[Cites 8, Cited by 0]
Bombay High Court
Sanjay Ajabrao Tayade vs The State Of Mah. Thr. Pso Ps Mahuli ... on 14 January, 2026
2026:BHC-NAG:508
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 144/2023
Sanjay Ajabrao Tayade
Aged about 29 years, Occ. Labour
R/o Bramhanwada-Govindpur,
Tq. and Distt. Amravati. .. Appellant
Versus
The State of Maharashtra,
Through Police Station Officer,
Police Station, Mahuli Jahangir,
Tq. & Distt.Amravati. .. Respondent
...
Mr. P.R.Agrawal, Advocate for Appellant.
Mr. Bhagwan M.Lonare, A.P.P. for Respondent/State.
...
CORAM : NEERAJ P. DHOTE, J.
Date of reserving judgment : 12.01.2026.
Date of pronouncing judgment :14.01.2026.
JUDGMENT:
1. This is an Appeal under Section 374 (2) of the Code of
Criminal Procedure, 1973 (for short "Cr.P.C.") against the judgment
and order dated 15th June, 2022 passed by the learned Additional
Sessions Judge, Amravati, in Sessions Case No.278/2018 convicting
the Appellant for the offence punishable under Section 307 of the
Indian Penal Code, 1860 (for short "IPC") and sentencing him to
suffer rigorous imprisonment for ten years and a fine of Rs.10,000/-,
in default, to suffer simple imprisonment for one month.
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2. The Prosecution's case, as revealed from the police
report, is as follows:-
The informant is the father of the injured. They are the
resident of Brahmanwada-Govindpur, Taluka and District Amravati.
In the year 2018, the injured was the President of the Tantamukti
Samiti. The Appellant and the acquitted Accused were selling
country liquor without valid licence and therefore, the injured had
lodged a complaint against the same to the police. On 24.8.2018
around 3.00 p.m., the Appellant and the acquitted Accused
assaulted the injured with an Axe. The injured was shifted to Irwin
hospital. The Informant went to the hospital and met the injured.
The injured narrated the incident to him. The injured was shifted to
Nagpur for further treatment. The informant lodged a report with
Mahuli Jahangir Police Station and Crime bearing No.118/2018
came to be registered for the offence punishable under Section 307
of the IPC.
3. During the course of investigation, the Appellant and
the acquitted Accused were arrested, spot panchanama was drawn,
articles were seized, statement of witnesses were recorded, Axe used
in the incident came to be discovered and seized at the instance of
the Appellant. After completion of investigation, the charge-sheet
came to be filed.
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4. On committal, the learned Trial Court framed the
Charge against the Accused below Exhibit-9 for the offence
punishable under Section 307 read with Section 34 of the IPC. The
Accused pleaded not guilty and claimed to be tried. To prove the
Charge, the prosecution examined the following witnesses:
(1) PW 1 Smt. Shobha Ambadas Nihate, Panch witness.
(2) PW 2 Dnyaneshwar Vishvasrao Bhuyar, Informant.
(3) PW 3 Nitin Dnyaneshwar Bhuyar, Injured.
(4) PW 4 Nilesh Subhashrao Dhotre, Eye-witness.
(5) PW 5 Dr. Ninad Bhaiyyasaheb Gawande, Medical Officer.
(6) PW 6 Dr. Ujjwala Ratanlal Mohod, Medical Officer.
(7) PW 7 Rahul Janardhan Khandare, Constable, who deposited
the muddemal in the FSL, Amravati.
(8) PW 8 Raghunath Pundlikrao Gawande, ASI who registered
the FIR.
(9) PW 9 Pravin Devikisan Kadi, I.O.
(10) PW 10 Santosh Vitthal Boyane, I.O. who filed Charge-sheet.
The relevant documents such as panchanamas,
communications etc., were brought on record in the evidence of the
above referred witnesses. After the prosecution closed its evidence,
the statements of the Accused were recorded under Section 313 (1)
(b) of the Cr.P.C. The Accused stated that, they were falsely
implicated. On appreciating the evidence on record, the learned
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Trial Court convicted the Appellant as above and acquitted the
Co-Accused by the impugned judgment and order.
5. Heard the learned Advocate for the Appellant and the
learned APP for the State. Scrutinized the evidence available on
record.
6. It is submitted by the learned Advocate for the
Appellant that, though the police recorded statement of the victim
in the hospital before lodging the FIR, the same was not brought on
record by the prosecution. The informant did not lodge immediate
report after injured narrated the incident to him. The report was
lodged after 09 hours. There was delay in reporting the incident to
the police, which gives rise to embellishment and concoction. The
conduct of the eye-witness was unnatural, as he did not report the
incident to the police. The eye-witness on earlier occasion lodged
the report against the Appellant and, therefore, he was an interested
witness. Though the recovery of Axe was shown at the instance of
the Appellant, there was no evidence to show blood stains of
deceased on the same. There is variance in the spot of incident
mentioned in the spot panchanama and referred in the medical
history. The evidence on record do not conclusively establish the
involvement of the Appellant in the incident. In the alternative, he
submitted that the Appellant was behind bars for a period of more
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than six (6) years and his family was dependent on him and,
therefore, leniency be shown and minimum sentence be imposed.
