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Bombay High Court
Mahesh S/O Natthuji Devgune (In Jail) vs The State Of Maharashtra, Through ... on 14 January, 2026
2026:BHC-NAG:537-DB
Judgment
520 apeals80 & 110.14
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.80 OF 2014
AND
CRIMINAL APPEAL NO.110 OF 2014
CRIMINAL APPEAL NO.80 OF 2014
Mahesh s/o Natthuji Devgune,
age 30 years, occupation - business,
r/o Timki Mochipura, Nagpur.
(at present in Nagpur Central Prison). ..... Appellant.
:: V E R S U S ::
The State of Maharashtra, through
PSO Tahsil Police Station,
district Nagpur. ..... Respondent.
Shri R.K.Tiwari, Counsel for the Appellant.
Shri M.J.Khan, Additional Public Prosecutor for the
Respondent/State.
CRIMINAL APPEAL NO.110 OF 2014
1. Sanjiv Shankar Kuhikar, aged 26
years.
2. Santosh Chaitram Kuhikar, aged
about 38 years.
3. Devanand Chaitram Kuhikar, aged
about 44 years.
.....2/-
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520 apeals80 & 110.14
2
4. Sheshrao Ramdas Kuhikar, aged 32
years.
5. Rajesh Ramprasad Kuhikar, aged
about 35 years.
All resident of Timki Mochipura,
Nagpur. (All appellants are presently
in jail. ..... Appellants.
:: V E R S U S ::
The State of Maharashtra, through
Police Station Officer, Police Station
Tahsil, Nagpur. ..... Respondent.
Shri Avinash Gupta, Senior Counsel assisted by Shri Akash
Gupta, Advocate for Appellants.
Shri M.J.Khan, Additional Public Prosecutor for the
Respondent/State.
CORAM : URMILA JOSHI-PHALKE &
NANDESH S.DESHPANDE, JJ.
CLOSED ON : 15/12/2025
PRONOUNCED ON : 14/01/2026
COMMON JUDGMENT ( Per : Urmila Joshi-Phalke)
1. By these appeals, appellants (the accused
persons) have challenged judgment and order dated
14.2.2014 passed by learned Additional Sessions Judge,
.....3/-
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520 apeals80 & 110.14
3
Nagpur (learned Judge of the trial court) in Sessions Trial
No.219/2011.
2. By the said judgment impugned in these appeals,
the accused persons are convicted for offence punishable
under Section 143 of the IPC and sentenced to undergo
three months rigorous imprisonment and pay fine Rs.200/-,
in default, to undergo further rigorous imprisonment for 15
days.
They are further convicted for offence
punishable under Section 144 of the IPC and sentenced to
undergo rigorous imprisonment for 6 months and pay fine
Rs.200/-, in default, to undergo further rigorous
imprisonment for 15 days.
They are also convicted for offence punishable
under Section 147 of the IPC and sentenced to undergo
rigorous imprisonment for 6 months and pay fine Rs.200/-,
.....4/-
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in default, to undergo further rigorous imprisonment for 15
days.
They are also convicted for offence punishable
under Section 148 of the IPC and sentenced to undergo
rigorous imprisonment for 6 months and pay fine Rs.300/-,
in default, to undergo further rigorous imprisonment for 15
days.
They are convicted for offence punishable under
Section 302 read with 149 of the IPC and sentenced to
undergo life imprisonment and pay fine Rs.300/-, in
default, to undergo further rigorous imprisonment for 15
days.
3. Brief facts of the prosecution case emerge from
police papers, are as under:
(A) The FIR came to be registered on the basis of
a report lodged by Deva @ Devdas Laxman
.....5/-
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5
Shendekar, the brother of Dinesh (the deceased),
on an allegation that the deceased was his
younger brother. The accused persons are
residents of the same locality and residing in
front of his house and, therefore, he is
acquainted to them. On 17.1.2011, there was a
quarrel between brother of the deceased Guddu
Laxman Shendekar and accused Rajesh
Ramprasad Kuhikar on account of money. On
19.1.2011, at about 9:30 pm, when informant
Deva was standing in front of his house, the
accused persons came in front of his house
possessing in their hands swords. Accused
Devanand Chaitram Kuhikar has hit glass of
window and broken it and they disclosed that
they have killed his brother. After hearing the
same, immediately, informant Deva rushed to the
.....6/-
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spot at Rajgire Lane. He saw the deceased lying
in pool of blood who has sustained swords
injuries on his abdomen, throat, fingers, and
hands. Amol Kumbhalkar was also there, who
has also sustained injuries and was sitting near
the dead body of his brother. Amol Kumbhalkar
informed him that the accused persons killed his
brother by assaulting him by weapons. When he
intervened in the quarrel, he was also assaulted
by them on his abdomen. He immediately
rushed to the police station. The police have
already received the information about the
incident. Thereafter, the police came along with
him at the spot and prepared spot panchanama.
The police have seized various articles there and,
thereafter, they have obtained his report. On the
.....7/-
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basis of the said report, the police registered the
crime against the accused persons.
(B) After registration of the crime, wheels of
investigation started rotating. During the
investigation, the investigating officer has visited
the alleged spot of the incident and has drawn
spot panchanama. They have also drawn inquest
panchanama and forwarded the dead body of the
deceased for conducting postmortem
examination. They have seized clothes of the
deceased and the accused persons. The accused
persons were arrested. Accused Mahesh Natthuji
Devgune has sustained injuries. He was also
referred for medical examination. On the basis
of memorandum statement of accused Mahesh
Natthuji Devgune and acquitted accused
Jitendra, incriminating weapons are recovered.
.....8/-
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The said incriminating weapons are also
forwarded to the medical officer for seeking
opinion. All the incriminating articles were
forwarded to the Chemical Analyzer and after
completion of the investigation, he submitted
chargesheet against the accused persons.
(C) Learned Judge of the trial court framed
charge vide Exh.42. The contents of the charge
are read over and explained to the accused
persons in vernacular Marathi. The accused
persons pleaded not guilty and claimed to
be tried.
(D) The prosecution, in support of its case, has
examined in all 14 witnesses, they are as follows:
PW Names of Witnesses Exh.
Nos. Nos.
1 Deva @ Devdas Laxman Shendekar, the 71
.....9/-
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9
informant and brother of the deceased;
2 Tarachand Ganpatlal Aherwar, pancha on 76
memorandum statement of accused
Santosh and acquitted accused Jitendra
and discovery panchanamas;
3 Atul Suresh Mahajan, pancha on seizure of 81
clothes of the deceased and the accused
persons
4 Amol Kumbhalkar, eyewitness 89
5 Dhnyaneshwar Dhapekar, eyewitness 91
6 Suman Devgune, eyewitness 93
7 Subhash Parde, eyewitness 95
8 Chanda Shendekar, the wife of the 97
informant
9 Manish Shrigiriwar, Medical Officer 100
10 Sudhir Nandanwar, Investigating Officer 101
11 Anil Pawar, Investigating Officer 130
12 Pandurang Warkhade, Executive 132
Magistrate
13 Dr.Naina Dhumale, Medical Officer 145
14 Dr.Mamta Sonsare, Medical Officer 147
(E) Besides the oral evidence of these witnesses,
the prosecution placed reliance on report Exh.72,
FIR Exh.73, indoor injury certificate Exh.75,
.....10/-
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memorandum statement of accused Santosh
Chaitram Kuhikar Exh.77, discovery panchanama
Exh.78, memorandum statement of acquitted
accused Jitendra Exh.79, discovery panchanama
Exh.80, seizure memo of clothes of the deceased
Exh.82, seizure memos as to blood samples and
clothes of the accused persons and acquitted
accused Jitendra Exhs.83 to 88, inquest
panchanama Exh.98, spot panchanama Exh.98-A
(as the spot panchanama is exhibited by the
same Exhibit mark, therefore, it is marked as
Exh.98-A for identification purpose), postmortem
report Exh.100-A, query report Exh.100-B, arrest
panchanamas of the accused persons Exhs.102-
107, seizure memo of the clothes of accused
Santosh Chaitram Kuhikar Exh.108, requisition
to the medical officer Exh.109, seizure memo of
.....11/-
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11
blood samples of the accused persons Exh.110,
requisition to the Regional Forensic Laboratory
by the Medical Officer dated 21.1.2011
forwarding the samples of the accused persons
Exh.111 to 115, requisition to the Mayo Hospital
Exh.116, requisition to the Chemical Analyzer
dated 28.1.2011 Exh.125, invoice challan
Exh.126, requisition to the Chemical Analyzer
dated 21.3.2011 Exh.128, invoice challan
Exh.129, communication from the Junior
Engineer to the investigating officer Exh.127,
medical certificate of accused Mahesh Natthuji
Devgune Exh.146, and medical certificate of
accused Sanjiv Shankar Kuhikar Exh.148
(F) All the incriminating evidence is put to the
accused persons in order to obtain their
explanations by recording their statements under
.....12/-
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12
Section 313 of the CrPC. The defence of the
accused persons is of total denial and of false
implication.
(G) Learned Judge of the trial court appreciated
the evidence and held the accused persons guilty
and convicted and sentenced them as the
aforesaid.
(H) Being aggrieved and dissatisfied with the
same, the present appeals are preferred by the
accused persons.
4. Heard learned counsel Shri R.K.Tiwari in
Criminal Appeal No.80/2014; learned Senior Counsel Shri
Avinash Gupta in Criminal appeal No.110/2014, and
learned Additional Public Prosecutor Shri M.J.Khan for the
State.
.....13/-
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520 apeals80 & 110.14
13
5. Learned Senior Counsel submitted that the
prosecution has examined in all 14 witnesses. The entire
case of the prosecution is rested upon two eyewitnesses
PW5 Dhnyaneshwar Dhapekar and PW6 Suman Devgune,
who are already disbelieved by the trial court as their
statements were recorded belatedly and there is no
explanation by the investigating officer as to the belated
statements. He submitted that besides the evidence of
these eyewitnesses, the prosecution placed reliance on the
evidence of PW2 Tarachand Aherwar, who acted as pancha
on memorandum statement of accused Santosh Chaitram
Kuhikar, at whose instance incriminating weapons are
discovered. He is not an independent witness. He is
brother-in-law of PW1 Deva Laxman Shendekar. Despite
availability of independent witnesses, no attempt was made
to record statements of the accused persons in presence of
the independent witness and, therefore, the entire aspect of
.....14/-
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14
recording of memorandum statement and discovery at the
instance of accused Santosh Chaitram Kuhikar is doubtful.
He further submitted that as per the prosecution, the said
weapons are recovered at the instance of accused Santosh
Chaitram Kuhikar on 22.1.2011. The weapons were
forwarded to the medical officer on 18.3.2011 and again
forwarded to the Chemical Analyzer on 21.3.2011. During
this period, these weapons were kept in a safe custody and
there was no possibility of planting any evidence is not
adduced. On the contrary, PW10 Sudhir Nandanwar was
unable to state explanation why the weapons are not
forwarded to the medical officer prior to 18.3.2011 though
the same are recovered on 21.1.2011. Thus, the entire case
of the prosecution becomes doubtful as to recovery of the
weapons and incriminating blood stains found on the
clothes of the accused persons. He submitted that the
judgment impugned in these appeals awarding the sentence
.....15/-
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15
solely rests on circumstantial evidence. When the case is
based on circumstantial evidence, the prosecution is under
obligation to establish all circumstances unerringly pointing
out towards the guilt of the accused. The circumstances as
to voluntary statement of the accused and recovery of the
weapons are itself doubtful. The weapons were deposited
belatedly in Malkhana. The evidence as to recovery is also
doubtful as nothing is mentioned stating that the accused
has disclosed the place where the weapons were concealed.
There is also no evidence to show that the weapons
recovered were sealed immediately after recovery. Though
the weapons were recovered on 21.1.2011, the same were
deposited on 24.1.2011 and there is no explanation as to
the place where the said weapons were kept during this
period. There is an inordinate delay in sending the said
weapons to the Chemical Analyzer. The carrier of the
weapons is also not examined. There is no link evidence to
.....16/-
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16
show from discovery till it is sent to the Chemical Analyzer
and during this period the said weapons were in a proper
custody. In absence of the link evidence, there is no
guarantee as to the said weapons were not tampered. The
accused persons were arrested immediately after the
incident. However, the clothes were seized on 21.1.2011
and forwarded to the Chemical Analyzer on 28.1.2011. As
per the prosecution case, the accused persons wearing
those clothes at the time of the arrest were not immediately
seized at the time of the arrest and, therefore, recovery of
the clothes is also required to be discarded. The evidence of
the investigating officer is also not cogent as despite receipt
of the information of the cognizable offence, no offence was
registered by the incharge of the police station. The FIR is a
fabricated document. For all above these grounds, the
judgment impugned in these appeals deserves to be quashed
and set aside.
.....17/-
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17
6. In support of his contentions, learned Senior
Counsel placed reliance on following decisions:
(1) Ramanand vs. State of Uttar Pradesh,
reported in AIR 2022 SC 5273;
(2) Kanhai Mishra alias Kanhaiya Misar vs.
State of Bihar, reported in 2001 SCC (Cri)
537;
(3) Din Dayal vs. Raj Kumar and ors, reported
in MANU/SC/0216/1998;
(4) Ganesh Bhavan patel and ors vs. State of
Maharashtra, reported in
MANU/SC/0083/1978;
(5) Pohalya Motya Valvi vs. State of
Maharashtra, reported in
MANU/SC/0204/1979;
(6) Pratibha Ganesh Pande vs. State of
Maharashtra, reported in
MANU/MH/2602/2020;
(7) Rakesh Mahadu Dandekar and ors vs. The
State of Maharashtra, reported in MANU/MH/
3389/2025;
(8) State of Maharashtra vs. Prabhu Barku
Gade, reported in MANU/MH/0160/1994;
.....18/-
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18
(9) Mohd.Hussain Badamiyan Ramzan vs.
State of Maharashtra, reported in MANU/MH/
0130/1993;
(10) Gopal Singh and anr vs State of MP,
reported AIR 1972 SC 1557;
(11) Anil vs. State of Maharashtra, reported in
2022 SCC OnLine Bom 1780; and
(12) Laxmi Singh vs. State of Bihar, reported
in MANU/SC/0136/1976.
7. Learned counsel Shri R.K.Tiwari supported the
contentions of learned Senior Counsel and submitted that
the FIR is ante-time. Accused Mahesh Natthuji Devgune has
also sustained injuries and, therefore, the recovery of blood
stained clothes from his person and possibility of having his
own blood stains on the said clothes cannot be ruled out.
The investigation nowhere shows that counter case is filed
regarding the said incident. Thus, faulty investigation is
carried out and adverse inference is to be drawn against the
.....19/-
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19
prosecution. He adopted the argument of learned Senior
Counsel on the other aspects.
8. In support of his contentions, learned counsel
Shri R.K.Tiwari has placed reliance on following decisions:
(1) Vijaybhai Bhanabhai Patel vs Navnitbhai
Nathubhai Patel & Ors, reported in
MANU/SC/0279/2004;
(2) Kochu Maitheen Kannu Salim vs. State of
Kerala, reported in MANU/SC/0218/1998;
(3) Criminal Appeal No.1157/2011 (Turkesh
Singh vs. State Chhattisgarh), decided on
14.5.2025, and
(4) Criminal Appeal No.608/2013 (Ramu
Appa Mahapatar vs. The State of
Maharashtra), decided on 4.2.2025.
9. Per contra, learned Additional Public Prosecutor
for the State submitted that the prosecution case is not only
rested on circumstantial evidence but also on the direct
.....20/-
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20
evidence in the nature of eyewitnesses PW5 Dhnyaneshwar
Dhapekar and PW6 Suman Devgune. Merely because their
statements are recorded belatedly, that by itself is not
sufficient to discard their evidence. The opportunity is to
be granted to the investigating officer to explain the delay
by cross examining him on the delay aspect. The
investigating officer has also explained the circumstance by
mentioning the law and order situation. PW5
Dhnyaneshwar also stated about the law and order
situation. The incident has occurred in such a manner that
no witness was ready to come forward as well as the
investigating agency were busy in maintaining law and
order situation. Learned Judge of the trial court has not
considered the evidence of extra judicial confession by
accused Devanand Chaitram Kuhikar. There was a previous
dispute between the brother of the deceased and accused
Rajesh Ramprasad Kuhikar prior to the incident. The
.....21/-
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21
evidence of eyewitnesses is not only corroborated by the
circumstantial evidence, like recovery of the incriminating
weapons at the instance of the accused, but also it is
corroborated by the scientific evidence as blood stains are
found on the said weapons. He submitted that merely
because there is some negligence on the part of the
investigating agency, the entire prosecution case cannot be
thrown out. The evidence of PW6 Suman Devgune states
about the terror of the accused persons. The accused
persons have committed the offence to show their
supremacy. Thus, the entire prosecution evidence, as far as
authorship of the crime is concerned, is disclosed by
accused Devanand Chaitram Kuhikar himself in the nature
of extra judicial confession. It is further corroborated by
the evidence of eyewitnesses PW5 Dhnyaneshwar Dhapekar
and PW6 Suman Devgune. Learned Judge of the trial court
has wrongly ignored the evidence of these witnesses merely
.....22/-
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520 apeals80 & 110.14
22
because their statements are recorded belatedly. The
evidence is consistent, cogent, and reliable one and,
therefore, the appeals being devoid of merits are liable to
be dismissed.
