to
why State has not preferred the appeal.
33. Nonetheless, father of deceased is before the Court. Mr. Mir
Nagman Ali, learned counsel for the victim, taking further the
arguments put forth by the learned APP, has invited our attention to the
findings of the trial Court to acquit accused nos. 2 to 4. The same
appears in paragraph no. 19 of the judgment, which read thus :
31 jg.cri.appeal 8 & 94.2020.odt
"19. Considering entire oral and documentary evidence,
and argument of both side, I have come to conclusion that
Wasimkhan was beaten by shock-up rod by accused Ganesh. It
had caused bleeding injuries to head which ultimately resulted
into his death. Having seen Sk.Ibrahim and Sunil Uphade,
accused Akash. Vishal and Pralhad had fled away. As per
evidence, Pralhad had beaten by hands and kicks. He was not
having any weapon. Accused Akash and Vishal were beating by
iron rod and pipe. But, it is not proved that their assault had
caused any fatal injury on head. However, use of those iron rod
and pipe is duly proved. Those are definitely dangerous weapon
considering their big size. Accused Pralhad had beaten by hands
and kicks only. Ganesh had continued beating to Wasimkhan on
his head by shock-up even when other co-accused had fled away.
This clearly shows that Ganesh had intention, motive and
preparation to kill Wasimkhan. Therefore, element of common
intention to commit the murder of Wasimkhan is missing so far
as other accused are concerned. Moreover, when clothes of
accused were sent to C.A., it is revealed that Shirts of accused
and Vishal, Pralhad were stained with human blood, Pant of
Vishal was also stained with human blood. No explanation is
given by these accused for presence of human blood on their
clothes. It is also incriminating evidence against them. Thus,
their presence on the spot, actual assault on Wasimkhan is
proved beyond reasonable doubt.
Thus, offence punishable U/sec.302 of 1.P.C, is proved
against the accused No.1 Ganesh only and offence punishable
U/sec. 324 of 1.P.C against the accused No.2 Akash and Accused
No. 3 Vishal and 323 of I.P.C against accused No.4 Pralhad.
Here, I stop to hear accused and prosecution on the
quantum of punishment."
Mr. Ali submits that the trial Court has held that Ganesh assaulted
Wasim by shock-up rod, causing bleeding injury to his head, which
ultimately is cause of his death. The trial Court also noted presence of
32 jg.cri.appeal 8 & 94.2020.odt
other three accused and that accused Pralhad had beaten by hands and
kicks and other two accused had beaten Wasim by iron rod and pipe.
The trial Court further noted that use of iron rod and pipe is duly
proved and that these weapons are dangerous considering their size.
Despite such status, the trial Court has acquitted accused nos. 2 to 4 for
the offence punishable under Section 302 of IPC solely on the ground
that they have not caused fatal injury and accordingly held accused
no. 1 Ganesh guilty of offence punishable under Section 302 of IPC,
accused no. 2 Akash and accused no. 3 Vishal guilty of offence
punishable under Section 324 of IPC and accused no. 4 Pralhad guilty of
offence punishable under Section 323 of IPC.
34. Mr. Ali has relied upon following judgment to contend that
testimony of witnesses, if found wholly reliable, same can be relied
upon even without corroboration.
Ravi Vs. State represented by Inspector of Police [2008 ALL SCR 2011]
The case was based on the testimony of single eye witness. The
Supreme Court on the law relating to approach of the Courts, in such
cases, held that when prosecution version essentially rests on the
testimony of a single witness, the same may be relied upon without
corroboration depending on the facts and circumstances of each case.
The Supreme Court held that as a general rule, Court can and may act
33 jg.cri.appeal 8 & 94.2020.odt
on the testimony of single witness though uncorroborated. It is so
because one credible witness outweighs the testimony of a number of
other witnesses of indifferent character. The Supreme Court further
noted that unless corroboration is insisted upon by statute, the Court
should not insist on corroboration except in cases where the nature of
the testimony of the single witness itself requires as a rule of prudence,
that corroboration should be insisted upon, for example, in a case of
child witness or of a witness whose evidence is that of an accomplice or
of an analogous character.
