Namdeo S/O Laxman Pawade vs State Of Mah. Thru. P.S.O. Mahagaon
2026 Latest Caselaw 285 Bom

Bombay High Court

Namdeo S/O Laxman Pawade vs State Of Mah. Thru. P.S.O. Mahagaon on 13 January, 2026

Author: Anil L. Pansare

Bench: Anil L. Pansare

2026:BHC-NAG:440-DB


                                                  1                     apeal 247 & 142.08.odt




                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       NAGPUR BENCH, NAGPUR.


                CRIMINAL APPEAL NO. 247 OF 2008


                State of Maharashtra,
                through Police Station Officer,
                Mahagaon, District Yavatmal.                      ....     APPELLANT

                             VERSUS

                Namdeo s/o Laxman Pawade,
                Aged about 40 years,
                R/o Tembhi, Tq. Mahagaon,
                District Yavatmal.                                ....    RESPONDENT

                ____________________________________________________________________

                             Mr. A.A. Madiwale, Addl.P.P. for the appellant/State,
                   Mr. S.D. Dharaskar with Mr. K.S. Narwade, Counsels for the respondent.
                ____________________________________________________________________

                                                      WITH

                CRIMINAL APPEAL NO. 142 OF 2008


                Namdeo s/o Laxman Pawade,
                Aged about 43 years, Occ. - Cultivator,
                R/o Village Tembhy, Tahsil - Mahagaon,
                District - Yavatmal.                              ....     APPELLANT

                             VERSUS

                The State of Maharashtra,
                through Police Station Officer, Mahagaon,
                Tahsil - Mahagaon, District - Yavatmal.           ....    RESPONDENT

                ____________________________________________________________________

                   Mr. S.D. Dharaskar with Mr. K.S. Narwade, Counsels for the appellant,
                           Mr. A.A. Madiwale, Addl.P.P for the respondent/State.
                ____________________________________________________________________
                                2                          apeal 247 & 142.08.odt



         CORAM : ANIL L. PANSARE & NIVEDITA P. MEHTA, JJ.


DATE OF RESERVING THE JUDGMENT : 7th JANUARY, 2026
DATE OF PRONOUNCING THE JUDGMENT : 13th JANUARY, 2026


JUDGMENT :

(PER : NIVEDITA P. MEHTA, J.)

Both these appeals are directed against the judgment and order

dated 29.02.2008 passed by the learned Ad hoc Additional Sessions Judge,

Pusad, in Sessions Trial No. 2 of 2005. By the impugned judgment, the

accused was acquitted of the offence punishable under Section 302 of the

Indian Penal Code (for short, "IPC"), but was convicted for the offence

punishable under Section 325 of the IPC and sentenced to suffer rigorous

imprisonment for three years and to pay a fine of ₹500/-. In default of

payment of fine, he was directed to suffer simple imprisonment for six

months. The accused was also granted the benefit of set-off under Section

428 of the Code of Criminal Procedure, 1973 ("CrPC").

2. The appellant in Criminal Appeal No. 142 of 2008 is the respondent

in Criminal Appeal No. 247 of 2008. Criminal Appeal No. 247 of 2008 is

preferred by the State seeking conviction of the accused for the offence

punishable under Section 302 of the IPC, whereas Criminal Appeal No. 142

of 2008 is filed by the accused challenging his conviction under Section 325

of the IPC.

3. The prosecution case, as unfolded during the course of the trial,

may be summarized thus:

3 apeal 247 & 142.08.odt

(i) The complainant Champat Chikne and the accused Namdeo Pawade

are residents of village Tembhi. The cowshed of the accused is situated

behind the Anganwadi School building, while the cowshed of the

complainant is located to the west thereof.

