Bombay High Court
Umesh Balchand Manvatkar And 2 Ors. vs State Of Mah.Thr.P.S.O.Gondia(City) on 15 October, 2025
2025:BHC-NAG:11005-DB
Judgment
487 apeals715 and 747.04
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.715 OF 2004
WITH
CRIMINAL APPEAL NO.747 OF 2004
CRIMINAL APPEAL NO.715 OF 2004
1. Rajesh s/o Jumman Methiya,
aged about 30 years, occupation private,
r/o Zopdi Mohalla, Gondia.
2. Uttam s/o Munnalal Yadav,
aged about 27 years, occupation
agriculturist, r/o Krushnapura
Ward, Gondia.
3. Sunil s/o Shyamlal Dip (Dead).
aged about 22 years, occupation private,
r/o Zopdi Mohalla, Gondia.
Appeal is abated against
appellant No.3. ..... Appellants.
:: V E R S U S ::
State of Maharashtra,
through PSO PS Gondia. ..... Respondent.
Shri R.B.Gaikwad, Counsel for the Appellants.
Mrs.Sneha Dhote, Additional Public Prosecutor for the
State.
.....2/-
Judgment
487 apeals715 and 747.04
2
CRIMINAL APPEAL NO.747 OF 2004
1. Umesh s/o Balchand Manvatkar (Dead),
aged 30 years.
Appeal is abated against
appellant No.3.
2. Kalu @ Jariya @ Dilraj Beg s/o Mirza
Kalam Beg, aged 21 years.
3. Kalu @ Prabhu s/o Rushi Sikka,
aged 23 years. ..... Appellants.
:: V E R S U S ::
State of Maharashtra,
through PSO Gondia (City). ..... Respondent.
Shri R.M.Daga, Counsel for the Appellants.
Mrs.Sneha Dhote, Additional Public Prosecutor for the
State.
CORAM : URMILA JOSHI-PHALKE &
NANDESH S.DESHPANDE, JJ.
CLOSED ON : 07/10/2025
PRONOUNCED ON : 15/10/2025
COMMON JUDGMENT ( Per : Urmila Joshi-Phalke)
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1. By these appeals, appellants (the accused
persons) have challenged judgment and order dated
28.9.2004 passed by learned 1st Ad hoc Additional
Sessions Judge, Gondia (learned Judge of the trial court)
in Sessions Trial No.60/2022.
2. By the said judgment impugned in these
appeals, the accused persons are convicted for offence
under Section 302 read with Section 149 of the IPC and
sentenced them to undergo imprisonment for life and to
pay fine Rs.500/- by each of them, in default, to undergo
simple imprisonment for 10 days only.
They are also convicted for offence under
Section 147 of the IPC and sentenced to undergo rigorous
imprisonment for 1 year and to pay fine Rs.500/- by each
of them, in default, to undergo simple imprisonment for 5
days.
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They are also convicted for offence under
Section 148 of the IPC and sentenced to undergo rigorous
imprisonment for 1 year and to pay fine Rs.100/- by each
of them, in default, to undergo simple imprisonment for 5
days.
3. During the pendency of these appeals, accused
Sunil s/o Shyamlal Dip in Criminal Appeal
No.715/2004 died and the appeal against him stands
abated.
Accused Umesh s/o Balchand Manvatkar in
Criminal Appeal No.747/2004 died and the appeal
against him also stands abated.
4. Facts of the prosecution case are as under:
Matadin Pal (the deceased) and Sundarlal
Yadav who is father of acquitted accused Pankaj Yadav
were having cordial relations. Accused Nos.2 to 9 are
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friends of co-accused Pankaj and are residents of Zopdi
Mohalla, Gondia. Prior to the incident, the deceased and
acquitted Pankaj separated from each other. Both were
indulged in various criminal activities together. The
deceased was involved in various criminal activities which
created unrest between him and co-accused Pankaj. The
deceased was convicted under Section 302 of the IPC
also. Co-accused Pankaj along with accused No.2 Rajesh
and Sundarlal Yadav were prosecuted for the murder of
one Laxmichand Baghele on 9.2.1995. One Satu
Maganlal Mulchandani was star witness in that case. He
was under control of the deceased. Co-accused Pankaj
apprehended that the deceased is interested to secure his
conviction. There was enmity between both of them as
wife of the deceased contested the Municipal Elections
and co-accused Pankaj and his mother were also
contesting the elections. The mother of co-accused Pankaj
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could not defeat the wife of the deceased and wife of the
deceased Shobha was elected. This defeat created rift
between co-accused Pankaj and the deceased. Accused
No.2 Rajesh was having independent grudge against the
deceased. One Nitu, the niece of accused No.2 Rajesh
was entangled with one Santosh Chauhan. She has
conceived from him. Said Santosh was ready to marry
with said Nitu. However, the deceased intervened in the
matter, so he refused to marry on which accused Rajesh
expressed his displeasure to co-accused Pankaj. As per
the prosecution, due to the previous dispute and enmity
between co-accused Pankaj and accused Rajesh, they have
formed an unlawful assembly and other accused were
members of that unlawful assembly and in furtherance of
common object, on 15.6.2002, when the deceased was
proceeding towards Municipal Office on his two-wheeler,
bearing registration No.MH-35/H-738, and reached near
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Bhawani Chowk Gondia. At the relevant time, he was
assaulted by all the accused persons by means of deadly
weapons like swords, daggers, and guptis due to which
the deceased sustained grievous injuries and succumbed
to the injuries. The informant, the wife of the deceased,
at home. One Suresh Sonwane, who is sweeper, informed
her about the incident. She immediately rushed to the
spot of the incident. As per the prosecution case, PW5
Shankar Shivankar and other witnesses i.e. PW4 Anup
Meshram; PW16 Wasudev Lalwani witnessed the incident.
She lodged the report about the said incident to the police
and raised her suspicion against the accused persons.
5. On the basis of the said report, the police
carried out the investigation. During the investigation, on
the basis of statements of the accused persons,
incriminating weapons are seized. The blood stained
clothes of the accused persons are also seized. The
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articles found on the spot at the time of drawing spot
panchanama are also seized and the entire incriminating
articles were forwarded to the Forensic Science
Laboratory for analysis. After completion of the
investigation, chargesheet was filed against all the
accused persons.
6. Learned Judge of the trial court has framed
charge vide Exh.45. The accused persons pleaded not
guilty and claimed to be tried.
7. In support of the prosecution case, the
prosecution has examined in all 27 witnesses, they are as
follows:
PW Names of Witnesses Exh.
Nos. Nos.
