Bombay High Court
Rohit Vijay Onkar And 7 Others vs The State Of Mah, Thr P.So. P.S. Yavatmal ... on 13 October, 2025
2025:BHC-NAG:10825-DB
1 CRI.APPEAL.381-2019.JUDGMENT.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 381 OF 2019
1. Rohit S/o Vijay Onkar,
Aged about 22 years,
Occupation:- Education,
R/o. Dalit Society, Patipura, Yavatmal.
2. Adesh @ Adya S/o Anil Khairkar,
Aged about 21 years,
Occupation:- Education,
R/o. Ashok Nagar, Patipura, Yavatmal.
3. Suhas S/o Anil Khairkar,
Aged about 22 years,
Occupation :- Education,
R/o. Ashok Nagar, Patipura, Yavatmal.
4. Ashwin @ Gondya Deepak Telang,
Aged about 24 years,
Occupation: Labourer,
R/o. Ambedkar Nagar, Patipura,
Yavatmal.
5. Vaibhav S/o Krushnarao Naik, DEAD
6. Roshan @ Kandi S/o Purushottam
Pradhan,
Aged about 20 years,
Occupation:- Education,
R/o. Ambika Nagar, Yavatmal.
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7. Anup @ Dadu S/o Anil Ramteke,
Aged about 22 years,
Occupation:- Education,
R/o. Patipura, Yavatmal.
8. Sachin @ Batya S/o Ashokrao Bhoyar,
Aged about 20 years,
Occupation: Labourer,
R/o. Waghapur, Tekadi, Yavatmal. APPELLANTS
Versus
The State of Maharashtra,
Through Police Station Officer,
Police Station Yavatmal City,
District: Yavatmal. RESPONDENT
-----------------------------------------------
Mr. R.M. Daga, Advocate for the Appellant Nos. 1, 2 & 6 to 8.
Mr. P.W. Mirza, Advocate for the Appellant Nos. 3 & 4.
Mr. N.H. Joshi, APP for the Respondent/State.
-----------------------------------------------
CORAM : URMILA JOSHI PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 26th SEPTEMBER, 2025.
PRONOUNCED ON : 13th OCTOBER 2025.
ORAL JUDGMENT :- (PER : URMILA JOSHI PHALKE, J.)
1. The present appeal is directed against the judgment
and order of sentence passed by Additional Sessions Judge,
Yavatmal in Sessions Trial No. 32/2018 dated 12.04.2019
3 CRI.APPEAL.381-2019.JUDGMENT.odt
convicting the present Appellants/accused of the offence
punishable under Section 302 r/w 149, 307 r/w 149, 120-B,
449, 143, 144, 147 and 148 of the Indian Penal Code and
sentenced as follows:-
i) to suffer imprisonment for life and to pay a fine of
Rs.10,000/- each, in default to undergo further RI for one year
each of the offence punishable under Section 302 read with
Section 149 of IPC.
ii) to suffer RI for 10 years and to to pay a fine of
Rs.5,000/- each, in default to undergo further RI for six months
each of the offence punishable under Section 307 read with
Section 149 of IPC.
iii) to suffer imprisonment for life and to pay a fine of
Rs.5,000/- each, in default to undergo further RI for six months
each of the offence punishable under Section 120-B of IPC.
iv) to suffer RI for 10 years and to pay a fine of
Rs.5,000/- each, in default to undergo further RI for six months
each of the offence punishable under Section 449 of IPC.
4 CRI.APPEAL.381-2019.JUDGMENT.odt
v) to suffer RI for 6 months and to pay a fine of
Rs.1,000/- each, in default to undergo further RI for two
months each of the offence punishable under Section 143 of
IPC.
vi) to suffer RI for 2 years and to pay a fine of
Rs.1,000/- each, in default to undergo further RI for three
months each of the offence punishable under Section 144 of
IPC.
vii) to suffer RI for 2 years and to pay a fine of
Rs.1,000/- each, in default to undergo further RI for three
months each of the offence punishable under Section 147 of
IPC.
viii) to suffer RI for 2 years and to pay a fine of
Rs.1,000/- each, in default to undergo further RI for three
months each of the offence punishable under Section 148 of
IPC.
2. Brief facts of the prosecution case emerges from the
Police papers and recorded evidence are as under:
5 CRI.APPEAL.381-2019.JUDGMENT.odt
2(i). Informant Shalini Vijay Thool is the mother of the
deceased. The deceased Anil and injured Premraj are friends.
On 31.10.2017, at 8.30 p.m., the deceased Anil went to meet
the injured and they were chit chatting in front of the shop of
Vijay Shende uncle of injured Premraj, at the relevant time,
accused No.1/Rohit Vijay Onkar alongwith accused No.2/Adesh
Anil Khairkar, accused No.3/Suhas Anil Khairkar and accused
No.4/Ashwin @ Gondya Deepak Telang came to the house of
the Informant. They were holding weapons in their hands and
enquired with the Informant as to whereabouts of the deceased.
She disclosed that, the deceased is not at the house. These
accused persons are followed by other accused also. As
Informant suspected, therefore she followed them. At some
distance, she saw the deceased and injured near the motorcycle
of the deceased. She also witnessed that, above said accused
No.1/Rohit Onkar, accused No.2/Adesh Khairkar, accused
No.3/Suhas Khairkar and accused No.4/Ashwin @ Gondya
Telang and other co-accused started assaulting the deceased and
injured by weapons in order to kill them. The injured fell down
in an injured condition, whereas the deceased in order to save
himself entered in the house of one Milind Gedam. The
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assailants chased him and entered in the said house and killed
the deceased by assaulting him by the weapons in their hands.
In the meantime, Police got the information about the incident
and they rushed to the spot. They enquired with the Informant.
The Informant has lodged the report. On the basis of the said
report, the crime was registered.
2(ii). After registration of the crime, the Investigating
Officer drawn Spot panchnama, Inquest panchnama and
arrested the accused. During investigation, the weapons were
seized on the basis of the Memorandum statement made by the
accused No.2/Adesh and accused No. 4/Ashwin. The seized
weapons were forwarded to the Medical Officer for seeking
opinion. The weapons were also forwarded to CA as blood
stains are found. The blood stained clothes of the deceased and
accused were also seized. After completion of the investigation,
the charge-sheet was submitted.
2(iii). As the offence punishable under Sections 302 and
307 of IPC are exclusively triable by the Court of Sessions, the
learned Magistrate committed the case to the Court of Sessions.
The learned Sessions Judge framed the Charge vide Exh. 31.
7 CRI.APPEAL.381-2019.JUDGMENT.odt
The contents of the Charge were read over and explained to the
accused persons in vernacular. They pleaded not guilty and
claimed to be tried.
2(iv). In support of the prosecution case, the prosecution
had examined in all 10 witnesses, which are as follows:
(i) PW-1 Shalini Vijay Thool Exh. 51 Informant and
mother of the
deceased.
(ii) PW-2 Premraj @ Babbi Tansen Exh.56 Injured
Shende eyewitness.
(iii) PW-3 Vijay Bhaurao Shende Exh.68 Eyewitness.
(iv) PW-4 Vasant Namdevrao Pakhale Exh. 71 Circle Inspector.
(v) PW-5 Milind Tanbaji Gedam Exh. 76 Eyewitness
(vi) PW-6 Dr. Sharad Vasantrao Exh.79 Medical Officer.
Kuchewar
(vii) PW-7 Amol Maroti Chaudhari Exh. 84 Investigating
Officer
(viii) PW-8 Sharad Anandrao Exh. 93 Light Checker
Kshirsagar
(ix) PW-9 Vinod Mungsaji Zalke Exh. 95 Investigating
Officer.
(x) PW-10 Dr. Manisha Sanjay Exh. 149 Medical Officer
Waghmare
2(v). Besides oral evidence prosecution placed reliance on
8 CRI.APPEAL.381-2019.JUDGMENT.odt
Report-Exh.52, FIR-Exh.53, Statement of injured under Section
164 of Cr.P.C.-Exh. 62, Seizure memo of clothes of injured
Premraj-Exh. 69, Statement of PW-3/Vijay Shende under
Section 164 of Cr.P.C.-Exh. 70, Map-Exh. 72, Requisition for
conducting Post Mortem-Exh. 80, PM Report-Exh.81,
Requisition to CA-Exh. 82, Examination Report of weapons-
Exhs. 83 to 83/8, Spot panchnama-Exh. 85, Inquest
panchnama-Exh.88, Seizure memo as to samples of the
deceased-Exh. 91, Report as to availability of electricity at spot-
Exh.94, Requisition to Divisional Engineer-Exh. 96, Requisition
to Electrical Engineer-Exh. 97, Requisition to Tahsildar-Exh. 98,
Arrest memo of accused-Exhs. 99 to 108, Requisition to Chief
Officer Zilla Parishad Yavatmal-Exh. 109, Memorandum
statement of accused Adesh-Exh. 110, Discovery panchnama-
Exh.111, Requisition to Health Department-Exh.112,
Memorandum statement of accused Ashwin-Exh. 113, Recovery
panchnama-Exh.114, Seizure memo of motorcycle-Exh.115,
Requisition to CA Exh. 116 and 117, Requisition to CA
forwarding articles seized from spot, sample of deceased,
clothes of deceased, weapons, clothes of accused and samples of
accused-Exh. 122, Viscera Report-Exh. 124, CA Reports-Exhs.
9 CRI.APPEAL.381-2019.JUDGMENT.odt
125 to 137, Arrest panchnama of accused Aakash and Sumedh
Exhs. 138 and 139, Seizure memo-Exhs. 140 and 141, Injury
Certificate of injured Premraj-Exh. 150, Medical case papers of
injured Premraj-Exh. 151.
2(vi). All the incriminating evidence is put to the accused
persons to obtain their explanation regarding evidence
appearing against them by recording their statement under
Section 313 of Cr.P.C. The defence of the accused persons is of
total denial and of a false implication. The learned Trial Court
after appreciating the evidence held the present
Appellants/accused guilty and convicted them as aforestated.
Being aggrieved and dissatisfied with the same, the present
Appeal is preferred.
3. Heard Mr. Daga, learned Counsel for the Appellant
Nos. 1, 2 and 6 to 8 and Mr. Mirza, learned Counsel for the
Appellant Nos. 3 and 4.
4. Mr. Daga, learned Counsel, submitted that total 12
accused faced the trial and out of 12, 8 accused are convicted
and 4 are acquitted alongwith two child in conflict with law.
