[Cites 13, Cited by 0]
Bombay High Court
Ashishkumar Nishad @ Lalla Ramchandra ... vs The State Of Maharashtra on 18 February, 2026
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2026:BHC-AS:10202-DB
903-APEAL-855-2024 WITH APEAL-206-2025 WITH APEAL-687-2025.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 855 OF 2024
Rahul Yadav @ Kaindi Ramsahay Yadav ]
Age : 50 yrs. Occupation : Nil ]
R/o. Deshraj Yadhav Chawl, ]
Room No.1, Savarkar Nagar ]
Thane (West) ]
(Presently at Nashik Central Prison) ]... Appellant
Versus
State of Maharashtra, ]
Through P.I. Vartak Nagar Police Station, ]
(Notice to be served on Public Prosecutor High ]
Court Mumbai) ] ... Respondent
WITH
INTERIM APPLICATION NO. 3069 OF 2025
IN
CRIMINAL APPEAL NO. 855 OF 2024
Ms. Gurpreet Kaur Sahota ]
(Sister of deceased victim Tarsensing Sohta alias ]
Bobby) ]
Age: 35 yrs, Occupation : Professor ]
R/at Vijay Park, 18/704, Kasarvadvli, ]
Ghodbunder Road, ]
Thane West 400615 ]... Applicant
Versus
The State of Maharashtra, ]
Through Vartaknagar Police Station, Thane ]... Respondent
Manisha 1/50
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WITH
CRIMINAL APPEAL NO. 206 OF 2025
AshishKumar Nishad @ Lalla Ramchandra Nishad ]
Age : 22 years, Occupation : Education, ]
R/at Nisahd Flour Mill, Indiranagar, ]
Rupadevi Pada No.1, Road No.33, ]
Near Raigad Galli, Wagle Estate Thane (W) ]
(Appellant lodged in Thane Central Prison) ]... Appellant
Versus
The State of Maharashtra, ]
(Through Vartaknagar Police Station, Thane) ]... Respondent
WITH
INTERIM APPLICATION (ST.) NO. 24674 OF 2025
IN
CRIMINAL APPEAL NO. 206 OF 2025
Ms. Gurpreet Kaur Sahota ]
(Sister of deceased victim Tarsensing Sohta alias ]
Bobby) ]
Age: 35 yrs, Occupation : Professor ]
R/at Vijay Park, 18/704, Kasarvadvli, ]
Ghodbunder Road, ]
Thane West 400615 ]... Applicant/
Intervenor
Versus
The State of Maharashtra, ]
(Through Vartaknagar Police Station, Thane) ]... Respondent
Manisha 2/50
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WITH
CRIMINAL APPEAL NO. 687 OF 2025
Shivam Vedprakash Tiwari ]
Age : 28 years, Occupation : Student ]
R/at : Plot No.57, Room No. B-2 Shanti Niwas ]
Mhada Vasahat Sawkar Nagar ]
Jekegran Thane ]
(At present Nashik Road Central Prison) ]... Appellant
Versus
State of Maharashtra, ]
(Vartaknagar Police Station, Thane) ]... Respondent
WITH
INTERIM APPLICATION NO. 4799 OF 2025
IN
CRIMINAL APPEAL NO. 687 OF 2025
Shivam Vedprakash Tiwari ]
Age : 28, Occupation : Student ]
R/at Plot No.57, Room No. B-2, Shanti Niwas ]
Mhada Vasant Sawkar Nagar ]
Jekegran Thane, Maharashtra ]
(Presently lodged at Thane Jail) ]
]... Applicant
Versus
State of Maharashtra, ]
(Vartaknagar Police Station, Thane) ]... Respondent
Manisha 3/50
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WITH
INTERIM APPLICATION (ST.) NO. 23709 OF 2025
IN
CRIMINAL APPEAL NO. 687 OF 2025
Ms. Gurpreet Kaur Sahota ]
(Sister of deceased victim Tarsensing Sohta alias ]
Bobby) ]
Age: 35 yrs, Occupation : Professor ]
R/at Vijay Park, 18/704, Kasarvadvli, ]
Ghodbunder Road, ]
Thane West 400615 ]... Applicant/
Intervenor
Versus
The State of Maharashtra, ]
(Through Vartaknagar Police Station, Thane) ]... Respondent
--------------------
Ms. Prabha Badadare, for the Appellant in APEAL/855/2024.
Mr. Niranjan Mundargi a/w Mr. Ameyprasad Atigre i/b Keral Mehta,
for the Appellant in APEAL/206/2025.
Mr. Ankur Pahade a/w Ms. Ujwala Moholkar, Mr. Sanjay Kokane, for
the Intervenor in all Appeals.
Mr. Niranjan Mundargi a/w Mr. Ravi Dwivedi, for the Appellant in
APEAL/687/2025.
Ms. Mahalakshmi Ganapathy, Addl. P. P. for the Respondent-State.
--------------------
CORAM : SARANG V. KOTWAL &
SANDESH D. PATIL, JJ.
DATE : 18 th FEBRUARY, 2026.
Manisha 4/50
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JUDGMENT :
[PER SARANG V. KOTWAL, J.]
1. All these three Appeals are decided by this common
judgment. For convenience, the Appellants in these Appeals are
referred to by their original status before the trial Court.
2. Criminal Appeal No.687 of 2025 is preferred by the original
Accused No.1-Shivam Tiwari. The Criminal Appeal No.206 of 2025 is
preferred by the original Accused No.2-Ashishkumar Nishad and
Criminal Appeal No.855 of 2024 is preferred by the original Accused
No.3-Rahul Yadav. The Appellants faced the trial before the learned
Additional Sessions Judge, Thane in Sessions Case No.151 of 2018.
They were convicted and sentenced as follows:-
(i) All of them were convicted for commission of offence
punishable under Section 302 read with Section 34 of Indian
Penal Code (IPC). They were sentenced to suffer life
imprisonment and to pay fine of Rs.10,000/- each and in
default of payment of fine to suffer rigorous imprisonment
for three months.
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(ii) All of them were convicted for commission of offence
punishable under Section 307 read with Section 34 of IPC.
They were sentenced to suffer rigorous imprisonment for five
years and to pay fine of Rs.10,000/- each and in default of
payment of fine to suffer simple imprisonment for three
months.