10. In support of his contentions, learned Additional
Public Prosecutor for the State placed reliance on following
decisions:
(1) Criminal Appeal No.1181/2019 and
other connected appeals (Goutam Joardar
vs. State of West Bengal) decided on
7.10.2021 by the Hon'ble Apex Court;
(2) Rameshwar s/o Dijnaji Dhawde vs. The
State of Maharashtra, reported in 2016 ALL
MR (Cri) 3864;
(3) Ajay Singh vs. State of Maharashtra,
reported in (2007)12 SCC 341;
(4) Gura Singh vs. State of Rajasthan,
reported in AIR 2001 SC 330;
.....23/-
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(5) State of AP vs. S.Rayappa and ors
reported in AIR 2006 SC 3709;
(6) Mahesh Janardhan Gonnade vs. State of
Maharashtra, reported in AIR 2009 SC
(Suppl) 428(2);
(7) Ajayan Alias Baby vs. State of Kerala,
reported in 2010 SCC OnLine Kerala 5019;
and
(8) Firoz Khan Akbarkhan vs. The State of
Maharashtra, reported in 2025 LiveLaw (SC)
349.
11. Heard both the sides and perused the entire
record.
MARSHALING OF EVIDENCE
12. The first and foremost question is, whether the
death of the deceased is homicidal one.
13. Insofar as homicidal death of the deceased is
concerned, the material evidence adduced by the
.....24/-
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24
prosecution is of Medical Officer PW9 Dr.Manish
Shrigiriwar examined vide Exh.100. He deposed that on
20.1.2011 he was attached to IGMC at Nagpur as Associate
Professor. On that day, he received corpse of the deceased.
He performed postmortem on the dead body of the
deceased. On external examination, he found following
injuries:
"(1) Incised wound present over left side of
forehead 3 cm from midline and 4 cm above left
eye brow of size 2.5 cm. x 0.5 cm. x muscle deep,
obliquely placed.
(2) Chop wound present over left side of
forehead, l cm below injury no.1 and 3 cm. above
left eye brow of size 5 cm. x 1 cm x bone deep
underlying bone cut, obliquely placed, bevelling
present over lower margin, both margins sharp.
(3) Chop wound present over left parieto
occipital region 8.5 cm. from midline and 9 cm.
above tip of left mastoid of size 7 cm. x 1 cm. x
.....25/-
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25
bone deep, underlying bone cut, obliquely
placed, bevelling present over medial margin,
both margins sharp.
(4) Chop wound present over left parieto
occipital region extending upto midline and 3
cm. above injury no.3 of size 5 cm x 1 cm x bone
deep underlying bone cut, obliquely placed,
bevelling present over medial margin, both
margins sharp.
(5) Chop wound present over right occipital
region, 7 cm, from midline and lower end is 6
cm. from tip of right mastoid of size 3 cm. x 0.8
cm. x muscle deep, vertically placed, both
margins sharp.
(6) Contused abrasion present over lateral end of
left eye brow of size 2 cm. x 1 cm. dark red in
colour.
(7) Incised wound present over lateral end of left
eyebrow 0.2 cm. lateral to injury no.6 of size 1
cm. x 0.2 cm. x subcutaneous tissue deep
obliquely placed.
.....26/-
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(8) Incised wound present over left zygomatic
region, below injury no.7 and 2.5 c.m. From
lateral canthus of left eye of size 1.8 cm. x 0.5
c.m. X subcutaneous tissue deep, horizontally
placed.
(9) Chop wound present over left zygomatic
temporal region, 0.5 cm. lateral to injury no.8
and 3 cm. above tip of left mastoid of size 7.5
cm. x 1.5 cm. x bone deep, horizontally placed
underlying bone cut.
(10) Multiple contused abrasion present over an
area of 4 cm. x 3 cm. of left maxillary region of
size varying from 1 cm. x 0.5 cm. to 0.5 cm. x 0.5
cm. dark red in colour.
(11)Contused abrasion present over right
maxillary region. 4.5 cm. from midline of size 3.5
cm. x 2cm, dark red in colour.
(12) Contused abrasion present over right ala of
nose .3.5 cm. from glabella of size 2 cm x 1 cm.
dark red in colour.
.....27/-
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(13) Chop wound present over left mandibular
region extending upto upper part of left side of
neck, upper end is 4.5 cm. from left tragus and
lower end is 5 cm. from midline of size 6 cm x
1.5 c.m. X bone deep underlying bone cut,
obliquely placed bevelling present over lower
margin both margins sharp.
(14) Stab entry wound present over front of
neck, 1 cm. above thyroid cartilage and 6 cm.
from tip of chin, extending on both sides for
length 1.5 cm. on right side and 3 cm on left side
of size 4.5 cm. x 1.5 cm. x cervical spine deep,
obliquely placed, directed downwards,
backwards, towards right side leading to exit
wound at right lateral aspect of neck at midpart
10 cm. from midline and lateral end 3 cm. below
tip of right mastoid of size 4 cm. x 1.5 cm.,
margins erected and sharp. Both entry and exit
wound obliquely placed.
(15) Incised wound present over upper 1/3 of
left front of neck 0.5 cm. lateral to injury no. 14
.....28/-
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of size 1.5 cm. x 0.5 cm. horizontally placed
tailing present over medial end of length 0.5 cm.
(16) Incised wound present over upper 1/3 of
left front of neck, 1.5 cm. from midline and 1 cm.
below injury nol.14 of size 1.5 on. x 0.2 cm x
subcutaneous tissue deep, obliquely placed
talling present over medial end of length 1 cm.
(17) Incised wound present over front of neck in
midline, 4.5cm. Below thyroid cartilage
extending on both sides of size 2.5 cm. x 0.2 cm
x subcutaneous tissue deep horizontally placed.
(18) Stab wound present over lower 1/3rd of left
front of neck, 0.5 cm. from midline and 2 cm.
below injury no. 17 of size 2 cm. x 1 cm. x
muscle deep obliquely placed, directed
downwards, backwards and-medially. Both
margins and angles sharp.
(19) Stab wound present over left
supraclavicular region at medial part 1.5 cm.
below. injury no.18 and 1 cm. above medial end
of left clavicle of size 2.5 cm x 1 cm x muscle
.....29/-
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deep, obliquely placed, directed downwards and
medially, both margins and angles sharp.
(20) Incised wound present over postero latero
lateral aspect of upper 1/3 right side of neck, 3.5
cm. from tip of right mastoid and 2 cm above
exist wound of injury no.14 of size 3 cm. x 0.5
cm. x muscle deep, obliquely placed tailing
present over upper end of length 1 cm.
(21) Stab wound present over right parasternal
region of chest in 2 inter costal space,1.5 cm.
from midline of size 4 cm x 1 cm x cavity deep,
obliquely placed directed downwards, backwards
and medially both margins and angles sharp.
(22) Stab wound present over right upper chest
in 3 inter costal space 5 cm. above right nipple
and 8 cm. lateral to injury no.21 of size 3 cm. x 1
cm. x cavity deep obliquely placed, directed
backwards and medically both margins and
angles sharp.
(23) Stab wound present over right lateral aspect
of chest in midaxillay line, 8 cm. below and
.....30/-
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30
lateral to right nipple of size 3.5 cm. x 1 cm. x
muscle deep obliquely placed directed upwards
and medially both margins and angles sharp.
(24) Stab wound present over right
hypochondriac region, 12 cm. below right nipple
and 12 cm. from midline of size 1 cm. x 0.5 cm. x
muscle deep obliquely placed both margins and
angles sharp.
(25) Stab wound present over right umbilical
region,5 cm. above umbilicus and 10 cm. Below
and medial to injury no.24 of size 1.5 cm. x 0.5
cm. x muscle deep, obliquely placed, both
margins and angles sharp.
(26) Contused abrasion present over left lower
anterior part of chest 12 cm. below left nipple
and 16 cm from midline of size 3 cm x I cm. dark
red in colour.
(27) Stab wound present over left lateral aspect
of chest between midaxillary and posterior
axillary line 15 cm. below and lateral to injury
no.26 of size 4.5 cm. x 1 cm. x muscle deep,
.....31/-
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31
obliquely placed, directed upwards and medially
both margins and angles sharp.
(28) Stab wound present over left hypochondriac
region 11 cm. from midline and 7 cm below
injury no. 26 of size 3 cm x 1.5 cm. x muscle
deep, obliquely placed directed upwards and
medially both margins and angles sharp.
(29) Stab wound present over left lumber region,
9 cm from midline and 8 cm. below and lateral to
injury no.28 of size 4.5 cm. x 1.5 cm. x cavity
deep, obliquely placed, directed upwards and
medially both margins and angles sharp.
(30) Stab wound present over left lumbar region,
2 cm. below and quely placed, directed upwards
and medially both margins and angles sharp.
(31) Contused (abrasion present over left upper
scapular region, upper end 13 cm. from midline
of size 7 cm x 0.8 cm. dark red in colour.
(32) Stab wound present over, midpart of left
side of back at T12 vertebral level. 11 cm. from
midline of size 2 cm x 1 cm. x cavity deep,
.....32/-
Judgment
520 apeals80 & 110.14
32
obliquely placed, directed forwards,, downwards
and medially both margins and angles sharp.
(33) Incised wound present over lower part of
back in midline extending on left side L3
vertebral level, 10 cm. below and medial to
injury no.32 of size 7.5 cm x 1 cm. x muscle
deep, horizontally placed, tailing present over
left lateral end of size 5 cm.
(34) stab wound present over lower part of back
in midline, at 14 vertebral level, 2 cm below
injury no.33 of size 2.5 cm. x 1 cm. x bone deep,
horizontally placed, directed forwards both
margins and angles sharp.
(35) Contused abrasion present over postero
medial aspect of lower 1/34d of right forearm,
18 cm. below olecranon process of size 3 cm x
0.2 cm. dark red in colour.
(36) Incised wound present over lower 1/3 of
postero aspect of right forearm, 3 cm above wrist
of size 1 cm. x 0.5 cm x muscle deep obliquely
placed.
.....33/-
Judgment
520 apeals80 & 110.14
33
(37) Incised wound present over lower 1/3 of
posteromedial aspect of right forearm, 2cm
medial, to injury no.36 of size 2 cm x 0.5 cm. x
muscle deep, obliquely placed.
(38) Incised wound present over dorsum of right
hand proximally, 2 cm. distal to wrist of size 1.5
cm. x 0.2 cm. x muscle deep obliquely placed.
(39) Incised wound present over dorsum medial
aspect of right hand, 3 cm from ulnar styloid of
size 3 cm x 0.5 cm. x muscle deep obliquely
placed.
(40) Chop wound present over dorsum of right
hand 3.5 cm distal to injury No.38 extending
upto dorsal lateral aspect of proximal pharynx of
right thumb of size 8 cm. x 1.5 cm. x bone deep
obliquely placed, underlying bone cut, bevelling
present over lower margin.
(41) Incised wound present over dorsum of distal
aspect of right hand, 1.5 cm. from injury no.40
and 1 cm. proximal to middle finger knuckle of
.....34/-
Judgment
520 apeals80 & 110.14
34
size 1.5 cm. x 0.5 cm. x muscle deep, obliquely
placed.
(42) Incised wounds, one each over (1) distal
phalanx (ii) Proximal phalanx of dorsum of right
index finger present, distal one is 1.5 cm. from
tip and proximal is l cm from knuckle of sizes 2
cm x 0.5 cm. x bone deep, distal phalanx bone
cut and 2 cm x 0.2 cm. muscle deep both
obliquely placed, respectively.
(43) Three incised wounds present over dorsum
of right middle finger (i) one at proximal
interphalyngeal joint of size 2.5 cm. x 0.5 cm. x
muscle deep, obliquely placed (ii) two at
proximal-phalanx of same size 1cm x 0.2 cm. X
msucle deep both obliquely placed and separated
by a distance of 1 cm.
(44) Incised wound present over knuckle of right
ring finger-of size 1 cm x 0.2 cm. x muscle deep,
horizontally placed.
(45) Chop wound present over proximal phalanx
of forsum of right ring finger 2 cm distal to injury
.....35/-
Judgment
520 apeals80 & 110.14
35
no.44 of size 2cm x 0.5 cm x bone deep,
underlying bone cut, horizontally placed.
(46) Chop wound present over proximal phalanx
of dorsal aspect of right little finger extending
upto knuckle of size 3 cm x 1 cm x bone deep
underlying bone cut, obliquely placed, bevelling
present over distal margin.
(47) Contused abrasion present over lateral part
of left shoulder, 3.5 cm. from tip of size 7.5 cm. x
0.8 cm., dark red in colour.
(48) Contused abrasion present over lateral
aspect of left shoulder extending upto lateral
aspect of upper 1/3 of left arm intermingled with
injury no.47 at its lower part, 1cm from tip of
shoulder of size 9 cm. x 0.8 cm. dark red in
colour.
(49) Contused abrasion present over
posteromedial aspect of middle 1/34d of left
forearm, 13 cam. Below olecranon process of size
3 cm x 2 cm, dark red in colour.
.....36/-
Judgment
520 apeals80 & 110.14
36
(50) Chop wound present over distal 1/34d of
anterior aspect of left forearm 3ema above wrist
joint of size 4.5 cm. x 1.5 cm. x muscle deep
horizontally placed.
(51) Incised wound present over left thenar
eminence of size 6 cm x 0.5 cm. x muscle deep,
obliquely placed.
(52) Incised wound present over left hypothenar
eminence extending towards midpart of palm of
size 7cm x 0.2 cm. x muscle deep obliquely
placed.
(53) chop wound present over palmer aspect of
base of left lile finger involving medial aspect of
right finger of size 4 cm x 1 cm x bone deep
underlying bone cut obliquely placed.
(54) Chop wound present over left little finger
medially extending from tip upto proximal
phalanx, 1cm distal to injury no.53, vertically
placed of size 4 cm x 0.5 cm x bone deep
underlying bone cut.
.....37/-
Judgment
520 apeals80 & 110.14
37
(55) Incised wound present over proximal
phalanx of palmer aspect of left thumb of size 3
cm x 0.2 cm. x subcutaneous tissue deep,
horizontally placed.
(56) Incised wound present over dorsolateral
aspect of distal phalanx of left thumb of size 3 cm
x 0.5 cm. x muscle deep, obliquely placed.
(57) Incised wound present over dorsal aspect of
proximal phalanx of left index finger of size 4.5
cm. x 0.5 cm. x muscle deep. obliquely placed.
(58) Incised wound present over knuckle of left
little finger of 2:cm x 0.5 cm. x muscle deep,
obliquely placed.
(59) Stab wound present over anterior aspect of
middle 1/3 of left thigh 28 cm.. Below anterior
superior iliac spine of size 1.5 cm. x 0.5 cm. x
muscle deep, obliquely placed, directed
backwards and medially both margins and angles
sharp.
(60) Stab wound present over middle 1/3rd of
medial aspect of left thigh 10 cm below and
.....38/-
Judgment
520 apeals80 & 110.14
38
medial to injury no.59 of size 2 cm x 0.5 cam. X
muscle deep, obliquely placed directed
backwards and laterally.
(61) Stab wound present over middle 1/3 of
lateral aspect of back of left thigh,28 cm. below
anterior superior iliac spine of size 3 cm x1 cm x
muscle deep obliquely placed, directed forwards,
both margins and angles sharp.
(62) Stab wound present over middle 1/3 of
back of left thigh 5 cm below injury no.61 of size
3 cm x 1 cm. muscle deep obliquely placed,
directed forwards both margins and angles sharp.
(63) Incised wound present over lateral aspect of
upper part of left knee at from of size 4.5 cm. x
0.5 cm. x subcutaneous tissue deep, horizontally
placed.
(64) Incised wound present over midpart of front
of left knee 3 cm below injury nol.63 of size 3 cm
x 1cm x subcutaneous tissue deep, horizontally
placed.
.....39/-
Judgment
520 apeals80 & 110.14
39
(65) Contused abrasion present over
anterolateral aspect of upper part of left leg 5 cm
below injury no.64 of size 7 cm x 1cm dark red in
colour."
As per his evidence, all the injuries were
antemortem. On internal examination, he noticed following
injuries:
"(1) Skull Vault: i) The cut mark present over
left frontal bone of length 4 cm, ii) Cut mark
present over left parieto occipital bone of length
6 cm iii) another cut mark present over left
parieto occipital bone, 3 cm above 1 cut mark as
described in (2) extending upto midline of
length 4.5 cm iv) cut mark present over left
zygomatic temporal bone of length 6 cm
corresponding to the injury nos. (2)(3)(4) and
(9) respectively mentioned in column no.17 of
postmortem report.
.....40/-
Judgment
520 apeals80 & 110.14
40
(2) Meninges: Intact, pale. Differ subarachnoid
hemorrhage present over both parieto occipital
cerebral center as a thin red blood film.
(3) Walls, ribs, cartilages: (1) Cut marks present
over ribs on right side from 2nd to 3rd ribs in
parasternal region, from 3rd to 4th rib in
midaxillary line corresponding to injuries nos.
21, 22 and 23 respectively as mentioned in
column no.17(2) cut marks present over ribs on
left side in posterior axillary line from 9 th to 10th
ribs corresponding to injury no.27 mentioned in
column no.17.
(4) Pleura: Pale cut marks present over anterior
surface of pleura on right side corresponding to
injury nos.21 and 22 mentioned in column
no.17.
(5) Trachea: Intact.
(6) Right lung: Pale, partially collapsed, stab
wounds present over medial aspect and
anterolateral aspect of right upper lobe of lung
corresponding to injury no.21 and 22 mentioned
.....41/-
Judgment
520 apeals80 & 110.14
41
in column no.17 right pleural cavity contains
about 800 ml of blood and blood clots.
(7) Large Vessels: Cut present over common
carotid artery. Internal jugular vein and other
small vessels on right side of neck corresponding
to injury no.14 mentioned in column no.17.
