All these video clips are duly proved by prosecution as are
identified by PC Bahekar in his evidence when were
shown to him during his evidence."
20. Further, the learned Trial Court, in paragraphs 58 and 59,
extracted from the mobile phone alongwith necessary certification as
required under Section 65-B of the Indian Evidence Act, 1872, and
how the aforesaid document was proved. The paragraph Nos.58 and
59. The prosecution has also produced and proved
the certificate under Section 65-B to make the said
Electronic Evidence admissible at the hands of Saurabh
Davane (PW 8). The said certificate is at Exh 66. He has
also obtained the photographs of the spot of incident in
accordance with the letter issued by the investigating
officer Mr Masram on 22-01-2018 Exh-67. The bill of
preparation of CD is at Exh-68. He has identified the said
CD and the video clips, when were shown to him by
playing the same on laptop and it was confirmed by him
that said video clip was recorded and copied in CD from
Vivo 5 mobile hand set. The CD is on record is at Exh-69."
21. During the course of hearing of the present appeals, we
requested the Registry of this Court to arrange for the display of the
aforesaid video clips for our perusal. We have seen in detail both the
video clips and record our finding that Vaibhav has repeatedly named
the present appellants as the assailants. The second video clip of
deceased Amol Atalkar reveals that he has named Balaji Kawadkar.
However, after the question put by Head Constable Bhukte regarding
the involvement of any other person in the assault, deceased Amol
was in such a state of shock by the grave assault on his head that,
instead of naming the present appellant No.2 - Chandrabhan
Kawadkar, he requested the constable to straighten him up. This, by
no means, indicates that he had exonerated Chandrabhan or that
there was only one assailant i.e. Balaji. On the contrary, all the other
circumstances point towards the presence of both the appellants at
the spot of the incidence and thus, in our considered opinion, the
appellant Chandrabhan in Criminal Appeal No.387 of 2020 cannot
take the benefit of such fact.
22. The cross-examination of the aforesaid witness i.e. PW-6
Avinash Bahekar, reveals that the defence itself has brought on record
that when the injured persons were carried at Rural Hospital, Katol,
the wife of deceased i.e. Bhavna Atalkar, was present at the hospital.
Thus, the appellants themselves have admitted the presence of the
wife of the deceased, Bhavna Atalkar, at the hospital, who had an
occasion to meet her husband Amol and the injured Vaibhav at the
first instance when they were brought to the Rural Hospital, Katol.
Bhavna Atalkar is an important witness who is the wife of deceased
Amol and she had an occasion to meet him and to make enquiries
with her injured husband. The prosecution has examined the wife of
deceased, Bhavna Atalkar as PW-4. She has deposed that she is
working as an Advocate in the Court at Katol. In her evidence, she has
specifically deposed that at about 03:30 p.m. to 03:45 p.m., her
husband had called her and informed that the family members of
Kawadkar had assaulted him by means of an axe over his head and
severe blood was oozing from his person. He also asked that he was
feeling uneasy and was crying. He said to Bhavna "Laukar Mala
Davakhanyat gheun jayala sang."
23. A perusal of the cross-examination reveals that the
aforesaid aspect of receiving the phone call from Amol on the day of
the incident has not been challenged at all, as there is no question
about disputing the said fact. PW-4 - Bhavna Atalkar has also deposed
about her meeting Amol at the Rural Hospital, Katol, where he was
brought in an ambulance by Police Constable Bahekar and Police
Constable Rajan. PW-4 Bhavna deposed that after reaching at Rural
Hospital, Katol, she found that Amol and Vaibhav were lying in
serious condition in ambulance. There was head injury to Amol. Her
evidence specifically discloses that on her inquiry, Amol informed her
that accused Balaji and Chandrabhan Kawadkar have assaulted him
by means of an axe and stick and they are the uncles of Vaibhav.
24. The aforesaid fact regarding PW-4 - Bhavna and her
presence at the hospital is already admitted by the appellants, which
is revealed from the cross-examination of PW-6 - Avinash Bahekar. As
such, the circumstance of PW-4 - Bhavna meeting Amol at the Rural
Hospital, Katol, and narration of the names of appellants by Amol to
his wife is convincingly brought on record to establish the complicity
of the present appellants during the incident.
25. The prosecution, in order to establish the spot of the
incident and the recovery of the weapons at the instance of both the
appellants, has relied upon the testimony of PW-1 - Jagdish Vasantrao
Bawane and PW-3 - Vijay Bhaiyaji Gajabe. A perusal of the cross-
examination of the aforesaid witnesses reveals that the appellants
have not disputed the incident of assault on Vaibhav and Amol at the
spot of the incidence and the finding of blood stains at the spot of the
incidence has also not been seriously disputed.