(iii) They were also convicted for commission of offence
punishable under Section 201 read with Section 34 of IPC
and were sentenced to suffer simple imprisonment for three
years and to pay fine of Rs.2,000/- each and in default of
payment of fine to suffer simple imprisonment for one
month.
All the sentences were directed to run concurrently.
They were acquitted from the charges of commission of
offence punishable under Section 324 read with Section 34 of
IPC. There were granted set off under Section 428 of the
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Code of Criminal Procedure, 1973 (Cr.P.C.).
3. Heard Ms. Prabha Badadare, learned Counsel for the
Appellant in Criminal Appeal No.855/2024, Mr. Niranjan Mundargi,
learned Counsel for the Appellant in Criminal Appeal No.206 of
2025, Mr. Niranjan Mundargi along with Mr. Ravi Dwivedi, learned
Counsel for the Appellant in Criminal Appeal No.687 of 2025, Mr.
Ankur Pahade, learned Counsel for the Intervenor in all Appeals and
Ms. Mahalakshmi Ganapathy, learned Addl. P. P., for the State-
Respondent
4. The Prosecution case in brief is as follows:-
5. The deceased Tarsim Singh Sahota alias Bobby was having
close friendship with PW-8. She was also on good terms with the
Accused No.1-Shivam Vedprakash Tiwari. On 05/11/2017, PW-8 had
gone for outing with Accused No.1-Shivam and their friends. Tarsim
Singh was not with them. At that time, Accused No.1-Shivam made
certain wrong comments regarding the deceased. PW-8 told the
903-APEAL-855-2024 WITH APEAL-206-2025 WITH APEAL-687-2025.doc
deceased about the comments. He got angry. On 06/11/2017, he
telephonically called the Accused No.1-Shivam. They had a heated
discussion. They decided to meet. In the late evening at around 9:00
p.m., the deceased and his friends including PW-1-Ajay Singh and PW-
2-Mahesh Soni went to the spot to meet the Accused No.1-Shivam.
After sometime, Accused No.1-Shivam came there with the other two
Accused. It is the Prosecution's case that the Accused No.1-Shivam and
Accused No.2-Ashishkumar Nishad assaulted the deceased with the
knives which they were carrying. Accused No.3-Rahul had fought with
PW-1-Ajay Singh. According to the Prosecution's case Accused No.1-
Shivam gave blow with knife on PW-1-Ajay Singh. The deceased fell
down at the spot. His friends took him to a hospital but he was
declared dead. The Accused absconded and went to Uttar Pradesh.
PW-1-Ajay Singh in the meantime, gave his statement before the Police
in the hospital. It was treated as F.I.R. The offence was lodged at
Vartaknagar Police Station vide C.R. No.I-317 of 2017 about 10:50
p.m. on 06/11/2017. The investigation was carried out. The
postmortem examination and the spot panchanama were conducted.
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Statements of various witnesses were recorded. The Accused were
apprehended in Uttar Pradesh on 11/11/2017. During the course of
the investigation, two knives were recovered at the instance of the
Accused No.1-Shivam. The Police collected the CCTV footage from
the society. The incident had taken place near that society. After
conclusion of the investigation, the chargesheet was filed and the case
was committed to the Court of Session.
6. During trial, the Prosecution examined 15 witnesses including
PW-1-Ajay Singh, eye-witnesses, PW-8, panchas, Medical Officers and
the Investigating Officer. The defence of the Accused No.1 was that
PW-8 had given wrong information to the deceased because of which
the deceased got angry and decided to kill the Accused No.1-Shivam.
He had called Accused No.1-Shivam at the spot. He had brought his
friends and had also carried a knife. In the scuffle his own knife had
caused injuries to him. The defence of the Accused No.3-Rahul was
the same. According to the Accused No.3 since he was with Accused
No.1-Shivam, he was implicated. According to the Accused No.2-
Ashish, he had no connection with the incident and was falsely
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implicated.
7. PW-1-Ajay Singh is an important witness. He was the first
informant. He himself was injured in the incident. He deposed that
the deceased was his childhood friend. PW-8 was a friend of PW-1 and
the deceased. PW-1 knew the Accused persons. The deceased and PW-
8 were also knowing the Accused No.1-Shivam and Accused No.3-
Rahul. PW-1 deposed that on 06/11/2017 at about 7:00 p.m. the
deceased came to his house and informed him that the Accused No.1-
Shivam and the Accused No.3-Rahul were telling some lies about the
deceased. The deceased told him that the Accused had made a phone
call and had called him to meet them at a juice centre near Dnyanoday
School. The deceased asked PW-1 to accompany him. They went to
that place on a motor cycle. They reached that place at around 9:00
p.m. In the meantime, the deceased had received a phone call from the
Accused No.1-Shivam. There was some open space in front of the
juice centre. When the deceased was parking his motor cycle, they saw
the Accused No.1 and the Accused No.3 along with one more person
near the juice centre. The Accused No.1 came near them and he gave a
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blow of knife on right side of PW-1's stomach. The Accused No.3-
Rahul pulled his tee-shirt. PW-1 then was pulled towards Accused
No.3-Rahul. At that time, the Accused No.1-Shivam and the Accused
No.2-Ashish assaulted the deceased with a knife. During that time,
scuffle took place between PW-1 and the Accused No.3-Rahul. The
deceased sustained injuries on his chin, chest and left arm. According
to PW-1, the three Accused were having knives with them. The
deceased fell down. The Accused No.2 threatened PW-1 with the knife
and asked him to leave Accused No.3-Rahul. At that time, PW-2 came
near PW-1 and told him that the deceased had fallen down. PW-1
went near the deceased. PW-3-Mujahid also came there. People
gathered. The Accused ran away. The knife used by the Accused No.3-
Rahul had fallen on the ground. It was lying there. PW-1 and the
deceased were taken to Lokmanya Hospital. Some primary treatment
was given to them. Both of them were then taken to Vedant Hospital
but Tarsim Singh died in Vedant Hospital. The doctors put stitches on
PW-1's abdomen and admitted him in ICU. At around 9:30 p.m. to
10:00 p.m. police came to Vedant Hospital and recorded his
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statement. He gave description of the third person which according to
the Prosecution's case was the Accused No.2-Ashish. PW-1 was
admitted in the hospital for about 5 days. He was operated. He
required 44 stitches on his injury. Police seized his clothes. PW-2-
Mahesh and PW-3-Mujahid told him the name of the Accused No.2-
Ashish. The statement given by him was treated as F.I.R. It is
produced on record at Exhibit-35. He identified the Accused in the
Court. He deposed that he had no prior dispute with the Accused.