(8) Peritoneum: Cut mark present over left side
of peritoneum corresponding to injury no.29
mentioned in column no.17.
(9) Cavita contains about 1.5 liter of blood and
blood clots mixed with fecal matter.
His evidence further shows that injury Nos.2-6
and 9-12 mentioned in column No.17 were corresponding
to the internal injuries mentioned in column No.19. Injury
No.14 with its damage is mentioned in column Nos.20 and
21. Injury Nos.21 and 22 with their internal damage are
mentioned in column No.20 and injury Nos.29 and 32 with
their corresponding internal damage mentioned in column
No.21. All these injuries mentioned above were sufficient to
.....42/-
Judgment
520 apeals80 & 110.14
42
cause death in ordinary course of nature. The cause of
death is due to injuries to vital organs. The said
postmortem notes are in handwriting of his Assistant Doctor
Ghormade. Accordingly, he issued postmortem notes
Exh.100-A.
As far as his cross examination is concerned, the
cause of death is not seriously challenged by the defence.
The nature of death is homicidal one is not challenged by
the defence. The cross examination shows that maximum
injuries on the person of the deceased were on front side.
He admitted that injuries mentioned at Sr.Nos.35, 47, 49,
and 65 in postmortem report are not possible by the
weapons shown to him.
Thus, an attempt was made to show that injuries
sustained by the deceased were on the front side and some
of injuries are not possible by weapon like "swords",
.....43/-
Judgment
520 apeals80 & 110.14
43
"guptis", and "knives", recovered at the instance of the
accused.
14. Besides the evidence of Medical Officer PW9
Dr.Manish Shrigiriwar, the prosecution further placed
reliance on inquest panchanama Exh.98. As per the inquest
panchanama, on the dead body of the deceased, multiple
injuries are seen by panchas, which are mentioned in the
said panchanama. The said inquest panchanama is not
challenged by the defence.
15. Thus, the evidence of Medical Officer PW9
Dr.Manish Shrigiriwar, substantiated by the inquest
panchanama Exh.98, shows that the deceased has sustained
multiple injuries, which are sufficient to cause death in the
ordinary course of nature. The internal injuries are
corresponding to the external injuries.
.....44/-
Judgment
520 apeals80 & 110.14
44
16. The evidence of Medical Officer PW9 Dr.Manish
Shrigiriwar is not only opinion evidence but also his
evidence is in the nature of direct evidence as he has an
opportunity to see injuries on the person of the deceased.
17. 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 vs. Sunil Chandra Roy and
another, reported at 1960 SCR (3) 1 wherein it has been
observed as under:
"The value of a medical witness is not merely
a check upon the testimony of eye witness; it
is also independent testimony, because it may
establish certain facts , quite apart from the
other oral evidence . If a person is shot at
closed range the marks of tattooing found by
the medical witness would show that the
.....45/-
Judgment
520 apeals80 & 110.14
45
range was small, quite apart from any other
opinion of his. Similarity, fractures of bones,
depth and size of the wounds would show the
nature of the weapon used. It is wrong to say
that it is only opinion evidence; it is often
direct evidence of the facts found upon the
victims' person."
Thus, testimony of medical witness is very
important and it can be safely accepted.
18. In recent judgment also, The Hon'ble Apex Court
in the case of Anuj Singh @ Ramanuj Singh @ Seth Singh
vs. The State of Bihar, reported in 2022 Live Law (SC) 402
dealt with the "evidentiary value" of the medical evidence
and observed that, "the evidentiary value of a medical
witness is very crucial to corroborate the case of prosecution
and it is not merely a check upon testimony of eyewitnesses,
it is also independent testimony, because it may establish
certain facts, quite apart from the other oral evidence. It has
.....46/-
Judgment
520 apeals80 & 110.14
46
been reiterated by this court that the medical evidence
adduced by the prosecution has great corroborative value as
it proves that the injuries could have been caused in the
manner alleged".
19. Thus, testimony of medical witness is very
important and it can safely be accepted.
20. The evidence adduced by the medical officer,
corroborated by the inquest panchanama, shows that the
deceased died homicidal death.
21. The entire case of the prosecution is based on the
direct evidence of PW4 Amol Kumbhalkar; PW5
Dhnyaneshwar Dhapekar; PW6 Suman Devgune, and
eyewitness PW7 Subhash Parde. Besides the direct
evidence, the prosecution has also placed reliance on the
evidence of informant PW1 Deva @ Devdas Laxman
Shendekar on extra judicial confession of accused Devanand
.....47/-
Judgment
520 apeals80 & 110.14
47
Chaitram Kuhikar and the circumstantial evidence i.e. the
blood stained clothes recovered at the instance of the
accused, blood stained weapons recovered at the instance of
accused Santosh Chaitram Kuhikar and acquitted accused
Jitendra.
22. The evidence of informant PW1 Deva @ Devdas
Laxman Shendekar, who is brother of the deceased,
deposed that the accused persons namely accused Nos.2 to
6 are residents of the same locality and, therefore, he is
acquainted with them. He further deposed that on
19.1.2011, at about 9:00 pm, the accused persons came to
his house holding swords in their hands. Amongst them,
accused Devanand Chaitram Kuhikar told that they have
killed his brother. Thereafter, they caused damages to glass
of windows and, thereafter, left the place. Subsequent of
leaving the place by the accused persons, Anand Jatap
informed him that his brother is killed in Rajgire Lane in
.....48/-
Judgment
520 apeals80 & 110.14
48
front of grocery shop by the accused persons. He
immediately rushed to the spot and saw his brother lying in
pool of blood and sustained injuries on all over his body.
PW4 Amol Kumbhalkar was sitting near the dead body of
his brother, who has also sustained injuries. PW4 Amol
Kumbhalkar informed him that the accused persons killed
his brother by assaulting him with swords and when he
attempted to intervene, he was also assaulted by the
accused persons. He immediately rushed to the police
station. The police have already received the information
about the incident. Immediately, the police came along with
him at the spot, prepared the spot panchanama, seized
articles from the spot and, thereafter, again took him to the
police station and recorded his report, which is at Exh.72
and the FIR is at Exh.73.
His evidence further shows that the spot of the
incident was approximately 300 feet away from his house.
.....49/-
Judgment
520 apeals80 & 110.14
49
Accused Nos.2 to 6 are residing since birth near to his house
and accused Mahesh Natthuji Devgune is their nearest
relative. The reason behind the assault is narrated by him
that on 17.1.2011 there was a quarrel between accused
Rajesh Ramprasad Kuhikar and his another brother Guddu
on account of money. There was abusing and altercation on
that count also. He has identified weapons swords Articles-
1 and 2 and "knive" Article-4 and also identified the
accused.
Informant PW1 Deva @ Devdas Laxman
Shendekar, is cross examined at length. His cross
examination shows that he is residing in a thick locality and
his residence is near the spot of the incident. It further
came on record that PW5 Dhnyaneshwar Dhapekar; PW6
Suman Devgune, and eyewitness PW7 Subhash Parde are
his nearest relatives. It further came in his cross
examination that the police did not draw the panchanama
.....50/-
Judgment
520 apeals80 & 110.14
50
regarding the spot where the window glasses were broken.
Rest of the cross examination shows that when he initially
went to the police station, he disclosed the incident to the
police which he was knowing and he was in the police
station for 15 minutes. He also admitted that he went to
the police station from the spot and at that time he stayed
there upto 4:00 am and after recording of the FIR, he
returned home. He denied the suggestion that when he
reached the spot, PW4 Amol Kumbhalkar was not present
there.
An omission is brought on record during the
cross examination for accused No.3 that while lodging the
report, he has not stated to the police that accused Sanjiv
Shankar Kuhikar, Sheshrao Ramdas Kuhikar, and Rajesh
Ramprasad Kuhikar killed his brother. He has not stated to
the police while lodging the report that all the accused
persons are residing in front of his house since their birth.
.....51/-
Judgment
520 apeals80 & 110.14
51
During the cross examination on behalf of accused Nos.4, 5
and 6, he denied suggestion that due to night, he could not
see clearly anyone of the accused persons.
Thus, from the cross examination, an attempt
was made to show that there is omission as far as as his
acquaintance with the accused persons is concerned and
there is delay in disclosing names of the assailants. Though
an omission is brought on record that he has not stated in
the FIR that the accused persons are residing near to his
house, recital of the FIR shows that he has stated as to the
residence of the accused persons in the same locality in a
different manner.
23. To corroborate the version of informant PW1
Deva @ Devdas Laxman Shendekar, the prosecution has
examined PW4 Amol Kumbhalkar vide Exh.89. Though he
is injured eyewitness, he has left loyalty towards the
.....52/-
Judgment
520 apeals80 & 110.14
52
prosecution and not supported the prosecution case.
However, as far as his evidence, regarding injuries on his
person, is concerned, he only left loyalty towards the
prosecution to the extent of involvement of the accused
persons. His evidence shows that on 19.1.2011, between
9:00 pm and 10:00 pm, when he was near the house of
Rajgire, and the deceased was also sitting near the house of
Rajgire, they were attacked and he has sustained injuries in
the said attack. His cross examination by learned APP
shows that he used to talk to the deceased. Kuhikar family
resides near the house of the deceased. Accused Sanjiv
Shankar Kuhikar, Santosh Chaitram Kuhikar, Devanand
Chaitram Kuhikar, and Sheshrao Ramdas Kuhikar are
members of Kuhikar family and accused Mahesh Natthuji
Devgune,and acquitted accused Jitendra are also residents
of the same locality. He has also admitted his acquaintance
with the deceased as well as the accused persons. However,
.....53/-
Judgment
520 apeals80 & 110.14
53
he has shown ignorance as to dispute between Kuhikar
family and family of the deceased. He denied suggestion of
learned APP that he was assaulted by the accused persons.
24. The evidence of eyewitnesses PW5
Dhnyaneshwar Dhapekar examined vide Exh.91, shows that
on 19.1.2011, at about 8:30 pm, the deceased was sitting in
front of the house of Rajgire. The deceased is his cousin. At
the relevant time, he was in his house and 4-5 persons killed
the deceased, those were Mahesh Natthuji Devgune, Sanjiv
Shankar Kuhikar, Santosh Chaitram Kuhikar, Devanand
Chaitram Kuhikar, and Jitendra who were possessing two
swords and three guptis. He specifically stated that accused
Santosh Chaitram Kuhikar and Devanand Chaitram Kuhikar
were holding swords and Jitendra, Mahesh Natthuji
Devgune and Sanjiv Shankar Kuhikar were holding "guptis"
in their hands. After the assault, they left therefrom. Friend
of the deceased PW4 Amol Kumbhalkar also sustained
.....54/-
Judgment
520 apeals80 & 110.14
54
injuries in the said incident. The deceased sustained
injuries all over his body. He further stated that the
deceased along his friend PW4 Amol Kumbhalkar was
sitting on vehicle in front of the house of Rajgire. At that
time, they were assaulted by the accused persons. He has
identified the accused persons and specifically stated that
swords held by Santosh Chaitram Kuhikar and Devanand
Chaitram Kuhikar, which are at Articles-1 and 2, weapons,
which are at Articles-3 and 4, are also identified by him.
His cross examination for accused No.3 shows
that when, initially, the police came at the spot, he did not
disclose the police that he has seen the incident and identify
the assailants. After three days of the incident, when the
police came to him for enquiry, he disclosed the said
incident to the police. He specifically admitted that the
incident, which he has narrated to the police after three
days of the incident, was narrated by him in his house. The
.....55/-
Judgment
520 apeals80 & 110.14
55
police recorded his statement after 3-4 days of the incident
and that is the only statement recorded by the police.
Thus, from this cross examination, an attempt
was made to show that despite he was aware about the
incident, he himself has not disclosed about the incident to
the police and when the police approached him, he has
disclosed the incident to the police. There is a delay in
recording statement of eyewitness. The eyewitness is the
nearest relative of the deceased and, therefore, his evidence
is to be scrutinized on the aspect that despite he was aware
about the incident, he has not disclosed though he was
having an opportunity to disclose the same.
Further cross examination of this witness shows
that the incident took place in a thick locality. There are
various houses near the house of Rajgire in front of whose
house the alleged incident has taken place. It further came
.....56/-
Judgment
520 apeals80 & 110.14
56
in the cross examination that the incident was going on for
about twenty minutes. He specifically stated that doors of
all houses were closed and nobody came out of house.
Thus, the cross examination shows that the incident
was of such a nature that nobody dared to came at the place
of the incident.
On behalf of cross examination of accused No.1,
it only came on record that he has never visited the house of
accused Mahesh Natthuji Devgune and Mahesh is not living
nearby houses. Rest of cross examination is in denial form.
An omission was brought on record to the extent
that he has stated before the police while recording the
statement that accused Sanjiv Shankar Kuhikar was holding
"gupti" in his hand, which is not narrated by him.
Further omissions are brought on record that he
has not stated before the police that the deceased was
.....57/-
Judgment
520 apeals80 & 110.14
57
sitting in front of the house of Rajgire and accused Jitendra
and Sanjiv Shankar Kuhikar were holding "guptis" in their
hands. He has witnessed Jitendra assaulting the deceased
and PW4 Amol Kumbhalkar.
Perusal of the statement reveals that sum and
substance is narrated by him that when he was at house at
about 9:15 pm, 6-7 persons came and assaulted the
deceased and PW4 Amol Kumbhalkar.
Thus, he has not stated that the deceased was
sitting in front of the house of Rajgire, but he has stated that
the accused persons were holding weapons in their hands
like "swords" and "guptis" and they have assaulted the
deceased and injured PW4 Amol Kumbhalkar.
25. PW6 Suman Devgune, is another eyewitness,
who is sister of the deceased. As per her evidence on
19.1.2011, at about 9:15 to 9:30 pm, when she went near
.....58/-
Judgment
520 apeals80 & 110.14
58
the lane of Rajgire to call her brother for dinner, she
witnessed the accused persons assaulting her brother. They
were holding "swords", "knives", and "guptis". She has also
stated about presence of PW4 Amol Kumbhalkar at the spot
and stated that when Amol intervened to rescue her brother,
he was assaulted by the accused persons. Thereafter, her
brother was lying in pool of blood. The nearby residents out
of fear shut down doors and windows of their houses and
they were viewing the incident from the galleries and
thereafter, the accused persons fled away. As she was
frightened, she sat there for some time and, thereafter, left
for home. Her cross examination shows that PW4 Amol
Kumbhalkar was present there and standing there, which is
witnessed by her. The shop of Rajgire was closed. She
further admitted that Amol Kumbhalkar was lying in
injured condition at the spot. After the incident, she stayed
there for 5-10 minutes and left for her home. When she
.....59/-
Judgment
520 apeals80 & 110.14
59
reached home, informant PW1 Deva Shendekar was not at
home, but he met her at the spot. She clarified during the
cross examination that after informing her mother about
the incident, she returned to the spot at that time she met
PW1 Deva. She has not narrated the incident to PW1 Deva.
During her cross examination, omissions are
brought on record that she has not stated that she is
residing along with her brothers. She has also not stated
that on 17th there were altercations between her brother
Guddu and accused Rajesh Ramprasad Kuhikar. She has
also not stated that the accused persons are residing nearby
to her house and accused Mahesh Natthuji Devgune is
residing nearby the Corporation School in their locality
and, therefore, she recognized them. She has not stated
that nearby residents, out of fear, shut down doors and
windows of their houses. She has explained that after the
incident, the police had come to her house, but she was not
.....60/-
Judgment
520 apeals80 & 110.14
60
in a condition to talk. Thus, she has explained that why she
has initially not narrated the incident to the police.
The cross examination on behalf of accused
Nos.4 to 7 shows that the police were enquiring many
people at the spot. She did not go to the police station at
that night. She further admitted that when the police were
coming, they were communicating with Deva. It further
came in her cross examination that as she was not feeling
well, after the incident, she was treated in the hospital and
her family members were knowing about her ill-health. She
denied the suggestion that the accused persons are not
residing near to her house.
26. Eyewitness PW7 Subhash Parde, has not
supported the prosecution case and left the loyalty towards
the prosecution to the extent that he has witnessed any
incident.
.....61/-
Judgment
520 apeals80 & 110.14
61
27. PW8 Chanda Shendekar, the wife of informant
PW1 Deva @ Devdas Laxman Shendekar, has narrated
about the incident that after the incident, all the accused
persons came to her house and amongst them accused
Devanand Chaitram Kuhikar disclosed that they have killed
the deceased and the accused persons have broken glass of
window at their house. Thereafter, she gave a phone call
by dialing No.100 and informed the police about the attack
on their house. Though extensive cross examination was
carried out, nothing incriminating is brought on record.
She has only admitted that broken glasses of window were
lying there for 3-4 days. They have not picked up those
pieces of glass and kept in their house.
Some omissions are also brought on record
during her cross examination.
.....62/-
Judgment
520 apeals80 & 110.14
62
28. The circumstance, on which the prosecution
placed reliance, is of PW2 Tarachand Aherwar, who acted as
pancha on memorandum statements of accused Santosh
Chaitram Kuhikar and acquitted accused Jitendra at whose
instance incriminating weapons are recovered.