10 CRI.APPEAL.381-2019.JUDGMENT.odt
During pendency of Appeal accused No. 5/Vaibhav S/o
Krushnarao Naik reported to be dead, hence Appeal is abated
against him. He submitted that, the entire case is rested upon
the evidence of PW-1/Shalini the mother of the deceased, PW-2/
Premraj alleged eyewitness, PW-3/Vijay Shende and
PW-5/Milind Gedam. Out of which, Milind Gedam in whose
house the subsequent incidence of assaulting the deceased
occurred had not supported the prosecution case. PW-1/Shalini
shown the involvement of only four accused i.e. accused
No.1/Rohit Onkar, accused No.2/Adesh Khairkar, accused No.3/
Suhas Khairkar and accused No.4/Ashwin Telang. She discloses
three unknown persons but no identification of those three
persons. The evidence of PW-1/Shalini nowhere shows that, she
has witnessed the incident which took place inside the house of
Milind Gedam. The statement of injured eyewitness and
PW-3/Vijay Shende recorded belatedly and no explanation is
put forth, therefore their evidence are not trustworthy.
PW-5/Milind Gedam has not supported the prosecution case.
The recovery evidence at the instance of accused Nos. 3 and 4,
is also doubtful as no independent witness is examined. The
presence of PW-2/Premraj itself is doubtful. Though according
11 CRI.APPEAL.381-2019.JUDGMENT.odt
to the prosecution 12 accused are charged and only 6 weapons
are seized. The recovery of incriminating articles is from an
open place. Thus, the entire evidence of the prosecution casts
doubt on the prosecution case.
5. In support of his contention, he placed reliance on
Jaising & Ors. Vs. State of Karnataka, 2007 ALL MR (Cri) 1415
(S.C.); K.M. Ravi and Ors. Vs. State of Karnataka, (2009) 16
SCC 337; Mohd. Iqbal @ Munna s/o Abdul Sattar & Anr. Vs.
State of Maharashtra, 2016 ALL MR (Cri) 4530;
6. Mr. Mirza, learned Counsel also submitted that, the
evidence of PW-1/Shalini itself is doubtful, as initially she
implicates some accused and some unknown persons.
PW-2/Premraj implicates 9 accused. Inconsistent versions of
eyewitnesses inter se. In first incident, neither the injured nor
the deceased were assaulted. The evidence of PW-2/Premraj
injured eyewitness whose statement was recorded belatedly, is
doubtful. No history is narrated to the Medical Officer disclosing
the names of the assailants. No recovery at the instance of the
accused. The aspect of recovery itself is not proved. Moreover,
the said recovery is from the open place when the accused were
12 CRI.APPEAL.381-2019.JUDGMENT.odt
handcuffed. There is inconsistency between the oral and
medical evidence. Thus, the entire prosecution fails. There was
no opportunity for the eyewitnesses to witness the incident as it
occurred inside the house of PW-5/Milind Gedam who has not
supported the prosecution case. There is delay in sending the
FIR to the Court. Thus, there is non-compliance of Section 157
of Cr.P.C.
7. In support of his contention he placed reliance on
Jafarudheen Vs. State of Kerala, (2022) 6 SCALE 727;
Mohinder Singh & Anr. Vs. State of Punjab & Ors, 2003 CRI.L.J.
5002; Motilal Vs. State of Rajasthan, AIR 2009 SC 2790;
Rattiram & Ors. Vs. State of M.P., 2013 CRI.L.J. 2353; Chhotu &
Anr. Vs. State of Haryana, 1996 CRI LJ 4164 (SC); Mahesh
Jayavantrao Aher Vs. State of Maharashtra, 2009 (6) ABR
(NOC) 1116 (BOM); Indira Devi Vs. State of Himachal Pradesh,
AIR 2016 SC 2721; Mohmedrafiz Husenmiya Thakor & Ors. Vs.
State of Gujrat, AIR 1997 SC 1520; Govindaraju alias Govinda
Vs. State by Sriramapuram P.S. & Anr., AIR 2012 SC 1292;
Kasturi Lal Vs. State of Haryana, (1976) 3 SCC 570; Budhwa
alias Ramcharan & Ors. Vs. State of M.P., 1990 CRI.L.J. 2597;
13 CRI.APPEAL.381-2019.JUDGMENT.odt
State of M.P. Vs. Ghudan, (2003) 12 SCC 485; Musheer Khan @
Badshah Khan & Anr. Vs. State of M.P., AIR 2010 SC 762 and
Mohd. Iqbal and Anr. Vs. State of Maharashtra, 2016 (3) ABR
(CRI) 596.
8. Per contra, learned APP vehemently submitted that,
to prove the prosecution case, prosecution has examined PW-1/
Shalini Thool, PW-2/Premraj Shende and PW-3/Vijay Shende
who are the eyewitnesses. Though PW-5/Milind Gedam turned
hostile but his evidence is consistent as to the incident
happened in his house. He left the loyalty towards the
prosecution only to the extent of stating the names of the
accused. Their evidence is corroborated by the medical evidence
and discovery of the place where the alleged weapons of the
offence were concealed and scientific evidence which connects
the present accused persons with the alleged offence. Thus,
there is direct as well as circumstantial evidence to connect the
accused with the alleged offence. Considering the nature of the
offence, it is not expected from the witnesses to tell the role of
each and every accused. Being they are the members of
unlawful assembly, the liability attracts against them, and
14 CRI.APPEAL.381-2019.JUDGMENT.odt
therefore, the Appeal being devoid of merits liable to be
dismissed. In support of his contention he placed reliance on
State of Maharashtra Vs. Ramlal Devappa Rathod, 2015 AIR
SCW 6774.
9. After hearing both the sides and on perusal of the
entire record, the first and foremost question is whether the
death of the deceased is homicidal one. Insofar as the homicidal
death of the deceased is concerned, the material evidence
adduced by the prosecution is the evidence of PW-6/Dr. Sharad
Kuchewar examined vide Exh. 79. He deposed that, the dead
body of Anil Vijay Thool alongwith Inquest panchnama and
Requisition letter Exh.80 was received by him. He conducted
the post mortem alongwith Dr. V.D. Alone and Dr. P.V. Gajai on
01.11.2017. During post mortem, they found 15 external
injuries in the form of multiple chop wounds, multiple stab
wounds, multiple incised wounds and few abrasions on the
dead body of the deceased. The chop wounds were on the head
and neck, stab wounds were on abdomen and inguinal region
and one stab was present over nape below back of neck. He
further deposed that, so far as the internal injuries are
15 CRI.APPEAL.381-2019.JUDGMENT.odt
concerned, they found scalp heamatoma over occipital and high
parietal region corresponding to injuries 1 and 4 mentioning in
column No. 17 of postmortem report. Evidence of communited
fractured present over occipital region corresponding to injury
No. 1 in column No. 17 of PM report. Linear un-displaced
fracture of high parietal region of skull of size 14 cm
corresponding to injury No. 4 mentioned in column No. 17 of
PM report. Meninges cut corresponding to injury No. 1
mentioned in column No. 17 of PM report. Laceration of right
side of occipital lobe and right lobe of cerebellum corresponding
to injury No. 1 mentioned in column No.17 of PM report.
10. He further observed stab injury over abdomen
corresponding to injury Nos.8 and 9 mentioned in column No.
17 of PM report. Abdominal cavity contains 750 ml of blood.
Incised wound present over right lobe of liver corresponding to
injury No.8 mentioned in column No. 17 of PM Report.
Similarly, there was sub-capsular hemorrhage present over left
upper pole of kidney. All injuries were ante-mortem and fresh.
The injury Nos, 1, 2, 4, 8 and 11 mentioned in column No.17 in
PM report with their corresponding internal injuries in column
16 CRI.APPEAL.381-2019.JUDGMENT.odt
Nos.18, 19 and 21 are sufficient in ordinary course of nature to
cause death. He opined that, the exact cause of death was
hemorrhagic shock due to multiple stab and chop wounds.
Accordingly, he prepared the PM notes vide Exh. 81. Though he
is cross-examined by the learned defence Counsel, nothing
incriminating has brought on record. He admitted during
the cross-examination the injury Nos.6, 7 and 14 may be
possible due to fall on hard and rough surface but he stated that
without looking the particular tile, he cannot say that it is a
rough surface and those injuries are not possible due to fall on
those tiles. As far as the cause of death is concerned, the
evidence of PW-6/Dr. Sharad Kuchewar is not shattered during
the cross-examination.
11. Besides the PM report, evidence of PW-7/Amol
Chaudhari shows that, while drawing the inquest panchnama he
has noted the injuries on the person of the deceased which are
mentioned in the Inquest panchnama which is at Exh. 88. Thus,
the medical evidence of PW-6/Dr. Sharad Kuchewar shows that
the deceased had sustained the multiple injuries which were
sufficient to cause death in the ordinary course of nature. The
17 CRI.APPEAL.381-2019.JUDGMENT.odt
internal injuries are corresponding to the external injuries.
12. Now, it is well settled that, the evidence of PW-6/Dr.
Sharad Kuchewar, is not only the opinion evidence but also his
evidence is in the nature of direct evidence as he has an
opportunity to see the injuries on the person of the deceased.
13. A medical witness, who performs the postmortem
examination, is a witness of a fact though he also gives an
opinion on certain aspects of the case. This proposition of law
has been stated by the Hon'ble Apex Court in the case of
Smt. Nagindra Bala Mitraand Vs. Sunil Chandra Roy and Anr.,
1960 SCR (3) 1, wherein the Hon'ble Apex Court observed that:
"the value of a medical witness is not merely a check upon
the testimony of eyewitnesses; it is also independent
testimony, because it may establish certain facts, quite
apart from the other oral evidence. If a person is shot, at
close range, the marks of tatooing found by the medical
witness would show that the range was small, quite apart
from any other opinion of his. Similarly, fractures of bones,
depth and size of the wounds would show the nature of
the weapon used. It is wrong to say that it is only opinion
evidence; it is often direct evidence of the facts found upon
the victim's person."
14. Thus, the testimony of medical witness is very
important and it can be safely accepted. The evidence adduced
by the Medical Officer corroborated by the inquest panchanama
18 CRI.APPEAL.381-2019.JUDGMENT.odt
shows that the deceased died homicidal death.
15. In the recent judgment also, the Hon'ble Apex Court
in the case of Anuj Singh @ Ramanuj Singh @ Seth Singh Vs.