35. This judgment, in our view, will further substantiate the
prosecution version. In the present case, there are more than one eye
witnesses whose testimony is credible. That apart, there is
corroboration in the form of testimony of P.W. 1 wherein oral dying
declaration is proved. Further, his testimony as regards treatment given
to Wasim in hospital indicating that he sustained head injury and other
injuries is also believable.
36. Thus, the prosecution has, by credible evidence, established
the role played by each accused. Their involvement in the crime has
been recognized by the trial Court. However, the trial Court got swayed
away with the nature of injury caused by each accused. Accordingly,
the punishment is imposed individually. The trial Court was of the view
34 jg.cri.appeal 8 & 94.2020.odt
that common intention to commit murder of Wasim Khan is missing.
This finding has been criticized by the victim's father. We will
accordingly delve upon the law of common intention. As such, counsel
for accused nos. 2 to 4 vehemently argued that the High Court should
not interfere with the order of acquittal, if two reasonable views are
possible. According to him, the view expressed by the trial Court is
possible view. He submits that assessment of evidence of the witnesses
is something which should be left to the discretion of the trial Court.
37. The aforesaid principles of law are well established.
However, the common intention under Section 34 of the IPC is not
dependent only on the nature of injury caused by each accused. In a
given case, the accused may facilitate commission of crime without
inflicting any injury, say by holding hands of the victim rendering him
defenceless, which will be sufficient to prove that he along with other
accused carried common intention to execute the crime. Thus, the
common intention is dependent on sharing intention to achieve a
particular result.
38. In the case of Ramesh Singh alias Photti Vs. State of A.P.
[(2004) 11 SCC 305], the Supreme Court held as under :-
35 jg.cri.appeal 8 & 94.2020.odt
"12. To appreciate the arguments advanced on behalf of the
appellants it is necessary to understand the object of
incorporating Section 34 in the Indian Penal Code. As a general
principle in a case of criminal liability it is the primary
responsibility of the person who actually commits the offence
and only that person who has committed the crime can be held
guilty. By introducing Section 34 in the Penal Code the
legislature laid down the principle of joint liability in doing a
criminal act. The essence of that liability is to be found in the
existence of a common intention connecting the accused leading
to the doing of a criminal act in furtherance of such intention.
Thus, if the act is the result of a common intention then every
person who did the criminal act with that common intention
would be responsible for the offence committed irrespective of
the share which he had in its perpetration. Section 34 IPC
embodies the principle of joint liability in doing the criminal act
based on a common intention. Common intention essentially
being a state of mind it is very difficult to procure direct
evidence to prove such intention. Therefore, in most cases it has
to be inferred from the act like, the conduct of the accused or
other relevant circumstances of the case. The inference can be
gathered from the manner in which the accused arrived at the
scene and mounted the attack, the determination and concert
with which the attack was made, and from the nature of injury
caused by one or some of them. The contributory acts of the
persons who are not responsible for the injury can further be
inferred from the subsequent conduct after the attack. In this
regard even an illegal omission on the part of such accused can
indicate the sharing of common intention. In other words, the
totality of circumstances must be taken into consideration in
arriving at the conclusion whether the accused had the common
intention to commit an offence of which they could be
convicted. (See Noor Mohammad Mohd. Yusuf Momin v. State
of Maharashtra)"
Thus, one may not get direct proof of common intention shared
by the accused and will have to be gathered from the conduct of all the
36 jg.cri.appeal 8 & 94.2020.odt
accused and not the individual act actually performed. It could be
gathered from the manner in which the accused arrived at the scene
and mounted attack, the reason of attack, the nature of injury caused by
one or some of them and also the acts of the persons who were not
responsible for the injury but the manner in which they conducted
themselves subsequent to the attack. Thus, totality of circumstances
will have to be taken into consideration in arriving at the conclusion
whether the accused had common intention to commit offence
committed by them.