7. It is submitted by the learned APP that, the delay in the
FIR can be no reason to doubt the prosecution case, which is based
on the testimony of injured witness. The testimony of the injured
witness was corroborated by the medical evidence. Since the injured
had reported the illegal act of selling country liquor without licence
to the police, the Appellant was having grudge against the injured
and out of that, the incident took place. The learned Trial Court had
rightly appreciated the evidence on record and no interference was
called for. In support of his submissions, he relied on the judgments
in State of Uttar Pradesh Vs.Naresh and others, (2011) 4 SCC 324
and Maukam Singh and others Vs. State of Madhya Pradesh in
Special Leave Petition (CRL)No.13369 of 2024 dated 2 nd April,
2025.
8. In State of Uttar Pradesh (supra), it is held that,
"a testimony of injured witness must be given due weightage and
his presence cannot be doubted. His statement is generally
considered to be very reliable and it is unlikely that he has spared
the actual assailant in order to falsely implicate someone else. The
testimony of an injured witness has its own relevancy and efficacy
as he has sustained injuries at the time and place of occurrence and
this lends support to his testimony that he was present during the
occurrence. Thus, the testimony of the injured witness is accorded
special status in law."
In Maukam Singh (supra), the judgement was delivered
on the facts of the case.
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9. There can be no dispute on the settled legal position
that, the testimony of an injured witness stands on a higher
pedestal. The case at hand is based on the testimony of the injured
witness, who is examined as PW 3 - Nitin. His evidence shows that,
he knows the Appellant as he is resident of the same village. He was
the President of Tantamukti Samiti of the village. On 24.8.2018, he
returned to the village from the agricultural field in between 13.00
to 13.30 hours. The acquitted Accused no.3 gave a call to him and
assaulted with fists. The Appellant was accompanying the said
acquittal Accused no.3. The Appellant came from backside and gave
blow on his head, near the eyes and on the lips by an Axe. Due to
the assault, he fell unconscious. He was removed to the hospital. He
deposed that since he helped the police against the Appellant the
incident took place. His evidence shows that, his father i.e.
informant, came to the hospital and he narrated the incident to him,
when he was admitted in the Irwin hospital, Amravati. Thereafter,
he was shifted to Nagpur where he was hospitalized for 15 days.
10. His evidence further shows that, when he was in the
Irwin hospital, Amravati, the police had come and he informed them
about the incident. In cross-examination, it has further come that,
twice his statement was recorded. The evidence of PW 6 -
Dr.Ujjwala Ratanlal Mohod, Medical Officer, who examined the
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injured on 29.8.2018 while he was admitted in the Irwin hospital,
Amravati, shows that the Head Constable Rajkumar from the Police
Headquarter, Amravati, had issued requisition to him for
ascertaining physical and mental condition of the injured as he
wanted to record his statement and he found the injured to be in fit
condition to give statement and necessary endorsement was made
on the requisition, which was at Exhibit 63. This clearly show that
the injured was in a fit condition to give statement and his
statement was recorded by the said Head Constable. The said Head
Constable Rajkumar is not examined by the prosecution. However,
it is strange that no crime or FIR was registered on the statement
given by this injured witness which was admittedly prior to the F.I.R.
His evidence further shows that many people in the village where in
illegal liquor supply and the said people had grudge against him. A
suggestion is given that, he was assaulted by the said people. As
the first version narrated by this injured witness to the police is not
forthcoming and no crime was registered on the basis of the same, it
gives rise to inference that, the same was not favourable to the
prosecution against the Appellant and, therefore, the prosecution
case is required to be seen with doubtful.
11. The first informant is examined as PW 2 - Dnyaneshwar.
Undisputedly, he is not an eye witness to the incident. He came to
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know about the incident of assault on his son through one Vinod
Bhuyar. The said person Vinod Bhuyar is not examined by the
prosecution. The evidence shows that, by 16.00 hours he went to
the Irwin hospital where his injured son was admitted. The injured
narrated the incident to him against the Appellant. The injured was
shifted to Nagpur and thereafter in the midnight about 1.30 a.m; he
went to the concerned police station and lodged report against the
Appellant and the acquitted Accused. The said report is at Exh-48.
His further evidence shows that there was police post at the Irwin
hospital. He admitted that, he did not inform the police at the
Irwin hospital and also did not inform about the police before going
to the Irwin hospital. This again appears strange that when this
witness came to know about the assault from the said person by
name Vinod Bhuyar and thereafter from the injured, he did not
lodge report with the police though there was the police post in the
Irwin hospital where he had gone. The FIR format shows that the
information was received to the police at 03.41 hours, which clearly
show that though having the knowledge about the incident, the
informant lodged the report after nine hours. This delay remained
unexplained. This again makes the prosecution case doubtful, as the
informant had sufficient time to deliberate before lodging the
report. This unexplained delay does not rule out the possibility that,
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the FIR was the result of due deliberation. It is settled position
under the law that, the delay is to be assessed on the facts of each
case and delay gives possibility of embellishment and concoction.