The State of Bihar, 2022 Live Law (SC) 402 , dealt with the
evidentiary value of the medical evidence and observed that the
evidentiary value of a medical witness is very crucial to
corroborate the case of prosecution and it is not merely a check
upon testimony of eyewitnesses, it is also independent
testimony, because it may establish certain facts, quite apart
from the other oral evidence. It has been reiterated by this court
that the medical evidence adduced by the prosecution has great
corroborative value as it proves that the injuries could have
been caused in the manner alleged.
16. In the case at hand, the evidence of PW-6/Dr.
Sharad Kuchewar Medical Officer has clearly stated that, the
death of the deceased is due to the multiple injuries sustained
by him. Thus, the evidence on record sufficiently shows that the
death of the deceased is homicidal one.
17. The entire case of the prosecution is based on the
19 CRI.APPEAL.381-2019.JUDGMENT.odt
direct evidence of PW-1/Shalini Thool, PW-2/Premraj Shende
injured eyewitness, PW-3/Vijay Shende who had witnessed the
first incident and PW-5/Milind Gedam in whose house the
second incident of assault has occurred. The evidence of
PW-1/Shailini Thool discloses that, on 31.10.2017 at about
08.30 p.m., when she was present in the house and deceased
had gone to the house of PW-2/Premraj @ Babbi, accused Rohit
Onkar had come to her house and enquired about whereabouts
of Anil. At the relevant time, he was accompanied with accused
Nos. 2 to 4. Her evidence further shows that, she followed them
as she saw weapons like knife and sword in their hands. She
further witnessed that, near the shop of Vijay Shende deceased
Anil and Premraj @ Babbi were communicating with each other.
At the relevant time, the accused Rohit Onkar, Adesh Khairkar,
Suhas Khairkar, Gondya, Anup Ramteke, Javed Khan and some
others initially assaulted Babbi. From them the Deceased rushed
to the house of Amit @ Bandu Gedam to save himself but all the
accused persons followed him opened the door of the house of
said Gedam and killed her son by weapons. She has also
identified all the accused before the Court and also identified
the weapons which were used in assaulting the deceased. She
20 CRI.APPEAL.381-2019.JUDGMENT.odt
identified Art. P-1 and P-2 as swords and Art. P-3 to P-6 as
knives.
18. Her cross-examination shows that, she has not
disclosed while giving statement that accused Rohit was having
sword but she has stated as a Koyta. She also admitted that, she
did not specifically states that while giving statement initially
Babbi was assaulted. She denied the suggestion that, accused
Rohit and other accused never came to her house. During the
cross-examination of Counsel of accused Nos. 2 to 5, 7 and 12,
the son of Maya Meshram did not came there during the
assault. She stated that when she reached the house of Gedam
people and Police were gathered there. She further admits that
she did not disclose the names of the accused that they killed
Anil on the spot but she denied that after the incident she went
home and stayed in the house till 12.00 a.m. She specifically
stated that from the house of Gedam she directly went to the
Police Station. Her cross-examination further shows that, while
lodging the report she disclosed the name of Anup Ramteke.
She further admits that the name of Anup Ramteke is not
mentioned in the report.
21 CRI.APPEAL.381-2019.JUDGMENT.odt
19. To corroborate her version the prosecution further
relied on PW-2/Premraj who also sustained the injuries in the
said incident. He specifically stated that, on 31.10.2017 at about
08.15 to 08.30 p.m., he and deceased Anil were talking near the
shop of his uncle Vijay Shende. At that time, the accused
persons Adesh Khairkar, Rohit Onkar, Akshay Khobragade, Anup
Ramteke, Ashwin Telang, Akash Telang, Vaibhav Naik, Roshan
Pradhan, Suhas Khairkar attacked on them by sword, knives and
iron rod. Accused No. 2-Adesh Khairkar gave a blow on him by
sword and Rohit Onkar and Akshay Khobragde by knives and
caused injuries to him. His both hands and ear were injured. He
also sustained the injuries on his left knee. The deceased Anil
was sitting on the motorcycle and the accused Suhas Khairkar,
Avinash Telang, Anup Ramteke, Akash Telang, Vaibhav Naik,
Roshan Pradhan, Javed Kaha, Sachin Bhoyar attacked on him by
knives and sword. But Anil pushed the motorcycle and to save
himself ran towards Samrat Ashok Chowk. The accused persons
chased him, therefore deceased entered in the house of Milind
Gedam and all accused followed him and killed him. As he
sustained injuries he went to the Police Station. Police sent him
to the Hospital. After initial treatment he was referred to the
22 CRI.APPEAL.381-2019.JUDGMENT.odt
Hospital at Nagpur. He was admitted in the Hospital at Nagpur
till 06.11.2017. His statement was recorded on 08.11.2017. He
identified his clothes Art. P-7 and P-8. He also identified the
weapons Art. P-1, P-2 as swords and P-3 to P-6 as knives. He has
identified the accused Adesh Khairkar, Rohit Onkar, Ashwin
Telang, Vaibhav Naik, Suhas Khairkar and Roshan Pradhan who
were present in the Court and stated that he know them by their
faces and names. He specifically stated that Akshay Khobragade,
Anup Ramteke, Akash Telang and Javed Khan are not present in
the Court. (the note is taken by the Trial Court that the accused
Akshay Khobragade and Akash Telang are absconding and
accused Javed Khan is child in conflict in law, whereas Anup
Ramteke is not produced by the Jail Authority). The Accused
Anup Ramteke was produced through Video Conferencing and
identified by this witness. He specifically stated that he
witnessed the incident in the light of electric bulbs of the street
light which was installed near the spot of incident.
20. The cross-examination of this witness shows that, he
denied that he read the police statement before the deposition.
The further cross-examination as to the accused No.1 is
23 CRI.APPEAL.381-2019.JUDGMENT.odt
concerned, it brought on record that the name of the accused
No.1 is mentioned differently but he clarified that his name and
surname are written separately. In further cross-examination on
behalf of accused Nos. 2, 3, 5, 7 and 12, it came on record that
the deceased Anil was prosecuted for the offence of murder of
one Vatta. He further admits that, after receiving the injury he
was under pain and blood was oozing from those injuries. His
clothes were stained with blood and the blood was spilled on
the ground also.
20(i). He further admits that, after falling on the ground
nobody has assaulted him. He did not follow Anil and assailants
but he stated that, with his injuries he had gone to the house of
Gedam prior to the lodging of the report. He further stated that,
his injuries were tied by cloth by his mother. He further admits
that, he has not narrated the history as to the assault by the
accused to the Medical Officer. After treatment in Hospital at
Yavatmal he was discharged but he voluntary stated that he was
referred to Hospital at Nagpur. It further came in the evidence
that, he narrated the history to the Doctor about the injury. He
was discharged from Hospital at Nagpur on 06.11.2017 and his
24 CRI.APPEAL.381-2019.JUDGMENT.odt
statement was recorded on 08.11.2017. He specifically stated
that, after incident till 08.11.2017 he did not disclose the
incident to the Police.
20(ii). His further cross-examination shows that, the
incident occurred during winter season during night time, but
he denied that there was complete dark. He further stated that,
he know the spot of incident. There is one North-South road
towards the Eastern side of the house of Gedam and the house
of Sahare is situated towards the West of the house of Gedam.
Thus, the attempt was made to show that the alleged incident
occurred during the night hours and there was no opportunity
to witness the incident.
20(iii). He further admits that, he has changed the clothes
prior proceeding to the Hospital at Nagpur and kept his blood
stained clothes at his house. The omission as to the name of the
accused Ashwin Telang was brought on record. He also admits
that, he has not disclosed while giving the statement that, the
blood was oozing from his injuries and disclosed that the
assailants were shouting that they have taken the revenge of
murder, which is not mentioned in his statement. The omission
25 CRI.APPEAL.381-2019.JUDGMENT.odt
that he has disclosed the name of accused Sachin Bhoyar which
is not in his statement.
20(iv). It specifically came in his cross-examination that the
assailants came from behind and they were 12-13 people. He
further admits that, prior he came to know anything the
assailants assaulted them. He denied that, he is not aware about
the names of the assailants, and therefore, he did not disclose
their names. He further admits that, when he was admitted to
the Hospital he was conscious. Thus, the cross-examination
shows that, the material facts are not narrated by him and
attempt is made to bring on record that he was not aware about
the names of assailants as the assailants came from the
backside.
21. PW-3/Vijay Shende examined vide Exh. 68 is the
another eyewitness who witnessed the incident of assault which
took place in front of his shop. His evidence discloses that, on
30.10.2017 when he was present in his shop one Subhash
Khobragade while passing in front of his shop with Tirdi (ladder
to carry dead body for funeral) and disclosing to his companion
that on the same Tirdi, Anil Thool and Ankush Ramteke will be
26 CRI.APPEAL.381-2019.JUDGMENT.odt
carried.
22(i). On 31.10.2017 at about 08.30 p.m., when he was
present in his shop and Anil Thool was sitting on his motorcycle
in front of his shop and was communicating with his nephew
Premraj Shende, at the relevant time the accused Adesh
Khairkar, Ashwin @ Gondya Telange, Mangi @ Rohit, Akshaya
Khobragade, Suhas Khairkar, Roshan @ Kandi Pradhan, Vaibhav
Naik, Akash Vijay Telang, Anup Anil Ramteke, Sachin Bhoyar
and other 4 to 5 persons holding weapons like sword, knife and
rods in their hands from the side of house of Dilip Gaikwad and
assaulted to Anil Thool and Premraj by sword. He came out
from the shop and witnessed Adesh Khairkar, Magi @ Rohit
Onkar and Akshay Khobragade assaulted Premraj by sword and
knife. Hence, Premraj sustained the injuries on his hand and
Anil ran to save himself by pushing his motorcycle towards the
house of Milind Gedam towards Samrat Ashok Chowk. The
accused chased him with weapons. Accused Ashwin Telang and
Sachin Bhoyar damaged the motorcycle of Anil Thool by sword
and knife. Ashwin Telang, Rohit Onkar, Anup Ramteke, Rajesh
Khairkar, Suhas Khairkar, Vaibhav Naik, Javed Khan, Roshan
27 CRI.APPEAL.381-2019.JUDGMENT.odt
Pradhan and Sachin Bhoyar and other 2-3 persons with
weapons entered in the house of Milind Gedam behind Anil
Thool and committed the murder of Anil Thool and thereafter
fled away with the weapons in front of his shop by walk. In the
said incident accused Vaibhav Naik and Ashwin Telang also
sustained injuries on their hands. He had witnessed the incident
in the light of street light and also in the light of the bulb of his
shop.
