Gajanan S/O Marotrao Gajbhiye vs The State Of Mah. Thr. Police Station, ...
2026 Latest Caselaw 634 Bom

Bombay High Court

Gajanan S/O Marotrao Gajbhiye vs The State Of Mah. Thr. Police Station, ... on 20 January, 2026

Author: Anil L. Pansare

Bench: Anil L. Pansare

2026:BHC-NAG:854-DB


                                               1                               apeal 425.21.odt




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


                CRIMINAL APPEAL NO. 425 OF 2021


                Gajanan s/o Marotrao Gajbhiye,
                Aged about 61 years, Occupation - Labour,
                Resident of Shendola (Buzurg),
                Tq. Tiwsa, District Amravati.                       ....     APPELLANT

                             VERSUS

                State of Maharashtra,
                Through Police Station, Badnera,
                Tq. and District Amravati.                          ....    RESPONDENT

                ____________________________________________________________________

                           Mr. A.D. Tote, Counsel (appointed) for the appellant,
                           Mr. A.J. Gohokar, Addl.P.P. for the respondent/State.
                ____________________________________________________________________


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

                DATE OF RESERVING THE JUDGMENT : 7th JANUARY, 2026
                DATE OF PRONOUNCING THE JUDGMENT : 20th JANUARY, 2026.


                JUDGMENT :

(PER : NIVEDITA P. MEHTA, J.)

This appeal is directed against the judgment and order dated

10.03.2021 passed by the learned Additional Sessions Judge, Amravati in

Sessions Trial No.246/2018. By the impugned judgment and order, the

appellant stands convicted for an offence punishable under Section 302 of

the Indian Penal Code (IPC) and is sentenced to suffer life imprisonment and

to pay a fine of ₹10,000/-. In default of payment of fine, he is directed to

suffer rigorous imprisonment for two years. He is also convicted for the 2 apeal 425.21.odt

offence punishable under Section 450 of the IPC and is sentenced to suffer

rigorous imprisonment for 3 years and to pay a fine of ₹5000/-. In default of

payment of fine, he is directed to undergo rigorous imprisonment for six

months. The sentences were directed to run concurrently.

2. The prosecution case, as it is disclosed during the course of trial is

narrated as under:

(i) Padma Bhaskar Dongre (PW 2), aged 40, was engaged in work of

cooking food as well as washing utensils and clothes. She had married twice.

Out of her first wedlock with Bhaskar Eknath Dongre, a son namely Mahesh

was born. Unfortunately, the marriage didn't last long and she started

residing separately. Thereafter within 2-3 years of separation, she performed

second marriage with Suresh Gawai. Out of this wedlock, one son and one

daughter was born. Mahesh, being her eldest son, used to reside with the

mother of PW 2, Anusayabai Gondhane at village Wadgaon Zire. He used to

visit the house of PW 2 sometimes.

(ii) PW 2 had taken up the work of catering with one Komubai

Meshram, who is the relative of the appellant. Prior to this, Priyanka

Gajbhiye had been residing at the house of Komubai Meshram since three

months. Sometimes, Priyanka used to tag along with them for catering work.

PW 2 got acquainted with Priyanka. Mahesh, son of PW 2, and Priyanka got

to know each other at the time of work of catering and eventually fell in love.

PW 2 was well aware with their affair.

3 apeal 425.21.odt

(iii) Priyanka was married to the appellant, Gajanan Gajbhiye, and had

two sons and one daughter. Out of that, one son Ashish and one daughter

Poonam used to reside with her and another son with the appellant as she

did not have cordial relationship with her husband. There were constant

disputes between them and hence she has filed a complaint against the

appellant in the Police Station at Shendola.

(iv) Mahesh had been residing at the house of PW 2 since last 15 days

prior to the incident. On 17.07.2018, at about 6.00 pm., he went to Wadgaon

Zire along with Priyanka and her children. On the following day i.e.