(ii) On 20.11.2004 at about 10.00 a.m., the deceased Ganpat Chikne,

younger brother of the complainant, along with PW-5 Deepak Chikne, son of

the complainant, was unloading thorny bushes on the Gram-Panchayat land

situated behind the cowshed of the accused. While Ganpat was returning to

his house to fetch water, the accused arrived at the spot carrying an axe and

questioned Ganpat as to why thorny bushes were being kept behind his

cowshed for the last two years.

(iii) Thereupon, the accused assaulted Ganpat by delivering a blow with

the axe on his head. When the accused attempted to inflict a second blow,

PW-5 Deepak intervened. As a result of the assault, Ganpat fell to the ground

with a bleeding head injury. The accused thereafter fled from the spot.

(iv) PW-5 Deepak immediately informed his father, the complainant

Champat Chikne, who rushed to the place of occurrence and found Ganpat

lying in an injured condition with a bleeding wound on his head. The injured

was promptly shifted to the Government Hospital, Savana, for medical

treatment.

(v) In the meantime, the complainant lodged a First Information Report

(Exh.22) at Police Station Mahagaon, which came to be registered as Crime 4 apeal 247 & 142.08.odt

No.130 of 2004 for offences punishable under Sections 324, 504 and 506 of

the IPC. At about 11.00 p.m. on the same night, Ganpat succumbed to his

injuries at the Civil Hospital. Consequently, Section 302 of the IPC was added

to the crime.

(vi) On 21.11.2004, the dead body of the deceased was sent for post-

mortem examination. PW-9 Dr. Shashikant Tayade conducted the autopsy

and, as per the post-mortem report (Exh.70), opined that the cause of death

was head injury.

(vii) During the course of investigation, PW-7 PSI Rambhau Bhelukar

visited the spot of occurrence and prepared the spot panchanama (Exh.27).

The accused was arrested and, while in police custody, made a disclosure

statement under Section 27 of the Indian Evidence Act, leading to the

recovery of the axe used in the commission of the offence. The memorandum

and seizure panchanamas are at Exhs.28 and 29. On the requisition of the

Investigating Officer, PW-8 Devenand Dhabale, Talathi prepared the sketch

map of the scene of occurrence (Exh.59). Blood samples of the accused and

the deceased, along with mud samples from the spot, were sent to the

Regional Forensic Science Laboratory, Nagpur, for chemical analysis.

(viii) Upon completion of investigation, a charge-sheet was filed before

the learned Judicial Magistrate First Class, Mahagaon, who committed the

case to the Court of Sessions, Pusad. The case was registered as Sessions Trial

No.2 of 2005. The learned Ad hoc Additional Sessions Judge framed charge

(Exh.13) for the offence punishable under Section 302 of the IPC. The 5 apeal 247 & 142.08.odt

accused pleaded not guilty and claimed to be tried. During trial, the Chemical

Analyser's report (Exh.32) was produced on record.

(ix) In his statement under Section 313 of the Criminal Procedure Code,

the accused denied the prosecution case and contended that he was falsely

implicated due to previous enmity, as the complainant and the deceased were

annoyed with him for cultivating the land of their cousin, Shankar Chikne.

(x) The prosecution examined nine witnesses in all, including the

complainant, three eye-witnesses, panch witnesses, medical officers, the

Talathi, and the Investigating Officer, and relied upon documentary evidence.

The accused did not examine any defence witness nor did he lead any

evidence in support of his defence.

4. Upon appreciation of the evidence on record, the learned trial Court

held that the testimony of PW-5 Deepak, nephew of the deceased was cogent

and wholly reliable, and that his presence at the scene of occurrence was

satisfactorily explained. The evidence of PW-3 Manohar Thakare and PW-4

Limbaji Bhise was also found to be trustworthy, their presence in village

Tembhi having been convincingly explained on account of Diwali festivities

and work-related reasons. The learned trial Court further held that the delay

in recording their statements was not fatal to the prosecution case,

particularly as both witnesses were residents of other villages and no mala

fides were attributed to the Investigating Officer. Merely branding these

witnesses as "chance witnesses" was held not to be a valid ground for 6 apeal 247 & 142.08.odt