Even after getting discharged from the hospital, he had to take
further treatment.
In the cross-examination, PW-1 deposed that the deceased was
doing some marketing jobs but he was not aware of the details. PW-1
had come to know PW-8 through the deceased. He had seen the
Accused No.1 and Accused No.3 but never had an occasion to have
conversation with them. Some portions from his F.I.R. was shown to
him. According to him, he had not stated those portions to the police
however, these contradictions are quite minor. He accepted that the
deceased had told him that on the previous day, PW-8 had gone to
903-APEAL-855-2024 WITH APEAL-206-2025 WITH APEAL-687-2025.doc
one hotel at Kalyan with Accused Nos.1, 3 and their common friends.
According to PW-1, the deceased had got a phone call from the
Accused No.1-Shivam at 8:40 p.m. At that time, the Accused No.1-
Shivam had asked the deceased to come near the juice centre. PW-1
was with the deceased since 7:00 p.m. PW-3-Mujahid and one
Santosh met PW-1, PW-2 and the deceased near one Gymnasium. At
that time, Mujahid and Santosh had asked the deceased as to why he
had made a phone call to Shivam. The deceased had explained that
Accused No.1-Shivam was talking irrelevant things about him to PW-
8. In the cross-examination, he reiterated that when he and the
deceased went near the juice centre, the Accused No.1, Accused No.3,
one unknown person, Mujahid and Santosh were present there. PW-
2-Mahesh had already reached there. He went near them and told
them not to quarrel. The deceased parked his motor cycle at about 1
ft. distance from the juice centre. He stated that a scuffle took place
between himself and the Accused No.3-Rahul. Both of them had
caught each other. At that time, a third person i.e. Accused No.2-
Ashish came to save the Accused No.3-Rahul. At the same time, a
903-APEAL-855-2024 WITH APEAL-206-2025 WITH APEAL-687-2025.doc
scuffle was going on between the deceased and the Accused No.1-
Shivam. They were beating each other. The scuffle was going on for
10 minutes. The deceased fell down. PW-1 was called by the police
after 6 to 7 days from the incident to see the CCTV footage. He saw
the footage. He saw the footage of the quarrel involving the deceased.
He denied the suggestion that the deceased had made a phone call to
Accused No.1 and had called him near the juice centre. He denied the
suggestion that at the time of incident, the deceased had knife with
him. He also denied the suggestion that since they had gone to beat
the Accused No.1-Shivam, false F.I.R. was lodged. He identified the
knives produced in the Court. He identified his clothes. He added
that he had identified himself, the deceased and the Accused who
were seen in the CCTV footage. This was done in the presence of
panchas. The F.I.R. produced on record at Exhibit-35 substantially
corroborates his version. It shows that the F.I.R. was lodged at 10:50
p.m. on 06/11/2017. The F.I.R. specifically names the Accused Nos.1
and 3. The description of the third person is mentioned.
8. PW-2-Mahesh Soni was another important eye witness. He
903-APEAL-855-2024 WITH APEAL-206-2025 WITH APEAL-687-2025.doc
knew the deceased, PW-1, PW-8 as well as all the three Accused. On
06/11/2017 at 7:30 p.m. the deceased called him near Dnyanoday
School and informed him that PW-1 was with him. The deceased told
him about the quarrel with the Accused No.1. PW-2 went near
Dnyanoday School. PW-1 and the deceased were there. The deceased
made a phone call to the Accused No.1 but it was unanswered. Then
they went towards the house of the deceased. After sometime, they
met their friends Mujahid and Santosh. The deceased told Santosh
that he should ask that the Accused No.1 to apologize and to stop the
dispute. Santosh said that he would tell the Accused No.1 by a
telephone call. After sometime, the Accused No.1 made the phone call
to the deceased and called him near Dnyanoday School. The deceased
and PW-1 went towards the juice centre on a motorcycle. PW-2 also
went there on a motor cycle. All the three Accused were near the juice
centre. PW-2 told them not to quarrel. When the deceased and PW-1
reached there, the Accused No.1-Shivam abused PW-1. The Accused
No.1-Shivam had a knife. The Accused No.2 was also having a knife.
The Accused No.2 gave a blow of knife on the left side of the
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deceased. The Accused No.1-Shivam pushed the deceased and gave a
blow of knife on the deceased. PW-1 told the Accused No.1 not to
assault. The Accused No.3 held PW-1's tee-shirt and pulled him
towards himself and started beating him. The Accused No.2 wielded a
knife and started threatening. PW-1 then kicked the Accused No.2
who fell down. In the meantime, the Accused No.1 gave blows of
knife on the deceased. PW-2 then deposed that the Accused No.1
picked up a coconut and gave a blow and hit the deceased with.
However, in the cross-examination he clarified that the deceased
picked up the coconut and hit the Accused No.1 on his head. PW-1
further deposed that the deceased went near the Accused Nos.2 and 3
and he hit the Accused No.2 with his hand on his head and gave fist
blow on his head. The Accused No.2 turned towards the deceased and
gave a blow of knife on his chest. The Accused No.2 was about to give
a blow of knife on PW-2 but PW-1 pushed him aside. The blow landed
on the PW-1's abdomen. In the meantime, the deceased fell down. The
Accused ran away from the spot. PW-2 and his friends took the
deceased to Lokmanya Hospital and then to Vedant Hospital but the
903-APEAL-855-2024 WITH APEAL-206-2025 WITH APEAL-687-2025.doc
deceased was declared dead. PW-1 was admitted in Vedant Hospital.
PW-2 had shown the spot of incident to the Police in the night itself.
They found one knife at the spot which was seized. The motorcycle of
Accused No.1 was also seized. The Police prepared spot panchanama.
In the cross-examination, PW-2 deposed that after the incident,
the Police met him at the hospital. PW-1 was also in the hospital.
Police did not made inquiry with PW-2 at that time in the hospital.
He admitted that he had attended the Court at the time of his
deposition with the sister of the deceased and before that also he had
attended the Court for about 10 to 15 times with the sister of the
deceased. He was in the hospital in the night till morning. He had
gone to the Police Station for half an hour. He went home at about
9:00 a.m. Then again he went to the Police Station at about 10:00
a.m. For the entire day, he was with the Police. They recorded his
statement on the next date of the incident. PW-1's statement was not
recorded in his presence. PW-2 himself had not sustained any injury.