22(ii). As Premraj is his nephew was taken to the Hospital
and after one hour he also went to the Hospital. The Medical
Officer advised to take him to Nagpur, therefore he alongwith
the other relatives shifted him to Nagpur. He was admitted to
Government Medical College, Nagpur and he was alongwith
him for four days. They returned to Yavatmal on 06.11.2017
and his statement was recorded on 08.11.2017. He produced
blood stained clothes of Premraj to the Police Station and Police
seized the same. The seizure memo of clothes of injured are at
Exh. 69. He identified the weapons i.e. swords Art.P-1, P-2, and
knives Art. P-3 to P-6. He also identified the accused Adesh
Khairkar, Suhas Khairkar, Rohit Onkar, Ashwin Telang, Roshan
28 CRI.APPEAL.381-2019.JUDGMENT.odt
@ Kandi Pradhan, Vaibhav Naik and Sachin Bhoyar who were
present in the Court and also identified Anup Ramteke who was
produced through Video Conferencing.
22(iii). His cross-examination shows that, he admitted that
he has not lodged the report about the incident. His evidence as
to the incident dated 30.10.2017 is an omission which is
brought on record. The another omission brought on record
that, at the time of incident he came outside the shop and
witnessed Adesh Khairkar, Magi @ Rohit Onkar, Akshay
Khobragade assaulted Premraj by sword and knife. He stated
before the Magistrate that Ashwin and Sachin damaged the
vehicle of Anil (the said omission is to the extent of names of
Ashwin and Sachin).
22(iv). The further cross-examination shows that, from 8 to
10 years he is acquainted with deceased Anil Thool being he is a
friend of his nephew. He admitted that, there is no criminal case
against Premraj. He further admits that, he did not follow the
assailants or Anil. It has further came in the evidence that, he
had seen the house of Milind Gedam. There is North-South road
towards his house and East-West road towards North of his
29 CRI.APPEAL.381-2019.JUDGMENT.odt
house. The Samrat Ashok Chowk is towards East of that North-
South road. He further admits that, there is wall compound to
the East of the house of Milind Gedam. Thus, the cross-
examination shows that, as far as the incident is concerned he
has only witnessed the incident which took place in front of his
shop.
23. PW-5/Milind Gedam is the witness in whose house
the subsequent incident of assaulting the deceased took place.
As far as his evidence is concerned, though he narrated the
incident dated 31.10.2017 but left the loyalty towards the
prosecution as far as the names of the accused are concerned.
He stated that, on 31.10.2017 at about 08.30 to 09.00 p.m.,
when he alongwith his wife in the house deceased entered in his
house and 10 to 12 people by following him entered in his
house with swords and knives and asked them to leave the
house. Those 10 to 12 persons killed the deceased in the middle
room of their house and thereafter they came outside the house.
His cross-examination through APP shows that, at
the relevant time there was electricity in his house as well as the
lights of the street polls were also on, and therefore, anybody
30 CRI.APPEAL.381-2019.JUDGMENT.odt
can easily see the other person. He further admits, that as per
his narration Police recorded his statement. His further cross-
examination shows that, the name of the deceased is Anil Vijay
Thool who tried to close the door from inside after entering but
the assailants forcefully pushed the door and entered in the
house. He further admits that, after sending the dead body also
Police were conducting the panchnama in their house in late
night. His cross-examination by the accused shows that, he
informed the Police that an unknown person assaulted the
another unknown person.
24. Besides the above direct evidence, prosecution has
also placed reliance on PW-6/Dr. Sharad Kuchewar. The
evidence of PW-6/Dr. Sharad is already discussed as far as the
injuries on the person of the deceased are concerned. His
evidence shows that, all the injuries sustained by the deceased
were antemortem in nature and fresh. The injuries mentioned in
column Nos. 18,19, and 21 are corresponding to injury Nos. 1,
2, 4, 8, and 11 mentioned in column No. 17. The exact cause of
death was hemorrhagic shock due to multiple stab and chop
wounds.
31 CRI.APPEAL.381-2019.JUDGMENT.odt
25. His further evidence shows that on 16.11.2017 he
received six sealed and labelled weapons from PSO Yavatmal
City Police Station with query and clothes of deceased. By the
said letter it was requested them to give opinion in respect of
injuries and weapons. The said communication is at Exh. 82.
After opening the seal and on examination of the said weapons
they witnessed blood stains on the weapons. He alongwith other
Medical Officers who accompanied him while conducting the
Post Mortem, prepared the diagrams of these weapons
alongwith the descriptions. They given an opinion that, injury
Nos. 1, 2 & 4 mentioned in column No.17 of PM report are
possible by swords i.e. Art. Nos. 5 and 6. The injury Nos. 5, 8, 9,
10, 11, 12, 13 and 15 mentioned in column No.17 of PM report
are possible by knife i.e. Art. 1, 2, 3 and 4. The injury No.3
mentioned in column No. 17 of PM report is possible by all six
weapons. Injury Nos. 6, 7 and 14 in column No.17 of PM report
are possible by hard and rough surface. All these six weapons
are dangerous weapons.
26. His further evidence shows that, they also received
the clothes and shoe of the deceased in a sealed condition. They
32 CRI.APPEAL.381-2019.JUDGMENT.odt
opened the seal and examined those clothes and shoe and found
multiple cut marks and blood stains on shirt, T-shirt and jeans
pant of the deceased which are mentioned in their query report
as well as they found blood stains on shoe and socks of the
deceased. They opined that the cut marks present over the
clothes of the deceased were possible due to the weapons which
were provided to them for examination. They prepared the
detail report in respect of the cut marks over the clothes of the
deceased and injuries present over his body. They have also
drawn the diagrams of all the weapons. The opinion and
diagrams are at Exhs. 83 to 83/14. He has also identified the
weapons and clothes of the deceased i.e. swords Art. P-1 and P-
2, knives Art. P-3 to P-6, the blue shirt of the deceased Art.P-9, T-
shirt Art.P-10, Jeans Pant Art.P-11, pair of socks Art.P-12 and
Shoe Art. P-13.
27. From the cross-examination attempt was made to
show that they have received the spot panchnama alongwith the
requisition. Though he admitted that, injury Nos. 6, 7 and 14
mentioned in column No.17 may be possible due to fall on the
hard and rough surface, but clarified that without looking the
33 CRI.APPEAL.381-2019.JUDGMENT.odt
particular tile, he cannot say that it is rough surface and those
injuries are not possible due to fall on those tiles. It was an
attempt to bring on record that weapons were not sent in a
sealed condition as letter Exh. 82 nowhere mentions the same
but he replied that without seal and label the weapons or any
articles are not accepted. He further clarified that, it is not
necessary to mention because they never accept weapons and
articles without seal.
28. In the said incident, PW-2/Premraj Shende has also
sustained the injuries. Therefore, the prosecution placed
reliance on the evidence of PW-10/Dr. Manisha Waghmare who
testified that, on 31.10.2017 she was on duty as a C.M.O., at
around 09.30 p.m., one injured Premraj Shende was brought to
the Hospital by N.P.C. Sagar Wankhade. On his examination she
found following injuries.
i) On right wrist incised wound 5x4x1 c.m. His tendon
was exposed.
ii) Incised wound of 2.5x0.5 c.m. on his dorsam of hand.
iii) Incised wound of 1x0.2 c.m. on his left ear pinna
lower lobe.
34 CRI.APPEAL.381-2019.JUDGMENT.odt
iv) Cut wound of 0.5x0.1 c.m. on his left leg.
29. All these injuries were possible by sharp edged
weapon. The first injury was grievous and other three injuries
were simple in nature. All those injuries were fresh. She
referred the patient to Ortho and E.N.T. Department.
Accordingly, she prepared the Medical Certificate Exh.150 and
Medical Treatment Papers Exh. 151. She stated that, the above
injuries to patient Premraj Shende are possible due to swords
Art. P-1 and P-2 and knives Art. P-3 to P-6.
30. Her cross-examination shows that, when patient was
brought to the Hospital he was conscious oriented. He answers
the questions put to him. He was enquired how he sustained the
injuries and he narrated the history of assault. She specifically
stated during the cross-examination that, usually they do not
mention the names of assailants in the history. She denied that,
the injuries by knife and sword are different from each other.
She further admits that, none of the injuries of the patient
Premraj were on vital parts of the body.
31. Besides the medical evidence, the prosecution also
35 CRI.APPEAL.381-2019.JUDGMENT.odt
placed reliance on scientific evidence. As per the evidence of
PW-9/Vinod Zalke Investigating Officer that all the Articles i.e.
weapons, clothes of deceased, clothes of accused persons, the
blood stains collected from the spot with the help of cotton and
blood samples of deceased and accused were forwarded to CA.
The CA reports are at Exh. 124 to 137. Exh. 124 is the Viscera
report. Exh. 125 is report regarding examination of various
Articles. Exh. 126 is the blood group analysis report of accused
Rohit Onkar which shows that his blood group is 'B'. Exh. 127
shows blood group of injured Premraj is 'AB'. Blood group of
accused Suhas Khairkar is 'O' as per Exh. 128. Blood group of
Sushil Anandrao Bankar, Nayan Naresh Saudagar, Vaibhav
Krushnarao Naik, Sachin Ashok Bhoyar is not determined as per
Exhs. 129, 130, 131, 132. As per Exh. 133 blood group of Anup
Anil Ramteke is 'O' and as per Exh. 134 blood group of Roshan
Purushottam Pradhan is 'O'. Blood group of Aadesh Anil
Khairkar as per Exh. 135 is 'AB' and blood group of Ashwin
Dipak Telang is not determined, whereas as per Exh. 137 blood
group of deceased is 'A'. Ex.A as per the CA report Exh.125 is
blood collected from spot with cotton ball, wherein blood group
'AB' of injured was determined. Ex. A1 shoe of the deceased
36 CRI.APPEAL.381-2019.JUDGMENT.odt
seized from spot, Ex.B blood samples of deceased, Ex.B1 hair of
the deceased, Ex. B2 clothes, shoes, socks of deceased wherein
blood group 'A' of deceased was determined. Ex.C is a sword
recovered from accused No.2/Adesh, wherein the blood group
'AB' of injured was determined. Ex. C1 and C2 are also the
knives recovered from accused No.2/Adesh out of which blood
group 'AB' was found on Ex. C2 i.e. knife. Ex.C3 is a sword
recovered from accused No.4/Ashwin. Ex.C4 and C5 are the
knives recovered from accused Ashwin out of that on Ex.C4
blood group 'A' of deceased was found, whereas on Ex. C5 blood
group 'AB' of injured was found. Ex. D and D1 are the clothes of
the injured, on which blood group 'AB' was found.