1 Shobha Pal, the informant and wife of 64
the deceased
2 Archana Pal, daughter of the deceased 68
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7 Anand Tiwari, owner of the STD 74
Booth
13 Fatehasing Chauhan, pancha on spot 100
and inquest panchanamas and seizure
memos
15 Santosh Sathawane, pancha on arrest 107
panchanamas
17 Baban Sahare, pancha on spot 120
panchanama as to identification of
footwear of accused and seizure
memo
.....10/-
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Officer
8. Besides the oral evidence, the prosecution
mainly placed reliance on report Exh.65, FIR Exh.66,
memorandum statement of accused Rajesh Exh.87,
discovery panchanama Exh.88, memorandum Exh.89,
discovery panchanama Exh.90, memorandum statement
of accused Uttam Exh.91, discovery panchanama Exh.92,
memorandum statement of accused Ranya @ Rajendra
Meshram Exh.93, discovery panchanama Exh.94,
memorandum statement of Shrawandas Exh.95, discovery
panchanama Exh.96, seizure memo Exhs.97 and 98, spot
panchanama Exh.156, inquest panchanamas Exh.102 and
106, seizure memos Exhs.103, 103A, 125, seizure memo
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Exh.104, 104A, 154, arrest panchanamas of the accused
persons Exhs.108 to 116, panchanama as to identification
of footwears of accused Exhs.121 to 123, seizure memo
Exh.124, requisition to medical officer Exh.126,
postmortem report Exh.126, requisition to query Exh.128,
opinion of medical officer Exh.129, requisition to medical
officer Exh.132, opinion of medical officer Exh.133,
requisition to medical officer Exh.134, opinion Exh.134A,
requisition to medical officer Exh.135 and opinion
Exh.15-A, requisition to medical officer Exh.136 and
opinion Exh.136-A, opinion Exh.137-A, requisition to
medical officer Exh.138 and opinion Exh.138-A,
requisition to medical officer Exh.139 and opinion
Exh.139A, requisition to medical officer Exh.140 and
opinion Exh.140A, requisition to medical officer Exhs.143
to 144, medical certificate of accused Sunil Exh.145,
requisition to Tahsildar Exh.148, dog squad reports
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Exhs.151 to 152, spot panchanamas Exhs.156, 161,
compliance report 163, seizure memos Exhs.168 to 174,
memorandum statement of accused Umesh Exh.175, and
CA Report Exh.189.
9. After hearing both the sides and appreciating
the evidence adduced on record, learned Judge of the
trial court acquitted accused No.1 Pankaj of offence under
Section 120-B and 302 of the IPC; accused No.8 Ranya
and accused No.9 Shrawandas of offences under Sections
120-B, 147, 148, 149, and 302 of the IPC. Whereas,
accused No.2 Rajesh, accused No.3 Uttam, accused No.4
Sunil, accused No.5 Umesh, accused No.6 Kalu, and
accused No.7 Kalu @ Prabhu were held guilty and
convicted as the aforesaid.
10. Being aggrieved and dissatisfied with the same,
accused No.2 Rajesh, accused No.3 Uttam, accused No.4
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Sunil have preferred Criminal Appeal No.715/2004 and
accused No.5 Umesh, accused No.6 Kalu, and accused
No.7 Kalu @ Prabhu have preferred Criminal Appeal
No.747/2004.
11. Learned counsel Shri R.B.Gaikwad appearing
in Criminal Appeal No.715/2004 submitted that the
entire case is based on the evidence of sole eyewitness
PW5 Shankar Shivankar whose evidence is vague in
nature, as far as the assault by the present accused is
concerned. His evidence is also not inspiring confidence
as he has not disclosed the names of the assailants
immediately. His statement is also recorded belatedly
though he was present at the spot itself and he has not
approached the police station immediately after the
incident. His evidence further shows that there was
previous enmity between him and the accused persons
and, therefore, he is interested witness.
.....14/-
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He further submitted that besides this
evidence, admittedly, PW1 Shobha Pal, the informant and
wife of the deceased, is not eyewitness of the incident
and, therefore, her evidence is not helpful to the
prosecution.
As far as previous enmity is concerned, her
evidence is not trustworthy and liable to be thrown out.
As far as various panchanamas and recovery of articles at
the instance of the accused persons are concerned,
pancha witness turned hostile and not supported the
prosecution case.
He further submitted other two eyewitnesses
namely PW4 Anup Meshram and PW16 Wasudev Lalwani
have also not supported the prosecution case.
Learned Judge of the trial court has convicted
the accused persons merely on the basis of evidence of the
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sole eyewitnesses and, therefore, the evidence is not at all
trustworthy and is not sufficient to prove the guilt of the
accused persons. In view of that, he submitted that the
appeal deserves to be allowed.
In support of his contentions, he placed
reliance on the decision of the Hon'ble Apex Court in the
case of Narendrasinh Keshubhai Zala vs. State of Gujarat,
reported in 2023 STPL 3403 SC.
12. Learned counsel Shri R.M.Daga appearing in
Criminal Appeal No.747/2004 reiterated the similar
submissions and submitted that conviction can be based
on the sole eyewitness only when the evidence is inspiring
confidence. These witnesses have not disclosed name of
assailants immediately though he has witnessed the
incident. The accused persons are not known to them.
There is no evidence as to forming of unlawful assembly.
.....16/-
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487 apeals715 and 747.04
No specific role is attributed to the accused persons. Their
identification before the court is also general in nature.
Thus, neither the direct evidence nor the circumstantial
evidence shows involvement of the accused persons in the
alleged incident. In view of that, the appeal deserves to
be allowed.
In support of his contentions, he placed
reliance on following decisions:
1. Baddi Venkata Narasayya and ors vs. State of
A.P., reported in (1998)2 SCC 329;
2. Nagesar vs. State of Chhattisgarh, reported
in (2014)6 SCC 672, and
3. Babu Sahebagouda Rudragoudar and ors vs.
State of Karnataka, reported in (2024)8 SCC
149.
13. Per contra, learned Additional Public
Prosecutor Mrs.Sneha Dhote for the State submitted that
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PW5 Shankar Shivankar; PW4 Anup Meshram, and PW16
Wasudev Lalwani are eyewitnesses. However,
unfortunately, PW4 Anup Meshram, and PW16 Wasudev
Lalwani have not supported the prosecution case. Merely
because they have not supported the prosecution case, the
prosecution case has not weakened. The evidence of
PW5 Shankar Shivankar is corroborated by circumstantial
evidence like weapons and recovery at the instance of the
accused persons. There is previous enmity between the
deceased and the accused persons. There was motive for
the accused persons to commit murder of the deceased.
The blood stained clothes of the accused were seized at
their instance and CA Analysis shows that Blood Group
"AB" which is of the deceased was found on the clothes of
the accused persons. Therefore, it is not the sole
witnesses but other circumstantial evidence sufficiently
shows involvement of the accused and learned Judge of
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the trial court has rightly considered the same and
convicted the accused persons. In view of that, the
appeals being devoid of merits are liable to be dismissed.
14. To prove the death of the deceased is homicidal
one, the prosecution placed reliance on the evidence of
PW18 Dr.Manojkumar Raut, who has conducted the
postmortem on the death body of the deceased. As per
his evidence, he has conducted the postmortem on the
dead body of the deceased on the request made by
investigating officer by police requisition Exh.126. On
examining him, he found in all 16 external injuries and
internal injuries on the person of the deceased. The
injuries found on the person of the deceased are as
follows:
1. incised wound over chin of size 10x0.5 cm;
2. incised wound over mandible under lower
teeth size 12x3x.5.4 cm;
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3. incised wound over lower lib size 3.5x0.5
cm;
4. incised wound over left cheek size 6x2x2
cm;
5. incised wound over right maxilla size
12x2.5x2 cm;
6. incised wound over right eyebrow of size
4x1x1 cm;
7. incised wound above right pinna of size
7x1.5x0.5 cm;
8. incised wound over right occipital region of
size 7x1x1 cm;
9. incised wound over right post auricular
region of size 4x0.5x1 cm;
10. incised wound over left occipital parietal
region of size 12x3x3.5 cm;
11. transverse incised wound over occipital
region 12x2x1 cm;
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12. incised oblique wound over right flank
5x1x3 cm;
13. stab wound just below right asis of size
3x2x4 cm;
14. incised wound over right hand ulnar aspect
of size 7x1x1 cm;
15. incised wound over right M.P. joint ulnar
aspect 6x2x1 cm,
16. incised wound over right shoulder 2x1x1
cm.