29. The evidence of PW2 Tarachand Aherwar shows
that he along with one Ishant acted as pancha. In their
presence, accused Santosh Chaitram Kuhikar gave
memorandum statement that two "swords" and one "gupti"
are concealed under a tyre in the locality and he would
show the place. Accordingly, his memorandum statement
was reduced into writing, which is at Exh.77. Then, he
along with another pancha, police, and the accused
proceeded in a Government vehicle. The accused led them
via Golibar Square and asked to stop the vehicle at Ravidas
Temple near his house. Thereafter, the accused was leading
them and he took them near the house of one Jagdish
.....63/-
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520 apeals80 & 110.14
63
Pathane, where there was a heap of tyres from which the
accused produced two blood stained "swords" and one
"gupti". The police seized the said weapons. One "sword"
was without handle, one "sword" was having brass metal,
and there was one "gupti." Accordingly, seizure
panchanama Exh.78 was done. He has identified accused
Santosh Chaitram Kuhikar at whose instance the weapons
were recovered and he has also identified the weapons
recovered in his presence.
His further evidence shows that another accused
Jitendra also made a statement in his presence that he has
concealed the clothes, which were on his person at the time
of the incident, and the weapons in his house. Accordingly,
his memorandum statement was recorded in their presence,
which is at Exh.79. Thereafter, he led them at his house and
produced the clothes and the weapons kept in article like
container beneath kitchen platform of his house. The said
.....64/-
Judgment
520 apeals80 & 110.14
64
weapon "knife" was seized in their presence as well as the
clothes were seized. Accordingly, panchanama was drawn,
which is at Exh.80. He has identified Jeans Pant Article-19
and T-Shirt Article-20 as well as "knife".
The cross examination of this witness shows that
he is relative of informant PW1 Deva Shendekar. On
22.1.2011, the police had been to the house of the
informant and asked him to act as pancha. He has admitted
that he has not received any summons from the police to act
as pancha. Except this cross examination, nothing is
brought on record as far as memorandum statement and
discovery at the instance of the accused are concerned.
Thus, the evidence of PW2 Tarachand Aherwar
shows that in his presence two "swords" and one "gupti" at
the instance of accused Santosh Chaitram Kuhikar and one
.....65/-
Judgment
520 apeals80 & 110.14
65
"knife" at the instance of accused Jitendra and blood
stained clothes are seized.
30. To corroborate the version of the prosecution,
the prosecution has also adduced the medical evidence by
examining PW9 Dr.Manish Shrigiriwar. His evidence as to
homicidal death is already discussed. The evidence of PW9
Dr.Manish Shrigiriwar further shows that he received query
from the investigating along with weapons. He examined
the said weapons and opined that the "iron-swords" with
handles are sharp pointed and heavy. The blades of the said
"swords" were curved at distal part. The length of the same
is 78.5, maximum breadth is 3 cm, maximum thickness is 4
mm, tip of the weapons was sharp and pointed, edges distal
1/3 upto 17 cm, both edges sharp from tip, and one edge -
blunt and other edge sharp portion of blade near handle for
length 14 cm, having both blunt edges. He has also drawn
diagrams of the said weapons. He has further observed that
.....66/-
Judgment
520 apeals80 & 110.14
66
the surface of the blade was blood stains and rust. The
stains are present over surface of the blade at places and
advised for chemical analysis. He has further opined that
cut marks present over clothes mentioned in column No.7
with injury Nos.1 to 5; 7 to 9, 13 to 25, 27 to 30, 32 to 34,
36 to 46, and 50 to 64 mentioned in column No.17 and
internal damage mentioned in column No.19, 20, and 21 of
the postmortem report can be possible with such kind of
weapon.
The another weapon was also examined by him
which was "iron-sword" sharp pointed, and heavy,
dangerous, if used as weapon of the offence. The length of
the said "iron sword" was 61 cms, maximum breadth was
3.8 cms, maximum thickness was 4 mm, tip was sharp and
pointed, one edge sharp and another edge blunt, and one
triangular projected end present near handle, the part of
length 6 cms, maximum breadth 1.4 cms and maximum
.....67/-
Judgment
520 apeals80 & 110.14
67
thickness 4 mm. He has also drawn a diagram of the said
weapon also. He has further observed that surface of the
weapon was rough, blood stains, and rust stains. He has
advised for chemical analysis. He opined cut marks present
over clothes mentioned in column No.7 with injury Nos.1 to
5, 7 to 9, 13 to 25, 27 to 30, 32 to 34, 36 to 46, and 50 to
64 mentioned in column No.17 and internal damage
mentioned in column Nos.19, 20 and 21 of the postmortem
report can be possible with such kind of weapon.
Another weapon examined by him is "gupti" with
handle, sharp, pointed, light, and dangerous, if used as
weapon of offence. The length of the same is 31 cms,
maximum breadth 2 cms, maximum thickness 3 mm, tip
sharp and pointed, both edges are sharp upto 10.5 cms from
tip, and white stains and rust stains present over the surface
of places. He advised for chemical analysis. He opined cut
marks over clothes mentioned in column No.7 with injury
.....68/-
Judgment
520 apeals80 & 110.14
68
Nos.1, 7, 8, 15 to 20, 22, 24, 25, 30, 32, 33, 34 to 39, 41 to
44, 51, 52, and 55 to 64 mentioned in column No.17 and
internal damage mentioned in column No.21 of postmortem
report can be possible with such kind of weapon. He has
also drawn diagram of the said weapon. His query report
further shows that all three weapons are signed, packed,
sealed and handed over to Police Constable Sanjay (Bakkal
No.3570) from police station tahsil. The evidence of PW9
Dr.Manish Shrigiriwar further shows that he has received
three sealed packets containing weapons with Mal No.10/11
from the Tahsil Police Station.
Thus, his evidence shows that when he received
the weapons, the same were in a sealed condition and while
re-sending the same, he has again signed, sealed, and,
thereafter, handed over to Police Constable Sanjay.
.....69/-
Judgment
520 apeals80 & 110.14
69
As far as his cross examination on the aspect of
query report is concerned, he has admitted that even
roughly he has not measured number of stains over the
blades. He explained that it does not fall under his purview.
He has admitted that he cannot specifically state that which
injury is caused by which weapon.
Except this cross examination, nothing
incriminating is brought on record by the defence counsel.
31. Another witness i.e. PW3 Atul Suresh Mahajan is
examined to prove the seizure memos regarding the clothes
of the accused persons which were on their person. As per
his evidence, on 20.11.2011, he was called at the Tahsil
Police Station. The police took him to the Mayo Hospital
wherein the police seized white-shirt, black-colour-jeans,
and underwear of the deceased. Accordingly, the police
prepared seizure panchanama and the said seizure
.....70/-
Judgment
520 apeals80 & 110.14
70
panchanama is at Exh.82. The police have also seized the
blood samples of the deceased in his presence and seizure
memo was prepared in his presence. The police seized the
clothes of the accused in the police station in his presence.
Thereafter, the said witness has not supported the
prosecution case and, therefore, with the permission of the
court, learned APP was permitted to cross examine the
witness.
During his cross examination, he stated that
along with him another pancha Indranath Khinchi was
present. In their presence, Police Constable Kishore
produced blood samples of accused Rajesh Ramprasad
Kuhikar. Accordingly, seizure memo was prepared, which is
at Exh.83. On the same day, one embroidery white-colour-
blood stained shirt and one black-colour lining pant stained
with blood were seized from accused Devanand Chaitram
Kuhikar and all these articles were seized in his presence
.....71/-
Judgment
520 apeals80 & 110.14
71
and in presence of another pancha by the police. The
seizure memo is at Exh.84. His evidence further shows that
on the same day, the police have seized black-colour half
shirt and brown colour half-pant from accused Sheshrao
Ramdas Kuhikar by drawing seizure memo Exh.85. On the
same day, the police seized purple colour T-Shirt and
greenish colour blood stained pant from accused Mahesh
Natthuji Devgune. The police prepared its seizure
panchanama, which is at Exh.86. On the same day, the
police seized two pockets embroidery full-shirt and faint
blue colour jeans pant from accused Sanjiv Shankar
Kuhikar. The seized shirt was blood stained. The said
seizure memo is at Exh.87. On 22.1.2011, the police called
him and in his presence, seized blood samples of accused
Jitendra by drawing seizure memo Exh.88. His cross
examination shows that his house is at a distance of half
kilometer from the Tahsil Police Station. Another pancha is
.....72/-
Judgment
520 apeals80 & 110.14
72
also from his locality. He has admitted that whenever the
Tahsil Police Station requires witness, they called him on
telephone to work as a pancha. He has also worked as a
pancha in Lakadganj Police Station. He acted as a pancha
at about 10-12 times. He has also admitted that whenever
he was called to act as a pancha, that time another pancha
Khinchi was also working with him as co-pancha.
Thus, from the cross examination, learned
defence counsel attempted to show that the pancha
witness, who is examined by the prosecution, has acted as a
pancha in various cases and, therefore, he is habitual
pancha.
32. As per the prosecution case, the statement of
PW4 Amol Kumbhalkar is also recorded by the Executive
Magistrate and, therefore, Executive Magistrate PW12
Pandurang Warkhade was examined as PW4 Amol
.....73/-
Judgment
520 apeals80 & 110.14
73
Kumbhalkar survived from the injuries and, therefore, the
said statement is to be treated as statement under Section
161 of the CrPC.
33. Medical Officer PW13 Dr.Naina Dhumale, is
examined by the prosecution to explain the injuries of
accused Mahesh Natthuji Devgune. Her evidence shows
that on 19.1.2011 she was on duty as Medical Officer in
Government Medical College and Hospital. Police Naik
Totaram (Bakkal No.3069) brought accused Mahesh
Natthuji Devgune to the hospital for his physical
examination. Accordingly, she examined him and found
injuries on his person, one incised wound around 6 cms
over his right little finger and ring finger. She referred him
to orthopedic expert. The size of the injury caused on right
little finger was measuring 6 cms x 1 cm. The injury was
caused within 24 hours. As per the report of the orthopedic
expert, the injury was fracture 5th metacarpal bone. It was
.....74/-
Judgment
520 apeals80 & 110.14
74
a grievous injury and caused by any sharp object. She
issued the MLC, which is at Exh.146. Her evidence shows
that she has examined the injured at 10:10 pm on
19.1.2011. Her cross examination shows that he has given
history of assault. The medical certificate of accused
Mahesh Natthuji Devgune is at Exh.146, which also shows
that he was examined on 19.1.2011 at 10:10 pm. The
alleged incident has taken place, as per the prosecution,
between 9:15 and 9:30 pm on 19.1.2011. In the medical
examination of the accused, before his arrest on 19.1.2011
at 10:10 pm, though the medical officer has stated that he
has given history of assault, the medical certificate nowhere
shows that he has given any history of assault before her.
34. PW14 Dr.Mamta Sonsare, is examined to prove
the medical certificate of accused Sanjiv Shankar Kuhikar.
As per her evidence, on 19.1.2011, when she was on duty,
at about 10:00 pm, accused Sanjiv Shankar Kuhikar was
.....75/-
Judgment
520 apeals80 & 110.14
75
brought to the police station by Police Constable Totaram.
She examined him and found injuries on his right cheek. It
was incised wound. Since the injury was big, she referred
him to ENT Expert. On the report of the expert, she opined
that the injury was measuring 8 cms x 1 cm x 1 cm. The
injury was extending from tragus upto zygomatic procesus.
It was simple in nature. It was fresh and caused within one
hour. The injury may be caused by sharp point cutting
object. In her cross examination, she has admitted that the
patient had given her history of assault. It further shows
that the police referred the injured with a requisition for
examination.
Thus, the cross examination of PW14 Dr.Mamta
Sonsare also shows that the incident had occurred on
19.1.2011. On the same day, at about 10:00 pm, accused
Sanjiv Shankar Kuhikar was examined as he was referred
by the police along with requisition and on examination,
.....76/-
Judgment
520 apeals80 & 110.14
76
the injury was found on his person. Though she has
admitted that the patient has given history of assault,
admittedly, the same was not mentioned in the medical
certificate, which is at Exh.148.
35. Thus, by examining these two witnesses Medical
Officers PW13 Dr.Naina Dhumale and PW14 Dr.Mamta
Sonsare, the prosecution has explained the injuries of two
accused Mahesh Natthuji Devgune and Sanjiv Shankar
Kuhikar.
36. Coming to the evidence of Investigating Officers
PW10 Sudhir Nandanwar and PW11 Anil Pawar, it shows
that they have narrated about the investigation carried out
by them.
The evidence of PW10 Sudhir Nandanwar shows
that on 19.1.2011 he was working as Senior Police Station
Officer. One person namely Deva @ Devdas Laxman
.....77/-
Judgment
520 apeals80 & 110.14
77
Shendekar approached the police station and informed that
his brother is killed. At the same time, he received the
information from the control room that murder is
committed in "Timki Area". Accordingly, an entry was
taken by him in the station diary. He along with informant
PW1 Deva Shendekar went at the spot of the incident. On
the spot, the brother of informant PW1 Deva @ Devdas
Laxman Shendekar was found lying dead. He has sustained
numerous injuries on his person. Informant PW1 Deva
Shendekar informed the names of the accused persons in
the police station as well as at the spot of the incident.
Immediately, he communicated the names of the accused
persons to the Detection Branch Squad and directed them to
search the accused. He has also directed API PW11 Anil
Pawar to draw panchanama of scene of occurrence and
forwarded the dead body of the deceased for autopsy. As
the situation due to the murder was tensed, he deployed
.....78/-
Judgment
520 apeals80 & 110.14
78
some police in the area and then went to the police station
along with informant PW1 Deva Shendekar. Thereafter, API
PW11 Anil Pawar obtained report of informant PW1 Deva
Shendekar and then the crime was registered. Thereafter,
he took the investigation in his hands and in the midnight,
he arrested five accused persons. The officials of the
Detection Branch Squad produced five accused before him
and, thereafter, he arrested them. The arrest panchanamas
are at Exhs.102 to 106. On the next day, he prepared the
spot panchanama Exh.98. On 20.1.2011, he arrested
accused Rajesh Ramprasad Kuhikar as per Exh.107. He has
also seized the clothes of the accused persons which were
on their person at the time of the incident. The said seizure
panchanamas are at Exhs.84 to 88 and 108. He has also
collected blood samples of the accused by seizure memo.
He has also issued letter to the medical officer to record the
statement of injured and through the Executive Magistrate
.....79/-
Judgment
520 apeals80 & 110.14
79
also, he recorded the statement. He got recorded the
statement of injured PW4 Amol Kumbhalkar. He further
stated that accused Santosh Chaitram Kuhikar, while in
custody, gave a memorandum statement in presence of
panchas that he has concealed two "swords" used in the
crime in the heap of tyres near his house and is ready to
produce the same. Accordingly, his statement was recorded
in presence of panchas, which is at Exh.77. Thereafter,
accused Santosh Chaitram Kuhikar led them towards his
house and near his house, there was a heap of tyres from
which he has produced two "swords" and one "gupti"
having blood stains on it. Accordingly, panchanama was
drawn, which is at Exh.78. His evidence further shows that
at the instance of acquitted accused Jitendra, on the basis
of his memorandum statement Exh.79, the "knife" and his
blood stained clothes were discovered, which are at
Exhs.79 and 80. Thereafter, he recorded the statements of
.....80/-
Judgment
520 apeals80 & 110.14
80
relevant witnesses. On 24.1.2011, he has recorded
statements of eyewitnesses PW5 Dhnyaneshwar Dhapekar
and PW7 Subhash Parde. On 28.1.2011, he sent clothes of
the accused persons and the deceased and their blood
samples for chemical analysis. On 31.1.2011, he recorded
the statement of another eyewitness PW6 Suman Devgune.
He has sent the weapons used in the commission of the
crime to the medical officer for opinion along with query.
The said query report is at Exh.102 dated 18.3.2011. After
completion of the investigation, he submitted the
chargesheet against the accused persons.
His cross examination shows that the
information given by informant PW1 Deva Shendekar was
cognizable offence. He is aware that soon after the
information of the cognizable offence, the FIR is required to
be registered. He further admitted that in the present case
registration of the FIR was kept reserved. He has admitted
.....81/-
Judgment
520 apeals80 & 110.14
81
that he has not attached separate entry of the information
received about the incident in station diary because it was
mentioned in spot panchanama. His cross examination
further shows that when for the first time he reached the
spot of the incident, there was a crowd. He enquired about
the eyewitnesses of the incident, but he did not find any
eyewitnesses of the incident. From both sides of the spot of
the incident, there are residential houses. Prior to
24.1.2011, except injured PW4 Amol Kumbhalkar, he did
not find any eyewitness. Since night of 19.1.2011 till
23.1.2011, he visited the "Timki Locality" for the purpose
of the investigation and his investigation was to find out
whether there was any eyewitness. When he visited the
house of informant PW1 Deva Shendekar, at that also, he
has enquired as to whether there was any eyewitness to the
said incident from his family. The law and order was
disturbed in the locality where the incident took place and,
.....82/-
Judgment
520 apeals80 & 110.14
82
therefore, police men were deployed in that locality and,
therefore, the witnesses were not coming forward to give
their statements. Hence, he could not record statements of
eyewitness PW5 Dhnyaneshwar Dhapekar and PW7
Subhash Parde before 24.1.2011. Thus, he explained that
there was a law and order situation and, therefore, nobody
was coming forward and hence, he could not record
statements of eyewitnesses PW5 Dhnyaneshwar Dhapekar
and PW7 Subhash Parde before 24.1.2011.
His cross examination further shows that PW5
Dhnyaneshwar Dhapekar and PW7 Subhash Parde told that
due to the terror of the accused persons, they did not give
their statements previously. He admitted that the
explanation given by the witnesses is not recorded in their
statements. He further explained that he did not feel it
necessary to record their explanations and, therefore, he
has not recorded the same in their statements. He did not
.....83/-
Judgment
520 apeals80 & 110.14
83
take the entry in the station diary that witnesses are not
coming forward due to the terror of the accused persons.