discarding their otherwise credible testimony. The spot of occurrence was

held to be duly proved by the spot panchanama and the sketch map,

including the fact that it was visible from the adjoining road. The recovery of

the axe at the instance of the accused was also found to be duly proved

through consistent evidence. The learned trial Court concluded that the

prosecution case rested on direct ocular evidence, corroborated by medical

and recovery evidence. However, it was found that the accused had inflicted

only a single blow with the blunt side of the axe in the course of a sudden

quarrel and that the prosecution had failed to establish motive or intention to

kill. Consequently, the requisite intention or knowledge necessary to attract

Section 302 or even Section 304 of the IPC was held to be not proved.

Nevertheless, since the injury caused was grievous in nature and was

voluntarily inflicted, the accused was convicted for the offence punishable

under Section 325 of the IPC and sentenced as stated hereinabove.

5. We have heard Mr. A.A. Madiwale, learned Additional Public

Prosecutor for the State and Mr. S.D. Dharaskar, learned Counsel for the

accused.

6. Submissions on behalf of State:

The learned Additional Public Prosecutor submitted that the

evidence of PW-3, PW-4, and PW-5 clearly establishes the date, time, place of

occurrence, the weapon used (axe), and the part of the body assaulted which

is duly corroborated by medical and recovery evidence. It was contended that

7 apeal 247 & 142.08.odt

PW-5 Deepak is a natural witness, whose conduct in immediately informing

the complainant and accompanying the injured to the hospital lends credence

to his testimony. Reliance was placed upon the recovery of the axe under

Section 27 of the Indian Evidence Act, the post-mortem report, and medical

evidence to support the ocular version. It was argued that the accused acted

with the requisite intention and knowledge to cause the death of the

deceased and, therefore, the offence squarely falls within the ambit of

Section 302 of the IPC. On these grounds, the learned Additional Public

Prosecutor prayed that Criminal Appeal No.247 of 2008 be allowed.

7. Submissions on Behalf of the Accused:

Per contra, learned Counsel for the accused vehemently opposed

and contended that the judgment of the trial Court is perverse, unsustainable

in law, and therefore liable to be set aside. The learned Counsel contended

that PW 3 and PW 4 are chance witnesses, and their presence at the spot was

doubtful as well as their statements were recorded belatedly. It was further

argued that PW-5, being an interested witness, has exaggerated the incident.

The learned Counsel also argued that there is a material contradiction

between the ocular evidence and the medical evidence, as the eye-witnesses

speak of a single blow whereas the post-mortem report records multiple

injuries. It was further contended that no blood was detected on the axe and

that the injuries could have been caused due to a fall on stones. On these

grounds, it was prayed that Criminal Appeal No.142 of 2008 be allowed.

8 apeal 247 & 142.08.odt

8. Hence heard both sides, following points arise for our consideration.

We have recorded our findings thereon for the reasons to follow;

 S.N.                        Points                            Findings

     (i)   Whether it is proved by the prosecution        In the affirmative.
           that the death of Ganpat Chikne is a
           homicidal death ?
 (ii)      Whether it is proved by the prosecution          In the negative.
           that the accused committed murder of
           Ganpat Chikne by intentionally and
           knowingly causing his death and thereby
           committed offence punishable under
           Section 302 of the IPC ?
 (iii) Whether the conviction of the accused                In the negative.
       under Section 325 of the IPC suffers from
       any illegality, perversity or infirmity ?
 (iv)      Whether interference is called for in the        In the negative.
           impugned judgment ?
 (v)       What order ?                                   Appeals dismissed.