On internal examination, he found intracraneal
haematoma under the head of injuries under the scalp.
The deceased has also sustained the fracture of temporo
parieto occipital region. The injuries are also found on
left scapulla 4x1 cm x 0.5 cm, base of right neck 5x1x5
cm, oblique incised wound below left scapulla 5x1x0.5
cm, oblique incised wound over right posterior axillary
border 4x1x0.5 cm, incised wound over right sacrolliac
.....21/-
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region 3x1x0.5x0.5 cm, incised wound over left posterior
superior iliac spine 4x2.5x0.5 cm, incised wound over
right and left sacrum 2.5x1x0.5 cm each, and oblique
incised wound over right posterior superior iliac spine
2.5x1x0.5 cm. All the injuries were antemortem in nature.
He opined that the cause of death is due to
haemorrahagic shock due to multiple injuries.
Accordingly, he prepared the postmortem report, which is
at Exh.127.
His further evidence shows that on 29.6.2002,
four swords, two knives, one gupti, one dagger were sent
to him and query was made under the police requisition
Exh.128. He examined all the weapons and opined that
the injuries mentioned in postmortem report are possible
by the said weapons. The said opinion is at Exh.129. On
27.6.2002, one sword was sent vide requisition Exh.138.
After examining the said weapon, he opined that the said
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weapons can cause serious injuries which may lead to
death of human being. The opinion is at Exh.131. On
29.6.2002, one sword under requisition Exh.132 was
referred to him. On examination of the said sword, he
opined that said weapon can cause grievous injuries like
life threatening. The opinion is at Exh.133. On
27.6.2002, seven weapons were referred to him under
requisition Exhs.134 to 140 and he opined that the
weapons can cause life threatening injuries. The said
opinions are at Exhs.134-A to 140-A. In all 9 weapons
were sent for seeking his opinion. He verified the said
weapons. He has identified the said weapons before the
court also.
His cross examination shows that all weapons
were hard and sharp. Injuries to deceased were caused
by the hard and sharp weapons. He further admitted that
all requisitions Exhs.128 to 140 are silent that articles
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sent to him were wrapped and sealed, but he voluntarily
stated that weapons were wrapped and sealed. He
further admitted that his reports also nowhere disclose
that he received the weapons in a sealed condition. He
further admitted that all injuries mentioned in report
were collectively sufficient to cause death. He further
admitted that all the injuries were not on the vital part
and internal injuries sustained to scalp are mentioned in
column No.19. He has not mentioned the corresponding
surface injuries. There were no internal injuries to heart,
thorax and lungs. There were no injuries to external
genital organs. He further admitted that except the brain,
there was no damage to internal vital organ. The
deceased might have taken meals between 2:00 am to
8:00 am. He further stated that he was not asked to
clarify as to which injury was caused by which weapon.
.....24/-
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Thus, on the basis of this cross examination, an
attempt was to show that the injuries were not on the
vital part of the body and the weapons were not in a
sealed condition.
15. Besides the medical evidence, the prosecution
also placed reliance on the evidence of pancha witnesses
acted as panchas on inquest panchanamas.
16. PW14 Rajkumar Notani, acted as a pancha on
inquest panchanama, deposed that the police prepared
inquest panchanama on the dead body of the deceased.
There were several injuries on his body. The said
inquest panchanama is at Exh.106.
As far as his cross examination is concerned,
nothing incriminating is brought on record to show that
there were no injuries on the person of the deceased.
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17. PW23 Kaushik Gosavi, who has carried out
the part investigation, also deposed before the court that
he has drawn the inquest panchanama.
18. Thus, As far as the evidence of PW14
Rajkumar Notani, acted as a pancha on inquest
panchanama, and PW23 Kaushik Gosavi, who has
carried out the part investigation, is concerned, it
discloses that there were various injuries on the person
of the deceased.
19. The medical officer, though cross examined
and it is tried to bring on record some inconsistencies
that he has not mentioned whether the weapons were
received by him in a sealed condition or not, which he
answered that the weapons were received by him in a
sealed condition though it is not mentioned in the letter.
.....26/-
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20. A medical witness who performs a
postmortem examination is a witness of 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 v. Sunil Chandra, reported in 1960 SCR (3) 1
wherein it has been observed that, "the value of a
medical witness is not merely a check upon the
testimony of eye witnesses; it is also independent
testimony because it may establish certain facts quite
apart from the other oral evidence. If a person is shot at
a close range, the mark of tattooing found by the
medical witness would draw 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
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that it is only opinion evidence; it is often direct
evidence of the facts found upon the victim's person."
21. Thus, the testimony of the medical witness is
very important and it can safely be accepted. The
evidence adduced by the Medical Officer corroborated
by the inquest panchanama shows that the deceased
died homicidal death.
22. The entire case of the prosecution is based on
sole eyewitness i.e. PW5 Shankar Shivankar.
It is not disputed that the alleged incident
occurred on 15.6.2002 at about 7:30 am to 8:00 am.
Though this incident is witnessed by PW4 Anup Meshram,
examined vide Exh.71, and PW16 Wasudev Lalwani,
examined vide Exh.119, they have not supported the
prosecution case and left loyalty towards the prosecution.
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Therefore the evidence of PW5 Shankar
Shivankar is material, which discloses that on the day of
the incident, at about 8:00 am, he was proceeding
towards market. He reached near Zulelal Temple and
witnessed all the accused present were present in the
court. They were assaulting the deceased. These accused
assaulted him by means of knives, swords, daggers etc..
After the assault, all the accused persons fled away from
the spot to different lanes. While leaving the place, they
took their respective weapons and fled away. The
deceased was lying in front of the Zulelal Temple and he
was dead. PW16 Wasudev Lalwani and other persons
were present on the spot. After the incident, he
proceeded towards his house. The police recorded his
statement.
The cross examination of this witness shows
that he has stated name of co-accused Panjaj while
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recording the police statement. He has also stated the
name of accused No.7 Ramya @ Rajendra Gupta.
However, the witness clarified that he has not seen
accused No.1 Pankaj on the spot while rest of the accused
were present. He specifically stated that all the accused
persons fled away by different lanes after the incident. He
further admitted that the names of accused Pankaj,
Rajendra, and Shrawandas are not mentioned in his
statement.