26. A perusal of the cross-examination of PW-1 - Jagdish
reveals that there is no challenge in respect of the seizure of the
clothes of either of the accused, as there is no cross-examination of
Police Constable Bahekar in that regard. The learned Trial Court, for
the reasons stated in paragraph 84, has found PW-3 - Vijay Gajabe as
a trustworthy witness inspiring confidence and has therefore relied
upon the aforesaid prosecution evidence in the capacity of the witness
to the memorandum statements of the present appellants. Vijay
Gajabe has proved that, after the recording of his statement, the
present appellant Balaji has produced the stick from his house, which
was taken out from the place beneath the kothi of grains. The present
appellant Chandrabhan had taken out an axe in the presence of the
said prosecution witness, PW-3 Vijay, from the cattle shed situated in
the field of Balaji. Both the weapons were duly identified by Vijay
Gajabe as Articles 'B' and 'A', respectively. The seizure panchanama of
the aforesaid weapons were exhibited as Exhibits - 41 and 42,
respectively.
27. The Investigating Officer had referred the aforesaid seized
weapons i.e. the stick and the axe, to the Medical Officer at Mayo
Hospital, Nagpur, on 25.01.2018 by a requisition letter at Exhibit 74.
The Medical Officer, Dr. Mayukh M. Pal, had opined that both the
weapons can cause death of patient, when used in an offence. The
said query report dated 25.01.2018 is at Exhibit - 75 record page
No.138 and was admitted by the present appellants. The aforesaid
weapons were also referred to HOPE Hospital, Kamptee Road, Nagpur
on 06.02.2018 vide requisition letter at Exhibit - 76. The Medical
Officer of HOPE Hospital has also concurred with the opinion of the
Medical Officer of Mayo Hospital that both the weapons can cause
grievous injuries, when used as a weapon in an offence. We have
already referred to the injuries sustained by deceased Amol leading to
his death, as recorded in the postmortem report dated 22.01.2018,
which is at Exhibit - 54 record page No.98. The injury certificate of
Vaibhav is admitted by the appellants which is at Exhibits - 53 and 73.
The injury report of Vaibhav Prakash Kawadkar at Exhibit - 53 reads
thus :
"Injury report of Vaibhav Prakash Kawadkar Exh-53
Head injury with multiple facial bone fracture with
frontal bone fracture of skull with abrasion on face.
i] Linear undisplaced fracture in right frontal bone
extending inferiorly to involve the roof of medial wall of
right orbit as well as roof right middle posterior
ethmoidal cells, extending posteriorly to involve left
lateral wall of sphenoid sinus.
ii] Small undisplaced fracture of the lateral wall of right
orbit, comminuted inwardly mildly displaced fracture of
the lateral wall of left orbit. Both the eye globes, optic
nerves and extraocular muscles appear normal;
iii] multiple fractures involving anterior and postero-
lateral walls of both the maxillary sinuses with bilateral
minimal hemosinus. There is berniation of retro-maxillary
fat in the right maxillary sinus.
iv] Fracture of the base of both the pterygoid bones.
v] Linear undisplaced fracture on left zygomatic arch.
Small hairline fracture on right zygomatic arch.
vi] oblique fracture involving left mastoid bone with
resultant blood density collection in left mastoid cells
middle ear cavity.
vi] Minimal bilateral ethmoid and phenoid bemosinus
vii] Inwardly displaced fracture involving left posterior
parietal bone having length of inward displacement of
bone 7 mm.
viii] Small hypodensity on left posterior parietal lobe,
beneath the compressed skull bone fracture consistent
with small. cerebral contusion.
ix] Small extra axial/extradural hemorrhage on left
posterior parietal lobe having volume 0.2 to 0.4 cc.
x] Undisplaced fracture of orbit right and maxillary sinus
xi] CLW over scalp and chin region."
28. Thus, serious and fatal injuries were caused on the person
of Vaibhav, for which he was admitted to the hospital for several days.
The learned Trial Court, in paragraph 112 of its judgment, has
referred to the C.A. reports at Exhibit - 113 collectively, which
crystallize the aforesaid fact of assault at the hands of the appellants
by disclosing the presence of blood stains of Vaibhav and Amol from
the blood-stained earth collected from the spot of the incident as well
as on the clothes of the appellant Balaji. Thus, the medical evidence
and the scientific evidence clearly point towards the guilt of the
present appellants. The learned Trial Court was, therefore, completely
justified in holding that the evidence on record establishes beyond all
reasonable doubts that the present appellants had jointly assaulted
deceased Amol and injured Vaibhav as well as the complainant Tilak,
having arms of stick and axe in their hands demonstrating common
intention on the part of the present appellants. The said assault
resulted in causing the death of deceased Amol Atalkar and grave
injuries on the person of Vaibhav.