As to Point Nos. (i) to (iv) :

9. The prosecution has primarily relied upon the evidence of PW-5

Deepak Chikne, the nephew of the deceased, and PW-3 Manohar Thakare

and PW-4 Limbaji Bhise as eye-witnesses to the incident. PW-5 Deepak

Chikne is a natural and probable witness. His presence at the spot stands

fully explained, as he was assisting the deceased in unloading thorny bushes

near the Anganwadi immediately prior to the incident. His conduct in

immediately informing his father, accompanying the injured to hospitals, and

pointing out the place of occurrence to the police inspires confidence. Merely

because he is a relative of the deceased, his testimony cannot be discarded. It

is well settled that relationship is not a ground to reject testimony if it is

otherwise cogent and trustworthy. The Hon'ble Supreme Court in Yogesh 9 apeal 247 & 142.08.odt

Singh v. Mahabeer Singh and Others, (2017) 11 SCC 195, has held the same

in the following paragraphs -

"24. On the issue of appreciation of evidence of interested witnesses, Dalip Singh Vs. State of Punjab, is one of the earliest cases on the point. In that case, it was held as follows:(AIR p. 366, para 26) "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."

25. Similarly, in Piara Singh V. State of Punjab, this Court held:

(SCC p.455, para 4) "4. ... It is well settled that the evidence of interested or inimical witnesses is to be scrutinised with care but cannot be rejected merely on the ground of being a partisan evidence. If on a perusal of the evidence the Court is satisfied that the evidence is creditworthy there is no bar in the Court relying on the said evidence."

26. In Hari Obula Reddy V. The State of Andhra Pradesh, a three-judge Bench of this Court observed: (SCC pp. 683-84, para

13) "13. ... it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."

27. Again, in Ramashish Rai V. Jagdish Singh, the following observations were made by this Court: (SCC p. 501, para 7) 10 apeal 247 & 142.08.odt

"7. ...The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double-edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."

28. A survey of the judicial pronouncements of this Court on this point leads to the inescapable conclusion that the evidence of a closely related witnesses is required to be carefully scrutinised and appreciated before any conclusion is made to rest upon it, regarding the convict/accused in a given case. Thus, the evidence cannot be disbelieved merely on the ground that the witnesses are related to each other or to the deceased. In case the evidence has a ring of truth to it, is cogent, credible and trustworthy, it can, and certainly should, be relied upon. (See Anil Rai Vs. State of Bihar, State of U.P. Vs. Jagdeo, Bhagalool Lodh Vs. State of U.P., Dahari Vs. State of U. P., Raju . Vs. State of Tamil Nadu, Gangabhavani Vs. Rayapati Venkat Reddy NS Jodhan Vs. State of M.P.. "

10. PW-3 Manohar Thakare and PW-4 Limbaji Bhise were termed "chance

witnesses" by the defence. However, both witnesses have satisfactorily

explained their presence in village Tembhi, PW-3 on account of Diwali visit to

his sister and PW-4 due to work assigned by Maroti Chikne. Their presence,

therefore, cannot be said to be unnatural. The Hon'ble Supreme Court has

consistently held that the expression "chance witness" is a misnomer, and

evidence cannot be rejected solely on that ground if the presence is

reasonably explained (Sachchey Lal Tiwari v. State of U.P. , (2004) 11 SCC

410). All three eye-witnesses have consistently stated that the accused gave

only one blow with an axe on the head of the deceased. Their version

regarding the time, place, weapon, and manner of assault is materially 11 apeal 247 & 142.08.odt

consistent. Minor discrepancies as to exact position or distance are natural

and do not affect the core of the prosecution case.

11. The evidence of the three eye-witnesses, when read conjointly,

discloses complete consistency on the foundational facts of the prosecution

case. Each witness has unequivocally stated that the accused inflicted a single

axe blow on the head of the deceased during a sudden quarrel arising out of

a dispute regarding keeping thorny bushes near the accused's cowshed. There

is no evidence of any repeated assault or of the accused persisting with the

attack after the deceased fell. On the contrary, PW-5 has specifically deposed

that when the accused attempted to strike a second blow, he intervened,

whereupon the accused immediately withdrew from the scene. This conduct

is a relevant circumstance while evaluating the intention and degree of

knowledge attributable to the accused.