His further cross examination shows that a
criminal case under Section 307 of the IPC is registered
against him on the basis of Pradip Dongre. One another
case for causing hurt to Abdul Kadar is also pending
against him. A case of criminal intimidation is pending
against him on the basis of report lodged by accused
Ranya @ Rajendra and external proceeding is also
initiated against him. He further stated that he had not
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narrated the incident to anybody, till it was recorded by
police. He was very well on the spot and the police
recorded his statement at the time of drawing spot
panchanama. He denied that he has kept mum, till his
statement was recorded since he was unaware about the
incident. He stated that neither he went to the police on
his own accord nor the police came to him on the date of
the incident. He further denied that he was not knowing
any of the accused by their names and he stated that he
was knowing accused Sunil and Kalu by their names and
other accused persons by their faces.
As to the disclosure, he has admitted that he
has not disclosed the names of the assailants to the wife
of the deceased. He stated that as they were approaching
the spot of the incident, he has not disclosed the said
names to her as he has not narrated the incident to the
family members of the deceased.
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An omission is also brought on record that he
has not stated before the police that he was knowing all
the accused persons prior to the incident, but voluntarily
he has stated that he has simply stated that he knew co-
accused and rest of the accused by their faces.
He has further admitted that for the first time
he has stated before the court that he knew all the
accused persons prior to the incident.
Thus, from the cross examination of this
witness, an attempt was made to bring on record that
though he is having an opportunity to disclose the
incident to the police as well as to the family members of
the deceased, he has not narrated the same to the police
and he has disclosed names of the assailants at belated
stage on the next date when his statement was recorded.
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23. Besides the oral evidence of this sole
eyewitness, the prosecution also placed reliance on the
evidence of PW1 Shobha Pal, the informant and wife of
the deceased, who testified that there was previous
enmity between the deceased and co-accused Pankaj on
account of contesting elections against them by her. As to
the incident, her evidence shows that on 15.6.2002, at
about 7:30 am, her husband left the house for municipal
office. After some time, sweeper Suresh came and
informed her that somebody has killed the deceased and,
therefore, she rushed to the spot and found her husband
lying in pool of blood. She expressed suspicion that as
there was a previous enmity between the deceased and
accused Pankaj, the deceased was killed.
As to the enmity, her cross examination shows
that there were other lady candidates also who have
contested the elections against her.
.....33/-
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As to the incident, her cross examination shows
that between 10-15 minutes, after the deceased leaving
the house, Suresh informed her about the incident. She
admitted that in all five murder cases were registered
against the deceased and he was convicted in one of
them.
She further stated that no report was given to
the police expressing apprehension from the accused.
The omission was brought on record that she has
stated to the police that she has seen "Gamcha," footwear
of the deceased and one another footwear of brown
colour and other articles, however the deceased did not
mentioned in the FIR.
24. The evidence of PW2 Archana Pal, daughter of
the deceased, is only to the extent that seven days prior
to the incident, co-accused Pankaj telephoned on the
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mobile phone of her father. She picked up the call and
gave to her mother.
25. PW1 Shobha Pal, identified footwear of the
deceased Article-8. She has also identified Article-6
cover of the sword, Article-7 handle of the sword,
Article-10 cloth piece, Articles-13 and 14 clothes of the
deceased, and Articles-15 and 16 the clothes of the
deceased.
26. Though PW6 Ratan Samshere is examined by
the prosecution to establish the fact of memorandum
statement of the accused and discovery at their hands,
the said witness has not supported the prosecution case.
PW10 Jaideep Bramha, STD Booth owner, and PW11
Mahavir Dongre, auto-rickshaw driver, have not
supported the prosecution case.
.....35/-
Judgment
487 apeals715 and 747.04
27. The evidence of PW7 Anand Tiwari and PW8
Dharamdas Chawla, is formal in nature. They are
owners of the STD Booth.
28. The evidence of PW9 Nandkishore Baghele is
only to the extent that he was initially working with his
uncle who was medical practitioner and he learnt how
to dress the wound and accordingly, some persons came
to him prior to two years of his depositions and he has
dressed their wounds. It was simple abrasion.
29. To prove the discovery at the hands of the
accused persons, the prosecution has examined PW12
Omprakash Chorware, who deposed that on 20.6.2002
he was called at the police station along with another
pancha Deepak Patil. Accused No.2 Rajesh, accused No.3
Uttam, accused No.7 Kalu Shikha, and accused No.8
Ranya were present in the police station. These accused
.....36/-
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487 apeals715 and 747.04
persons made statements before them that they would
show the place where they kept the weapons used in the
assault. Their statements were recorded independently
and reduced into writing. After recording the statements,
accused Rajesh led them towards Lal Pahadi. At one
place, he asked to stop the vehicle and, thereafter, he took
them and took out one sword and one ditch. The sword
and knife were sealed on the spot by the police. Article-
37 is the same knife and Article-38 is the sword. These
weapons were recovered at the instance of accused
Rajesh. The admissible portion is at Exh.87.
Another accused Kalu Shikha also led them and
produced one Gupti kept under stone. He has identified
that article. Accordingly, panchanama was drawn. His
memorandum statement is at Exh.89 and panchanama is
at Exh.90.
.....37/-
Judgment
487 apeals715 and 747.04
Similarly, accused Uttam took out dagger from
one pit which was near one tree, which was seized. His
memorandum statement is at Exh.91 and recovery
panchanama is at Exh.92.
Accused Ranya Meshram also took them to his
house and took one knife concealed below the heap of
bricks which was lying in front of his house. Accordingly,
memorandum statement Exh.93 and panchanama at
Exh.94 were recorded.
After 2-3 days, again they were called and in
their presence, accused Shrawandas made a
memorandum statement and led them, as per the
memorandum statement, towards his house and produced
one sword. Accordingly, panchanama was drawn Exh.96.
In his presence, blood samples of the accused were also
seized by drawing panchanama Exh.98. His cross
.....38/-
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487 apeals715 and 747.04
examination shows that one criminal case is pending
against him. It further shows that he knows language
Marathi and he can read and write Marathi. He
specifically stated that the work of disclosure statement
started after his arrival in the police station. The police
were interrogating the accused and he did not talk with
the accused.
He further admitted that the way leading to Lal
Pahadi is narrow, the vehicle carrying the accused was
ahead through the way, and minimum distance between
the two vehicles was 15-20 feet. The first place was 30 to
40 paces away from the vehicle. He further admitted
that disclosure statement and recovery memorandum of
accused Rajesh and time of seizuring shown between
11:35 to 12:35 is correct. He further admitted that he
was shown disclosure statement of accused Uttam, time of
recording statement is shown as 12:30 pm at the police
.....39/-
Judgment
487 apeals715 and 747.04
station. He stated that according to him, they all were at
Lal Pahadi at 12:30 pm till 2:00 pm. He further clarified
that he is unable to say the time when they returned in
the police station. However, he specifically denied that he
put his signatures on all the documents on the say of the
police.
Thus, an attempt was made by the defence to
show that all the memorandum statements were prepared
at the police station and no such discovery was made at
the instance of the accused persons.
30. As to the recovery, the evidence of
Investigating Officer PW27 Ramakant Choube is also
relevant, which shows that on 20.6.2002, accused Rajesh,
accused Umesh, and accused Kalu made a memorandum
statement and at their instance, the weapons were seized
from various places which were in concealed conditions.