29. The evidence of Vaibhav claiming that in all nine blows by
means of deadly weapons such as a stick and an axe, were dealt on
his person, more specifically on his head, establishes that the present
appellants were having the intention to commit his murder and
nothing else. Thus, the act of the present appellants falls within the
provisions of Section 307 of the IPC, so far as the assault on Vaibhav
is concerned. The learned Trial Court, in paragraph 117 of the
impugned judgment, has recorded the prominent factors thereby
pointing out the guilt on the part of the present appellants. Thus, in
our considered opinion, the learned Trial Court has rightly and
thoughtfully evaluated the entire evidence and meticulously
scrutinized the same and reached to the conclusion which is against
the present appellants.
30. Shri. R. M. Daga, learned counsel for the appellant in
Criminal Appeal No.387 of 2020, has vehemently argued that
deceased Amol, in the video clip, has only named Balaji Kawadkar
and thus, the name of the present appellant Chandrabhan has not
been implicated. However, the aforesaid fact cannot be read in
isolation.
31. We have personally seen the video clip of Amol Atalkar,
who was on the verge of death. He was under extreme shock and
somehow had responded to Head Constable Bhukte by stating his
name in response to the first question and by stating the name of
Balaji in pursuance to the second question as to who has assaulted
him. However, when a third question was asked to him regarding the
involvement of any other person in the assault, he was trying to
answer, but he was not at ease and therefore, he said " lj eyk ljG
djk". This fact by itself cannot exonerate the present appellant
Chandrabhan, in view of the fact that, in another video clip, the
injured Vaibhav (PW-5) had categorically stated the names of the
appellants Chandrabhan and Balaji i.e., his uncles, as the assailants
twice. Vaibhav was put the same question twice as to who has
assaulted him and on both times, he named the present appellants as
the assailants. Apart from the aforesaid video clip, the entire
evidence, oral and documentary produced on record point out the
guilt of the present appellant Chandrabhan and hence, the aforesaid
ground raised by Shri. Daga, learned counsel, deserves to be rejected.
32. Shri. R. M. Daga, learned counsel, has also pointed out the
postmortem report at Exhibit - 54 and more specifically, the finding
regarding Column No.23(B) as to which injury was individually
sufficient in the ordinary course of nature to cause death. The answer
recorded therein is Injury No.1 mentioned in Column No.17,
associated with the internal damage mentioned in Column No.19.
Shri. Daga, learned counsel, submits that the Injury No.1 in Column
No.17 is a lacerated wound which is caused by a stick, which was in
the hands of Balaji and thus, the appellant Chandrabhan, who is
attributed for causing assault with an axe, cannot be held responsible
for the death of the deceased Amol.
33. A perusal of the entire evidence on record alongwith the
postmortem report, reveals that there are incised injuries on the body
of deceased Amol which are attributable to the weapon in the hands
of the present appellant Chandrabhan. Moreover, the offences alleged
against the present appellants are under various provisions of
Sections 302, 307 and 323 read with Section 34 of the IPC. Section
34 of the IPC clearly provides that when a criminal act is done by
several persons in furtherance of the common intention, each of such
persons is liable for that act in the same manner as if it were done by
him alone. The entire evidence on record, including the dispute over
property between Vaibhav and his paternal uncles i.e. the present
appellants, demonstrates the common intention for the aforesaid
assault. Hence, the aforesaid argument advanced by Shri. Daga,
learned counsel, is rejected.
34. The last limb of the argument of Shri. Daga, learned
counsel, is regarding the delay in recording the statement of PW-4,
Bhavna Atalkar, the wife of deceased Amol. The learned Trial Court
has dealt with the aforesaid objection and recorded the reasons for
delay in recording the statement of PW-4, in paragraph 79 of its
judgments, which read thus :
"79. There is no doubt in my mind that it is the duty
of the investigating officer to record the statements of
relevant prosecution witnesses as early as possible to
avoid any blame of tainted or interested witness.
However, one cannot be oblivious of the material aspect
that admittedly Bhawana lost her husband during the
fateful incident because of committing his murder. It is
obvious and bur natural that she was in huge shock.
Although, Bhawna has attempted to claim that police had
been to her house for recording her statement and
similarly, she had been to police station, however, at that
time her statement was not recorded. I do not find any
reason not to accept the explanation given by the witness
as truthful. It is to be noted that the innocent witness
cannot be doubted on the account of non recording of
statement by the investigating agency at the earliest
possible time. It cannot be accepted that the witness was
in a dominating position to compel the investigating
agency to record her statement, therefore, although, her
statement was recorded belatedly that circumstance
cannot be said to be of any assistance for the defence to
discard her testimony in its totality. On the contrary,
evidence of Bhawana disclosing that she had been to
rural hospital, Katol and made inquiry wherein Amol has
specifically informed the names of both the accused as
assailants has remained totally unchallenged in her entire
cross examination. Therefore, I have no hesitation to
accept said unchallenged evidence of Bhawana as
trustworthy."