12. The State has assailed the finding of the learned trial Court on the

ground that the post-mortem report records five external injuries on the

head, and that PW-9 Dr. Shashikant Tayade has opined that such injuries

could not be caused by a single blow. This submission does not merit

acceptance. The evidence of Medical Officer PW-9 shows that he conducted

the autopsy on the dead body of Ganpat Chikne. On external examination,

he found following injuries :

(i) Contusion present over right upper eye lead of size 6 x 4 cms radish in colour.

(ii) Contusion present in between right eye and ear of size 8 x 6 cms radish.

12 apeal 247 & 142.08.odt

(iii) Contusion present below right mastoid process of size 6 x 4 cms radish.

(iv) Contusion present over right frontal region of size 6 x 4 cms radish and swollen.

(v) Contusion present over right temporal region of size 6 x 4 cms radish and swollen.

On internal examination, he found following injuries :

(i) Right side of under scalp haematoma present of size 15 x 6 x 0.5 cms. corresponding to injury Nos.4 and 5 of Column No. 17.

(ii) Vault-Comminuted fracture present over right fronto temporal region extending to occipital bone corresponding to injury Nos. 4 and 5 of column No.17.

Base - Liner fracture present over right anterior cranial fossa of size 3 cms. Haematoma present at the site of fracture of size 3 x 3 cms radish corresponding to injury No.4 of column No.17.

(iii) Brain - Meninges-congested.

Subdural haematoma present over right side of brain of size 15 x 6 x 1 cms subarachnoid haemorrhage present as a thin layer over right tempo-occipital region.

Though the eyewitnesses have consistently attributed only a single

blow, the port-mortem report notes five external injuries. In cross-

examination, PW-9 stated that injuries No. 1 to 5 could be caused by five

separate blows, and that all five injuries could not be the result of a single

blow. Nothing was brought on record by the prosecution as to how the other

four injuries occurred. This creates a gap in the prosecution story.

13. In the present case, PW-9 noticed five external contusions, all confined

to the right fronto-temporal and mastoid region, with corresponding internal

injuries including sub-scalp haematoma, comminuted fracture of the right

fronto-temporal bone extending posteriorly, fracture of the anterior cranial 13 apeal 247 & 142.08.odt

fossa, and subdural and subarachnoid haemorrhage. The cause of death was

opined to be head injury, and the weapon was stated to be an axe used from

its blunt side.

14. In view of above, the issue that arises for consideration is whether the

prosecution has been able to prove the charge under Section 302 read with

Section 34 of the IPC.

15. In Dhupa Chamar & Ors. v. State of Bihar, (2002) 6 SCC 506 , while

dealing with a case where death was caused by a single blow, the Hon'ble

Supreme Court examined the applicability of Clause "Thirdly" and held that

the element of "intention" is the determinative factor. The Hon'ble Supreme

Court observed that intention is distinct from motive, and it is the intention

with which the act is committed that decides whether the offence amounts to

culpable homicide or murder. The relevant paragraph reads as follow -

"6. ... The ingredient 'intention" in that clause is very important and that gives a clue in a given case whether the offence involved is murder or not. Clause Thirdly of Section 300 of the Penal Code reads thus:-

3rdly.- If it is done with the intention or causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-

7. Intention is different from motive. It is the intention with which the act is done that makes difference, in arriving at a conclusion whether the offence is culpable homicide or murder. ..."

14 apeal 247 & 142.08.odt

16. The legal position has been further authoritatively explained by the

Hon'ble Supreme Court in the celebrated judgment of Virsa Singh v. State of

Punjab, AIR 1958 SC 465, which is reproduced as below -

"12. To put it shortly, the prosecution must prove the following facts before it can bring a case under x. 300 "thirdly";

First, it must establish, quite objectively, that a bodily injury is present:

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender."