He further explained that the statement of PW6 Suman
Devgune was not recorded till 31.1.2011 as she was under
shock. Prior to 31.1.2011, he enquired her for 2-4 times,
but he has not recorded her statement.
Thus, delay in recording the statement of PW6
Suman Devgune is also explained by this witness.
His further cross examination shows that in
serious matters, pancha witnesses are to be called, but no
summonses were issued to PW3 Atul Suresh Mahajan or
Indranath Khinchi. They were called through the police.
His evidence further shows that muddemal property seized
vide Exhs.77 to 80 were deposited in Malkhana on
24.1.2011. There is no reason for not depositing that
Muddemal in Malkhana prior to 24.1.2011. He has not
.....84/-
Judgment
520 apeals80 & 110.14
84
sent the weapons to the Forensic Science Laboratory, till
21.3.2011 and he explained that those weapons were sent
to the doctor for query. He further explained that,
normally, they do not send the weapons seized in the crime
to the doctor for query, till notes of the postmortem are
available. Accordingly, till 8.2.2011, he did not sent the
weapons to the doctor for query. On 1.3.2011, he received
the postmortem report and, thereafter, he has sent the
weapons to the medical officer for query.
In further cross examination, omissions were
brought on record of the evidence of informant PW1 Deva
Shendekar, PW5 Dhnyaneshwar Dhapekar, PW6 Suman
Devgune, and PW7 Subhash Parde.
37. PW11 Anil Pawar, is also investigating officer
whose evidence is to the extent of recording the FIR of
informant PW1 Deva Shendekar. He has also visited the
.....85/-
Judgment
520 apeals80 & 110.14
85
house of the deceased and witnessed stones and pieces of
glasses lying there. He has also stated about gathering of
the crowd at the spot of the incident. His cross
examination shows that he reached the spot within five
minutes from receipt of the information about the incident.
Informant PW1 Deva Shendekar was not present at that
time in the police station. There were many eyewitnesses
on the spot. However, he has not recorded their
statements. He is not aware whether PW10 Sudhir
Nandanwar enquired anybody on the spot. He was busy in
preparing the spot panchanama and, therefore, he has not
recorded the statements of any eyewitnesses. His cross
examination shows that there was a huge crowd and senior
police officials were also present there. He also stated that
there was a tensed situation and huge crowd. This aspect
is brought on record during the cross examination.
.....86/-
Judgment
520 apeals80 & 110.14
86
38. Thus, the evidence of Investigating Officers
PW10 Sudhir Nandanwar and PW11 Anil Pawar is
consistent that due to the incident, there was a tensed
situation and, therefore, the police bandobast was
deployed at the spot of the incident.
39. The prosecution has also placed reliance on the
scientific evidence i.e. C.A.Reports.
40. As per C.A. Reports Exhs.61 and 62, Blood
Group of accused Mahesh Natthuji Devgune and Sheshrao
Ramdas Kuhikar was not determined. As per Exh.63,
Blood Group of accused Sanjiv Shankar Kuhikar is "B".
Blood Group of deceased is also "B" (Exh.65). Blood
Group of accused Jitendra is not determined. As per
Exh.68, Blood Group of accused Rajesh Ramprasad Kuhikar
is "B". As per Exh.69, Blood Group of accused Santosh
Chaitram Kuhikar is "O". Whereas, as per Exh.70 Blood
.....87/-
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520 apeals80 & 110.14
87
Group of accused Devanand Chaitram Kuhikar is "B". As
per Exh.64, Article-1 pair of rubber slipper found on the
spot, Article-4 soil mixed with concrete pieces collected
from the spot, Article-6 Shirt, Article-7 Jacket, Article-8
Jeans Full Pant, Article-9 underwear of the deceased,
Article-10 Shirt of accused Santosh Chaitram Kuhikar,
Article-11 Full Pant of accused Santosh Chaitram Kuhikar,,
Article-12 Shirt, Article-13 Full Pant, Article-16 T-Shirt of
accused Mahesh Natthuji Devgune, Article-18 Shirt of
accused Sanjiv Shankar Kuhikar, Article-21 Jeans Full Pant
of accused Sanjiv Shankar Kuhikar are stained with Blood
Group "B". As per Exh.64, blood stains found on Article-2
woolen cap found on the spot and Article-3 handle of the
"sword" are also stained with human blood. As per Exh.66,
Article-1 "sword", Article-2 another "sword", and Article-3
"gupti" are stained with blood. Blood Group "B" was found
.....88/-
Judgment
520 apeals80 & 110.14
88
on Articles-1 and 2. Blood Group on Article-3 "gupti" is
not determined.
41. Thus, as per the evidence of PW2 Tarachand
Aherwar, the weapons are discovered on the basis of the
memorandum statement of accused Santosh Chaitram
Kuhikar on 22.1.2011 i.e. two "swords" and one "gupti"
and the place of concealment of the "knife" was discovered
on the basis of statement of acquitted accused Jitendra on
22.1.2011.
42. As per the evidence of Medical Officer PW9
Dr.Manish Shrigiriwar, he has received requisition on
18.3.2011 for examination of weapons and he has
examined the weapons and replied to the query on
18.3.2011. The requisition, given by the Investigating
Officer, by which the weapons were forwarded, is dated
21.3.2011 which is at Exh.128.
.....89/-
Judgment
520 apeals80 & 110.14
89
As per the evidence of Investigating Officer
PW10 Sudhir Nandanwar, as per their practice, they do not
send weapons to doctor for query, till they receive
postmortem notes. He has received the postmortem notes
on 1.3.2011 and, thereafter, on 21.3.2011, he has
forwarded the weapons to the Chemical Analyzer. The
muddemal receipt Exh.58 shows that Mal.No.9/11 dated
21.1.2011 and Mal.No.10/11 dated 24.1.2011, i.e. simple
soil, blood stained soil, handle of the swords, pare of
slippers, woolen cap, total 21 articles, were deposited on
21.1.2011. Whereas, other articles were deposited on
24.1.2011.
43. Thus, the evidence on record shows that all
articles were deposited by the investigating officer on
21.1.2011 and 24.1.2011.
APPRECIATION OF EVIDENCE
.....90/-
Judgment
520 apeals80 & 110.14
90
44. The entire case of the prosecution is based on
direct evidence of eyewitnesses PW5 Dhnyaneshwar
Dhapekar, PW6 Suman Devgune, and PW7 Subhash Parde
and injured eyewitness PW4 Amol Kumbhalkar.
Admittedly, injured PW4 Amol Kumbhalkar has not
supported the prosecution case to the extent that the
accused persons were assailants. However, the medical
certificate of the injured shows that he was referred for the
medical treatment as he has sustained injuries in the said
incident and history of the assault was given by him to the
medical officer. The said medical certificate Exh.75 is
admitted by the defence wherein history of assault is given
by him. The history narrated shows that he was assaulted
by somebody on 19.1.2011. His date of admission was in
the intervening night of 19.1.2011 and 20.1.2011 at about
2:25 am. He has left loyalty towards the prosecution only
to the extent of names of the assailants. His evidence
.....91/-
Judgment
520 apeals80 & 110.14
91
shows that he was assaulted on 19.1.2011 by some
unknown persons. On the contrary, the evidence of
informant PW1 Deva Shendekar shows that after he
received the information that his brother is assaulted, he
immediately rushed to the spot of the incident and
witnessed PW4 Amol Kumbhalkar in injured condition
sitting near the dead body of the deceased. He has
disclosed informant PW1 Deva Shendekar that the accused
persons killed the deceased with "swords".
45. As far as cross examination by accused
No.3 is concerned, presence of PW4 Amol
Kumbhalkar narrated by informant PW1 Deva
Shendekar is not challenged. The fact, that he has
seen PW4 Amol Kumbhalkar in injured condition at
the spot, is also not denied by the defence counsel.
The entire cross examination on behalf of accused
No.3 shows that informant PW1 Deva Shendekar
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reached the spot, but presence of PW4 Amol Kumbhalkar
witnessed by him and narrated by him during his chief-
examination is neither denied nor any cross examination is
taken on that aspect. The facts, that the injured has
sustained injuries on 19.1.2011 and informant PW1 Deva
Shendekar witnessed the injured at the spot of the incident
which remained unchallenged and PW5 Dhnyaneshwar
Dhapekar has also witnessed the injured at the spot of the
incident which is also not challenged during the cross
examination of PW5 Dhnyaneshwar Dhapekar, are
sufficient to infer that PW4 Amol Kumbhalkar has not
supported the prosecution case and won over by the
defence.
46. The evidence of informant PW1 Deva Shendekar
shows on 19.1.2011, when he was at home, the accused
persons came there along with weapons in their hands and
out of them, accused Devanand Chaitram Kuhikar disclosed
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that they have killed his brother and, thereafter, he rushed
to the spot and witnessed his brother lying in pool of blood
and PW4 Amol Kumbhalkar was also witnessed by him in
injured condition at the spot. PW4 Amol Kumbhalkar has
also disclosed about the involvement of the accused
persons in the alleged incident and, thereafter, he rushed to
the police station and along with the police, he came on
the spot. The police officer has drawn the spot
panchanama and, thereafter, he again went to the police
station and lodged the report.
47. The evidence of informant PW1 Deva Shendekar
is challenged by the defence on the grounds that his
conduct is not natural; FIR is ante-time; there is no
immediate disclosure by him to the police as to
involvement of the accused persons in the alleged incident,
and after thought, this FIR came to be lodged against the
accused persons.
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As far as the cross examination on behalf of
accused No.3 is concerned, only his relationship with other
witnesses i.e. PW5 Dhnyaneshwar Dhapekar and PW7
Subhash Parde was brought on record. During the cross
examination of informant PW1 Deva Shendekar, nothing
incriminating is brought on record, as far as the incident is
concerned. The evidence of informant PW1 Deva
Shendekar is criticized on all these aspects. The
investigating officer is cross examined to show that
informant PW1 Deva Shendekar has not disclosed the
names of the assailants immediately and, therefore, no FIR
was registered on the basis of the said information given by
informant PW1 Deva Shendekar. The investigating officer
has denied the suggestion that he has not immediately
narrated the incident. On the contrary, the evidence of
Investigating Officer PW10 Sudhir Nandanwar shows that
when informant PW1 Deva Shendekar approached the
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police station, at the same time, they received a message
from the control room disclosing the incident and
informant PW1 Deva Shendekar has also disclosed the
incident and involvement of the accused persons and,
therefore, he immediately rushed to the spot of the
incident and witnessed the injured is lying in pool of blood
in injured condition. After drawing the spot panchanama
at the spot, again, he came along with informant PW1
Deva Shendekar at the police station and, thereafter,
PW11 Anil Pawar has recorded the FIR.
48. In support of the contentions, learned Senior
Counsel Shri Avinash Gupta for the accused, placed
reliance on the decision in the case of Kanhai Mishra alias
Kanhaiya Misar supra wherein the Hon'ble Apex Court in
the facts and circumstances of the case observed that, " by
the time informant was at the police station he did not
suspect complicity of the appellant with the crime and
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subsequently after due deliberations, fard-beyan was given
by the informant at his house alleging therein that the
appellant had complicity with the crime. Thus the evidence
of this witness makes the prosecution case showing
complicity of the appellant with the crime doubtful".
On going through the facts of the said case, it
reveals that the officer incharge of police station recorded
the fard-bayan of the informant PW3 at 11:00 O'clock.
During the cross examination, he has admitted that he
arrived at the police station at about 9:00 O'clock and
stayed there for 10-20 minutes and, thereafter, returned to
the village. At the relevant time, he has not stated about
involvement of the accused before the officer incharge and
when the witness had gone to the police station, his fard-
bayan was not recorded there at 9:00 O'clock, but it was
recorded at his house after two hours at 11:00 O'clock.
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49. Here, in the present case, the facts are not
identical. The facts of the present case show that
informant PW1 Deva Shendekar received the information
when the accused visited his house, he immediately rushed
to the spot witnessing his brother lying in pool of blood
and, thereafter, he immediately approached the police
station. The police were informed by him. At the relevant
time, investigating officer PW10 Sudhir Nandanwar has
also received the message from the control room and,
therefore, along with the informant rushed to the spot of
the incident and after drawing the spot panchanama, the
FIR was obtained. Admittedly, though he has stated that
he has taken station diary entry to that effect, he has not
produced the same on record.
The question is, whether failure of the
investigating officer to produce the entry of the station
diary is sufficient to discard the evidence.
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50. In the present case, the alleged incident has
occurred between 9:00 and 9:30 pm. Immediately, the
information was received at the police station at 23:55 pm.
There is no evidence that between this period, informant
PW1 Deva Shendekar has either visited his house or there
was any opportunity for him to have deliberations with
other relatives and, thereafter, he lodged the report. No
such facts came on record and, therefore, the contention of
learned Senior Counsel Shri Avinash Gupta that the FIR is
ante-time is not acceptable. On the same ground, he
placed reliance on the decision in the case of Ganesh
Bhavan patel and ors supra wherein also the Hon'ble Apex
Court observed that, "there was inordinate delay in
registration of the FIR and further delay in recording the
statements of the material witnesses."
51. Insofar as the present case is concerned, the FIR
is immediately lodged within two hours of the incident.
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Informant PW1 Deva Shendekar has received the
information at 9:00 to 9:15 pm; immediately rushed to the
spot of the incident and, thereafter, approached the police;
the police again took him to the spot and from the spot
again he came to the police station after drawing the
panchanama, which are sufficient to show that the FIR is
lodged by him promptly after informing the incident to the
police. Considering the facts in the cited, the facts in the
present case are not identical one and not helpful to the
defence. Therefore, the contention of learned Senior
Counsel Shri Avinash Gupta, that the evidence of
informant PW1 Deva Shendekar is not trustworthy and
liable to be rejected, is not sustainable. As already
observed, nothing incriminating came on record during his
cross examination to show that there was any deliberation
on his part with the other relatives and, thereafter, after
thought, he lodged the report. On the contrary, there is
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consistent evidence of informant PW1 Deva Shendekar that
the accused persons came at his house at about 9:00 pm.
One of the accused persons disclosed that they have killed
his brother. Thereafter, he immediately went to the spot of
the incident, witnessed his brother in pool of blood,
approached the police station, informed the incident to the
police, again came at the spot along with the police, the
police have drawn the spot panchanama and, thereafter, he
was again taken to the police station and he lodged the
report.
Thus, it is sufficient to show that there was
prompt FIR regarding the incident showing involvement of
the accused persons in the crime.
52. The evidence of informant PW1 Deva Shendekar
further shows that when the accused persons visited his
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house, one of the accused persons Devanand Chaitram
Kuhikar told that they have killed his brother.
Learned Additional Public Prosecutor for the
State vehemently submitted the evidence of informant PW1
Deva Shendekar is sufficient to show that there was
disclosure by one of the accused persons regarding their
involvement in the said incident, which comes under extra
judicial confession.
Learned Senior Counsel Shri Avinash Gupta,
submitted that by no stretch of imagination, it can be said
that it is extra judicial confession. The exact words are to
be reproduced when the prosecution has placed reliance on
the extra judicial confession. He submitted that in fact,
extra judicial confession is very weak type of evidence and
would not be sufficient to show involvement of the
accused.
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In support of his contentions, he placed reliance
on the decision of the Hon'ble Apex Court in Criminal
Appeal (Harjinder Singh @ Kala vs. State of Pubjab)
decided on 22.1.2025, which has been placed on record by
learned counsel Shri R.K.Tiwari, wherein the Hon'ble Apex
Court observed that, "it is a settled principle of criminal
jurisprudence that extra judicial confession is a weak piece
of evidence. Wherever the Court, upon due appreciation of
the entire prosecution evidence, intends to base a
conviction on an extra judicial confession, it must ensure
that the same inspires confidence and is corroborated by
other prosecution evidence". He submitted that
requirement of the law is that the exact words to be
reproduced should be made voluntarily and should be
truthful. It should inspire confidence, attains greater
credibility and evidentiary value, if it is supported by a
chain of cogent circumstances and is further corroborated
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by other prosecution evidence. It should not suffer from
any material discrepancies and inherent improbabilities.
Such statement essentially has to be proved like any other
fact and in accordance with law.
53. Per contra, learned Additional Public Prosecutor
for the State strongly opposed the said contentions and
submitted that there is consistent evidence of informant
PW1 Deva Shendekar and PW8 Chanda Shendekar, who
stated about the disclosure made by accused Devanand
Chaitram Kuhikar. He has invited our attention to recital of
the FIR and submitted that the report shows that it was
accused Devanand Chaitram Kuhikar who has broken
down the glass of the window of the house of informant
PW1 Deva Shendekar and said that, "your brother is
murdered." Admittedly, informant PW1 Deva Shendekar,
during his evidence, has not stated in the words that, "your
brother is murdered", but he disclosed that, "they killed his
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brother". Though PW8 Chanda Shendekar exaggerated
the version that accused Devanand Chaitram Kuhikar came
to their house and disclosed that, "xqMMw lkys ckgj fudy] rsjs
HkkbZ fnus'kdks ge lqykds vk;s-" Learned Additional Public
Prosecutor submitted that requirement of law is to be taken
into consideration.
On this aspect, he placed reliance on the
decision in the case of Rameshwar s/o Dijnaji Dhawde
supra wherein the Division Bench of this Court has
considered the law regarding extra judicial confession and
observed by referring the decision in the case of Chattar
Singh and another vs. State of Haryana, reported in 2009
ALL MR CRI 936, as under:
"An extra-judicial confession, if voluntary
and true and made in a fit state of mind, can
be relied upon by the court. The confession
will have to be proved like any other fact.