Thus, blood group 'AB' found on blood collected
from the spot and one sword recovered at the instance of
accused No.2/Adesh, knife recovered at the instance of accused
No.2/Adesh and knife recovered from accused No.4/Ashwin
which is a blood group of injured, whereas blood group 'A'
determined on clothes, shoe of the deceased and knife
recovered at the instance of accused No.4/Ashwin. Additionally,
human blood was found on the shoe of the deceased collected
37 CRI.APPEAL.381-2019.JUDGMENT.odt
from the spot, knives seized from accused No.2/Adesh and
swords seized from accused No.4/Ashwin.
32. The other circumstance on which the prosecution
placed reliance on is the evidence of PW-7/Amol Chaudhari
Police Officer who conducted part investigation. His evidence
shows that, on 31.10.2017 he was on duty in Police Station as
Night Officer. During his duty hours in the night they received
an information that a quarrel is going on in Patipura. Hence
after taking entry in station diary he rushed to the spot. There
was a mob at Samrat Ashok Chowk at Patipura and they
received an information that one person is killed by some
persons by sharp edged weapons. Immediately, he alongwith the
other Police staff visited the said house and found the dead
body in the pool of blood in the middle room of the house. It
was disclosed to him that it is the house of Milind Gedam.
33(i). He also disclosed that, how the incident happened.
Mother of the deceased was also present there as well as
PW-3/Vijay Shende was also present there, who disclosed that
his nephew Premraj was also injured. He called the
photographer. He also issued the requisition to call the panchas.
38 CRI.APPEAL.381-2019.JUDGMENT.odt
In presence of the panchas he drawn the panchnama, collected
the blood samples from the spot and seized one shoe having
blood stains. He found blood stains on chair, utensils and
windows. The mother of the deceased informed him that the
motorcycle of the deceased is lying in front of grocery shop,
hence he visited alongwith with the panchas at the said place.
The distance between the house of Milind Gedam and the place
where the motorcycle was parked was about 50 meters. He
alongwith panchas inspected the said vehicle and found some
blows were given on the vehicle by sharp weapons. They seized
the motorcycle. After Spot panchnama Exh.85, he returned to
Police Station and obtained the report of PW-1/Shalini. On
01.11.2017, he drawn the Inquest panchnama and noted
various injuries on the dead body of the deceased. As per his
opinion, the death of the deceased is due to the injuries but to
obtain the opinion he referred the dead body for post mortem
examination.
33(ii). His cross-examination shows that, he has drawn
only one Spot panchnama, wherein he has not shown the house
of Premraj Shende or Vijay Shende. He admits that, there is a
39 CRI.APPEAL.381-2019.JUDGMENT.odt
compound wall towards the East and North to the house of
Milind Gedam but there is no compound wall towards the North
of his house. He further stated that, he did not find any blood
on the spot where the motorcycle was lying. He specifically
admits that Vijay Shende had not disclosed at that time how the
incident had happened and he saw the incident.
33(iii). His cross-examination further shows that, one shoe
of the deceased was seized from the spot, whereas the another
shoe was from the Hospital. He further admits that, there were
two incidents on two spots. Thus, the attempt was made to
bring on record that only one Spot panchnama was drawn by
the Investigating Officer.
34. To establish the fact that, electricity facility was
available at the spot, prosecution has examined PW-8/Sharad
Kshirsagar who was serving as light checker in Nagar Parishad
Yavatmal. As per his evidence on 31.10.2017, the street lights in
the area where the incident took place were ON during 07.00
p.m. to 10.00 p.m. He has submitted the report in reply to the
communication issued by Jr. Engineer. He has also stated that,
the complaints are maintained by them. It specifically came in
40 CRI.APPEAL.381-2019.JUDGMENT.odt
the evidence that, there are more than 50 street lights at
Patipura and there are number of electricity polls to provide
street lights. Thus, his evidence shows that, the electricity
facility was available at the relevant time.
35. PW-9/Vinod Zalke is the Investigating Officer who
has narrated the investigation carried out by him. He
specifically stated as to the aspect of discovery of place where
the weapons of the offence were kept. As per his evidence, on
08.11.2017 he called two panchas and in presence of panchas
accused Adesh Khairkar gave his voluntary statement and stated
that he would show the place where he concealed the weapons
sword and knife of the offence. Accordingly, his statement was
recorded. He led them as well as panchas as per the statement
Exh.110. He took them on Old Nagpur Bypass and thereafter
near some bushes he pointed out the place where he concealed
the sword and knives. He took out one sword and two knives
from the said bushes. Accordingly, the panchnama was drawn.
His further evidence shows that, on the same day the other
accused Ashwin Telang also gave a voluntary statement in
presence of panchas and the said statement was recorded vide
41 CRI.APPEAL.381-2019.JUDGMENT.odt
Exh. 113. As per the said statement, he led them towards Old
Nagpur Bypass near R.T.O. Office and took them towards the
bushes and took out the sword and knives which were seized by
them. As to the said recovery the cross-examination is that the
said recovery is from open place which is denied by the
Investigating Officer. The cross-examination of the Investigating
Officer was also taken on the aspect of recording the statement
of Vijay Shende and Premraj belatedly on 08.11.2017. The
Investigating Officer has explained the said delay that he came
to know that Premraj was taking treatment at Nagpur, and
therefore, their statements were recorded on 08.11.2017.
36. On the basis of the above said evidence, prosecution
claimed that the evidence of PW-1/Shalini, PW-2/Premdas and
PW-3/Vijay is consistent and there is no reason to suspect the
said evidence, whereas the learned defence Counsel criticized
the evidence on the ground that PW-1/Shalini initially has
narrated only four names and she is interested witness. Her
evidence nowhere shows that, she witnessed the incident which
took place in the house of PW-5/Milind Gedam. Evidence of
PW-2/Premraj Shende is also not trustworthy as he has not
42 CRI.APPEAL.381-2019.JUDGMENT.odt
disclosed the evidence immediately. His statement is recorded
belatedly, therefore there is a chance of embellishment.
PW-3/Vijay Shende who has also not disclosed the incident
immediately, and therefore, the evidence requires to be
discarded. It is submitted by the learned defence Counsel that,
PW-5/Milind Gedam in whose house the alleged incident has
occurred, has not supported the prosecution case, and therefore,
his evidence is not helpful to the prosecution.
37. The law as to the appreciation of evidence is settled.
The appreciation of the ocular evidence, there is no straight
jacket formula. In the case of Balu Sudam Khalde & Anr. Vs. The
State of Maharashtra in Criminal Appeal No. 1910/2010
decided by the Hon'ble Apex Court on 29.03.2023 laid down the
principles for appreciation of ocular evidence in a criminal case
as follows:-
"APPRECIATION OF ORAL EVIDENCE
25. The appreciation of ocular evidence is a hard task.
There is no fixed or straight-jacket formula for appreciation
of the ocular evidence. The judicially evolved principles for
appreciation of ocular evidence in a criminal case can be
enumerated as under:
"I. While appreciating the evidence of a witness, the
approach must be whether the evidence of the
witness read as a whole appears to have a ring of
truth. Once that impression is formed, it is
43 CRI.APPEAL.381-2019.JUDGMENT.odt
undoubtedly necessary for the Court to scrutinize the
evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out in
the evidence as a whole and evaluate them to find
out whether it is against the general tenor of the
evidence given by the witness and whether the
earlier evaluation of the evidence is shaken as to
render it unworthy of belief.
II. If the Court before whom the witness gives
evidence had the opportunity to form the opinion
about the general tenor of evidence given by the
witness, the appellate court which had not this
benefit will have to attach due weight to the
appreciation of evidence by the trial court and unless
there are reasons weighty and formidable it would
not be proper to reject the evidence on the ground of
minor variations or infirmities in the matter of trivial
details.
III. When eye-witness is examined at length it is quite
possible for him to make some discrepancies. But
courts should bear in mind that it is only when
discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that
the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not
touching the core of the case, hyper technical
approach by taking sentences torn out of context here
or there from the evidence, attaching importance to
some technical error committed by the investigating
officer not going to the root of the matter would not
ordinarily permit rejection of the evidence as a
whole.
V. Too serious a view to be adopted on mere
variations falling in the narration of an incident
(either as between the evidence of two witnesses or
as between two statements of the same witness) is an
unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to
possess a photographic memory and to recall the
details of an incident. It is not as if a video tape is
replayed on the mental screen.
VII. Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
44 CRI.APPEAL.381-2019.JUDGMENT.odt
anticipated the occurrence which so often has an
element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the
details.
VIII. The powers of observation differ from person to
person. What one may notice, another may not. An
object or movement might emboss its image on one
person's mind whereas it might go unnoticed on the
part of another.
IX. By and large people cannot accurately recall a
conversation and reproduce the very words used by
them or heard by them. They can only recall the
main purport of the conversation. It is unrealistic to
expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their
estimates by guess work on the spur of the moment
at the time of interrogation. And one cannot expect
people to make very precise or reliable estimates in
such matters. Again, it depends on the time-sense of
individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in
rapid succession or in a short time span. A witness is
liable to get confused, or mixed up when
interrogated later on.
XII. A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing
cross examination by counsel and out of nervousness
mix up facts, get confused regarding sequence of
events, or fill up details from imagination on the spur
of the moment. The sub-conscious mind of the
witness sometimes so operates on account of the fear
of looking foolish or being disbelieved though the
witness is giving a truthful and honest account of the
occurrence witnessed by him. XIII. A former
statement though seemingly inconsistent with the
evidence need not necessarily be sufficient to amount
to contradiction. Unless the former statement has the
potency to discredit the later statement, even if the
later statement is at variance with the former to some
extent it would not be helpful to contradict that
witness."