The Hon'ble Supreme Court in the said case held that, to attract Clause

"Thirdly", the prosecution must establish: (i) the presence of a bodily injury;

(ii) the nature of such injury; (iii) the intention to inflict that very injury; and

(iv) that the injury intended and inflicted is sufficient in the ordinary course

of nature to cause death. Unless all the aforesaid elements are cumulatively

satisfied, a conviction under Section 302 IPC cannot be sustained.

17. As regards motive, the prosecution has not established any prior

enmity of such a nature as would prompt the accused to commit murder. The

dispute arose suddenly on the issue of keeping thorny bushes near the

cowshed. While motive is not a sine qua non where there is direct evidence, 15 apeal 247 & 142.08.odt

its absence assumes significance while assessing intention and knowledge. In

the present case, the lack of a strong motive further reinforces the conclusion

that the accused did not act with the intention to cause death.

18. The manner in which the weapon was used is also a relevant

circumstance. Although the accused was armed with an axe, the evidence

consistently shows that the blow was delivered from its blunt side and not the

sharp edge. Had the accused intended to commit murder, he would have

naturally used the sharp side of the axe and inflicted repeated blows. The use

of the blunt side coupled with a single blow and absence of explanation by

prosecution about multiple injuries sustained by deceased militates against

the existence of intention to kill. To attract Section 302 of the IPC, the

prosecution must prove beyond reasonable doubt that the accused acted with

intention to cause death or such bodily injury as is sufficient in the ordinary

course of nature to cause death, or with knowledge that his act was likely to

cause death. The accused did not repeat the assault nor did he ensure that

the deceased was dead. These circumstances cumulatively militate against

the existence of the intention or knowledge required to attract Section 302

(Pulicherla Nagaraju Alias Nararaja Reddy v. State of A.P., (2006) 11 SCC 444).

However, it cannot be overlooked that the blow was inflicted on a vital part

of the body, namely the head, and that it resulted in a fracture of the skull

which is clearly grievous in nature. The act of the accused in voluntarily

causing such grievous hurt is clearly established by the consistent ocular

evidence, duly corroborated by medical evidence. Therefore, the ingredients

of the offence punishable under Section 325 of the IPC stand fully proved.

16 apeal 247 & 142.08.odt

19. On an overall appreciation of the entire evidence on record, this

Court is of the considered view that the learned trial Judge has correctly

appreciated the ocular and medical evidence and has drawn a just and

reasonable conclusion. The prosecution has failed to establish beyond

reasonable doubt that the accused acted with the intention or knowledge

necessary to constitute the offence of murder. At the same time, the evidence

unmistakably proves that the accused voluntarily caused grievous hurt to the

deceased. The conviction of the accused under Section 325 of the IPC is thus

legal, proper, and calls for no interference. Consequently, the appeal filed by

the State seeking conviction under Section 302 of the IPC deserves to be

dismissed, and the appeal filed by the accused challenging his conviction

under Section 325 of the IPC also deserves to be dismissed. Accordingly, the

conviction of the accused under Section 325 IPC and the sentence imposed

thereunder do not call for any interference.

Point No.(i) is answered in the affirmative and point Nos. (ii), (iii) and

(iv) are answered in the negative.

As to Point No.(v) :

20. Having answered first four points in the manner hereinabove, there is

no merit in the appeals. The appeals are accordingly dismissed. The bail

bond of the accused - Namdeo S/o Laxman Pawade, stands cancelled. He

shall surrender before the Additional Sessions Judge, Pusad for undergoing

the imprisonment within fifteen days, failing to which the learned Additional 17 apeal 247 & 142.08.odt

Session Judge shall take appropriate steps to arrest him for undergoing the

sentence.

                                      (Nivedita P. Mehta, J.)                (Anil L. Pansare, J.)

          sknair




Signed by: Mr. S.K. NAIR
Designation: PS To Honourable Judge
Date: 13/01/2026 18:40:24