.....40/-
Judgment
487 apeals715 and 747.04
As per his evidence, at the instance of accused Umesh one
sword was recovered, at the instance of accused Kalu
knife was recovered, at the instance of accused Sunil
sword was recovered, and at the instance of Rajesh and
Uttam weapons sword and knife were recovered.
The cross examination of these witnesses, as
far as the recovery panchanama is concerned, except
denial, nothing is brought on record.
31. Coming to the evidence of PW13 Fatehasing
Chauhan, acted as pancha on spot and inquest
panchanamas, the said witness has not supported the
prosecution case. Similarly, PW15 Santosh Sathawane,
acted as pancha on arrest panchanamas of the accused
persons, has also not supported the prosecution case.
32. The evidence of PW17 Baban Sahare, acted as
pancha on spot panchanama as to identification of
.....41/-
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487 apeals715 and 747.04
footwear of accused and seizure memo, shows that
accused Sunil, Umesh and Kalu were called to identify
their footwears lying at the spot of the incident and
seized from the spot of the incident. They identified
their footwears. Accordingly, panchanama was drawn.
The panchanama of seizure of footwear of accused Sunil
is at Exh.121, panchanama as to footwear of accused
Umesh is at Exh.122, and panchanama as to footwear of
accused Kalu @ Prabhu is at Exh.123. In his presence,
the clothes of the deceased were also seized. His cross
examination shows that on that day, only three accused
persons were called and he came to know their names
from the police.
33. The evidence of PSI PW19 Hanifkha, who has
registered the crime on basis of the report lodged by
PW1 Shobha Pal, the wife of the deceased, is only to that
extent. He admitted during the cross examination that
.....42/-
Judgment
487 apeals715 and 747.04
he registered the offence at 9:15 am. However, he has
not aware whether any intimation was received to the
police prior to lodging of the report.
34. PW20 Rushi Harchandani, acted as pancha,
has not supported the prosecution case. PW21
Noorkhan, acted as pancha, has also not supported the
prosecution case.
35. The evidence of PW22 Tikaram Kore, who is
Police Constable, shows that footwears were found on
the spot of the incident and, therefore, the dog squad
was called. He was along with the said dog squad. The
smell of footwears was given to the dog and, thereafter,
that dog has carried them at various places. Accordingly,
he prepared the report, which is at Exh.152.
36. The evidence of PW23 Kaushik Gosavi, who
has carried out the part investigation, shows that he has
.....43/-
Judgment
487 apeals715 and 747.04
drawn the spot panchanama and at the spot, one cloth
piece was found, likewise pair of chappals and cover of
the sword and one handle of the sword, which were
seized by him in presence of the panchas. He also
disclosed that he saw the dead body of the deceased at
about 8:30 am.
37. PW24 Dhanraj Malik, who is the Sweeper, has
not supported the prosecution case. Similarly, PW25
Laxman Lalwani has also not supported the prosecution
case.
38. PW26 Kundankumar Waghmare, is the
Investigating Officer. His evidence is to the extent that
on 16.6.2002, he received order from his superior to
arrest the accused persons. Accordingly, he went to
Jabalpur and arrested accused Rajesh, Uttam, Sunil,
.....44/-
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487 apeals715 and 747.04
Umesh, Kalu @ Jarlya, and Karu Shikha, as per arrest
panchanamas.
Though he is cross examined, nothing
incriminating is brought on record.
39. PW27 Ramakant Choube, the Investigating
Officer, narrated about the investigation carried out by
him. His cross examination shows that one Devendra
Purohit gave intimation to the the police station about
the murder of the deceased. He further admitted that
Ganesh Bhute gave information to Devendra about the
incident and he has not recorded the statement of
Ganesh Bhute. He has recorded the statement of PW5
PW5 Shankar Shivankar on 16.6.2002 who also admitted
that he has stated before him that the police arrived at the
spot immediately after the incident and he narrated the
events to the police. Portion Mark-A is recorded as per his
.....45/-
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487 apeals715 and 747.04
narration which is at Exh.202. He has explained that in
seizure memo at one space is left blank inadvertently. He
specifically stated that recovery from accused No.7 Kalu
was made after the recovery of accused Rajesh from Lal
Pahadi.
40. It is vehemently submitted by learned counsel
appearing for respective accused persons that except the
evidence of PW5 Shankar Shivankar, which is general
and vague in nature, no other evidence is on record in
the nature of direct evidence to show the involvement of
the present accused persons in the alleged incident. It is
submitted that the evidence of PW5 Shankar Shivankar is
not cogent, trustworthy, and inspiring confidence as
though he was present at the spot, his statement was not
recorded immediately, but it recorded on 16.6.2002. Till
recording his statement, he has not disclosed the names
of the assailants to any other persons. It is further
.....46/-
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487 apeals715 and 747.04
canvassed that he has not disclosed the incident to the
wife of the deceased also though he was knowing the
names of the assailants.
41. Thus, the entire conduct of PW5 Shankar
Shivankar raises suspicion. Admittedly, there was
previous enmity between the deceased and the accused as
well as between this witness and the accused also and
that can be motive for the informant to implicate him in
the alleged offence. It is submitted that he is an
interested witness and, therefore, his evidence is to be
discarded. It is vehemently submitted that though he has
witnessed the incident, his evidence is sufficient to show
that he has not attributed any specific act to any specific
witnesses.
42. Learned counsel Shri R.M.Daga, placed
reliance on the decision in the name of Baddi Venkata
.....47/-
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487 apeals715 and 747.04
Narasayya and ors supra wherein it has been observed
that where a criminal court has to deal with evidence
pertaining to the commission of an offence involving a
large number of offenders and a large number of victims,
it is usual to adopt the test that the conviction could be
sustained only if it is supported by two or three or more
witnesses who give a consistent account of the incident.
He further placed reliance on the decision in
the case of Nagesar vs. State of Chhattisgarh supra
wherein it is held that mere presence or association with
other members alone does not per se be sufficient to hold
everyone of them criminally liable for the offences
committed by the others unless there was sufficient
evidence on record to show that one such also intended to
or knew the likelihood of commission of such an
offending act.
.....48/-
Judgment
487 apeals715 and 747.04
He further placed reliance on the decision in
the case of Shahid Khan vs. State of Rajasthan, reported
in (2016)4 SCC 96 wherein the Hon'ble Apex Court has
considered delay in recording statement and held that
delay in recording statement casting the serious doubt
about they being eyewitess to occurrence and the
evidence of witnesses is unreliable.
43. As far as the evidence of the sole witness is
concerned, it is well settled that there is no legal
impediment in accepting the evidence of the sole
witnesses, if it is found truthful, cogent, and reliable.
44. The Hon'ble Apex Court, in the case of Jagdish
Prasad vs. State of M.P., reported in AIR 1994 SC 1251
held that as a general rule, a court can and may act on the
testimony of a single witness provided he is wholly
reliable. There is no legal impediment in convicting a
.....49/-
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487 apeals715 and 747.04
person on the sole testimony of signle witness. That is the
logic of Section 134 of the Evidence Act 1872, but, where
there are doubts about the testimony, the courts will insist
on corroboration. It is for the courts to act upon the
testimony of witnesses. It is not the number, quantity, but
the quality that is material.