18.07.2018 at about 6:30 pm. PW 2 received a phone call from one

Ghanshyam Fule who informed her that murder of Mahesh and one woman

accompanying him, had taken place in his house. Upon receiving

information, PW 2 along with her mother immediately rushed to the spot. At

that time, Poonam, daughter of Priyanka, was present at the house. She

narrated the incident to PW 2 stating that her father, the appellant, had come

home armed with knife and found Mahesh in the kitchen. He stabbed

Mahesh repeatedly and when Priyanka attempted to intervene, the appellant

stabbed her as well. As a result of assault, both, Mahesh and Priyanka, fell to

the ground, bleeding profusely. Thereafter, the appellant fled from the scene.

Hence, the present complaint came to be filed by PW 2.

(v) First Information Report dated 18-07-2018 came to be registered

vide Crime No. 405/2018 under Sections 302 & 450 of the IPC. Thereafter,

police conducted the investigation, prepared spot panchnama, forwarded 4 apeal 425.21.odt

both the dead bodies to the hospital for postmortem, prepared inquest

panchnama, collected post-mortem reports, also seized clothes of deceased as

well as appellant, seized the weapon, recorded the statements of witnesses,

forwarded muddemal to the C. A. office, collected C.A. report. After

completion of investigation, police filed a charge-sheet bearing No. 156/2018

dated 05-10-2018 against the appellant under Sections 302 and 450 of the

IPC. As the offence exclusively triable by the Sessions Court, the learned

Sessions Judge passed committal order below Exh.1 on 02.11.2018 and

committed the said case.

(vi) The learned Sessions Judge framed Charge vide Exh.4 on

24.07.2019 against the appellant for the offences punishable under Sections

302 and 450 of the IPC. The appellant pleaded not guilty and claimed to be

tried. In his statement under Section 313 of the Code of Criminal Procedure,

the appellant denied the prosecution case in its entirety and contended that

he had been falsely implicated. The prosecution examined eleven witnesses

in support of its case, including the complainant, child witnesses, panch

witnesses to the spot and recovery, the Medical Officers, the Circle Officer,

and the Investigating Officer, and relied upon documentary as well as

forensic evidence. The appellant did not examine any defence witness, nor

did he lead any evidence in support of his defence.

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

held that the deaths of Mahesh Dongare and Priyanka Gajbhiye were 5 apeal 425.21.odt

homicidal and that the prosecution had proved beyond reasonable doubt that

the appellant alone was the author of the crime. The learned trial Court

found that the strained marital relationship, prior complaints by deceased

Priyanka against the appellant, and her love affair with Mahesh furnished a

strong motive for the offence.

4. The learned trial Court accepted the evidence of the child witnesses,

holding that their presence at the spot was natural and their core version was

reliable and could not be discarded merely on account of minor

contradictions. It held that the manner of assault, nature of weapon and

repeated blows clearly established the intention and knowledge necessary to

attract Section 302 of the IPC. The learned trial Court further held that the

appellant had committed house-trespass with intent to commit murder,

thereby attracting Section 450 of the IPC, and concluded that the chain of

circumstantial evidence was complete and unbroken, warranting conviction

of the appellant under Sections 302 and 450 of the IPC.

5. Submissions on behalf of the Appellant :

(i) Learned Counsel for the appellant submitted that the conviction is

based on unreliable and insufficient evidence and is liable to be set aside.

(ii) It was contended that the prosecution has failed to establish any

credible direct evidence, and the case rests primarily on the testimony of

child witnesses, whose evidence is inconsistent, partly hostile and susceptible

to tutoring, and therefore unsafe to rely upon.

6 apeal 425.21.odt

(iii) The learned Counsel urged that the alleged motive of an illicit

relationship is not proved by any independent evidence, and in a case based

on circumstantial evidence, failure to establish motive is fatal to the

prosecution.

(iv) It was submitted that the recovery of the knife and blood-stained

clothes at the instance of the accused is doubtful, suffers from procedural

irregularities and does not satisfy the requirements of Section 27 of the

Evidence Act.

(v) The forensic evidence, according to the learned Counsel, does not

conclusively connect the appellant with the offence, as the Chemical

Analyser's report does not establish a clear nexus between the blood stains

and the deceased.