PW-2 further accepted that when he had reached near the juice
centre, he had seen PW-3-Mujahid and Santosh were talking with
903-APEAL-855-2024 WITH APEAL-206-2025 WITH APEAL-687-2025.doc
Accused No.1-Shivam. At that time the juice centre was open. PW-2
accepted that the Accused No.1-Shivam and the deceased abused each
other and then the beating started. PW-2 further stated in the cross-
examination that after the scuffle, the deceased was assaulted with a
knife. As mentioned earlier, PW-2 further clarified that the deceased
had given a blow with a coconut lying nearby on the head of Accused
No.1.
9. PW-3-Mujahid Rais Ahmed Ansari was another eye witness
but he did not support the Prosecution's case and was declared hostile.
PW-3 deposed that he was acquainted with all the three Accused
through one Santosh and through one Akhil Menon he got acquainted
with the deceased and PW-2-Mahesh Soni. On 06/11/2017 at about
8:30 p.m., Santosh made a phone call to him and told him about the
quarrel between the deceased and the Accused No.1. He told him that
they had to settle the quarrel. PW-3 started going near Gymnasium.
PW-3 met the deceased, PW-1 and PW-2. The deceased told him about
his grievance regarding the Accused No.1 telling some lies to PW-8.
PW-3 further deposed that he pacified the deceased and told them not
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to escalate the dispute. Then PW-3 and Santosh went near
Dnyanoday School on a motorcycle. All the three Accused were
already present there and they were angry. The Accused No.1 told
PW-3 that there was quarrel during a telephonic conversation between
him and the deceased regarding PW-8. By that time, the deceased, PW-
1 and PW-2 came there on motorcycle. A fight took place between
both sides. PW-3 fell down and so he went in a lane. Within some
time, he saw that the deceased was lying near a building gate, he had
sustained injury and his clothes were stained with blood. PW-3 along
with PW-1 and PW-2 took the deceased to Lokmanya Hospital. He
deposed that he could not see as to how the deceased had sustained
injuries. He denied having seen the Accused assaulting the deceased
with knife. Since he did not support the Prosecution's case, the
learned A.P.P. cross-examined him but nothing further was elicited in
the cross-examination except that his statement was recorded by the
Magistrate on 06/12/2017. The contrary portions in that statement
were shown to him. He denied having made those statements but
those statements were not proved as the learned Magistrate was not
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examined. The portion in the police statement that was contrary to his
deposition was shown to PW-3. It is proved and produced on record
at Exhibit-124. The said portion mentions that the Accused Nos.1 and
3 removed knives from their waist and started assaulting the deceased.
They assaulted the deceased on his chin, chest, arm, armpit, arms and
back. When the Accused No.3 went to assault PW-1-Ajay, Accused
No.3-Rahul was caught by PW-1. To free him from PW-1's clutches,
the Accused Nos.1 and 2 gave blows with knives on PW-1, out of
which one blow was on the stomach.
In the cross-examination conducted by the defence, PW-3
accepted that the deceased had told him angrily that he would not
spare Accused No.1. At that time, PW-3 had told the deceased that he
should not do any such wrong thing.
10. PW-4-Hariom Sanjay Singh was another eye-witness who was
hostile to the Prosecution and was cross-examined by the learned
A.P.P. While describing the incident, PW-4 deposed that, the Accused
No.1 had told him that the deceased and four to five persons were
903-APEAL-855-2024 WITH APEAL-206-2025 WITH APEAL-687-2025.doc
searching him to kill him. PW-4 then had met the deceased and PW-1
in front of one wine shop. At that time, the deceased told him not to
interfere. According to him, they were discussing about killing the
Accused No.1. Therefore, PW-4 made a phone call to Accused No.1
and told him not to come there. After 10 to 15 minutes, PW-4 went
near Dnyanoday School, he saw all the three Accused present there.
They were talking with each other. PW-2 had a talk with them. He
tried to make them understand the situation. Santosh and Mujahid
came after some time. They also talked with the Accused. After some
time, the deceased, PW-1 and PW-2 came on their motorcycle, at that
time, the quarrel started. The deceased beat Accused No.1-Shivam by
hand. According to PW-4, the deceased had a knife near his waist.
People gathered there. After that, PW-4 could only see a hand with a
knife in the crowd and he could not see who had held the knife. He
did not see the actual incident of stabbing. After sometime, when the
crowd dispersed, he saw that the deceased was lying down.
In the cross-examination conducted by the learned A.P.P., PW-
4 accepted that the Police had caught him and he had told the Police
903-APEAL-855-2024 WITH APEAL-206-2025 WITH APEAL-687-2025.doc
about the incident. PW-4 accepted that Santosh and PW1 to PW-3
were trying to settle the quarrel. He was shown Portion marked 'A' in
his police statement which was contrary to his deposition. He denied
having made that statement to the Police, that portion was proved
through the Investigating Officer. It was exhibited at Exhibit-125. The
said portion mentions that the Accused No.1-Shivam and Accused
No.3 removed the knives from their waist and started assaulting the
deceased. They were waving the knives in the air as well.
11. PW-8-Diksha Pujari was not an eye-witness but she is an
important witness because the quarrel started regarding some
statements made to her by the Accused No.1. She deposed that the
Accused Nos.1, 3, PW-1 and the deceased were her friends. The
deceased was doing share market trading business. The others were
studying in college. PW-1 was in a shipping company. On 05/11/2017,
PW-8 and her friends had gone for a party to a hotel in Kalyan. They
were there from 6:30 p.m. to 10:00 p.m. At that time, the Accused
No.1 was also there. He made some derogatory comments about the
deceased and his friends. Accused No.1 told her not to talk with them
903-APEAL-855-2024 WITH APEAL-206-2025 WITH APEAL-687-2025.doc
and not to go out with them. On the next day, PW-8 told everything
to the deceased who asked the phone number of the Accused No.1 but
she did not have it. After some time, the deceased called her and told
her that he had got the phone number of Accused No.1 and he had
talked with Accused No.1. He added that, the Accused No.1 had
called him and has asked to meet. She categorically stated that the
deceased had told her that the Accused No.1 had threatened him that
he would kill the deceased. She received a message at 8:40 p.m. from
the deceased that the Accused No.1 had not come. After that, there
was no communication between her and the deceased. On the next
day, PW-8's statement was recorded. She was shown the copy of the
messages exchanged between her and the deceased. Those messages
are produced on record as Article-1.