The above position was also highlighted in the
case of Sunil Kumar vs. State of NCT Delhi,
MANU/SC/0815.
45. In the light of the above principle, the evidence
of eyewitness PW5 Shankar Shivankar is to be
scrutinized.
46. PW5 Shankar Shivankar, is cross examined and
he admitted that when the incident occurred, all the
accused were present, but he has not narrated the role of
each accused. He has also admitted that immediately has
.....50/-
Judgment
487 apeals715 and 747.04
not disclosed the names of the assailants to the wife of the
deceased. He also disclosed that other two eyewitness i.e.
PW4 Anup Meshram and PW16 Wasudev Lalwani were
also present at the spot of the incident.
Learned defence counsel has attacked this
evidence on the ground there was no natural conduct of
the witnesses as far as disclosure is concerned. It is
submitted that as natural conduct of the present witness ,
he ought to have disclosed the incident to the wife of the
deceased. For that purpose, the evidence of PW5
Shankar Shivankar requires to be considered again.
47. The cross examination of PW5 Shankar
Shivankar specifically shows that his relations with the
deceased and his family were cordial. He did not convey
the incident to the family members of the deceased,
which he clarified that when he was proceeding towards
.....51/-
Judgment
487 apeals715 and 747.04
the house of the deceased, the family member approached
towards the spot and, therefore, he has not narrated the
incident to the family members even after witnessing
approaching them towards the spot. He further deposed
that he has specifically stated before the police that the
accused were armed with dagger and other weapons.
48. The another submission made by the defence
counsel is that the statements were recorded belatedly.
Admittedly, the incident occurred on 15.6.2002 and the
statement was recorded immediately on the next day.
49. Now, it is to be seen, whether there is other
corroboration to the evidence of PW5 Shankar Shivankar.
To corroborate the version of PW5 Shankar Shivankar, the
prosecution placed reliance on the evidence of pancha
witness acted on memorandum statement of the accused
and recovery of the Articles at their instance.
.....52/-
Judgment
487 apeals715 and 747.04
50. The evidence of PW12 Omprakash Chorware
specifically shows that in his presence and in the
presence of other panchas, accused Rajesh made
memorandum statement which was reduced into
writing, statement of accused Kalu was also recorded
and statements of accused Uttam, Ranya, and
Shrawandas were recorded and their instance, Articles
like swords, knives, and guptis were recovered.
As far as statement of accused Rajesh is
concerned, recorded on 20.6.2002, at about 10:10 am
and discovery panchanama as to the recovery of knives
and swords at the instance of accused Rajesh, was made
at 11:35 to 12:35. The statement of accused Kalu @
Prabhu is concerned, it is recorded on 20.6.2002 at
about 10:15 am and discovery panchanama showing
13:25 to 14:10 and at his instance gupti was recovered.
.....53/-
Judgment
487 apeals715 and 747.04
The memorandum statement of accused
Uttam was recorded 20.6.2002 at 12:30 and timing of
his panchanama is 12:30 to 13:15.
The memorandum statement of Ramya was
recorded on 11:07 and his discovery panchanama
showing timing as 14:30 to 15:10.
Whereas, memorandum statement of accused
Shrawandas was recorded at 9:30 on 24.6.2002 and
recovery panchanama was carried out at 10:20 to 11:20.
As far as the timing as to the memorandum
statement of accused Uttam is concerned, much stress is
given by defence counsel that if panchas were along
with accused Rajesh between 11:35 to 12:35, recording
of statement of accused Uttam in the police station at
about 12:30 is improbable and unacceptable.
.....54/-
Judgment
487 apeals715 and 747.04
No explanation is sought during the cross
examination of the investigating officer as to the timing
which is mentioned in the memorandum statement of
accused Uttam. However, PW12 Omprakash Chorware
has specifically stated that one by one the statements of
the accused were recorded. He specifically denied that
all papers were signed in the police station at the same
time. He specifically stated that the work of disclosure
statements started after his arrival in the police station.
The police were interrogating the accused and he did
not talk with the accused. His further cross examination
shows that it was the accused persons who were leading
them and at their instance recovery was made. He
specifically stated that it did not happen after making
first seizure, they all returned to the police station and
then recorded statement of accused No.3 Uttam at 12:30
pm. On showing memorandum statement of accused
.....55/-
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487 apeals715 and 747.04
Rajesh and recovery panchanama, time of seizure was
shown as 11:35 to 12:35. He accepted the same as
correct. He was also shown disclosure statement of
accused Uttam and time of recording of statement is
shown as 12:30 pm at the police station. He specifically
stated that they all returned from Lal Pahadi after 2:00
pm.
Thus, as far as memorandum statement of
accused Utttam is concerned, it is clarified by him that
all the accused were along with him when they went. As
per the narration of the accused, as the accused led
them, the articles were recovered at their instance.
51. Besides the evidence of recovery of the said
Articles, the CA Reports show that the weapons which
were recovered at the instance of the accused persons
and forwarded to the CA, bear the blood stains of the
.....56/-
Judgment
487 apeals715 and 747.04
Blood Group "AB" which is of the deceased. The chart
shows the incriminating articles and blood group
reflecting on it. Article-1 is the blood stained earth
collected from the spot having Blood Group "AB".
Article-3 four-teeth of the deceased having Blood Group
"AB". Article-4 hairs of the deceased seized from the
spot having Blood Group "A". Article-5 blood stains cloth
piece seized from the spot bears Blood Group "AB".
Article-6 clothes of the deceased bears Blood Group
"AB". Article-7 Blood Sample of the deceased
determined as Blood Group "A". Article-8 clothes of
accused Uttam bears Blood Group "A". Article-9 the
clothes of accused Rajesh i.e. shirt and pant bears Blood
Group "AB". Article-10 clothes of accused Kalu bears
Blood Group "AB". Article-11 clothes of accused Umesh
bears Blood Group ""AB". Article-12 clothes of accused
Kalu @ Prabhu bears Blood Group "AB". Article-13
.....57/-
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487 apeals715 and 747.04
clothes of accused Sunil bears Blood Group "AB".
Article-14 sword recovered at the instance of accused
Sunil bears Blood Group "AB". Article-15 sword at the
instance of accused Umesh bears Blood Group "AB".
Article-16 knife recovered at the instance of accused
Kalu bears Blood Group "AB". Article-17 sword
recovered at the instance of accused Rajesh bears Blood
Group "AB". Article-18 dagger seized at the instance of
accused Utam bears Blood Group "AB". Article-19 gupti
seized at the instance of accused Kalu bears Blood Group
"AB". Article-20 sword recovered at the instance of
accused Shrawandas bears Blood Group "AB". Article-21
clothes of accused Shrawandas and knife seized at the
instance of accused Rajendra and Article-22 clothes of
accused Rajendra bear Blood Group "AB". Article-24
blood sample of 17 accused Sunil of Blood Group "AB".
Article-26 blood samples of accused Rajesh and
.....58/-
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487 apeals715 and 747.04
Shrawandas and Rajendra and Article-29 blood samples
of accused Umesh and Article-30 blood sample of
accused Uttam, the Blood Group was not analyzed and
result was inconclusive.
52. Thus, on the clothes of accused, Blood Group
"AB" of the deceased was found. As per the CA Report,
Blood Group of accused Sunil is also determined as "AB".