(vi) The learned Counsel further pointed out serious lapses in

investigation, including delay in recording statements and non-examination

of independent witnesses from the locality, which cast doubt on the

prosecution version.

(vii) On these grounds, it was submitted that the prosecution has failed to

prove its case beyond reasonable doubt, and the appellant is entitled to the

benefit of doubt and acquittal.

7 apeal 425.21.odt

6. Submissions on Behalf of State :

(i) Learned Additional Public Prosecutor for the State supported the

impugned judgment and order, and submitted that the trial Court has

correctly appreciated the oral, documentary and medical evidence, and the

conviction calls for no interference.

(ii) It was urged that the homicidal deaths of both the deceased stand

conclusively proved by medical and post-mortem evidence, and the

prosecution has established beyond reasonable doubt that the appellant is the

author of the crime.

(iii) The learned Additional Public Prosecutor submitted that the

evidence of the child witnesses is natural, trustworthy and reliable, and their

presence at the spot is undisputed. It was contended that merely because

they are related to the appellant, their evidence cannot be discarded,

particularly when their core version remains consistent.

(iv) It was further submitted that the statements of the child witnesses

recorded under Section 164 Cr.P.C. corroborate their testimony before the

Court, and minor inconsistencies do not affect the substratum of the

prosecution case.

(v) The prosecution relied upon the strong motive, namely strained

marital relations, prior complaints by the deceased wife, and the appellant's 8 apeal 425.21.odt

suspicion arising out of the relationship between the deceased, which

provided a compelling reason for the commission of the offence.

(vi) It was contended that the recovery of the knife and blood-stained

clothes at the instance of the appellant is duly proved and is corroborated by

forensic evidence showing presence of human blood on the seized articles.

7. The learned Additional Public Prosecutor emphasised that the

medical evidence fully supports the prosecution case, showing multiple stab

injuries on vital parts of the body, clearly establishing the intention and

knowledge necessary to attract Section 302 of the IPC.

8. It was submitted that the appellant committed house-trespass with

intent to commit murder, thereby rightly attracting Section 450 of the IPC,

and that the chain of circumstances is complete and unbroken, warranting

dismissal of the appeal. The judgment of the learned trial Court is legal,

proper and calls for no interference.

9. Points for Determination :

Upon hearing the learned Counsel for the appellant and the learned

Additional Public Prosecutor for the State and upon re-appreciation of the

entire evidence on record, the following points arise for determination in this

appeal:

9 apeal 425.21.odt

S.N. Points Findings

(i) Whether the prosecution has proved that In the affirmative.

the deaths of Mahesh Dongare and Priyanka Gajbhiye were homicidal ?

(ii) Whether the prosecution has proved In the negative.

beyond reasonable doubt that the appellant alone was the author of the crime ?

(iii) Whether interference is called for in the In the affirmative.

impugned judgment ?

(iv) What order ? As per final order.

Before adverting to the points for determination, we find it

appropriate to briefly discuss the evidence produced by the prosecution.

10. PW 1-Ashish Gajbhiye, the son of the deceased and the appellant,

stated that on the day of the incident his father first threw chilli powder into

the eyes of his mother and Mahesh and thereafter assaulted them with a

knife, causing their death. But in cross-examination, PW 1 admitted that at

the time of the incident he and his sister were not present at the spot and had

not actually witnessed the assault on his mother. He further stated that he

was informed by PW 2 that his father had come there. Thus, his evidence

regarding the actual assault is not based on direct ocular perception.

11. PW 2-Padma Dongare, mother of deceased Mahesh, deposed about the

background leading to the incident, stating that Mahesh and Priyanka met

while working in catering and later developed a relationship. She stated that

Priyanka was married to the appellant but was living separately due to 10 apeal 425.21.odt

strained relations and had lodged a complaint against him. She further

deposed that on 17.07.2018 Mahesh and Priyanka had gone to Wadgaon Zire

and that on 18.07.2018 she received information about their murder. On

reaching the spot, she found bloodstains and learnt that the bodies had been

shifted to Irvin Hospital. She stated that Priyanka's daughter informed her

that the appellant assaulted Mahesh with a knife and also assaulted Priyanka

when she intervened. PW 2 thereafter lodged the report, which was duly

proved. In cross-examination, nothing material was elicited, except that her

knowledge of the incident was based on what was told to her by Priyanka's

daughter.