In the cross-examination, PW-8 stated that she knew the deceased
since 2016. She denied the suggestion that when he made a phone call
on 06/11/2017, he was angry. The defence tried to bring some
portions from her police statement on record suggesting that the
Accused No.1 was threatened by the deceased but the learned Judge
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has rightly observed that the said portion was contested by both the
sides and therefore that portion was not proved. PW-8 admitted that
at 7:20 p.m. the deceased had sent her a message telling her that he
would cause harm to Accused No.1.
12. PW-15-Santosh Mudliyar was a treasurer of the society which
was situated near the spot of the incident. He has produced the CCTV
footage captured in the incident and he had given the certificate under
Section 65B of the Evidence Act, 1872. The certificate is produced on
record at Exhibit-135.
In the cross-examination, PW-15 stated that the said certificate
was prepared when he had gone to the police station. He knew
Marathi but he did not know Marathi typing. The certificate mentions
about the workable condition of the CCTV footage devices and all
other details. This CCTV footage was shown to PW-1 in presence of
PW-13-Deepak Sarkar. PW-13 described the contents of the CCTV
footage. He described the footage with the help of identification made
by PW-1 in his presence. Though he referred to Accused No.1 as
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Satish Tiwari but he corrected himself and deposed that he was
referring to the Accused No.1-Shivam Tiwari. He described the
incident of stabbing and he also described that the Accused Nos.2 and
3 had kept something in their pockets by removing something from
their bag. According to the Prosecution's case, they had carried their
knives in the bag and had kept them in their pockets. Thereafter, the
incident had taken place. The CCTV footage describes that the
Accused Nos.1 and 2 had stabbed the deceased. PW-1 was attacked by
Accused No.3. He was asked about the CCTV footage as the video
recording was played on the laptop in open Court. He accepted that
the faces of the persons appearing in the video could not be identified.
He clarified that he had not identified those persons but they were
identified by the informant-PW-1-Ajay Singh.
13. PW-6-Yogesh Shivaji Kurade was a panch for spot
panchanama which is produced on record at Exhibit-66. The spot of
incident is not in doubt. The panchanama shows that one blood
stained knife was seen near the tree. It was seized. The blood stained
soil was also seized.
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14. PW-5-Ajay Ashok Atre was a panch for recovery of two
knives at the instance of Accused No.1-Shivam. He deposed that he
was called by the Police on 19/11/2017. The Accused No.1-Shivam
made a statement in his presence that he would show the place where
he had concealed the knife used by him. The statement was recorded
before the police and the panchas inside Khopat bus stand. Then he
took out two knives from the trunk of one Ashoka tree. One knife was
27 cm long and the other was 22 cm long. They were stained with
blood. They were seized. The memorandum panchanama and seizure
memo is produced on record at Exhibit-63 and Exhibit-63/1
respectively.
15. There is hardly any effective cross-examination of this
witness. The knives were taken out from inside the hallow part of a
tree. The memorandum panchanama was recorded at 4:25 p.m. and
the seizure panchanama was conducted between 4:45 p.m. to 6:00
p.m. on 19/11/2017.
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16. PW-7-Bipin Surendrakumar Mishra was a panch in whose
presence clothes of the Accused were seized on 18/11/2017. He was
called at Vartaknagar Police Station. He went there at about 8:00 p.m.
on 18/11/2017. The Accused were given different clothes to wear.
Their clothes were taken and seized. The panchanama is produced on
record at Exhibit-71. PW-7 denied the suggestion that the clothes were
not seized in his presence.
17. PW-9-Dr. Savita Babaso Kalel had conducted the postmortem
examination on the dead body. The postmortem notes are produced
on record at Exhibit-74. PW-9 had found following injuries on the
dead body:-
(i) Stab injury on middle part of sternum. Oval in shape
Size (1.5 cm x 1 cm cavity deep), oblique vertical in
direction, upper and lower angle acute, edges are sharp and
clear, reddish in colour, blood clots.
(ii) Stab injury over left side of lower chest just below
and medial to mammary region, oblique, vertical in
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direction, oval shape, lower angle acute, upper angle
circular, reddish in colour.
(iii) Stab injury over Left arm lower third on anterior
direction, horizontal, 1 cm x 0.5. cm. X muscle deep,
reddish in colour.
(iv) Stab injury over left forearm, upper 1/3, anterior
oblique, horizontal direction, oval shape, 1.5 cm x 0.5 cm,
muscle deep, reddish colour,
(v) Stab injury over left forearm, middle one third on
posteriorly, vertical in direction, oval shape, lower angle
acute, upper angle circular size 4 cm x 2 cm x Muscle deep,
reddish in colour.
(vi) Incised would on left forearm, upper third, medial
in direction, oblique, horizontal, oveal shape, size 6 cm x 2
cm x muscle deep, edges are clear, reddish in colour.
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(vii) Contused abrasion over left Shoulder on anterior
aspect of size 3 cm x 0.5 cm.
(viii) Stab injury over left arm middle third, on posterior
aspect, vertical in direction, lower angle acute, upper angle
circular, edges are clear, size 5 cm x 2 cm x muscle deep,
reddish in colour.
(ix) Stab injury over left side of chest on lateral infra
axillary region, vertical oblique, lower angle acute, upper
angle circular. Size 4 cm x 3 cm x muscle deep, reddish in
colour.
(x) Stab injury over back on spinal region, 9 cm just
medial border of scapula, horizontal and oval in shape.
Both angle acute, edges clear, reddish in colour.
(xi) Contused abrasion on left knee, anterior aspect, 4
cm x 0.5 cm.
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All the injuries were ante mortem in nature. The cause of death
according to her was due to haemorghic shock due to injury to vital
organs. According to her, the injuries were possible due to sharp and
pointed object and there could be more than one weapon used.
18. PW-12-Dr. Deepak Somnathappa Belure had examined PW-1
in Vedant Hospital. He was on duty when PW-1 was admitted. Dr.