However, nothing is record to show that he has also
sustained the injuries and, therefore, the blood is
appearing on his clothes.
53. As to the evidence of PW5 Shankar Shivankar,
much stress is canvassed on the aspect that he has not
narrated the specific role attributed to each of the accused
persons. It is pertinent to note that PW5 Shankar
Shivankar is a rustic witness.
.....59/-
Judgment
487 apeals715 and 747.04
The evidence of the said witness requires to be
scrutinized and appreciated in the light that 8-9 persons
have assaulted the deceased and, therefore, the aspect of
his background is not to be ignored. He witnessed the
incident that number of assailants armed with deadly
weapons assaulting the deceased whether he/she would
be in a position to give a very accurate and photogenic
version as a whole thing happened in a few minutes,
therefore, while appreciating such testimony, the court
should give due regard to their background and the whole
scenario in which the alleged incident has happened.
Insofar as the testimony of this witness is
concerned, it stands corroborated by the aspects i.e.
recovery of the weapons at the instance of the accused
persons and the blood stains of Blood Group of the
deceased was found on the said articles.
.....60/-
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487 apeals715 and 747.04
54. The above aspect has been considered by the
Hon'ble Apex Court in the case of Annareddy Sambasiva
Reddy and ors vs. State of Andhra Pradesh, reported in
AIR 2009 SC 2661 wherein it has been observed that it is
true that neither PW1 nor PW3 assigned specific injuries
or specific overt act attributed to the accused, but looking
to the nature of the incident where large number of
persons attacked D-1 and D-2, PW1, PW2 and PW3, it
would not have been possible for PW1 or PW3 to
attribute specific injuries individually to each accused.
How could it be possible for any person to recount with
meticulous exactitude the various individual acts done by
each assailant? Had they stated so, their testimony would
have been criticized as highly improbable and unnatural.
The testimonies of eyewitness carry with it criticism of
being tutored if they give graphic details of the incident
and their evidence would be assailed as unspecific, vague,
.....61/-
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487 apeals715 and 747.04
and general if they fail to speak with precision. The
golden principle is not to weigh such testimony in golden
scales, but to view it from the cogent standards that lend
assurance about its trustworthiness.
The said aspect is further considered by the
Hon'ble Apex Court in the case of State of Punjab vs.
Hakam Singh, reported in AIR 2005 SC 3759 wherein
also held that, "after closely going through the statement
of PW3, we are of the opinion that PW3 is a truthful
witness and unsuccessful attempt of the defence to
confront her with different types of fire arms i.e. whether
it was a rifle or it was a gun shot injury fired through 12
bore gun or 303 rifle; all this cross- examination was
directed against this rustic villager in order to discredit
her testimony. This is most unrealistic approach. We fail to
appreciate how can a rustic village lady would explain
about bore of gun or rifle. P.W.3 whose presence in the
.....62/-
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487 apeals715 and 747.04
house was quite natural and she having clearly identified
the respondent who fired the gun at her husband should
be enough to establish the factum of whole prosecution
story. To expect from her to give the description in a
photogenic manner is asking too much. The High Court
instead of entering into split hairing the testimony of this
witness with regard to the fire arms used in the
occurrence should have concentrated more on the hard
truth of the matter instead of finding fault with her
testimony. We fail to understand the manner in which the
testimony of this witness has been appreciated by the
High Court. Sometimes while appreciating the testimony
of rustic villagers we are liable to commit mistake by
loosing sight of their rural background and try to
appreciate testimony from our rational angle. When a
lady is confronted with number of intruder in her house
armed with deadly weapons and showering bullets she
.....63/-
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487 apeals715 and 747.04
can not give a very accurate and photogenic version as
whole thing happened in a few minutes. Therefore, while
appreciating such testimony Court should give due regard
to their rural background and the whole scenario in which
the incident happened.
55. In the light of the above observations, if the
evidence of PW5 Shankar Shivankar is appreciated,
admittedly, he is a layman and, therefore, while
appreciating such testimony, due regard to his
background and the whole scenario in which the incident
happened is required to be considered. When 7-8 persons
have attacked the deceased with the various weapons, in
that circumstances, it would be very difficult for the
witness to state the role of each and every accused. The
whole testimony which was not shaken during the cross
examination sufficiently shows that the deceased was
assaulted by 7-8 persons and he has identified them as
.....64/-
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487 apeals715 and 747.04
assaillants. He has identified them in the court also. The
identification of these accused persons before the court is
a substantial evidence.
56. The another ground raised by learned defence
counsel is that the conduct of PW5 Shankar Shivankar is
not a natural conduct as he has not disclosed the said
incident immediately either to the family members of the
deceased or to the investigating officer and his statement
was recorded on the next date. Thus, much is said about
the fact that PW5 Shankar Shivankar did not disclose the
incident to the family members or to the police. However,
it must be noted that after seeking the accused giving
such blows, the witness must have got scared. As a result
of the same, he might have left the place of spot. There
was absolutely nothing abnormal in such conduct of the
said witness and, therefore, it must be noted that merely
because the said witness subsequently did not disclose
.....65/-
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487 apeals715 and 747.04
about the said incident to any other person till the next
day, we cannot jump to the conclusion that the witness
was not present at the time of the incident. It must be
noted that the witness was scared and, therefore, he
might have not disclosed the said incident to any person
or he might have left the place due to the apprehension.
57. The Hon'ble Apex court in the case of In
Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat,
reported in AIR 1983 SC 753 has considered this aspect
and observed that much importance cannot be attached to
minor discrepancies and the reasons are obvious that, (1)
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; (2) ordinarily it so happens that a witness
is overtaken by events. The witness could not have
anticipated the occurrence which so often has an element
.....66/-
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487 apeals715 and 747.04
of surprise. The mental faculties therefore cannot be
expected to be attuned to absorb the details; (3) 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; (4) 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; (5) 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; (6) ordinarily a witness
.....67/-
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487 apeals715 and 747.04
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, and (7) a witness, though
wholly truthful, is liable to be overawed by the court
atmosphere and the piercing cross examination made 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, perhaps it is a sort of
a psychological defence mechanism activated on the spur
of the moment.
58. In case of Rana Partap vs. State of Haryana,
reported in AIR 1983 SC 680, the Hon'ble Apex Court
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observed that every person who witnesses a murder reacts
in his own way. Some are stunned, become speechless and
stand rooted to the spot. Some become hysteric and start
wailing. Some start shouting for help. Others run away to
keep themselves as far removed from the spot as possible.
Yet others rush to the rescue of the victim, even going to
the extent of counter-attacking the assailants. Every one
reacts in his own special way. There is no set rule of
natural reaction. To discard the evidence of witnesses on
the ground that he did not react in any particular manner
is to appreciate evidence in a wholly unrealistic and
unimaginative way.