45 CRI.APPEAL.381-2019.JUDGMENT.odt
38. In the light of the above said principles if the
evidence of PW-1/Shalini is appreciated she has specifically
narrated that, the four persons i.e. Adesh Khairkar, Suhas
Khairkar, Ahswin @ Gondya alongwith Rohit Onkar had been to
her house. Thus, her evidence disclosing the names of these four
accused to the extent of visiting her house alongwith the
weapons. Her evidence specifically shows that, by witnessing
the weapons in their hands she suspected and followed them
and seen her son and PW-2/Premraj Shende in front of the shop
of PW-3/Vijay Shende, all the accused went there and assaulted
them by means of weapons in their hands. Thus, she has
witnessed all the accused persons assaulting her son as well as
PW-2/Premraj Shende in front of the shop of PW-3/Vijay
Shende. Her evidence further discloses that, her son rushed to
the house of Milind Gedam to save himself and all the accused
persons followed him and killed him. As far as this evidence is
concerned, which is consistent and there is no inconsistency on
this aspect and corroborated by PW-2/Premraj Shende and
PW-3/Vijay Shende. PW-5/Milind Gedam though turned hostile
to the extent of the names of the accused but the evidence of
PW-1 to PW-3 and corroborated by PW-4 and PW-5 shows
46 CRI.APPEAL.381-2019.JUDGMENT.odt
incident occurred in the house. The issue was raised by the
learned defence Counsel that there was no opportunity to
identify the assailants but the evidence of PW-7/Amol
Chaudhari and PW-8/Sharad Kshirsagar especially shows that,
the electricity facility was available in front of the shop of PW-3/
Vijay Shende as well as in the house of PW-5/Milind Gedam and
street lights were also available. PW-3/Vijay Shende specifically
stated that, he has seen the incident in the light of the street
light and in the light of bulb which is available in his house.
39. Mr. Mirza, learned Counsel, placed reliance on
various decisions as far as the identification of the accused in
the light is concerned and placed reliance on State of M.P Vs.
Ghudan, (2003) 12 SCC 485. On going through the facts of the
case which shows that, there was no mention of any availability
of light in the site plan in a cited case, whereas in the present
case a specific evidence of witness and supported by
Investigating Officer and PW-8/Sharad Kshirsagar shows lights
available at the first incidence that took place on the road and
second incidence in the house of PW-5/Milind Gedam. The
evidence of PW-8/Sharad Kshirsagar specifically shows that, the
47 CRI.APPEAL.381-2019.JUDGMENT.odt
electricity was available in the relevant time in the area where
the alleged incident has taken place. On the similar point, the
decision of Bollavaram Pedda Narsi Reddy & Ors. Vs. State of
Andhra Pradesh, (1991) 3 SCC 434, was relied by the learned
defence Counsel but as observed earlier as the facts are not
identical, and therefore, not helpful to the defence.
40. PW-1/Shalini Thool is the natural witness. Her
presence at the spot of incident is also natural. While
appreciating her evidence the approach has to be whether the
evidence of witness reads as a whole inspires confidence. Once
that impression is formed, it is undoubtedly necessary for the
Court to scrutinize the evidence more particularly keeping in
view the deficiencies, drawbacks and infirmities pointed out in
the evidence as as whole and evaluate them to find out whether
it is against the general tenure of the evidence and whether the
earlier evaluation of the evidence is shaken. Minor discrepancies
which are not touching to the core of the incident are not fatal.
The prosecution evidence may suffer from inconsistencies here
and there but no criminal case is free from it. The first and
foremost thing is to be seen is whether those inconsistencies
48 CRI.APPEAL.381-2019.JUDGMENT.odt
goes to the root of the matter. The presence of PW-1/Shalini
Thool at the spot is natural. Even the evidence of PW-7/Amol
Chaudhari who conducted the part investigation, immediately
reached to the spot after receipt of the information and also
noted the presence of of PW-1/Shalini Thool there. Therefore
there is no reason to disbelieve her version which is
corroborated by PW-2/Premraj Shende and PW-3/Vijay Shende
and to some extent PW-5/Milind Gedam also.
41. PW-2/Premraj Shende is admittedly the injured
eyewitness. He has sustained the injuries in the said incident is
not only corroborated by the oral evidence but it is corroborated
by the medical evidence of PW-10/Dr. Manisha Waghmare.
Though it is canvassed that he is interested witness and her
evidence is not trustworthy but the evidence of PW-1/Shalini
Thool and PW-3/Vijay Shende shows his presence with the
deceased at the time of incident and also proves that he was
assaulted by the accused persons. As per the evidence of
PW-2/Premraj Shende, accused No.2/Adesh Khairkar assaulted
him by sword and he was also assaulted by knives. The evidence
of Medical Officer PW-10/Manisha Waghmare shows that the
49 CRI.APPEAL.381-2019.JUDGMENT.odt
injury sustained by the injured in the alleged incident are
incised wounds and possible by sharp edged weapons. She
specifically stated that, those injuries are possible due to swords
and knives. Not only this but the scientific evidence also
corroborates the facts as the blood group 'AB' was determined
on sword seized from accused No.2/Adesh Khairkar, knife
recovered from accused No.2/Adesh Khairkar and knife
recovered from accused No.4/Ashwin Telang. Blood group 'AB'
was also found on his clothes.
42. While appreciating the evidence of injured
eyewitness, the legal principles are to be kept in mind are as
follows.
"26. When the evidence of an injured eye-witness is to be
appreciated, the undernoted legal principles enunciated by
the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and
place of the occurrence cannot be doubted unless there are
material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it
must be believed that an injured witness would not allow
the real culprits to escape and falsely implicate the
accused.
(c) The evidence of injured witness has greater evidentiary
value and unless compelling reasons exist, their statements
are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on
50 CRI.APPEAL.381-2019.JUDGMENT.odt
account of some embellishment in natural conduct or
minor contradictions.
(e) If there be any exaggeration or immaterial
embellishments in the evidence of an injured witness, then
such contradiction, exaggeration or embellishment should
be discarded from the evidence of injured, but not the
whole evidence.
(f) The broad substratum of the prosecution version must
be taken into consideration and discrepancies which
normally creep due to loss of memory with passage of time
should be discarded."
43. Thus, the law is well settled that while assessing the
value of the evidence of the eyewitness, two principal
considerations are whether, in the circumstances of the case, it
is possible to believe his presence at the seen of occurrence or in
such situations as would make it possible to them to witness
the facts deposed to by them and secondly, whether there is
anything inherently improbable or unreliable in their evidence.
In respect of both these considerations, the evidence of PW-2/
Premraj Shende if appreciated admittedly his presence with the
deceased at the time of incident is established by the
eyewitnesses. It also corroborated by the fact that he sustained
the injuries in the said incident and corroborated by the medical
evidence.
44. Learned defence Counsel vehemently submitted that
51 CRI.APPEAL.381-2019.JUDGMENT.odt
PW-2/Premraj Shende is an interested witness. It is well settled
that interestedness postulates that the witness should have
some animosity against the accused otherwise merely because
they are relatives or acquainted cannot be thrown away. The
person concerned must have some direct interest in seeing that
the accused is somehow or otherwise convicted either because
he had some animus with the accused or for some other reason.
45. The evidence of PW-2/Premraj Shende and
PW-3/Vijay Shende is further criticized on the ground that the
alleged eyewitnesses despite opportunity did not inform the
Police. This criticism requires to be appreciated in the light of
the fact that son of PW-1/Shalini sustained the injuries and
succumbed to the death. PW-2/Premraj Shende himself has
sustained the injuries and immediately approached to the Police
Station and he was referred by the Police for medical
examination. He was medically examined on the same day.
Thus, when the Police came at the spot of incident, admittedly
he was not present at the spot of incident. As far as PW-3/Vijay
Shende is concerned, though he was present but there is
nothing on record to show that immediately he was enquired by
52 CRI.APPEAL.381-2019.JUDGMENT.odt
the Investigating Officer and after enquiry also he has not
disclosed the incident to the Investigating Officer. The
explanation given by the Investigating Officer specifically shows
that, as the injured was taking treatment at Nagpur, and
therefore, he could not record his statement immediately. Thus,
as far as the delay in recording the statements of these
witnesses is rightly explained by the prosecution. As far as the
conduct of PW-3/Vijay Shende is concerned, it is well settled
that, different persons react differently in similar situations, and
therefore, merely because they have not responded in a
particular manner, is not sufficient to discard the evidence.
46. Learned defence Counsel placed reliance on the
decision of Jafarudheen Vs. State of Kerala (supra) the note (D)
of the said judgment also shows that the witnesses who are
family members apart from being they are the chance witnesses,
their testimonies cannot be rejected and held the evidence of
eyewitnesses credible. The Apex Court has specifically observed
in para No. 34 of the judgment that, nothing has been elicited
from the eyewitnesses insofar as the aforesaid accused are
concerned to impeach through their evidence. Here in the
53 CRI.APPEAL.381-2019.JUDGMENT.odt
present case also, there is nothing on record to show that there
is any other reason for these witnesses to implicate the accused
falsely in the alleged incident and no reason came forward to
discard the evidence of these witnesses. Merely because their
statements are recorded belatedly, the evidence cannot be
thrown away when the delay is properly explained by the
Investigating Officer. The identification of the accused by these
witnesses in the Court is also a substantial evidence.
47. These witnesses are further criticized by the defence
on the ground that, they have not attributed the specific role to
the accused. General statement is made by the witnesses.
Admittedly, the evidence of PW-1, PW-2 and PW-3 are the
witnesses who are rustic witnesses. While appreciating the
testimony of rustic witnesses and when number of intruders
attack with deadly weapons then witness cannot be expected to
give a very accurate and photogenic version as whole thing
happened in a few minutes. This aspect is also considered by the
Hon'ble Apex Court in the case of State of Punjab Vs. Hakam
Singh, MANU/SC/0526/2005, wherein Hon'ble Apex Court
observed that, sometimes while appreciating the testimonies of
54 CRI.APPEAL.381-2019.JUDGMENT.odt
rustic witnesses, we are liable to commit mistakes by losing
sight of their rural background and try to appreciate testimony
from our rational angle. When a lady is confronted with number
of intruders in her house armed with deadly weapons and
showering bullets she cannot give a very accurate and
photogenic version as whole thing happened in few minutes.
Therefore, while appreciating whole scenario in which the
incident happened. It is not expected that she would be in a
position to state act of each accused. Similar is the fact here,
PW-2/Premraj Shende and deceased were attacked by several
accused suddenly. PW-1/Shalini and PW-3/Vijay Shende have
also witnessed the incident when 10 to 12 persons were
assaulting with deadly weapons and it is highly difficult for the
witnesses to narrate the act of each accused.