Vaibhav Lokhande had performed surgery of PW-1. He had stab injury
of the size 3 cm x 3 cm x 5 cm in the right side of the abdomen. There
was bleeding injury of 5 cm on right hypochondriac region and below
costal margin. He was admitted in the hospital for 5 days. Initially, he
was admitted in ICU and then was shifted to general ward. The Police
had recorded PW-1's statement on 06/11/2017. At that time, he was
conscious.
In the cross-examination conducted on behalf of the defence,
PW-12 explained that PW-1's condition was critical as there was
bleeding inside the abdomen.
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19. PW-10-PSI-Dattatray Eknath Gode had conducted the initial
part of the investigation. He deposed that he was attached to
Vartaknagar Police Station as PSI. On the night between 06/11/2017
to 07/11/2017 he was on duty as PSO. He received a report from
Vedant Hospital about the incident. He went to the hospital and met
the doctor. PW-1 was being treated there. He inquired with PW-1
about the incident and recorded the statement. The doctor gave
opinion that he was in a position to give statement. PW-1 made his
signature on that statement. Based on that statement, the F.I.R. was
registered vide C.R. No.317/2017 under Sections 302 and 307 read
with Section 34 of IPC. The F.I.R. proforma is produced on record at
Exhibit-35. He supervised conducting inquest panchanama and the
spot panchanama. He also seized the clothes of the informant and the
deceased in the presence of the panchas. All these facts are undisputed
and hence there is hardly any relevant cross-examination on these
aspects. He however, proved the contrary portion from the statements
recorded by him.
20. PW-11-PI-Shivraj Tirshingrao Bendre was attached to Crime
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Branch, Unit No.5 who had conducted the parallel investigation.
According to their information, they went to Uttar Pradesh and
arrested the Accused Nos.1 to 3 on 11/11/2017 at Rainbasera,
Nurrullah Road, Purani Chungi, Illahabad, Uttar Pradesh in the
presence of the panchas. The panchanama is produced at Exhibit-106.
The articles on the person of the Accused were seized. After that the
Accused were taken to Khultabad Police Station. They were produced
before the Chief Judicial Magistrate at Allahabad and obtained their
transit custody remand was obtained. The Accused were brought to
Vartak Nagar Police Station. The arrest panchanama has some
relevance. It is produced on record at Exhibit-106. It mentions that
the Accused No.3-Rahul had some abrasions on his forehead. The
Accused No.2 had a sign of injury due to knife on the backside of his
head. The Accused No.1-Shivam did not have any signs of injuries.
21. PW-14-PSI- Balasaheb Sakharam Tambe was the Investigating
Officer in this case. He had conducted the investigation from
07/11/2017 onwards. He had recorded statements of witnesses. The
contradictory portions made by PW-3 and PW-4 were proved through
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this witness which are produced on record at Exhibits-124 and 125.
After the Accused were arrested, their custody was handed over to this
Investigating Officer. He supervised the recovery of knives at the
instance of Accused No.1-Shivam. The Accused No.3 had shown
willingness to show the spot where he had thrown his clothes but
nothing was found at the spot. Similarly, Accused No.1 had also
shown willingness to show the place were he had thrown his clothes
but even at that spot nothing was found. On 18/11/2017, he seized
their clothes in presence of panchas as mentioned earlier. He obtained
CCTV footage from the adjoining co-operative housing society. The
articles were sent for chemical analysis.
In the cross-examination, PW-14 stated that the spot from
where the Accused No.1 took out the knives was a crowded place but
he denied the suggestion that the knives seized from the spot were not
sealed. He himself had seen the CCTV footage. Significantly, PW-14
had sent all the three Accused for taking their blood samples for
examination, etc. He has produced those papers on record. Those
medical papers specifically mention that there were no external
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injuries. These medical papers are cumulatively produced on record at
Exhibit 131. This witness filed the chargesheet in the Court.
22. Apart from this oral evidence, the Prosecution produced the
CA Certificates on record. Those certificates show that the pant seized
from the person of the Accused No.1 showed presence of blood of
'Group AB'. One of the knives recovered at the instance of Accused
No.1 showed presence of blood of 'Group AB'. There was presence of
human blood on the clothes of the other two Accused. There was
blood on the knife recovered at the instance of Accused No.1 but the
blood group was inconclusive. The blood on the clothes of the
deceased showed presence of blood of 'AB Group'. The knife found at
the spot was also having human blood. The chappals found at the spot
had blood of 'AB Group'. The blood stained soil also showed presence
of blood of 'AB Group'.
This in short is the evidence led by the Prosecution.
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Submissions on behalf of the Appellants :
23. Learned Counsel Mr. Niranjan Mundargi appearing for the
Accused Nos.1 and 2 made the following submissions:-
None of the Accused had any motive to commit the murder
of the deceased. On the other hand, the evidence shows that the
deceased himself had sufficient reasons and hence there was motive to
commit murder of the Accused No.1 in particular. There was a quarrel
because PW-8 had told the deceased that the Accused No.1 had made
some derogatory comments against him to her. Admittedly, the
deceased had got angry. Even as per the Prosecution case, it is the
deceased who had called the Accused No.1 at that particular spot
where the incident had taken place, therefore, the deceased was the
aggressor. He had not gone to the spot alone but he had carried a
knife as is deposed by PW-3. He also had gone there with his friends
therefore, his intention was clear. The messages show that the
deceased had told PW-8 that he would cause harm to the Accused
No.1-Shivam. Therefore, even as per the Prosecution's case, the
deceased was the aggressor. He had gone to the spot after calling the
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Accused No.1 to the spot. Thereafter, the scuffle had taken place and
in that scuffle the deceased had suffered injuries. Therefore, the
Prosecution case itself shows that the Accused have not committed the
offence. PW-1 had deposed something more than what he had stated
in the police statement. All these omissions from the police statement
were important. It was the deceased who had traced the Accused
No.1's phone number and had called him. It was not the Accused
No.1 who had called the deceased at that spot. There is no reason to
disbelieve PW-3 and PW-4. Their evidence will have to be taken into
consideration. The Prosecution has not chosen to examine any
independent witnesses. The incident had taken place in a crowded
locality. A crowd had gathered according to PW-3 and therefore, the
police had enough witnesses who could have deposed about the
incident. That was not done in this case. The Prosecution deliberately
examined only the friends of the deceased who had willingly
accompanied the deceased to the spot knowing fully well that the
deceased was angry with the Accused No.1. Hence, all the eye-
witnesses were interested witnesses. Learned Counsel Mr. Niranjan
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Mundargi laid emphasis on the fact that the arrest panchanama
showed some injuries on the person of Accused Nos.2 and 3. The
Prosecution witnesses had not explained any of these injuries and
therefore, according to the learned Counsel the Prosecution has
suppressed the genesis of the incident. In support of this contention,
he referred to the observations of the Hon'ble Supreme Court in case
of Kumar Vs. State Represented by Inspector of Police (2018 7 SCC
536). He referred to paragraph 29 in particular wherein it was
observed that, in that case admittedly the accused was also injured in
the same occurrence and accused was admitted in the hospital. But the
prosecution did not produce his medical record, nor the Doctor was
examined on the nature of injuries. The trial Court did not seek
proper explanation from the Prosecution and simply believed the
Prosecution's witnesses. In that case, the benefit was given to the
Accused.