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The value of the evidence as to confession,
like any other evidence, depends upon the
veracity of the witness to whom it has been
made. The value of the evidence as to the
confession depends on the reliability of the
witness who gives the evidence. It is not
open to any court to start with a
presumption that extra-judicial confession is
a weak type of evidence. It would depend on
the nature of the circumstances, the time
when the confession was made and the
credibility of the witnesses who speak to
such a confession. Such a confession can be
relied upon and conviction can be founded
thereon if the evidence about the confession
comes from the mouth of witnesses who
appear to be unbiased, not even remotely
inimical to the accused, and in respect of
whom nothing is brought out which may
tend to indicate that he may have a motive
of attributing an untruthful statement to the
accused, the words spoken to by the witness
are clear, unambiguous and unmistakably
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convey that the accused is the perpetrator of
the crime and nothing is omitted by the
witness which may militate against it. After
subjecting the evidence of the witness to a
rigorous test on the touchstone of credibility,
the extra-judicial confession can be accepted
and can be the basis of a conviction if it
passes the test of credibility".
It has been further observed, as under:
"If the facts and circumstances surrounding
the making of a confession appear to cast a
doubt on the veracity or voluntariness of the
confession, the court may refuse to act upon
the confession, even if it is admissible in
evidence. One important question, in regard
to which the court has to be satisfied with is,
whether when the accused made the
confession, he was a free man or his
movements were controlled by the police
either by themselves or through some other
agency employed by them for the purpose of
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securing such a confession. The question
whether a confession is voluntary or not is
always a question of fact. All the factors and
all the circumstances of the case, including
the important factors of the time given for
reflection, scope of the accused getting a
feeling of threat, inducement or promise,
must be considered before deciding whether
the court is satisfied that in its opinion the
impression caused by the inducement, threat
or promise, if any, has been fully removed. A
free and voluntary confession is deserving of
the highest credit, because it is presumed to
flow from the highest sense of guilt. It is not
to be conceived that a man would be
induced to make a free and voluntary
confession of guilt, so contrary to the feelings
and principles of human nature, if the facts
confessed were not true. Deliberate and
voluntary confessions of guilt, if clearly
proved, are among the most effectual proofs
in law. An involuntary confession is one
which is not the result of the free will of the
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maker of it. So where the statement is made
as a result of harassment and continuous
interrogation for several hours after the
person is treated as an offender and accused,
such statement must be regarded as
involuntary. The inducement may take the
form of a promise or of a threat, and often
the inducement involves both promise and
threat, a promise of forgiveness if disclosure
is made and threat of prosecution if it is not.
(See Woodroffe's Evidence, 9th Edn., p. 284.)
A promise is always attached to the
confession alternative while a threat is
always attached to the silence alternative;
thus, in one case the prisoner is measuring
the net advantage of the promise, minus the
general undesirability of a false confession,
as against the present unsatisfactory
situation; while in the other case he is
measuring the net advantages of the present
satisfactory situation, minus the general
undesirability of the confession against the
threatened harm. It must be borne in mind
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that every inducement, threat or promise
does not vitiate a confession. Since the object
of the rule is to exclude only those
confessions which are testimonially
untrustworthy, the inducement, threat or
promise must be such as is calculated to lead
to an untrue confession. On the aforesaid
analysis the court is to determine the
absence or presence of an inducement,
promise etc. or its sufficiency and how or in
what measure it worked on the mind of the
accused. If the inducement, promise or threat
is sufficient in the opinion of the court, to
give the accused person grounds which
would appear to him reasonable for
supposing that by making it he would gain
any advantage or avoid any evil, it is enough
to exclude the confession. The words "appear
to him" in the last part of the section refer to
the mentality of the accused".
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On the similar issue, learned Additional Public
Prosecutor placed reliance on the decision in the case of
Ajay Singh vs. State of Maharashtra supra wherein the
Hon'ble Apex Court held, as under:
"We shall first deal with the question
regarding claim of extra judicial confession.
Though it is not necessary that the witness
should speak the exact words but there
cannot be vital and material difference.
While dealing with a stand of extra judicial
confession, Court has to satisfy that the same
was voluntary and without any coercion and
undue influence. Extra judicial confession
can form the basis of conviction if persons
before whom it is stated to be made appear
to be unbiased and not even remotely
inimical to the accused. Where there is
material to show animosity, Court has to
proceed cautiously and find out whether
confession just like any other evidence
depends on veracity of witness to whom it is
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made. It is not invariable that the Court
should not accept such evidence if actual
words as claimed to have been spoken are
not reproduced and the substance is given. It
will depend on circumstance of the case. If
substance itself is sufficient to prove
culpability and there is no ambiguity about
import of the statement made by accused,
evidence can be acted upon even though
substance and not actual words have been
stated. Human mind is not a tape recorder
which records what has been spoken word by
word. The witness should be able to say as
nearly as possible actual words spoken by the
accused. That would rule out possibility of
erroneous interpretation of any ambiguous
statement. If word by word repetition of
statement of the case is insisted upon, more
often than not evidentiary value of extra
judicial confession has to be thrown out as
unreliable and not useful. That cannot be a
requirement in law. There can be some
persons who have a good memory and may
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be able to repost exact words and there may
he many who are possessed of normal
memory and do so. It is for the Court to
judge credibility of the witness's capacity and
thereafter to decide whether his or her
evidence has to be accepted or not. If Court
believes witnesses before whom confession is
made and is satisfied confession was
voluntary basing on such evidence,
conviction can be founded. Such confession
should be clear, specific and unambiguous".
54. Learned Additional Public Prosecutor for the
State submitted that, in view of the decisions of the
Hon'ble Apex Court in the cases of Chattar Singh and
another vs. State of Haryana supra and Ajay Singh vs.
State of Maharashtra supra, wherein requirement of law
is not that the exact words to be stated by the witness.
The only requirement is that there should not be vital and
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material difference in the statements. He submitted that
the evidence of informant PW1 Deva Shendekar and PW8
Chanda Shendekar shows that the accused disclosed that,
they have killed the deceased. Thus, there is no vital
difference as far as extra judicial confession of accused
Devanand Chaitram Kuhikar is concerned.
55. On appreciation of the evidence of informant
PW1 Deva Shendekar and PW8 Chanda Shendekar, who is
the wife of the informant, it shows that they have
categorically stated that the accused persons came to their
house and it was accused Devanand Chaitram Kuhikar who
made a statement that they have killed the deceased.
Admittedly, PW8 Chanda Shendekar has narrated in a
different manner, but the sum and substance of the
communication is that it was accused Devanand Chaitram
Kuhikar who has disclosed that they have killed the
deceased. Admittedly, when the said statement was made
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by accused Devanand Chaitram Kuhikar, he was a free
person and was not under the control of the police. There
was no influence on him. He was not enquired by
anybody, but the statement made by him was voluntary.
56. On examining all the factors and circumstances
of the case, it shows that it was the statement made by
accused Devanand Chaitram Kuhikar when he was not
under threat, inducement or promise or under the undue
influence or under the control of any police machinery and,
therefore, there is nothing on record to show that the
accused was under the influence or under the inducement
of any person. There is neither any rule of law nor of a
prudence that evidence furnished by extra judicial
confession cannot be relied upon unless corroborated by
some other credible evidence. The evidence of extra
judicial confession is a weak piece of evidence. However, if
the evidence about extra judicial confession comes from
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the mouth of witness/witnesses who appear to be
unbiased, not even remotely inimical to the accused, and in
respect of whom nothing is brought out which may tend to
indicate that he may have a motive for attributing an
untruthful statement to the accused; the words spoken to
by the witness are clear, unambiguous and unmistakably
convey that the accused is the perpetrator of the crime and
nothing is omitted by the witness which may militate
against it, then after subjecting the evidence of the witness
to a rigorous test on the touchstone of credibility, if it
passes the test, the extra judicial confession can be
accepted and be the basis of a conviction.
57. The Hon'ble Apex Court in the case of State of
U.P. vs. M.K.Anthony, reported in AIR 1985 SC 48 wherein
also it has been held that, "there is neither any rule of law
nor of prudence that evidence furnished by extra-judicial
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confession cannot be relied upon unless corroborated by
some other credible evidence".
58. In Criminal Appeal No.1424/2011 (Pundlik Basu
Chauhan vs. State of Maharashtra) decided on 5.1.2017
wherein this Court has held, as under:
"The evidentiary value of an extra judicial
confession depends on the reliability of the
witness, who gives the evidence. It is not
open to any Court to start with a
presumption that extra judicial confession is
a weak type of evidence. Needless to state, it
would depend on the nature of
circumstances, the time when the confession
was made and the credibility of the witness,
who speaks of such a confession. An extra
judicial confession can be relied upon and
conviction can be founded thereon, if the
evidence comes from the mouth of the
witness who is unbiased, not even remotely
inimical to the accused and in respect of
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whom, nothing is brought out, which may
tend to indicate that he may have a motive of
attributing an untruthful statement to the
accused. The words spoken by the witness
are to be clear, unambiguous and should
convey that the accused is a perpetrator of
the crime. Thus, subjecting the evidence of
such a witness to a rigorous test, on the
touchstone of credibility, an extra judicial
confession can be accepted and can be the
basis of conviction".
59. The Hon'ble Apex Court in the case of Ajay
Singh vs. State of Maharashtra supra observed, as under:
"The expression 'confession' is not defined in
the Evidence Act, 'Confession' is a statement
made by an accused which must either admit
in terms the offence, or at any rate
substantially all the facts which constitute
the offence. The dictionary meaning of the
word 'statement' is "act of stating; that which
is stated; a formal account, declaration of
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facts etc." The word 'statement' includes both
oral and written statement. Communication
to another is not however an essential
component to constitute a 'statement'. An
accused might have been over-heard uttering
to himself or saying to his wife or any other
person in confidence. He might have also
uttered something in soliloquy. He might also
keep a note in writing. All the aforesaid
nevertheless constitute a statement. It such
statement is an admission of guilt, it would
amount to a confession whether it is
communicated to another or not. This very
question came up for consideration before
this Court in Sahoo vs. State of Uttar
Pradesh, AIR 1966 SC 40: (1966 Cr1 U 68).
After referring to some passages written by
well known authors on the "Law of Evidence"
Subba Rao, J. (as he then was) held that
"communication is not a necessary ingredient
to constitute confession". In paragraph 5 of
the judgment, this Court held as follows:
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"...Admissions and confessions are
exceptions to the hearsay rule. The
Evidence Act places them in the category
of relevant evidence presumably on the
ground that as they are declarations
against the interest of the person making
them, they are probably true. The
probative value of an admission or a
confession goes not to depend upon its
communication to another, though, just
like any other piece of evidence, it can
be admitted in evidence only on proof.
This proof in the case of oral admission
or confession can be offered only by
witnesses who heard the admission or
confession, as the case may be.... If, as
we have said, statement is the genus and
confession is only a sub-species of that
genus, we do not see any reason why the
statement implied in the confession
should be given a different meaning. We,
therefore, hold that a statement,
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whether communicated or not,
admitting guilt is a confession of guilt".
60. In the light of the above proposition of law, if the
evidence of informant PW1 Deva Shendekar and PW8
Chanda Shendekar is examined, the words spoken and
heard by them, that the accused persons have assaulted the
deceased, are unambiguous.
61. As regards the extra judicial confession, as held
by the Hon'ble Apex Court, it is not expected that the
witness should speak the exact words. The only
requirement is that there cannot be vital and material
difference. Another requirement is that the words spoken
by the witness are to be clear, unambiguous and should
convey that the accused is a perpetrator of the crime.
Thus, subjecting the above said evidence to a rigorous test,
on the touchstone of credibility, it shows that when the said
statement was made, accused Devanand Chaitram Kuhikar
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was not under the influence or inducement. The statement
made by him was voluntary when he was free person and
was not under the control of police or the investigating
agency. The evidence of informant PW1 Deva Shendekar
and PW8 Chanda Shendekar in clear and unambiguous
words conveyed that accused Devanand Chaitram Kuhikar
has disclosed that he along with other co-accused are
perpetrators of the crime. Admittedly, informant PW1
Deva Shendekar was not inimical or biased against the
accused. The accused has made voluntary statement.
Moreover, this evidence as to extra judicial confession of
informant PW1 Deva Shendekar and PW8 Chanda
Shendekar is not shattered during the cross examination
also. In fact, informant PW1 Deva Shendekar was not at
all cross examined on the aspect of this extra judicial
confession. Similarly, PW8 Chanda Shendekar is also not
cross examined on the aspect of the said extra judicial
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confession. Though the evidence of PW8 Chanda
Shendekar is not in the exact words of the accused, it is
communicating that accused Devanand Chaitram Kuhikar
is perpetrator of the crime along with other co-accused.
62. To corroborate the version of these witnesses,
admittedly, the prosecution placed reliance on the evidence
of PW5 Dhnyaneshwar Dhapekar, who is alleged to be
eyewitness of the incident. The evidence of the said
witness is mostly criticized on the ground that there is
inordinate delay in recording his statement, though he is
available at the spot. He is cross examined and his cross
examination shows that he has narrated the incident to the
police after three days of the incident. He has not narrated
the incident for three days to anybody. His presence was
also admitted by him when the police came at the spot. He
stated that he has not informed the police that he has seen
the incident and identified the assailants.
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Thus, from the cross examination, an attempt
was made to show that his statement was recorded
belatedly and, therefore, his evidence is not trustworthy.
Learned Senior Counsel submitted that learned
Judge of the trial court has also disbelieved this witness as
his statement is recorded belatedly. In support of his
contention, he placed reliance on the decision of the
Hon'ble Apex Court in the cases of Ganesh Bhavan Patel
and ors supra; Vijaybhai Bhanabhai Patel supra; Kochu
Maitheen Kannu Salim supra, and Laxman Bapurao
Ghaiwane vs. The State of Maharashtra, reported in
MANU/MH/1375/2012 and submitted that delay in
questioning the witnesses by the investigating officer
without proper explanation is a serious mistake on the part
of the prosecution and, therefore, the view taken by the
High Court is proper one.
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In the case of Ganesh Bhavan Patel and ors
supra, it is held that there were infirmities and flaws in the
evidence of the witnesses. There was inordinate delay in
registration of the FIR and, therefore, the evidence of the
witnesses, who, though having an opportunity to disclose
the incident, have not disclosed the incident, the evidence
is to be discarded.
63. As far as delay in recording the statement is
concerned, it is well settled that the case of the prosecution
cannot be rejected solely on the ground that there is a
delay in examination of any particular witness.
64. In the case of State of U.P. vs. Satish, reported in
(2005)3 SCC 114, which is referred in the recent judgment
by the Hon'ble Apex Court in Criminal Appeal
No.1669/2006 (State of Madhya Pradesh vs. Balveer
.....125/-
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Singh) decided non 24.2.2025, wherein it is observed, as
under:
"It is to be noted that the explanation when
offered by the IO on being questioned on the
aspect of delayed examination by the
accused has to be tested by the court on the
touchstone of credibility. If the explanation is
plausible then no adverse inference can be
drawn. On the other hand, if the explanation
is found to be implausible, certainly the court
can consider it to be one of the factors to
affect credibility of the witnesses who were
examined belatedly. It may not have any
effect on the credibility of the prosecution's
evidence tendered by the other witnesses."
65. Thus, primarily it was for the accused to
question the investigating officer to explain the delay in
recording the statement of witnesses.
.....126/-
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66. Here, in the present case, PW10 Sudhir
Nandanwar has stated that there was law and order
situation after the said incident. During the cross
examination, he stated that when for the first time he
reached at the spot, there was a crowd and he enquired
about the eyewitnesses of the incident. That time, he did
not find any eyewitnesses of the incident. He enquired at
the spot. Prior to 24.1.2011, except injured PW4 Amol
Kumbhalkar, he did not find any eyewitness. Since the
night of 19.1.2011 till 23.1.2011, he visited "Timki"
locality for the purposes of investigation. His cross
examination further shows that the law and order was
disturbed in the locality where the incident took place and,
therefore, the policemen were deployed in that locality
and, therefore, the witnesses were not coming forward to
give their statements. Hence, he could not record
statement of eyewitnesses PW5 Dhnyaneshwar Dhapekar
.....127/-
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and PW7 Subhash Parde before 24.1.2011. His cross
examination further shows that explanations given by the
witnesses, as to fact that they were under terror, though
narrated by them, he has not recorded the same in their
statements. He also explained that he did not feel it
necessary to record their explanations and, therefore, he
has not recorded the same in their statements.
PW5 Dhnyaneshwar Dhapekar, also explained
the said situation during his evidence. He has stated that
the police came at the spot. He was present there. At that
time, he has not stated to the police that he had seen the
incident. When the police approached him after three days
of the incident, he has narrated the incident to the police.
He has also stated that the incident was going on for about
20 minutes. At that time, doors of houses were closed and
nobody came there.
.....128/-
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Thus, the evidence of the investigating officer,
that there was a tensed situation, is narrated by PW5
Dhnyaneshwar Dhapekar.
This aspect is also stated by eyewitness PW6
Suman Devgune, who stated that the persons were
witnessing the incident from galleries and some persons
closed their doors of houses.
Thus, the evidence of these two witnesses is
sufficient to show that there was a tensed situation after
the incident and, therefore, the police protection was
deployed at the spot of the incident and that can be a
reason for the witnesses for not coming forward to record
their statements before the investigating agency. Moreover,
this evidence is to be appreciated in the light of the fact
that these witnesses are from the rural background. Many
times, the witnesses are not aware that they have to
.....129/-
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approach the police station and inform about the incident.
There may be a reason of implication in any other case or
they may be under apprehension that they may be called to
give their evidence again and again before the court.