39. In the light of above, if the conduct of the accused herein is
examined, we find that they shared common intention. The first reason
for such conclusion is that, three out of four were armed with weapons,
which the trial Court categorized as deadly weapons. The fourth
accused though was not armed with weapon but assaulted Wasim by
fists and kicks. In that sense, overt act is attributed to him as well. The
second reason is that the postmortem report indicates that multiple
injuries were sustained by Wasim and those injuries could be caused by
heavy, hard and blunt object. Wasim suffered injuries not only on head
but also other parts of the body viz. face, lower back, neck and stomach.
The injury includes fracture injury to left occipital bone extending over
posterior fossa left side. Thus he was mercilessly beaten by all accused.
37 jg.cri.appeal 8 & 94.2020.odt
As such, the incident occurred on the ground of quarrel between the
two in respect of parking vehicle, however, the manner in which the
accused assaulted Wasim is something that would attract Section 302
read with Section 34 of the IPC. Thirdly, there appears no reason why
should accused persons attack Wasim by means of shock-up rod, iron
pipe and iron rod. The assault was such that he succumbed to injuries
on the same day. Fourthly, there is no evidence that the incident
occurred at the spur of the moment. The attack by weapons is
indicating premeditated assault.
40. Thus, the accused persons would share collective
responsibility for the fatal blows inflicted by accused no. 1 Ganesh.
The trial Court, in our view, committed error in assessment of the role
played by other accused and for no valid reason, has separated their
role only on the count that the injuries caused by them were not
responsible for causing death of Wasim. The trial Court failed to
recognize the conduct of the accused while imparting blows to Wasim.
The conduct of accused no. 4 also is not such that he did not share
common intention to achieve the same result which the other three
accused intended to in the sense while accused no. 1 continued
repetitive assault on the head of Wasim, neither he nor other two
accused made an attempt to prevent continuation of attack.
38 jg.cri.appeal 8 & 94.2020.odt
41. The sum and substance of the above discussion is that the
prosecution has successfully established involvement of each accused in
crime. The trial Court thus committed error in imposing lesser
punishment to accused nos. 2 to 4. Accordingly, we answer point nos. 1
to 3 in affirmative.
42. Having answered point nos. 1 to 3 in affirmative, the trial
Court's findings convicting appellant Ganesh Pralhad Thengade will
have to be upheld whereas its finding against other three accused will
have to be overturned.
43. As such, in such a situation, accused nos. 2 to 4 should be
heard in terms of Section 235(2) of the Code before imposing sentence,
however, none of them is present before the Court. We have
accordingly heard Mr. Kurekar, learned counsel for accused nos. 2 to 4.
He prayed for leniency. We accept the submission and are inclined to
impose minimum sentence for the offence punishable under Section 302
of the IPC. Hence, following order.
ORDER
(i) Criminal Appeal No. 8/2020 is dismissed.
39 jg.cri.appeal 8 & 94.2020.odt
(ii) Criminal Appeal No. 94/2020 is allowed.
(iii) Accused, namely, Akash Pralhad Thengade, Vishal Kisan Ingale
and Pralhad Ganpat Thengade are hereby convicted for the offence
punishable under Section 302 read with Section 34 of the IPC and are
sentenced to suffer life imprisonment and to pay fine of Rs. 10,000/-
(Rupees Ten Thousand) each and in default shall suffer imprisonment
for one year.
(iii) Their bail bonds stand cancelled.
(iv) The accused shall surrender before the Additional Sessions
Judge, Washim for undergoing imprisonment within 15 days from
today, failing which, the Sessions Court shall take appropriate steps to
arrest them for undergoing sentence.
(v) Criminal appeals are disposed of in above terms.
(vi) Copy of the order shall be served upon trial Court for
compliance.
(S. S. THOMBRE, J.) (Anil L. Pansare, J.)
wasnik
Signed by: Mr. A. Y. Wasnik
Designation: PS To Honourable Judge
Date: 08/10/2025 18:54:19