Learned Counsel submitted that in the present case also, it was
necessary for the Prosecution's witnesses to have explained the injuries
suffered by the Accused Nos.2 and 3. He submitted that the
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Investigating Officer was aware that the Accused were injured but he
did not explain those injures. He did not deliberately produce the
medical records regarding the injuries. According to learned Counsel,
PW-2 had accepted that the deceased had given a blow with coconut
on the head of the Accused No.1 and surprisingly there is no such
indication of any injury on the head of the Accused No.1. Thus, the
Prosecution's witnesses themselves are not telling the truth or atleast
their version is not supported by the circumstances and in particular,
by the medical evidence.
24. He further submitted that there was no consistency in
description of the incident between the version of PW-1 and PW-2. In
any case, both of them were close friends of the deceased and had
gone to the spot together with the deceased.
25. He relied on the messages exchanged between PW-8 and the
deceased wherein there was indication that the deceased had told her
that he would cause harm to the Accused No.1.
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26. He submitted that it was not possible to believe that the
Accused would be wearing the same clothes for about more than 11
days as their clothes were seized on 17/11/2017. The incident is dated
06/11/2017. Therefore, though the CA Report showed presence of
human blood on the clothes and in particular the pant of the Accused
No.1 showed blood of 'AB Group', it is not possible to believe that the
Accused were wearing the same clothes when they travelled from
Mumbai to Uttar Pradesh and then back to Mumbai. They were
brought to Mumbai on 14/11/2017 and yet the clothes were seized
only on 17/11/2017. Therefore, that particular circumstance is not
incriminating.
27. The recovery at the instance of the Accused No.1 is not in
consonance with the parameters of Section 27 of the Indian Evidence
Act. Admittedly, the place from where those two knives were
recovered was a crowded place. It was open to public and therefore,
this is not a recovery pursuant to the statement under Section 27 of
the Indian Evidence Act. He submitted that the deceased himself had
carried the knife and due to scuffle, these injuries were caused to him.
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The evidence shows that the Accused had no intention to commit the
murder of the deceased. It was only because the deceased had taken
out the knife, the scuffle took place and in the scuffle, the deceased as
well as PW-1 had suffered injuries with the deceased's own weapon.
28. Learned Counsel further submitted that, this case would not
fall within the meaning of Section 300 of IPC because firstly, there was
grave and sudden provocation given by the deceased himself and
secondly, at the highest the Accused could be attributed only the
knowledge and not the intention and therefore, it would be a case
falling within the part II of Section 304 of IPC.
29. Learned Counsel Ms. Prabha Badadare, appearing for the
Accused No.3 made only one submission. According to her, no specific
role was attributed to the Accused No.3-Rahul either of assaulting the
deceased or assaulting PW-1. He was not even attributed the weapon-
knife and therefore, he deserves to be acquitted from all the charges.
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Submissions in favour of the Prosecution :
30. On the other hand, Ms. Mahalakshmi Ganapathy learned
A.P.P. and the learned Counsel appearing for the sister of the deceased
made the following submissions:-
Though, the deceased himself was angry, the evidence shows
that there was a quarrel between the deceased and the Accused No.1
during their telephonic conversation. The Accused No.1 had called the
deceased at the spot. The deceased only had intention to have heated
exchange with him but the Accused went there well prepared by
carrying arms. The very fact that one knife was found at the spot and
two knives were recovered at the instance of Accused No.1 shows that
they had gone to the spot armed with weapons. Therefore, their
intention was clear. The CA Report shows presence of blood on the
knives. As mentioned earlier, one of the knives recovered at the
instance of the Accused No.1 showed presence of blood of 'AB
Group'. PW-1 is the most important witness. He was the injured
witness. His presence at the spot is not even disputed and cannot be
disputed. He has described the incident in detail. He himself had
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suffered serious injuries. The description of the incident given by PW-
1 and PW-2 is quite consistent except as to how PW-1 had suffered
injuries. The medical evidence supports the ocular evidence. Even
under Section 313 of Cr.P.C. the defence has admitted their presence
at the spot.
Reasons and Conclusion :
31. We have considered these submissions. From the evidence
discussed hereinabove, it is quite clear that the incident had taken
place at that particular spot and the deceased, PW-1, PW-2 and all the
three Accused were present at the spot. Their presence at the spot is
admitted by both the sides and in any case there is sufficiently cogent
evidence to show their presence at the spot. The only line of argument
which has been seriously pursued was that the deceased was the
aggressor and he had motive. He had called the Accused No.1 at the
spot and therefore, he was the perpetrator of the crime in which he
himself became the victim during the scuffle. This submission will
have to considered seriously.
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32. There is no doubt that the deceased was angry with the
Accused No.1 because PW-8 had told the deceased that the Accused
No.1 had told something bad about him to PW-8. When there was
telephonic conversation between the deceased and the Accused No.1,
there was a quarrel between them and both had decided to meet at a
particular spot. The Article-1 shows the messages exchanged between
the deceased and PW-8. One of the messages indicates that, the
deceased was so angry that he had told PW-8 that he would cause
harm to Accused No.1 but the following conversation mentions that
PW-8 had tried to pacify the deceased and he had told her that he
would have a normal conversation provided the Accused No.1 was
also decent with him. The conversation also shows that the deceased
had told her not to have any further conversation or contact with the
Accused No.1. That indicates that the deceased never intended to
commit murder of the Accused No.1; but he wanted to pick up a fight
with him. Beyond this, the conversation does not indicate anything.