67. While assessing value of evidence of
eyewitnesses, two principal considerations are whether, in
the circumstances of the case, it is possible to believe their
presence at the scene of occurrence or in such situations as
would make it possible for them to witness the facts
deposed to by them and secondly, whether there is
anything inherently improbable or unreliable in their
evidence. In respect of both these considerations,
circumstances either elicited from those witnesses
themselves or established by other evidence tending to
improbabilise their presence or to discredit the veracity of
their statements, will have a bearing upon the value which
a Court would attach to their evidence. Although in cases
.....130/-
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where the plea of the accused is a mere denial, the
evidence of the prosecution witnesses has to be examined
on its own merits, where the accused raise a definite plea
or put forward a positive case which is inconsistent with
that of the prosecution, the nature of such plea or case and
the probabilities in respect of it will also have to be taken
into account while assessing the value of the prosecution
evidence.
68. In the light of the above proposition, if the
evidence of eyewitness PW5 Dhnyaneshwar Dhapekar is
considered, admittedly, he was residing in the same
locality, which is not denied by the defence also. There is
nothing on record to show that he was not residing at the
said place and there was no opportunity for him to witness
the incident. On the contrary, his evidence shows that he
was residing in the same locality. The alleged incident has
taken place in front of the house of one Rajgire. He was
.....131/-
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also residing near the house of said Rajgire and, therefore,
his presence at the spot of the incident is not unnatural
one.
69. Learned defence counsel further vehemently
submitted that eyewitnesses PW5 Dhnyaneshwar Dhapekar
is the nearest relatives of the deceased and, therefore, he is
an interested witness.
70. The law is a well settled that while appreciating
the evidence of witnesses, approach must be whether the
evidence of the witness read as a whole inspires
confidence. Once that impression is formed then
undoubtedly it is necessary for the court to scrutinize the
evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out in the
evidence as a whole and evaluate them to find out whether
it is against the general tenor of the evidence given by the
.....132/-
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witness and whether earlier evaluation of evidence is
shaken as to render it unworthy of behalf. The material
thing which is to be seen whether those inconsistencies go
to the root of the matter. While appreciating evidence of
relatives, great weightage is to be given to them on the
principle that there is no reason for them not to speak the
truth and shield the real culprit. In fact, a close relative
who is a very natural witness cannot be regarded as an
interested witness. The term "interested" postulates that
the person concerned must have some direct interest in
seeing that the accused person is somehow or the other
convicted either because he had some animus with the
accused or for some other reason. While dealing with
evidence of witness who is relative, the evidence of witness
cannot be discarded merely on the ground that he is either
partisan or interested or close relative of the deceased, if it
.....133/-
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is otherwise found to be trustworthy. The said evidence
only requires scrutiny with more care and caution.
71. Testing on the anvil and touchstone of the
aforesaid principles laid down, we find that the evidence of
eyewitness PW5 Dhnyaneshwar Dhapekar, who is close
relative of the deceased, has reason to be there and his
presence was natural at the spot of the incident as he was
staying there and, therefore, his presence at the spot of the
incident is also natural and there is nothing on record to
doubt his version and, therefore, the contention of learned
Senior Counsel, that he is interested witness, deserves to be
discarded.
72. Learned Judge of the trial court has discarded
the evidence of eyewitness PW5 Dhnyaneshwar Dhapekar.
However, learned Judge of the trial court has not
considered that he was residing in the same area and his
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presence at the spot of the incident is natural one. The
fact, that eyewitness PW5 Dhnyaneshwar Dhapekar is
residing in the same locality where the alleged incident has
taken place and the delay is property explained by the
investigating officer assigning a reason, is not taken into
consideration by learned Judge of the trial court and,
therefore, the observation of the trial court, that the
evidence of eyewitness PW5 Dhnyaneshwar Dhapekar, is
not believable, is erroneous.
73. As per the prosecution case, PW6 Suman
Devgune is eyewitness. As far as her evidence is
concerned, admittedly, she has nowhere disclosed that she
immediately disclosed to informant PW1 Deva @ Devdas
Laxman Shendekar that she has witnessed the said
incident. Thus, there is no natural conduct on her part as
far as she is concerned. Her statement is also recorded
very belatedly. Though explanation is given by her that she
.....135/-
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was not well, she has not given the statement.
Investigating Officer PW10 Sudhir Nandanwar has also
stated that she was not well and, therefore, her statement
was not recorded, is difficult to accept.
74. A "chance witness" is the one who happens to be
at the place of occurrence of an offence by chance, and
therefore, not as a matter of course. In other words, he/she
is not expected to be in the said place. A person walking on
a street witnessing the commission of an offence can be a
"chance witness". Merely because a witness happens to see
an occurrence by chance, his/her testimony cannot be
eschewed though a little more scrutiny may be required at
times. This again is an aspect which is to be looked into in
a given case by the court.
.....136/-
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75. The criticism was levelled against the evidence
of eyewitness PW6 Suman Devgune that her conduct is not
natural.
76. Admittedly, a "chance witness" evidence is to be
appreciated and scrutinized in a very cautious manner and
close scrutiny is required. A conduct of the "chance
witness" subsequent to the incident may also to be taken
into consideration particularly as to whether he/she has
informed anyone else in the village about the incident.
77. On the above principle, if the evidence of
eyewitness PW6 Suman Devgune is taken into
consideration, admittedly, she has not disclosed the
incident though she has met informant PW1 Deva
Shendekar at the spot, as per her evidence. She has not
disclosed the incident to the police also though the police
have visited repeatedly to her house and her statement was
.....137/-
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137
recorded by the investigating officer on 31.1.2011. Though
it is accepted that there was a tensed situation, considering
eyewitness PW6 Suman Devgune is family member of the
deceased and if she has witnessed the incident, there is
nothing on record to show that there was any restriction on
her to disclose the said incident to the police and,
therefore, learned Judge of the trial court has rightly
considered her evidence and rightly disbelieved her.
78. Besides the oral evidence of these prosecution
witnesses, the prosecution has also placed on the evidence
of PW2 Tarachand Ganpatlal Aherwar, who acted as a
pancha on memorandum statement of the accused, at
whose instance the alleged weapons are recovered.
Learned Senior Counsel Shri Avinash Gupta criticized the
evidence of PW2 Tarachand Aherwar on the ground that no
independent witnesses are examined and PW2 Tarachand
Aherwar is the close relatives of the deceased and he was
.....138/-
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chosen as witness and, therefore, the entire prosecution
case is suspicious. In support of his contention, he placed
reliance on the decision in the case of Ramanand vs. State
of Uttar Pradesh supra wherein the Hon'ble Apex Court
has considered the aspect that the evidence of pancha
witness is not to the effect that the accused has made
statement that, "I will show you the weapon used and
concealed by him." Thus, authorship of the concealment is
not narrated by him. Moreover, PW2 Tarachand Aherwar is
relative and not independent witness in whose presence
the memorandum statement was recorded. Perusal of the
evidence of PW2 Tarachand Aherwar clearly shows that the
accused gave memorandum statement to the police in his
presence that "two swords" and "one gupti" are concealed
under tyre in the locality.
Learned Senior Counsel Shri Avinash Gupta
submitted that there is nothing on record to show that he is
.....139/-
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author of the concealment as PW2 Tarachand Aherwar has
not stated the same. The cross examination of this witness
shows that he is brother-in-law of informant PW1 Deva
Shendekar. Except the relationship, nothing is brought on
record to show that he is having any conflicting interest to
act as a pancha. On the contrary, his evidence shows that
the police approached him when he was at the house of
informant PW1 Deva Shendekar and asked him to act as a
pancha and, therefore, he acted as a pancha. Even, if the
evidence of PW2 Tarachand Aherwar, as to authorship of
the concealment is ignored, the evidence of Investigating
Officer PW10 Sudhir Nandanwar specifically shows that
the accused made memorandum statement that he will
show the place wherein he concealed the weapons of the
offence. Therefore, even, if the evidence of PW2
Tarachand Aherwar is ignored, as he has not stated about
the authorship of the concealment, the evidence of
.....140/-
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140
Investigating Officer PW10 Sudhir Nandanwar can be
relied upon. As far as Investigating Officer PW10 Sudhir
Nandanwar is concerned, who is not cross examined
regarding voluntary statement of the accused or regarding
the place of concealment either it is accessible to all or to
discard the evidence as to the memorandum statement of
the accused.
79. As far as the evidence as to recovery, in view of
Section 27 of the Indian Evidence Act, is concerned, the
requirement of Section 27 of the Indian Evidence Act is
founded on the principle that if any fact is discovered, after
search is carried out, on the search of any information
obtained form the prisoner, such discovery is guaranteed
that the information supplied by the prisoner is true. It
goes without saying and, therefore, that recovery of articles
at the instance of the accused has to be proved by
independent witness.
.....141/-
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80. The Hon'ble Apex Court in the case of
Subramanya vs. State of Karnataka, reported at 2022
LiveLaw (SC) 887 held that the conditions necessary for
the applicability of Section 27 of the Act are broadly
discussed as under:
"(i) discovery of fact in consequence of an
information received from accused;
(ii) discovery of such fact to be deposed to;
(iii) the accused must in Police custody when he
gave information, and
(iv) so much of information as relates distinctly
to the fact thereby discovered is admissible."
Thus, what is admissible is the information and
the same has to be proved and not the opinion formed on it
by the Police Officer. In other words, the information given
by the accused while in custody which led to recovery of
the articles has to be proved. The basic idea embedded in
.....142/-
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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 prisoner, such discovery is guarantee that the
information supplied by the prisoner is true.
81. The importance of a pancha as a witness in a
criminal trial to lend assurance to the judicial conscience is
too well known to be either emphasized or stated even. He
is supposed to be an independent witness and accordingly
his evidence lends much needed assurance to the judicial
conscience before the order of conviction and sentence is
recorded against any accused. The reason is ordinarily
panch witness has no personal axe to grind either to falsely
support the prosecution or maliciously implicate the
accused. His services are called in aid by the Investigating
Agency to give true and correct picture of contemporary
.....143/-
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circumstances of search, seizure or any such other things
seen or heard at the place of the incident.
82. PW2 Tarachand Aherwar, is the pancha on
seizure panchanama, the memorandum statement of the
accused, and the recovery of the articles at his instance.
Admittedly, it shows that he is relative of the deceased.
However, merely because the witness is relative either of
informant or accused, it should not make any difference,
unless some thing is shown by the accused that due to
selection of the relative of the pancha witness, any
prejudice is caused to the accused. Much was argued for
the accused on the circumstance that the relative of the
deceased was used as a pancha witness and the trial court
has also considered his evidence. It is true that almost all
the pancha witnesses on memorandum statement of the
accused and recovery panchanama are the close relatives of
the deceased. At the most, it can be called as a lapse on
.....144/-
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144
the part of the police. However, there are circumstances in
the present matter to show that after the incident has
occurred, there was a tensed situation and the persons
from the locality have not come forward to give their
evidence against the accused. To show the supremacy, the
accused went to the house of the deceased along with
weapons in their hands. Some police force was also
deployed at the spot of the incident to avoid further
complications. Thus, the law and order situation at the
spot of the incident was tensed after the incident. In the
said circumstances and considering the circumstance that
even the eyewitness turned hostile, as they were won over
by the accused persons, when no other independent
witness was coming forward to act as a pancha, the police
have taken the help of the relative of the deceased as
pancha and nothing is brought on record to show that any
prejudice was caused to the accused as he was chosen as
.....145/-
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145
pancha witness and, therefore, the contention of learned
Senior Counsel Shri Avinash Gupta, that the prosecution
has selected the relative of the deceased as a pancha
witness and, therefore, his evidence is to be discarded, is
not sustainable.
83. The importance of a pancha as a witness in a
criminal trial to lend assurance to the judicial conscience is
too well known to be either emphasized or stated even. He
is supposed to be an independent witness and accordingly
his evidence lends much needed assurance to the judicial
conscience before the order of conviction and sentence is
recorded. In such matters, if the concerned police officer
commits some mistake in picking up any wrong person as a
pancha, then it may affect the investigation efforts. At the
same time, when the Court mechanically stamping out the
evidence of a police officer as an evidence of interested
witness discards the prosecution case, this will indeed
.....146/-
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greatly prejudice the overall public interest for which the
Investigating Agency ultimately exists and which in turn
would undermine the ultimate cause of justice. Therefore,
mere label of "selected pancha" should not by itself be
permitted to carry any weight, unless something is brought
on record to show that the "selected pancha" was having
any adverse interest and any prejudice is caused to the
accused as he acted as a pancha in the process of
investigation.
84. The another witness examined by the
prosecution is PW3 Atul Suresh Mahajan, who acted as a
pancha on seizure of the clothes of the accused and their
blood samples. His evidence is criticized as he is habitual
pancha. Merely because he acted as pancha in various
matters, that by itself is not sufficient to discard his
evidence. The court should examine evidence of such
witness cautiously and carefully. The requirement,
.....147/-
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147
admittedly, is to select the independent witness to
corroborate the evidence of the police. It would not be
proper to stamp a witness as a liar only because he
happens to be a pancha witness or witness in some
previous cases. The dependence of independence of such
witness has to be assessed while appreciating the evidence.
85. In the case of Nana Keshav Lagad vs. State of
Maharashtra, reported in (2013)12 SCC 3, the Hon'ble
Apex Court has considered this aspect and held that,
"merely because the witness has tendered the evidence in
another case, it cannot be held that on that score alone his
evidence should be rejected. The trial court has found that
when his version as regards the recovery was truthfully and
fully corroborated was acceptable and there was no reason
to reject the version of the said witness.
.....148/-
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86. Similarly, in the present case also, besides the
evidence of PW2 Tarachand Aherwar and PW3 Atul Suresh
Mahajan, the evidence of the investigating officers also
corroborates the story of the prosecution as to the recovery
of the weapons and recovery of the blood stained clothes at
the instance of the accused.
87. Thus, the prosecution has proved and
established the fact of recovery of the weapons and blood
stained weapons at the instance of the accused by adducing
the evidence of PW2 Tarachand Aherwar which is
corroborated by Investigating Officer PW10 Sudhir
Nandanwar and there is absolutely nothing on record to
discard the evidence only on the ground that he is relative
of the deceased. As nothing is brought on record to show
that due to selection of the pancha, who is relative of the
deceased, any prejudice is caused to the accused.
.....149/-
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88. The oral evidence of informant PW1 Deva
Shendekar and eyewitness PW5 Dhnyaneshwar Dhapekar
is further corroborated by the medical evidence as Medical
Officer PW9 Dr.Manish Shrigiriwar has categorically stated
about description of the weapons, nature of the weapons,
and possibility of sustaining the injury by such types of the
weapons. Thus, there is corroboration to the oral evidence
also. The evidence of informant PW1 Deva Shendekar and
eyewitness PW5 Dhnyaneshwar Dhapekar is further
criticized by learned defence counsel that there was a
general identification of the accused by the witnesses.
Admittedly, the accused persons were members of the
"unlawful assembly. In pursuance of the common object of
that assembly, they assaulted the deceased. As far as the
evidence of the prosecution witnesses is concerned, that
the accused persons came at the spot holding weapons in
their hands, is consistent. Their evidence, that in
.....150/-
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furtherance of their common object assaulted the deceased,
is also consistent.
89. At this juncture, legal provision under Section
141 of the IPC which defines "unlawful assembly" is
relevant. It say that, "an assembly of five or more persons
is designated an "unlawful assembly", if the common object
of the persons composing that assembly is to commit an
illegal act by means of criminal force".
90. Section 148 of the IPC, deals with rioting, armed
with deadly weapons - Whoever is guilty of rioting, being
armed with a deadly weapon or with anything which, used
as a weapon of offence, is likely to cause death, shall be
punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with
both.
.....151/-
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91. The offence of "riot" is defined in Section 146 of
the IPC. In view of the said definition, "whenever force or
violence is used by an unlawful assembly, or by any
member thereof, in prosecution of the common object of
such assembly, every member of such assembly is guilty of
the offence of rioting".
92. Section 149 of the IPC deals with every member
of unlawful assembly guilty of offence committed in
prosecution of common object. It say that, "if an offence is
committed by any member of an unlawful assembly in
prosecution of the common object of that assembly, or such
as the members of that assembly knew to be likely to be
committed in prosecution of that object, every person who,
at the time of the committing of that offence, is a member
of the same assembly, is guilty of that offence".
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93. Thus, if it is a case of murder under Section 302
of the IPC, each member of the "unlawful assembly" would
be guilty of committing the offence under Section 302 of
the IPC. Section 149 of IPC creates a constructive or
vicarious liability of the members of the unlawful assembly
for the unlawful acts committed pursuant to the common
object by any other member of that assembly. By applying
this principle every member of an unlawful assembly to be
held guilty of the offence committed by any member of that
assembly in prosecution of the common object of that
assembly. The factum of causing injury or not causing
injury would not be relevant when an accused is roped in
with the aid of Section 149 of IPC. The question which is
relevant and which is required to be answered by the Court
is whether the accused is the member of an unlawful
assembly or not.
.....153/-
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94. In the case of Vinubhai Ranchhodbhai Patel Vs.
Rajivbhai Dudabhai Patel, reported in (2018) 7 SCC 743,
wherein the Hon'ble Apex Court held that:
"in a cases where a large number of accused
constituting "unlawful assembly" are alleged
to have attacked and killed one or more
persons, it is not necessary that each of the
accused should inflict fatal injuries or any
injury at all. Invocation of Section 149 of
IPC is essential in such cases for punishing
the members of such unlawful assembly on
the ground of vicarious liability even though
they are not accused of having inflicted fatal
injuries in appropriate cases if the evidence
on record justifies. The mere presence of an
accused in such an unlawful assembly is
sufficient to render him vicarious liable
under Section 149 of IPC for causing the
death of the victim of the attack provided
that the accused are told that they have to
face a charge rendering them vicarious
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liable under Section 149 of IPC for the
offence punishable under Section 302 of
IPC."