12. PW 3-Poonam Gajbhiye, the minor daughter of deceased Priyanka and

the appellant, deposed that at the relevant time she and her brother Ashish

were residing with their mother, while her father and brother Akshay were

residing separately. She stated that on the day of the incident her mother and

Mahesh were found lying inside the house with bleeding injuries and had

died. She stated that she and her brother were playing outside and, upon

entering the house to drink water, she noticed them lying injured, whereupon

people gathered and the police arrived. She deposed that the police enquired

with her and that she narrated the incident to them, including that her father

had come there and thereafter left. In cross-examination, PW 3 categorically

admitted that she had not witnessed the assault and had not seen who

inflicted the knife injuries. She further stated that she named her father

before the police at their instance and that neither she nor her brother had 11 apeal 425.21.odt

seen him at the spot. Thus, her evidence does not constitute direct ocular

testimony regarding the occurrence.

13. PW 4-Chetan Ganesh Birha, a Clerk with the Municipal Corporation,

Badnera, deposed that in July 2018 he was deputed as a panch witness on

the requisition of Badnera Police Station. He stated that on 22.07.2018, while

the appellant was in police custody, the appellant made a voluntary disclosure

admitting the assault and stating that the blood-stained knife and clothes

were concealed in bushes near a dam at Wadgaon Zire. The memorandum

statement was recorded in his presence and duly proved. He further deposed

that the appellant led the police and panchas to the spot and produced a

concealed plastic carry bag containing a blood-stained knife and clothes,

which were seized and sealed under a recovery panchnama. In cross-

examination, no material was elicited to discredit the recovery at the instance

of the appellant.

14. PW 5-Dr. Subhash Gajananrao Titare, Medical Officer at Irvin Hospital,

Amravati, deposed that he conducted post-mortem examinations on the

bodies of Priyanka Gajbhiye and Mahesh Dongare and proved the inquest

papers and post-mortem reports. He found that Priyanka had sustained

multiple deep incised stab wounds on vital parts, including penetrating

injuries to the heart and lung, and opined that her death was homicidal due

to severe haemorrhage and hypovolemic shock. In respect of Mahesh, he

noted multiple deep incised stab wounds on the chest and upper limbs with

injuries to vital organs and opined that his death was homicidal for similar 12 apeal 425.21.odt

reasons. PW 5 further stated that all the injuries on both the deceased were

possible by the sharp edged weapon such as the knife. The medical evidence

and opinion remained unchallenged in cross-examination.

15. PW 6-Vinod Labhar, a grocery shop owner at Wadgaon Zire, claimed

that on the day of the incident the appellant had come to his shop between

5.00 and 5.30 p.m., purchased chilli powder and enquired about the address

of Anusayabai Gondhane, and that he learnt about the murder within 10-15

minutes thereafter. In cross-examination, however, he admitted that his

statement was recorded after about eight days, that the alleged purchase and

enquiry were not stated in his police statement, that no identification parade

was conducted, and that he was seeing the appellant for the first time in

Court. In view of these admissions, his testimony does not inspire confidence

and is of limited evidentiary value.

16. PW 7-Sharad Kulkarni, the Investigating Officer, deposed that on

18.07.2018, upon receiving information regarding two dead bodies at

Wadgaon Zire, he visited the spot and found the bodies of Mahesh Dongare

and Priyanka Gajbhiye. He stated that Priyanka's minor daughter Poonam

allegedly informed him that the appellant had assaulted both the deceased

with a knife and fled. On the basis of this information and the report lodged

by Padma Dongare, investigation was commenced. He deposed about

preparation of the spot panchnama, seizure of articles from the spot, inquest

and post-mortem formalities, arrest of the appellant, seizure of his clothes 13 apeal 425.21.odt

and mobile phone, recovery of the knife and clothes at the instance of the

appellant, and filing of the charge-sheet. In cross-examination, he admitted

that the statement of the first informant Ghanshyam Ghule was not recorded,

no test identification parade was conducted, and no independent enquiry into

alternative possibilities was carried out, thereby indicating that the

prosecution case largely rests on the police investigation and statements of

related witnesses.