59. In the case of Lalu Kamlakar Patil vs. State of
Maharashtra, reported in (2013) 6 SCC 417, the Hon'ble
Apex Court has also observed that a court has to keep in
mind that different witnesses react differently under
different situations. Some witnesses get a shock, some
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become perplexed, some start wailing and some run away
from the scene and yet some who have the courage and
conviction come forward either to lodge an FIR or get
themselves examined immediately. Thus, it differs from
individuals to individuals. There cannot be uniformity in
human reaction. While the said principle has to be kept in
mind, it is also to be borne in mind that if the conduct of
the witness is so unnatural and is not in accord with
acceptable human behaviour allowing of variations, then
his testimony becomes questionable and is likely to be
discarded.
60. Though we are staying in a civilized society,
people are still afraid of involving themselves to be
witnesses of such incidents as they are scared of
harassment at the hands of the investigating agency.
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Admittedly, he has not disclosed the incident
on 15.6.2002, but on the next day, his statement was
recorded that he narrated the incident. The investigating
officer is not cross examined on recording delayed
statement. The evidence of PW5 Shankar Shivankar is
not totally unnatural. The investigating officer is not
cross examined on delayed statement of witness.
61. As far as the evidence, as to the discovery on
the basis of memorandum statement, is concerned, it is
not shattered during the cross examination. Merely
because in one of statements timing was mentioned as
12:30, it is not sufficient to discard the total evidence as
to the recovery of the articles at the instance of the
accused persons.
62. The doctrine underlined under Section 27 of
the Indian Evidence Act is founded on the principle that if
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any fact is discovered as a search made on the strength of
any information obtained from a prisoner, such a discovery
is a guarantee that the information supplied by the
prisoner is true.
63. Section 27 of the Indian Evidence Act is
interpreted by the Hon'ble Apex Court in the case of
Subramanya vs. The 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 that (1)
Discovery of fact 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 distinctly to the fact thereby
discovered is admissible. It has been further held that
what is admissible is the information and the same has to
be proved and the opinion form it by the police officer. It
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has been further held that in other words, the exact
information given by the accused while in custody which
led to recovery of the articles has to be proved. It is,
therefore, necessary for the benefit of both the accused
and the prosecution that information given should be
recorded and proved and if not so recorded, the exact
information must be adduced through evidence. The basic
idea embedded in Section 27 of the 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 a prisoner, such a discovery is a
guarantee that the information supplied by the prisoner is
true. It is further held by the statement that the accused
led the police and the witnesses to the place where he had
concealed the articles is not indicative of the information
given.
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64. As far as the evidence of PW12 Omprakash
Chorware is concerned, he has specifically stated that in
his presence the accused have made memorandum
statements and in pursuance of the said memorandum
statements, the accused led them towards the spot from
which the discovery has to be made. The admission
given during the cross examination itself is sufficient to
show that earlier the statements of all four accused
persons were recorded and, thereafter, along with four
accused they proceeded towards places shown by the
accused and the accused persons led them towards the
said places. Therefore, the recovery at the instance of the
accused, merely because the timing was mentioned
incorrect, is not sufficient to discard the evidence of these
witnesses.
65. Thus, on appreciating the evidence, admittedly,
the entire case of the prosecution relied upon the sole
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testimony of PW5 Shankar Shivankar, corroborated by the
medical evidence as the medical officer has specifically
stated that injuries found on the persons of the deceased
are possible by the weapons referred to him and seized at
the instance of the accused persons. The blood stained
clothes of the accused on which Blood Group of the
deceased was found, is another incriminating
circumstance, which connect the accused persons with
the alleged offence. The circumstance that the weapons
seized at the instance of the accused persons bear blood
stains which are of Blood Group of the deceased.
66. Thus, as far as the evidence of the sole witness
is concerned, it is corroborated by these circumstances.
67. As far as motive is concerned, the motive is
primarily known to the accused persons themselves and,
therefore, it may not be possible for the prosecution to
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explain what actually prompted or excited the accused to
commit a particular crime. In case of circumstantial
evidence, the motive may be considered as circumstance
which is relevant factor for the purpose of assessing
evidence in the event that there is no unambiguous
evidence to prove the guilt of the accused. The motive
loses all its significance in case of a direct evidence
provided by eyewitnesses where the same is available, for
the reason that in such case the absence of motive cannot
stand in the way of conviction. However, absence of
motive in a case of depending entirely on circumstantial
evidence is a factor that based in favour of the accused as
it often forms the fulcrum of the prosecution story.
68. The evidence on record clearly establishes that
there was previous enmity between the accused persons
and the deceased. Moreover, the deceased was having
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criminal background as he was involved in various
criminal activities.
69. While appreciating the evidence of witnesses, it
is not the number of witnesses, but the quality of their
evidence which is important, as there is no requirement in
the law of evidence stating that a particular number of
witnesses must be examined in order to prove/disprove a
fact. The test is whether the evidence has a ring of truth,
is cogent, credible and trustworthy or otherwise. The legal
system has laid emphasis on value, provided by each
witness, as opposed to multiplicity or plurality of
witnesses. It is thus quality and not quantity which
determines the adequacy of the evidence, as has been
provided by Section 134 of the Evidence Act. Where the
law requires examination of at least one attesting witness,
it has been held that the number of witnesses produced
over and above does not carry any weight.
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70. It is certain legal preposition that the
conviction of a person accused of committing an offence is
generally based solely on the evidence i.e. either oral or
documentary, but in exceptional circumstances may also
be based solely on circumstantial evidence.
71. The prosecution must establish its case beyond
reasonable doubt and cannot derive any strength from the
weakness in the defence put up by the accused. However,
a false defence may be brought to notice only to lead
assurance to the court as regards various links in the
chain of circumstantial evidence which are in themselves
complete. The circumstances on the basis of which
conclusion of guilt is to be drawn must be fully
established. The same must be of conclusive nature and
must exclude all possible hypothesis except the one to be
proved.
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72. It is cardinal principles of criminal
jurisprudence that the guilt of the accused must be
proved beyond all reasonable doubts. The proof beyond
reasonable doubt does not mean proof beyond any doubt.
It cannot be considered as if it is mathematical formula.
The phrase "beyond reasonable doubt" has been often
referred to and is well understood.
73. Learned Author "Glanville Williams" in his
book, "The Proof of Guilt" wrote, to say that "the burden
of proving a crime is generally on the prosecution does
not conclude all questions. What degree of quantum of
proof is needed, is likelihood or certainty or something in
between these two extremes? This question in term
raises a fundamental issue of penal policy".
74. Thus, the proof beyond reasonable doubt does
not mean proof beyond shadow of doubt. If the evidence
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is so strong against a man as to leave only, a remote
possibility in his favour, which can be dismissed with
sentence "of course is possible", but not in the least
probable, the case is proved beyond reasonable doubt.
75. In the present case, the prosecution has
adduced the evidence to show that the accused persons
have committed the crime. Thus, the prosecution has
proved the circumstances which show that the accused
persons have committed. The evidence adduced is
cogent, consistent, and does not affect the case of the
prosecution.
76. In this view of the matter, as we find no merits
in the appeals, the appeals deserve to be dismissed and
the same is dismissed.
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77. The accused persons are directed to surrender
before the Superintendent of Jail on or before 3.11.2025
to undergo the jail sentence.
78. The bail bonds of accused stand cancelled. The
R&P be sent back to the trial court.
Appeals stand disposed of.
(NANDESH S.DESHPANDE, J.) (URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge ...../-
Date: 16/10/2025 10:42:11