Therefore, though the deceased was angry and had first called the
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Accused No.1 but from that point onwards the Accused No.1 had
taken things in his hands. He had gone to the spot with his friends.
33. More importantly, the evidence shows that there were three
knives involved. It is not possible to accept the submission that the
deceased himself had carried the knife and he himself fell prey to the
attack with the same knife. There were three injuries near the chest
and one on the back. All these injuries were grave and on vital parts.
The other injuries on the arm were defence injuries which shows that
he was attacked and assaulted. Those injuries could not have been
caused if he was the aggressor in the scuffle.
34. Though the CCTV footage panchanama explains that the
Accused Nos.1 and 2 had taken out something from their bag and had
kept those things in their pants, the evidence also shows that the
CCTV footage was not very clear. The learned Judge has also not
relied on the CCTV footage but even otherwise there is strong
evidence of two eye witnesses-PW-1 and PW-2 describing the incident
in detail. Their evidence takes precedence more particularly, since PW-
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1 himself was injured. He was the best person to explain his own
injuries. It is not possible to believe that the deceased carried the
weapon and in the scuffle, not only he suffered the injuries but even
PW-1 suffered the injury with the same knife. The injuries suffered by
the deceased and PW-1 were only possible when they were attacked.
The evidence shows that the Accused No.3 had pulled PW-1 towards
him and in the meantime, the deceased was assaulted by the Accused
Nos.1 and 2. Subsequently also when PW-1 was trying to intervene
and save the deceased, he was attacked and the Accused No.1 had
given blow with knife on his stomach as is deposed by PW-1. There is
direct evidence of these two important eye-witnesses.
35. As far as PW-3 and PW-4 are concerned, they were declared
hostile. The contrary portions from their statements given to the
Police are duly proved. Those portions actually support the
Prosecution's case but since both these witnesses are not reliable their
evidence is not helpful either to the Prosecution or to the defence.
36. The evidence of PW-1 and PW-2 is duly supported by the
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medical evidence led by PW-9 and PW-12. The description given by
both these eye-witnesses matches with the medical evidence. This is a
strong corroboration to their evidence.
37. Apart from the ocular and medical evidence, there is other
corroborative piece of evidence in the form of recovery of two knives
at the instance of the Accused No.1 Though those knives were
recovered from a tree in a place which was accessible to the public but
those knives were taken out by the Accused No.1 which were
concealed inside a trunk of a tree. Therefore, it is not possible to
accept the submissions that the requirements of Section 27 of
Evidence Act are not followed. There is authorship of concealment
and the exclusive knowledge on the part of the Accused No.1. There
is no infirmity in this recovery evidence. Both the knives showed
presence of blood and one of the knife showed presence of blood of
'AB Group' which was the blood group of the deceased. This is yet
another circumstance against the Accused No.1 in particular.
38. As far as the blood on the clothes of the Accused are
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concerned, that evidence can be ignored because it is difficult to
believe that the Accused would be wearing the same clothes for about
11 days.
39. The next main submission which is required to be considered
seriously is about the non-explanation of the injuries suffered by the
Accused. First of all it must be noted that there is absolutely no
evidence that the Accused had suffered any serious injury. There is
only a reference in their arrest panchanama that the Accused No.3 had
abrasion on his forehead and Accused No.2 had some injury on the
back side of the head caused by knife. However, they were absolutely
minor injuries. The abrasion need not be taken into consideration at
all. As far as the injury on the head is concerned, it was also a minor
injury because the record shows that they were produced for the
blood samples before the Medical Officers and at that time there is
clear remark by the Medical Officers that there were no signs of any
external injures. Thus, there is no basis even to argue that the Accused
had suffered such injuries which needed to be explained by the
Prosecution witnesses. The observations of the Hon'ble Supreme
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Court in the case of Kumar are is not helpful to the Appellants. In
paragraph 29 of the said judgment it was observed that on account of
eye-witnesses there were atleast three different versions which
substantially weakened the prosecution's case. Moreover, paragraph
29 mentions that in that case, admittedly, the accused was injured in
the same occurrence and he too was admitted in the hospital. The
facts in that case are materially different from the facts of this case.
There is no evidence whatsoever to show that the Accused had
suffered any injuries which the Prosecution's witnesses failed to
explain.
40. We are also not inclined to accept that there was grave and
sudden provocation. Both the sides knew that there was quarrel
between the parties. The Accused had come at the spot prepared and
armed with knives which they have used immediately. They caused
serious assault on the deceased with knives. It is also not possible to
hold that the deceased could have suffered those many injuries
including four serious injuries on the vital parts during the scuffle.
Those injuries are not possible unless he was intentionally assaulted on
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the vital parts. Significantly, even PW-1 had suffered a very serious
injury. This cannot be an accidental injury caused during scuffle. That
injury was also intentional. All the Accused had acted in pursuance of
their common intention. Though learned Counsel for the Accused
No.3 submitted that the Accused No.3 was not attributed any role,
that is not the case borne out from the evidence. The Accused No.3-
Rahul had pulled PW-1 away from the deceased. They were holding
each other. In the meantime, the deceased was assaulted. The Accused
No.3 had come with the other two Accused. The Accused were armed
with knives. There were three knives involved. One was found at the
spot and the other two were recovered at the instance of the Accused
No.1. All this shows that there was meeting of minds on the part of all
the three Accused and the offence had taken place in pursuance of
their common intention.
41. As a result of the above discussion, we do not find any reason
to interfere with the well reasoned judgment and order passed by the
trial Court and therefore, the Appeals are dismissed. Accordingly, we
pass the following order:-
903-APEAL-855-2024 WITH APEAL-206-2025 WITH APEAL-687-2025.doc
ORDER
(i) The Criminal Appeal Nos.855 of 2024, 206
of 2025 and 687 of 2025 are dismissed.
(ii) The Accused No.2-Ashishkumar Nishad is on
bail. He shall surrender forthwith before the Prison
Authorities. His bail bond shall stand cancelled.
(iii) In view of disposal of Appeals, the connected
Interim Application Nos. 3069 of 2025, 4799 of 2025
and Interim Application (ST) Nos. 24674 of 2025,
23709 of 2025 are also disposed of.
(SANDESH D. PATIL, J.) (SARANG V. KOTWAL, J.)