48. Learned Counsel for the accused further submitted
that, there is inconsistent evidence of the witnesses
contradicting the medical evidence. However, no such
inconsistencies are brought on record as far as the oral and
medical evidence is concerned. It is also submitted that, there
was no motive for the accused to commit such offence. It is well
55 CRI.APPEAL.381-2019.JUDGMENT.odt
settled that, when direct evidence is available, the motive takes
backseat, and therefore, this submission is also not sustainable.
49. As observed earlier that, PW-5/Milind Gedam who is
eyewitness but has left the loyalty towards the prosecution.
However, his evidence as to the incident is corroborating to the
fact that the death of the deceased is caused due to the assault
by 10 to 12 persons, he turned hostile to the extent of the
names of the accused persons. The evidence of PW-1/Shalini,
PW-2/Premraj Shende and PW-3/Vijay Shende categorically
stated that, the deceased was chased by the present accused and
deceased entered into the house of PW-5/Milind Gedam and
accused followed him and assaulted him. This fact is further
corroborated by the scientific evidence as blood stains are found
on the weapons of blood group of deceased and injured and
recovered at the instance of accused Nos. 2 and 4. The human
blood was found on the knives seized from the accused No.4
and swords seized from the accused No.4. The evidence of
hostile witness can be relied on if there are some other material,
on the basis of which the said evidence can be corroborated.
The evidence of PW-1 to PW-3 shows that, the deceased was
56 CRI.APPEAL.381-2019.JUDGMENT.odt
chased by the accused and they entered the house of Milind
Gedam and the evidence of Milind Gedam that 10 to 12 persons
assaulted the deceased corroborates each other.
50. The another circumstance on which the prosecution
relied upon is the evidence as to the recovery of weapons at the
instance of the accused. Admittedly, the prosecution has not
examined the panch witnesses and the aspect of memorandum
statement of accused No.2/Adesh and accused No.4/Ashwin at
whose instance two swords and four knives are recovered is
proved by PW-9/Vinod Zalke. His evidence shows that, as the
accused No.2/Adesh shown his willingness to make a voluntary
statement, and therefore, he called two panchas and in presence
of panchas he made a statement that he will show the place
where he concealed the weapons and accordingly after
recording his statement Exh.110 he led them towards Old
Nagpur Bypass near Bridge. He led them towards the spot and
shown the place where he concealed the weapons and at his
instance one sword and two knives were recovered from the
bushes. Similarly, accused No.4/Ashwin has also made a
voluntary statement that he will show the place where he
57 CRI.APPEAL.381-2019.JUDGMENT.odt
concealed the weapons of the offence and accordingly led them
on Old Nagpur Bypass and one sword and two knives were
recovered at his instance. The Investigating Officer has
cross-examined on that aspect but he denied the contention that
the accused have not made any statement and no recovery was
there at their instance. But he admitted that, at the relevant
time the accused persons were handcuffed. He has also
admitted that, the place where accused took them was open
land and anybody can go to the said spot. But he clarified that,
there was thorny bushes and the weapons were recovered from
the said thorny bushes.
51. As far as the evidence as to the recovery in view of
Section 27 of the Indian Evidence Act is concerned, the
requirement of Section 27 of the Indian Evidence Act is founded
on the principle that if any fact is discovered, after search is
carried out, on the search of any information obtained from the
prisoner, such recovery is guaranteed that the information
supplied by the prisoner is true. It goes without saying, and
therefore, that recovery of articles at the instance of the accused
has to be proved by the witnesses.
58 CRI.APPEAL.381-2019.JUDGMENT.odt
52. In the case of Subramanya Vs. State of Karnataka,
reported in 2022 LiveLaw (SC) 887 and held that the conditions
necessary for the applicability of Section 27 of the Act are
broadly discussed as under:
"(1) Discovery of facts in consequence of an information
received from accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he gave
information; and
(4) So much of information as relates distinctively to
the fact thereby discovered is admissible."
53. Thus, what is admissible is the information and the
same has to be proved and not the opinion formed on it by the
Police Officer. In other words, the information given by the
accused while in custody which led to recovery of the articles
has to be proved. The basic idea embedded in Section 27 of the
Indian Evidence Act is the doctrine of confirmation by
subsequent events. The doctrine is founded on the principle that
if any fact is discovered as a search made on the strength of any
information obtained from prisoner such a discovery is made on
the strength of any information obtained from a prisoner, such
discovery is guarantee that the information supplied by the
prisoner is true.
59 CRI.APPEAL.381-2019.JUDGMENT.odt
54. This evidence as to recovery is criticized by the
learned Counsel for the accused on the ground that, the
independent witnesses are not examined by the prosecution,
and therefore, the evidence as to recovery is not trustworthy
and liable to be discarded. There is no requirement either under
Section 27 of Indian Evidence Act or under Section 161 of
Cr.P.C. to obtain signature of independent witnesses on the
record in which statement of an accused is written, is the
observation of the Hon'ble Apex Court in the case of State,
Govt. of NCT of Delhi Vs. Sunil and Ors., MANU/SC/0735/2000
wherein the Hon'ble Apex Court observed that, the legislative
idea in insisting on such searches to be made in presence of two
independent inhabitants of the locality is to ensure the safety of
such all articles middled with and to protect the rights of the
persons entitled thereto. But recovery of an object pursuant to
the information supplied by an accused in custody is different
from the searching endeavour envisaged in Chapter VII of the
Code, hence it is fallacious impression that when recovery is
affected, pursuant to any statement made by the accused, the
document prepared by the Investigating Officer with such
recovery, must necessarily be attested by independent witnesses.
60 CRI.APPEAL.381-2019.JUDGMENT.odt
Of course, if any such statement leads to recovery of any article,
it is open to the Investigating Officer to take the signature of
any person present at that time, on the document prepared for
such recovery but if the witness was not present or if no person
agreed to affix his signature on the document, it is difficult to
lay down, as a proposition of law, that the document so
prepared by the Police Officer must be treated as tainted and
the recovery evidence unreliable. The Court has to consider the
evidence of the Investigating Officer to depose to the fact of
recovery based on the statement elicited from the accused on its
own worth.
55. In Modan Singh Vs. State of Rajasthan, AIR 1978
SC 1511, wherein it was observed that, if the evidence of
Investigating Officer who recovered the material objects is
convincing, the evidence as to recovery need not be rejected on
the ground that seizure witnesses do not support the
prosecution version. Similar view was expressed in Mohd.
Aslam Vs. State of Maharashtra, (2001) 9 SCC 362 & Anter
Singh Vs. State of Rajasthan, 2004 SCC 10 657 that even if
panch witness turns hostile, the evidence of person who affected
61 CRI.APPEAL.381-2019.JUDGMENT.odt
the recovery would not stand vitiated.
56. Thus, the evidence of the Investigating Officer can
be considered for proving the recovery as official acts are done
by him is a wise presumption of law recognized by the
legislature as seen from the provisions of Section 114 of the
Indian Evidence Act.
57. The evidence as to recovery is further criticized on
the ground that, the accused was handcuffed at the relevant
time. We are not impressed by this submission, there can be no
doubt that when the accused is handcuffed he may not be free
from fear of the Police or duress of pressure but that itself
cannot be a reason to discard the recovery of weapon if it was
otherwise found to be corroborated by other evidence.
Handcuffing of a person by itself cannot be a reason to
generalize the hypothesis that such a discovery cannot be
reliable. The apprehension of the investigating agency that he
may flee away or may attack on them may be the one of the
reason to keep him in a handcuff position and the possibility
cannot be ruled out. We are fortified in taking this view as the
same view is taken by this Court in the case of Putlabai
62 CRI.APPEAL.381-2019.JUDGMENT.odt
Bhimashankar Pattan Vs. The State of Maharashtra, 2010
ALLMR (CRI) 2084.
58. The learned defence Counsel further contended
that, in view of the admission given by the Investigating Officer
the place of recovery was the open place. Thus, the recovery
from the open place is not admissible. The Investigating Officer
PW-9/Vinod Zalke clarified that, though the place was open
place but the weapons were recovered from the thorny bushes
and kept in a concealed position. The recovery evidence shows
that, the weapons were found in a concealed position from the
thorny bushes. Thus, it was not a place which was visible to all.
Therefore, this contention is also not sustainable.
59. Mr. Mirza, learned Counsel, vehemently submitted
that, the FIR in the present case is rather late and it is also
dispatched to the Judicial Magistrate belatedly. As far as this
contention is concerned, the alleged incident has taken place on
31.10.2017 at about 08.30 to 09.30 p.m., and during that night
the FIR was lodged, therefore it is not a delayed FIR. The
evidence of PW-1/Shalini shows that, after Police drawn the
panchnama she was taken to the Police Station and she has
63 CRI.APPEAL.381-2019.JUDGMENT.odt
lodged the report. Even the evidence of PW-7/Amol Chaudhari
who recorded the FIR also shows that after drawing the spot
panchnama he went to the Police Station, Informant also
approached to the Police Station and he recorded the report.
The contention that the FIR was dispatched to the Judicial
Magistrate First Class belatedly, admittedly no document is on
record to show that when the FIR was dispatched to the
Magistrate.
60. Learned Counsel for the accused placed reliance on
Jafarudheen Vs. State of Kerala (supra), the observation of the
Hon'ble Apex Court in the said judgment itself shows that, the
first information report in a criminal case starts the process of
investigation by letting the criminal law into motion. The
Investigating Officer is expected to keep start his investigation
immediately after registration of a cognizable offence. It is
certainly a vital and valuable aspect of evidence to corroborate
the oral evidence. Therefore, it is imperative that such an
information is expected to reach the jurisdictional Magistrate at
the earliest point of time to avoid any possible ante-dating or
ante-timing leading to the insertion of materials meant to
64 CRI.APPEAL.381-2019.JUDGMENT.odt
convict the accused contrary to the truth and on account of such
a delay may also not only gets bereft of the advantage of
spontaneity, there is also a danger creeping in by the
introduction of A coloured version, exaggerated account or
concocted story as a result of deliberation and consultation.
However, a mere delay by itself cannot be a sole factor in
rejecting the prosecution's case arrived at after due
investigation.
61. He also placed reliance on Motilal Vs. State of
Rajasthan (supra), wherein also the Hon'ble Apex Court
observed that, the delayed receipt of the report by Elaqa
Magistrate would not be fatal to the prosecution.