17. PW 8-Kailash Pundkar, then In-charge Police Officer at Nandgaon-peth

Police Station, deposed that in 2017 an NC complaint was lodged by Priyanka

Gajbhiye against the appellant and that a separate offence was registered at

the instance of the appellant's cousin. He proved copies of the NC report, FIR

and related correspondence, indicating that Priyanka was residing separately

from the appellant and that a criminal case was pending against him. In

cross-examination, he admitted that no documentary proof was produced to

show that the communications were issued by him while on duty or that they

were forwarded to Badnera Police Station, and that the appellant had no

prior conviction. His evidence is thus limited to production of prior

complaints and does not establish any core conduct directly connected with

the incident.

18. PW 9-Arun Anandrao Mate deposed that on hearing a commotion near

Anusayabai's house, he went there and found the bodies of Priyanka and

Mahesh lying in a pool of blood. He stated that Priyanka's minor children

present at the spot allegedly told him that their father had killed both with a 14 apeal 425.21.odt

knife, whereupon he informed the police. In cross-examination, he admitted

that the incident did not occur in his presence and that his knowledge about

the assailant was based solely on what was told to him by the children, with

whom he was not previously acquainted. His evidence is thus hearsay and not

direct proof of the occurrence.

As to Point No.(i) :

19. There is no serious dispute regarding the homicidal nature of the

deaths of Mahesh Dongare and Priyanka Gajbhiye. PW 5-Dr. Subhash Titare

deposed that he conducted post-mortem examinations on the dead bodies of

Mahesh and Priyanka. In the case of Priyanka, the post-mortem revealed

multiple deep incised stab wounds on the chest, arms, thighs, palm, and

external genitalia. The cause of death was opined to be multiple incised stab

injuries resulting in severe hemorrhage and hypovolemic shock leading to

cardio-respiratory arrest, and the death was clearly homicidal.

In the case of Mahesh, multiple deep incised stab wounds were found on both

sides of the chest, forearms, wrist, and hand, many of which had penetrated

deep into the thoracic cavity near the sternum. The cause of death was

opined as homicidal multiple deep incised stab injuries with severe

hemorrhage and hypovolemic shock leading to cardio-respiratory arrest. The

medical evidence adduced through PW-5 clearly establishes that both

deceased sustained multiple incised stab injuries on vital parts of the body,

resulting in their death. Thus, Point No.(i) stands answered in the

affirmative.

15 apeal 425.21.odt

As to Point Nos.(ii) & (iii) :

20. The prosecution case primarily hinges upon the evidence of child

witnesses, namely PW 1-Ashish and PW 3-Poonam, both being the children of

the deceased Priyanka and the appellant. It is well settled that while the

evidence of a child witness is not to be discarded merely on the ground of

age, it must be scrutinised with greater caution and must inspire confidence.

In the present case, PW 1, though in examination-in-chief alleged that his

father assaulted his mother and Mahesh, unequivocally admitted in cross-

examination that he did not witness the assault and that his version was

based on what PW 2 told him. His evidence is therefore clearly hearsay and

cannot be treated as substantive evidence. Additionally, his admission that his

mother had restrained him from interacting with the appellant raises a

serious doubt regarding possible tutoring and bias.

21. PW-3, the most crucial witness, categorically stated in her evidence

that she did not see the incident and further admitted that her statement

before the police implicating her father was false and was made under threat

and pressure by one policeman and one female. She specifically denied the

presence of the appellant at the spot. Such an admission strikes at the very

root of the prosecution case. The Hon'ble Supreme Court in Pradeep V. State

of Haryana, 2023 SCC Online SC 777 held that the possibility of the child

witness being tutored or influenced could not be ruled out, particularly given

the absence of any independent corroboration for his testimony alongside

glaring deficiencies in the prosecution case, including material contradictions 16 apeal 425.21.odt

and improbable improvements. The Court deemed it unsafe to sustain a

conviction solely on such uncorroborated child testimony that failed to

inspire confidence, especially in a purely circumstantial murder case

requiring proof beyond reasonable doubt. Thus, once the star witness herself

disowns her earlier version and alleges coercion, it would be wholly unsafe to

place reliance on such testimony for sustaining a conviction for murder. We

are of the opinion that the learned trial Court failed to adequately appreciate

these vital contradictions and admissions.