95. In Criminal Appeal No. 1348/2014 (Nitya Nand
vs. State of U.P. & Anr.) decided on 04.09.2024, the Hon'ble
Apex Court observed by reproducing para No.22 of the
judgment of Vinubhai Ranchhodbhai Patel vs. Rajivbhai
Dudabhai Patel:
"22. When a large number of people gather
together (assemble) and commit an offence,
it is possible that only some of the members
of the assembly commit the crucial act
which renders the transaction an offence
and the remaining members do not take
part in that "crucial act" -- for example in a
case of murder, the infliction of the fatal
injury. It is in those situations, the
legislature thought it fit as a matter of
legislative policy to press into service the
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concept of vicarious liability for the crime.
Section 149 IPC is one such provision. It is a
provision conceived in the larger public
interest to maintain the tranquility of the
society and prevent wrongdoers (who
actively collaborate or assist the commission
of offences) claiming impunity on the
ground that their activity as members of the
unlawful assembly is limited."
96. Recently, in the judgment of Zainul vs. The State
of Bihar in Criminal Appeal No. 1187/2014 decided on
7.10.2025, the Hon'ble Apex Court has held that:
"49. The expression observed that "in
prosecution of the common object" means
that the offence committed must be directly
connected with the common object of the
assembly, or that the act, upon appraisal of
the evidence, must appear to have been
done with a view to accomplish that
common object. In Charan Singh Vs. State
.....156/-
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of U.P. reported in (2004) 4 SCC 205, this
Court held that the test for determining the
"common object" of an unlawful assembly
must be assessed in light of the conduct of
its members, as well as the surrounding
circumstances. It can be deduced from the
nature of the assembly, the weapons carried
by its members, and their conduct before,
during, or after the incident."
It is further observed that, Section 149 of IPC
makes all the members of an unlawful assembly
constructively liable when an offence is committed by any
member of such assembly with a view to accomplish the
common object of that assembly or the members of the
assembly knew that such an offence was likely to be
committed. However, such liability can be fasten only upon
proof that the act was done in perusal of the common
object.
.....157/-
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97. Thus, once the existence of a common object
amongst the members of an unlawful assembly is
established, it is not imperative to prove that each member
committed an overt act. The liability under this provision
is attracted once it is certain that an individual had
knowledge that the offence committed was a probable
consequence in furtherance of the common object, thereby
rendering him a "member" of the unlawful assembly.
Utmost it is important to consider whether the assembly
consisted of some members who were merely viewers and
who were there out of curiosity, without the knowledge,
then such persons cannot be said to be members of the
unlawful assembly. Thus, the existence of a common object
is to be inferred from certain circumstances such as:
a. the time and place at which the assembly was
formed;
b. the conduct and behaviour of its members at
or near the scene of the offence;
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c. the collective conduct of the assembly, as
distinct from that of individual members;
d. the motive underlying the crime;
e. the manner in which the occurrence unfolded;
f. the nature of the weapons carried and used;
g. the nature, extent, and number of injuries
inflicted, and other relevant considerations.
98. Thus, by applying these considerations to the
present case, the oral evidence of eyewitness PW5
Dhnyaneshwar Dhapekar corroborated by informant PW1
Deva Shendekar and the medical evidence and the
circumstantial evidence that deadly weapons like "swords"
and "guptis" were used in the commission of the crime and
multiple injuries are found on the persons of the deceased,
are sufficient to show the involvement of the accused
persons in the alleged incident.
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99. The evidence of these witnesses is further
criticized by learned defence counsel that there is a general
identification by eyewitnesses PW5 Dhnyaneshwar
Dhapekar and PW6 Suman Devgune and in support of the
contention, learned counsel Shri R.K.Tiwari for the accused
placed on the decision in the case of Turkesh Singh vs.
State Chhattisgarh supra wherein it has been observed
that, "in a case where there are eyewitnesses, one situation
can be that the eyewitness knew the accused before the
incident. The eyewitnesses must identify the accused sitting
in the dock as the same accused whom they had seen
committing the crime. Another situation can be that the
eyewitness did not know the accused before the incident.
In the normal course, in case of the second situation, it is
necessary to hold a Test Identification Parade".
It has been further held that, Identification of
the accused sitting in the Court by the eyewitness is of
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utmost importance. Such a statement in the examination-
in-chief is not sufficient to link the same to the accused.
The eyewitness must identify the accused A, B and C in the
Court. Unless this is done, the prosecution cannot establish
that the accused are the same persons who are named by
the eyewitness in his deposition.
100. Here, in the present case, admittedly, the
accused persons are acquainted with the witnesses as they
are residents of the same locality. As are as the evidence of
eyewitness PW5 Dhnyaneshwar Dhapekar is concerned, he
has identified them when he was present in the court.
Informant PW1 Deva Shendekar has also identified them.
Admittedly, they were not strangers to the accused.
101. The aspect, in a case, where large number of
accused constituting "unlawful assembly" are alleged to
have attacked or killed by one or more persons, is
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considered by the Hon'ble Apex court in the case of State of
Punjab Vs. Hakam Singh, MANU/SC/0526/2005, wherein
it has been observed that, sometimes while appreciating
the testimonies of rustic witnesses, we are liable to commit
mistakes by losing sight of their rural background and try
to appreciate testimony from our rational angle. When a
lady is confronted with number of intruders in her house
armed with deadly weapons and showering bullets she
cannot give a very accurate and photogenic version as
whole thing happened in few minutes. Therefore, while
appreciating whole scenario in which the incident
happened, it is not expected that she would be in a position
to state act of each accused.
102. In the present case, similar is the fact that all the
accused persons attacked the deceased by holding the
weapons in their hands. In that situation, it is difficult for
the witnesses to identify the accused persons. The
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involvement of the accused is there or not is to be
considered on the basis of the evidence brought on record
by the prosecution. Merely because no specific role is
attributed by the witnesses to the accused, when there is
attack by several persons, is not sufficient to discard their
evidence. It is not the case that the witnesses have not
identified the accused. It is pertinent to note that in fact,
the accused persons are not strangers to informant PW1
Deva Shendekar or PW5 Dhnyaneshwar Dhapekar. They
are residing in the same locality and, therefore, their
identification, that the accused persons are the same
persons who are involved in the crime, is sufficient.
103. The law as to the appreciation of evidence is
well settled. The appreciation as to the ocular evidence,
there is no straight jacket formula. In Criminal Appeal
No.1910/2010 (Balu Sudam Khalde and anr vs. The State
of Maharashtra) decided on 29.03.2023, the Hon'ble Apex
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Court has laid down the principles for appreciation of
ocular evidence in a criminal case, as follows:-
"APPRECIATION OF ORAL EVIDENCE
25. The appreciation of ocular evidence is a
hard task. There is no fixed or straight-jacket
formula for appreciation of the ocular evidence.
The judicially evolved principles for
appreciation of ocular evidence in a criminal
case can be enumerated as under:
"I. While appreciating the evidence of a
witness, the approach must be whether
the evidence of the witness read as a
whole appears to have a ring of truth.
Once that impression is formed, it is
undoubtedly necessary for the Court to
scrutinize the evidence more particularly
keeping in view the deficiencies,
drawbacks and infirmities pointed out in
the evidence as a whole and evaluate
them to find out whether it is against the
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general tenor of the evidence given by the
witness and whether the earlier
evaluation of the evidence is shaken as to
render it unworthy of belief.
II. If the Court before whom the witness
gives evidence had the opportunity to
form the opinion about the general tenor
of evidence given by the witness, the
appellate court which had not this benefit
will have to attach due weight to the
appreciation of evidence by the trial court
and unless there are reasons weighty and
formidable it would not be proper to
reject the evidence on the ground of
minor variations or infirmities in the
matter of trivial details.
III. When eye-witness is examined at
length it is quite possible for him to make
some discrepancies. But courts should
bear in mind that it is only when
discrepancies in the evidence of a witness
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are so incompatible with the credibility of
his version that the court is justified in
jettisoning his evidence.
IV. Minor discrepancies on trivial matters
not touching the core of the case, hyper
technical approach by taking sentences
torn out of context here or there from the
evidence, attaching importance to some
technical error committed by the
investigating officer not going to the root
of the matter would not ordinarily permit
rejection of the evidence as a whole.
V. Too serious a view to be adopted on
mere variations falling in the narration of
an incident (either as between the
evidence of two witnesses or as between
two statements of the same witness) is an
unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be
expected to possess a photographic
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memory and to recall the details of an
incident. It is not as if a video tape is
replayed on the mental screen.
VII. Ordinarily it so happens that a
witness is overtaken by events. The
witness could not have anticipated the
occurrence which so often has an element
of surprise. The mental faculties therefore
cannot be expected to be attuned to
absorb the details.
VIII. The powers of observation differ
from person to person. What one may
notice, another may not. An object or
movement might emboss its image on one
person's mind whereas it might go
unnoticed on the part of another.
IX. By and large people cannot accurately
recall a conversation and reproduce the
very words used by them or heard by
them. They can only recall the main
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purport of the conversation. It is
unrealistic to expect a witness to be a
human tape recorder.
X. In regard to exact time of an incident,
or the time duration of an occurrence,
usually, people make their estimates by
guess work on the spur of the moment at
the time of interrogation. And one cannot
expect people to make very precise or
reliable estimates in such matters. Again,
it depends on the time-sense of
individuals which varies from person to
person.
XI. Ordinarily a witness cannot be
expected to recall accurately the sequence
of events which take place in rapid
succession or in a short time span. A
witness is liable to get confused, or mixed
up when interrogated later on.
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XII. A witness, though wholly truthful, is
liable to be overawed by the court
atmosphere and the piercing cross
examination by counsel and out of
nervousness mix up facts, get confused
regarding sequence of events, or fill up
details from imagination on the spur of
the moment. The sub-conscious mind of
the witness sometimes so operates on
account of the fear of looking foolish or
being disbelieved though the witness is
giving a truthful and honest account of
the occurrence witnessed by him.
XIII. A former statement though
seemingly inconsistent with the evidence
need not necessarily be sufficient to
amount to contradiction. Unless the
former statement has the potency to
discredit the later statement, even if the
later statement is at variance with the
former to some extent it would not be
helpful to contradict that witness."
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104. By applying these considerations in the present
case, the oral evidence of informant PW1 Deva Shendekar
and PW5 Dhnyaneshwar Dhapekar shows that all the
accused persons came at the spot along with deadly
weapons in their hands and assaulted the deceased. The
oral evidence is corroborated by the medical evidence. It is
further corroborated by the scientific evidence as the blood
stains are found on the clothes of the accused as well as the
weapons are recovered at the instance of accused Santosh
Chaitram Kuhikar.
105. CA Report Exh.64 shows that on articles found
on the spot, clothes of the deceased and clothes of accused
Mahesh Natthuji Devgune, Sanjiv Shankar Kuhikar,
Santosh Chaitram Kuhikar, blood stains of Blood Group "B"
was found. Admittedly, accused Mahesh Natthuji Devgune
was injured in the said incident. The injuries of accused
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Mahesh Natthuji Devgune are explained by the prosecution
by examining Medical Officers PW13 Dr.Naina Dhumale
and PW14 Dr.Mamta Sonsare. Considering the medical
evidence of PW13 Dr.Naina Dhumale and PW14 Dr.Mamta
Sonsare, it shows that on 19.1.2011 itself they were
referred for the medical examination and they are
medically examined. In their medical certificates, it is
nowhere mentioned that they have narrated the history of
the assault. Accused Mahesh Natthuji Devgune has
sustained the grievous injuries over the little finger. As per
the medical evidence, they were holding sharp weapons
and, therefore, while using the weapons during scuffle,
possibility of injuries to their hands and on their body
cannot be ruled out. It is not the case of the defence that
the deceased was also holding the weapon at the relevant
time and in the scuffle, they were also assaulted and,
therefore, to protect themselves, they have assaulted the
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deceased. Therefore, the contention of the prosecution
that they may have sustained the injuries by handling the
weapons cannot be ruled out. One of accused Sanjiv
Shankar Kuhikar has also received injury on his cheek. The
Blood Group of accused Devanand Chaitram Kuhikar is
"B", but he has not sustained the injury. Blood Group of
accused Santosh Chaitram Kuhikar is "O", who has also not
sustained the injury. Blood Group of accused Mahesh
Natthuji Devgune is not determined. As per Exh.64, the
blood stains of Blood Group "B" were found on the clothes
of accusedMahesh Natthuji Devgune, Sanjiv Shankar
Kuhikar, and Santosh Chaitram Kuhikar. They have not
given any explanation as to appearance of the blood stains
on their clothes.
106. Exh.66 is another CA Report as to examination
of weapons, which shows that "two swords" and "guptis"
seized at the instance of accused Santosh Chaitram Kuhikar
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are also stained with Blood Group "B", which is the same as
of the deceased. This evidence is criticized by learned
defence counsel that though the weapons are recovered on
22.1.2011, the same were forwarded by the investigating
officer to the CA on 21.3.2011 as per the requisition.
Thereafter, he forwarded the weapons to the medical
officer for seeking his opinion. The evidence of the medical
officer shows that he has received the weapons on
18.3.2011 and on the same day, the weapons were
examined by him and forwarded to the police station.
107. Exh.58 shows that muddemal articles weapons
were seized and deposited on 24.1.2011. Even, accepting
that the investigating officer has not immediately deposited
the said weapons with the muddemal clerk, itself is not
sufficient to discard the evidence. At the most, it can be
termed as faulty investigation.
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108. The evidence of the investigating officer is
criticized on the ground that the prosecution has not
explained that since seizure of the weapons till the same
were forwarded, the same were kept in safe custody and
there was no chance of tampering of the articles.
Admittedly, the prosecution has to adduce the evidence
that during that period, the articles were kept in safe
custody and there was no chance of tampering of the same.
The nature of argument was that, the investigation carried
out by the investigating officer suggests that it was not kept
in a proper and disciplined manner. Admittedly, the
prosecution failed to adduce the evidence that during the
said period, muddemal articles were kept in safe custody
and there was no chance of tampering of the same. It
shows that the weapons were seized on 22.1.2011 and the
same were deposited with the muddemal clerk on
24.1.2011. However, the evidence of the medical officer
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shows when he received the weapons, the same were in a
sealed condition. After examination, he again resealed and
forwarded the same to the police. The CA Report shows
that when the articles were received, the seals were intact.
109. Even, accepting the contention of learned
counsel for the accused persons, principle of law is crystal
clear that on account of defective investigation, the benefit
will not go to the accused persons on that ground alone. It
is well within the domain of the court to consider the rest
of the evidence which the prosecution has gathered such as
statements of eyewitnesses and medical reports etc.. It has
been well settled principle laid down in various decisions
that the accused cannot claim acquittal on the ground of
faulty investigation done by the prosecuting agency. The
specific role attributed by the prosecution witnesses cannot
be challenged on extraneous grounds raised by the
defence. The trivial defects in investigation or process are
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not enough in themselves to disbelieve the evidence of the
eyewitnesses or the prosecution case. To acquit solely on
the ground of defective investigation would be adding
insult to injury.
110. The oral evidence is corroborated by the medical
evidence as well as the scientific evidence. The blood
stains weapons are recovered at the instance of accused
Santosh Chaitram Kuhikar. The scientific evidence shows
involvement of the accused persons in the alleged incident.
111. It is well settled that the law does not require a
fact that requires to be proved on absolute terms bereft of
all doubts. What law contemplates is that for a fact to be
considered to be proven, it must eliminate any reasonable
doubt. Reasonable doubt does not mean any trivial,
fanciful or imaginary doubt, but doubt based on reason
and common sense growing out of the evidence in the case.
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A fact is considered proof if the Court, after reviewing the
evidence, either believes it exists or deems its existence
probable enough that a prudent person would act on the
assumption that it exists.
112. It is cardinal principle of criminal jurisprudence
that the guilt of the accused must be proved beyond all
reasonable doubts. However, the burden on the
prosecution is only to establish its case beyond all
reasonable doubts and not all the doubts. Doubts would be
called reasonable if they are free from a zest for abstract
and speculation. Law cannot afford any favouring other
than truth. Doubts must be actual and substantial doubts
as to the guilt of the accused arising from the evidence. A
reasonable doubt is not an imaginary or mere a possible
doubt but a fare doubt based upon reason and common
sense.
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113. For the reasons discussed above, on
consideration of the oral evidence, medical evidence,
scientific evidence, and other proven fact, in our
considered opinion, the prosecution has proved the guilt of
the accused persons unmistakenly to point out that being
the members of the "unlawful assembly" and in furtherance
of their common intention, they have committed the
murder of deceased punishable under Section 302 of the
IPC. These proved facts on the basis of proved evidence,
the prosecution has proved the charges against the accused
persons beyond reasonable doubts. Resultantly, the
appeals deserve to be dismissed. Accordingly, we
proceeding to pass following order:
ORDER
(1) The Criminal Appeals are dismissed.
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(2) Accused persons Mahesh Natthuji Devgune, Sanjiv
Shankar Kuhikar, Santosh Chaitram Kuhikar, Devanand
Chaitram Kuhikar, Sheshrao Ramdas Kuhikar, and Rajesh
Ramprasad Kuhikar shall surrender before the
Superintendent of Central Prison at Nagpur to undergo the
sentence on 23/01/2026.
(3) The Bail Bonds of the accused persons shall stand
cancelled.
(4) 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: 14/01/2026 18:51:48