12. The prosecution examined PW 4 - Nilesh Dhotre, as an
eye witness to the incident. His evidence shows that, he knew all
the Accused and the injured. On 24.8.2018, while he was
proceeding towards his work and reached Samaj Mandir, he saw the
Appellant assaulting the injured with an Axe accompanied by the
acquitted Accused. He deposed that the injured suffered injury due
to assault and as he was frightened he did not actually intervened.
His evidence shows that, he went to the house of the injured and
informed about the incident. His evidence shows that, on earlier
occasion he had lodged one report with the same police station
against the Appellant and one Shankar Kale for the offence
punishable under Section 324 of the IPC and the said case was
pending. This indicates that the relations between this witness and
the Appellant were not cordial. His evidence shows that, he was
aware that after dialling 100 number on the phone, quick assistance
of police is provided. He did not inform the police on the said
number though he was having the mobile phone at his home. The
evidence of this witness goes to show that, he was a chance witness.
Though, he lodged earlier report against the Appellant and one
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more, it is strange that he did not lodge the report after he saw the
incident of assault on the injured. This creates reasonable doubt as
to whether he witnessed the incident and so his evidence in respect
of incident is required to be seen with doubt.
13. As regards the spot of incident is concerned, there is
variance in the evidence of the prosecution. P.W. 1 - Smt. Shobha
Nihate acted as a panch for the spot panchanama below Ex.40.
According to her, the spot of incident was in front of Samaj Mandir
in Ward no.1, Govindpur. However, in the history recorded by the
Medical Officer PW 5 - Dr. Ninad Gawande on 24.8.2018, the spot
of incident was referred near the farm of the injured at
Brahmanwada. The same is mentioned in the injury certificate
below Ex.59 under the head 'History of case in short'. From this
evidence, it is clear that, the prosecution's evidence is not consistent
in respect of the spot of incident. This again makes the evidence of
the injured witness doubtful that, he was assaulted by the Appellant.
14. The other evidence brought on record by the
prosecution is the discovery and seizure of the Article i.e. Axe at the
instance of the Appellant pursuant to Section 27 of the Indian
Evidence Act. On this point, the material witness is PW 1- Smt.
Shobha Nihate, the panch witness. The discovery panhanama is
brought on record. The evidence of this panch witness shows that
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her signature on the Memorandum and Seizure panchanama dated
27.8.2018 was taken in the police station. In the evidence of this
panch witness the Seizure panchanama is brought on record at
Ex.42 which clearly speak that, no blood stains were noticed on the
Axe. Further, there is no report from the Chemical Analyser to show
that, the Axe was having blood stains of the victim. With these
factual aspect of the matter, evidence in the nature of discovery and
seizure of the Axe at the instance of the Appellant will not be
relevant and not of any assistance to the prosecution to prove the
charge.
15. The above discussed evidence on record, at the cost of
repetition show the following aspects:
(i) There is unexplained delay of nine (9) hours in lodging
the report with the police station in respect of the incident;
(ii) Though the injured was in a fit state of condition to
give statement and his statement was recorded by the Head
Constable, which was the first version or disclosure to the police, no
FIR was registered and the said statement is not brought forward by
the prosecution.
(iii) The discovery and seizure of the Axe was not an
incriminating circumstance, as no blood stains were found on the
same.
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(iv) There is material variance in respect of the spot of
incident mentioned in the spot panchanama and mentioned in the
history given to the Medical Officer.
(v) No blood was found on the clothes of the Appellant as
is clear from the clothes Seizure panchanama below Ex.82.
16. Though, through medical evidence on record, the
prosecution proved the injuries suffered by the injured, the evidence
led by the prosecution do not firmly and conclusively established
that the Appellant was the author of said injuries. In the light of the
above referred aspects, which are borne from the evidence on
record, the prosecution's case is required to be seen with doubt. The
Appellant is entitled for Acquittal. Hence, I proceed to pass the
following order:-
ORDER
(i) The Appeal is allowed.
(ii) The conviction and sentence recorded by the learned
Additional Sessions Judge, Amravati against the Appellant for the
offence punishable under Section 307 of the Indian Penal Code, by
the impugned judgment and order dated 15.6.2022 in Sessions Case
No. 278/2018 is quashed and set aside.
(iii) The Appellant is acquitted for the offence punishable under
Section 307 of the Indian Penal Code.
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(iv) The Appellant is behind bars. He be released forthwith, if not
required in any other offence.
(v) The fine amount, if any, paid by the Appellant be refunded to
him.
(vi) The muddemal Articles be dealt with as per the operative
order of the impugned judgment passed by the learned Additional
Sessions Judge.
(vii) The record and proceedings be sent back to the learned Trial
Court.
(NEERAJ P. DHOTE, J.)
mukund ambulkar
Signed by: Ambulkar (MLA)
Designation: PS To Honourable Judge
Date: 14/01/2026 14:49:37