22. PW 2, the mother of deceased Mahesh, is admittedly not an eyewitness

as she reached the spot only after the dead bodies had been brought to the

Irvin Hospital. Her evidence regarding the role of the appellant is entirely

based on what she allegedly heard from PW 3. Thus, her testimony is purely

hearsay and cannot be used to fix criminal liability. Though the prosecution

sought to establish motive through her evidence by alleging strained marital

relations and an illicit relationship between the deceased, the same remains

uncorroborated by any independent or reliable witness. Motive by itself

cannot take the place of proof, particularly when the direct and

circumstantial evidence is shaky and unreliable.

23. The testimony of PW 6, the shopkeeper who allegedly sold chilly

powder to the appellant shortly before the incident, also does not inspire

confidence. His statement was recorded after an unexplained delay of eight

days. The alleged sale of chilly powder is not reflected in his police statement,

no documentary evidence such as a bill or register is produced, and the 17 apeal 425.21.odt

appellant was identified by him for the first time in Court without a test

identification parade. Such evidence is inherently weak and cannot be treated

as a reliable circumstance against the appellant.

24. The recovery of the knife and blood-stained clothes at the instance of

the appellant, sought to be proved through PW 4 panch witness and PW 7

Investigating Officer, also suffers from serious infirmities. The alleged place of

concealment is an open and accessible place and is not shown to be within

the exclusive knowledge of the appellant, thereby failing to satisfy the

requirements of Section 27 of the Evidence Act. The panchnama lacks specific

identifying details of the place of recovery, and discrepancies in timing

further weaken the prosecution case. In such circumstances, the possibility of

planted recovery cannot be ruled out.

25. The medical evidence, though proving homicidal death, does not

connect the appellant to the crime. Medical opinion is corroborative in nature

and cannot substitute substantive evidence. Similarly, the alleged oral

versions attributed to the children through PW 9 and the Investigating Officer

are contradicted by the children themselves and thus lose all evidentiary

value. The mobile location evidence relied upon by the prosecution is

rendered inadmissible for want of compliance with Section 65B of the

Evidence Act and non-examination of the author of the report.

18 apeal 425.21.odt

26. Thus, when the entire evidence is viewed cumulatively, we find it

evident that the prosecution has failed to establish a complete and unbroken

chain of circumstances pointing only towards the guilt of the appellant. Each

circumstance relied upon by the prosecution suffers from serious infirmities,

contradictions or legal shortcoming. The possibility of false implication also

cannot be ruled out. In criminal jurisprudence, suspicion, however strong,

cannot take the place of proof. Therefore, we hold the conviction recorded

by the learned Sessions Judge under Sections 302 and 450 of the IPC cannot

be sustained. Thus, Point No. (ii) stands answered in the negative and Point

No. (iii) stand answered in the affirmative.

As to Point No.(iv) :

27. Having answered first three points in the manner hereinabove, the

appellant is entitled to the benefit of doubt. Hence, we proceed to pass the

following order :

Order

(i) Appeal is allowed.

(ii) The judgment and order dated 10.03.2021 passed by the learned

Additional Sessions Judge, Amravati in Sessions Trial No.246/2018 is

hereby quashed and set aside.

(iii) The appellant is acquitted of the offences punishable under Sections

302 and 450 of the IPC.

19 apeal 425.21.odt

(iv) The appellant be released forthwith, if not required in any other case.

(v) Fine amount, if any paid, shall be refunded to the appellant.

(vi) Fees of the learned Counsel appointed for the appellant be quantified

and paid as per rules.

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




Signed by: MR. P.M. ADGOKAR
Designation: PS To Honourable Judge
Date: 20/01/2026 14:47:03