62. He further relied upon on the judgment of Rattiram
& Ors. Vs. State of M.P. (supra) on the similar issue, wherein
also the Hon'ble Apex Court dealt with this issue and observed
that, the learned trial Judge has adverted to the issue and
opined, regard being had to the creditworthiness of the
testimony on record it could not be said that the FIR, was
antedated or embellished. It is worth noting that such a
contention was not raised before the High Court. Considering
65 CRI.APPEAL.381-2019.JUDGMENT.odt
the facts and circumstances of the case, we are disposed to think
that the finding recorded by the learned trial Judge cannot be
found fault with. We may hasten to add that when there is
delayed dispatch of the FIR, it is necessary on the part of the
prosecution to give an explanation for the delay. We may further
state that the purpose behind sending the copy of the FIR to the
concerned Magistrate is to avoid any kind of suspicion being
attached to the FIR. Such a suspicion may compel the court to
record a finding that there was possibility of the FIR being ante-
timed or ante-dated. The court may draw adverse inferences
against the prosecution. However, if the court is convinced as
regards to the truthfulness of the prosecution version and
trustworthiness of the witnesses, the same may not be regarded
as detrimental to the prosecution case. It would depend on the
facts and circumstances of the case.
63. As far as the present case is concerned, admittedly
the Investigating Officer is not cross-examined to suggest that
the FIR is ante-timed or ante-dated. There is no suggestion to
the Investigating Officer that the FIR is dispatched to the
Magistrate belatedly. Therefore, the submission of the learned
66 CRI.APPEAL.381-2019.JUDGMENT.odt
Counsel in absence of the evidence that FIR is dispatched
belatedly is not sustainable.
64. As per the prosecution case, all the accused formed
unlawful assembly and in furtherance of the common object of
that assembly executed the act to eliminate the deceased. For
that purpose, the prosecution placed reliance on the evidence of
PW-1/Shalini the mother of the deceased who categorically
stated that initially accused Nos. 1 to 4 came at her house and
they were holding weapons in their hands. Therefore, she
followed them and on the way the other accused joined them
and all the accused assaulted the deceased as well as injured.
The evidence of PW-1/Shalini is corroborated by injured
eyewitnesses PW-2/Premraj and PW-3/Vijay.
65. Thus, as far as the evidence of prosecution that all
accused came at the spot holding weapons in their hands is
consistent. Their evidence that all the accused in furtherance of
their common object assaulted the deceased. Thus, the
Appellants herein had been arraigned by virtue of Sections 148
and 149 of IPC on the ground that they were the part of
unlawful assembly which had the common object of eliminating
67 CRI.APPEAL.381-2019.JUDGMENT.odt
the deceased Anil by means of criminal force, and therefore,
being the member of the unlawful assembly, they were also
guilty of the offence committed in prosecution of the common
object i.e. the offence under Section 302 of IPC.
66. At this juncture, the relevant legal provision 141 of
IPC which defines unlawful assembly. It says an assembly of 5 or
more persons as designated as unlawful assembly if the
common object of the persons composing that assembly is to
commit an illegal act by means of criminal force.
67. As per Section 148 of IPC which deals with rioting
armed with deadly weapons, whoever guilty of rioting, being
armed with a deadly weapon or with anything which used as
weapons of offence is likely to cause death, shall be punished
with imprisonment either description for a term which may
extend to three years or with fine or with both. The offence of
riot is defined in Section 146 of IPC. In view of the said
definition, whenever force or violence is used by the 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.
68 CRI.APPEAL.381-2019.JUDGMENT.odt
68. Section 149 of IPC says about every member of an
unlawful assembly shall be guilty of the offence committed in
prosecution of the common object. It says 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 prosecution of that object, every person who at the time of
committing of that offence is the member of the said assembly,
is guilty of that offence. Thus, if it is a case of murder under
Section 302 of IPC, each member of the unlawful assembly
would be guilty of committing the offence under Section 302 of
IPC.
69. Mr. Daga, learned Counsel for the accused,
submitted that no specific role is attributed to all the accused,
initially only names of four accused are mentioned and there is
no attribution to the other accused. In view of that, they are not
the members of unlawful assembly. In support of his contention
he placed reliance on Jaising & Ors., K.M. Ravi and Ors., Mohd.
Iqbal @ Munna s/o Abdul Sattar & Anr. (supra) and Shri Dinesh
s/o Mahadeo Meshram Vs. State of Maharashtra, 2017 ALL MR
69 CRI.APPEAL.381-2019.JUDGMENT.odt
(Cri) 523 and submitted that, mere presence or association with
other members alone does not per se be sufficient to hold every
one of them criminally liable for the offences committed by
others unless there are sufficient evidence on record to show
that one such also intended to or knew the likelihood of
commission of such an offending act. There seems to be no
legally acceptable material to prove that all the accused acted as
members of unlawful assembly and except that they were found
to be closely related nothing concrete to join them to connect
with the murder of the deceased.
70. As already observed that, the evidence of PW-1,
PW-2 and PW-3 categorically shows that all accused came at the
spot holding weapons in their hands and assaulted the deceased
Anil as well as PW-2/Premraj. Section 149 of IPC creates a
constructive or vicarious liability of the members of the
unlawful assembly for the unlawful acts committed pursuant to
the common object by any other member of that 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
70 CRI.APPEAL.381-2019.JUDGMENT.odt
assembly. The factum of causing injury or not causing injury
would not be relevant when an accused is roped in with the aid
of Section 149 of IPC. The question which is relevant and which
is required to be answered by the Court is whether the accused
is the member of an unlawful assembly or not.
71. In the case of Vinubhai Ranchhodbhai Patel Vs.
Rajivbhai Dudabhai Patel (2018) 7 SCC 743, wherein the
Hon'ble Apex Court held that:
"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."
72. In Nitya Nand Vs. State of U.P. & Anr. in Criminal
Appeal No. 1348/2014 decided on 04.09.2024 , the Hon'ble
Apex Court observed by reproducing para No.22 of the
judgment of Vinubhai Ranchhodbhai Patel Vs. Rajivbhai
Dudabhai Patel.
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"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 that their activity as members of the unlawful
assembly is limited."
73. Recently, in the judgment of Zainul Vs. The State of
Bihar in Criminal Appeal No. 1187/2014 dated 07.10.2025 , 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
carried by its members, and their conduct before, during,
or after the incident."
74. 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
72 CRI.APPEAL.381-2019.JUDGMENT.odt
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.
75. 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 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
73 CRI.APPEAL.381-2019.JUDGMENT.odt
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;
g. the nature, extent, and number of injuries inflicted, and
other relevant considerations.
76. By applying these considerations in the present case
oral evidence of PW-1, PW-2 and PW-3 shows that all accused
came at spot together with deadly weapons like swords and
knives in their hands and assaulted the deceased and
PW-2/Premraj injured in front of the shop of PW-3/Vijay. The
deceased fleed away from the spot to save himself but he was
chased by all the accused and they all entered in the house of
PW-5/Milind Gedam behind the deceased and caused the
injuries to the deceased. Deceased has sustained multiple chop
wounds and stab wounds 15 in numbers affecting the internal
organs.
77. Thus, the fact that the appearance of all the
74 CRI.APPEAL.381-2019.JUDGMENT.odt
Appellants/accused at the spot alongwith the weapons causing
injuries to the injured and deceased at first place in front of the
shop of PW-3/Vijay Shende and thereafter chasing the deceased
at some distance and executing the act of eliminating the
deceased, is sufficient to show their common object. Therefore,
there is no hesitation to hold that, all the Appellants/accused
were members of an unlawful assembly and in prosecution of
their common object they have assaulted the deceased. Thus,
upon evaluation of a set of proved circumstances i.e. the oral
evidence of PW-1, PW-2 and PW-3 and corroborated by PW-5
that the deceased was assaulted by 10 to 12 persons, the
assailants were identified by all these witnesses.
78. As far as charge under Section 120-B of IPC is
concerned, admittedly there is no evidence to show that there
was an agreement or meeting of minds. Admittedly, direct
evidence would not be available as far as criminal conspiracy is
concerned, however there has to be some evidence in the
circumstantial in nature. Therefore, we have no hesitation to
held that the offence under Section 120-B of IPC is not proved.
79. The oral evidence is further corroborated by medical
75 CRI.APPEAL.381-2019.JUDGMENT.odt
evidence as well as the scientific evidence. The blood stained
weapons are recovered at the instance of the accused. The
evidence of PW-2/Premraj Shende who is the injured eyewitness
and the settled position of law is that, the testimony of the
injured witness stands on the highest pedestal as compared with
the other witnesses. The fact that, the witness is injured in the
incident lends assurance to his presence on the spot. In normal
circumstances an injured person is not likely to falsely implicate
a person and absolve the guilty. Law does not require a fact that
requires to be proved on absolute terms bereft of all doubts.
What law contemplates is that for a fact to be considered to be
proven, it must eliminate any reasonable doubt. Reasonable
doubt does not mean any trivial, fanciful or imaginary doubt,
but doubt based on reason and commonsense growing out of
the evidence in the case. A fact is considered proof if the Court,
after reviewing the evidence, either believes it exists or deems
its existence probable enough that a prudent person would act
on the assumption that it exists.
80. It is cardinal principle of criminal jurisprudence that
the guilt of the accused must be proved beyond all reasonable
76 CRI.APPEAL.381-2019.JUDGMENT.odt
doubts. However, the burden is on the prosecution is 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 arising from the evidence. A
reasonable doubt is not an imaginary or mere a possible doubt
but a fare doubt based upon reason and commonsense.
81. For the reasons discussed above, on consideration of
the oral evidence, medical evidence, scientific evidence and
other proven fact, in our considered opinion, the prosecution
has proved the guilt of the accused unmistakenly to point out
that being the members of the unlawful assembly and in
furtherance of their common intention they have committed the
murder of deceased Anil Thool punishable under Section 302 of
IPC and caused the injuries to PW-2/Premraj and thereby
committed the offence. These proved facts on the basis of
proved evidence the prosecution has proved the charges against
the accused beyond reasonable doubts resultantly the Appeal is
partly allowed.
77 CRI.APPEAL.381-2019.JUDGMENT.odt
82. The Appeal is partly allowed. The conviction and
sentence imposed of the offence punishable under Section
120-B of IPC, is quashed and set aside. Rest of the sentence is
maintained.
83. Pending application/s, if any, shall stand disposed of
accordingly.
(NANDESH S. DESHPANDE, J.) (URMILA JOSHI PHALKE, J.)
S.D.Bhimte
Signed by: Mr.S.D.Bhimte
Designation: PA To Honourable Judge
Date: 14/10/2025 15:45:36