35. In view of the aforesaid finding of the learned Trial Court
regarding the delay in recording the statement and in spite of such
delay accepting the evidence of PW-4 - Bhavna as trustworthy, the
argument of Shri. Daga loses his force. In view of the aforesaid
discussion, we are of the considered opinion that the present appeals
are devoid of merit and therefore, deserves to be dismissed.
36. Accordingly, Point Nos.(ii), (iii) and (iv) are answered in
the affirmative, Point No.(v) is answered in the negative. Hence, the
present criminal appeals are dismissed in answer to Point No.(vi).
37. Before we part with the aforesaid judgment, we are
reminded of the guidelines of the Hon'ble Supreme Court of India in
the case of Perumal vs. Janaki, reported in (2014) 2 SCC (Cri) 591,
wherein the Hon'ble Supreme Court has held that the High Court
being a constitutional Court having power of superintendence under
Article 227 of the Constitution of India is having both authority and
responsibility to initiate proceedings under Section 195 and Section
340 of the Code of Criminal Procedure in appropriate cases to
preserve the purity of the judicial process and protect the
administration of justice from false evidence.
38. While hearing the present criminal appeals, we have found
that PW-5 - Vaibhav Prakash Kawadkar, is liable to be prosecuted for
the offence punishable under Section 191 read with Section 193 of
the Indian Penal Code for giving false evidence. PW-5 - Vaibhav
Prakash Kawadkar, in his statement recorded under Section 161 of
the Code of Criminal Procedure so also the statement recorded on
oath by the learned Judicial Magistrate First Class, Narkhed, on
12.02.2018, had specifically deposed as to the agricultural land
dispute between him and his uncles Balaji and Chandrabhan
Kawadkar i.e. the present appellants. He had specifically deposed
about the incidence dated 20.01.2018 that, he had met appellant
Balaji at about 11:00 a.m. near the clinic of Dr. Band at Katol and had
called him. On 21.01.2018, PW-5- Vaibhav has stated on oath in detail
as to how the present appellants had assaulted him, deceased Amol
and the complainant PW-2 Tilak @ Ilu Rajkumar Hate. PW-5 had
specifically named the present appellants as the persons who had
assaulted deceased Amol Atalkar with an axe and stick.
39. PW-6 - Avinash Premraj Bahekar had deposed on oath that
upon receiving the information, he immediately proceeded to
Mohagaon Bhadade and upon reaching at the spot, he found that two
injured persons were lying at two different places in serious injured
condition. Upon making inquiry with present PW-5 Vaibhav, he
informed that they were assaulted by his uncles Balaji and
Chandrabhan Kawadkar.
40. We have personally seen the video clip of the recording
when such inquiry was made with PW-5 Vaibhav. Even the learned
Trial Court in paragraph 53 of its judgment has produced the
conversation observed by it after seeing the aforesaid video clip. The
conversation includes the voice of witness P.C. Bahekar and Vaibhav,
which is as under :
"Qu. Who caused beating to you ?
Ans. By Vaibhav, Mala mazya kakane marle ?
Qu.2 Take his name (tyache nav ghe) ?
Ans Chandrabhan Kawadkar and Balaji Kawadkar
The witness again put same question to Vaibhav as his
voice was law. Answer given by Vaibhav - Balaji and
Chandrabhan Kawadkar."
41. In view of the aforesaid statement made on oath before
the learned Magistrate under Section 164 of the Code of Criminal
Procedure and in view of the statement made while inquiring which
was recorded in a video clip, PW-5 - Vaibhav was expected to support
the prosecution case. More importantly, in view of the fact that it was
only because of his property dispute that deceased Amol Atalkar,
being his friend, had accompanied him to his village where he was
assaulted and lost his life. PW-5 - Vaibhav, however, completely
forgetting such fact and great loss to PW-4 - Bhavna Amol Atalkar and
her daughter Swara, who was only seven years old in the year 2018,
when her father was killed by the appellants, PW-5 though admitted
the events of 21.01.2018 till the assault, he gave a false evidence that
he was not aware as to who had assaulted him and deceased Amol. In
paragraph 8 of his deposition at Exhibit - 46, he stated on oath as
follows :
"8] It did not happen that on the day of incident my
uncles Balaji and Chandrabhan have assaulted myself,
Amol Atalkar and Ilu Hate by means of an axe and stick."
Since PW-5 - Vaibhav was declared hostile, he was
cross-examined by the learned A.P.P. In the cross-examination, he
flatly refused the following suggestions :
"It is not true to say that when we were slowly
crossing the said drainage, at that time accused Balaji and
Chandrabhan came running from behind and assaulted
on the head of Amol by means of wooden stick. The
contents of portion mark G in my statement now read
over to me were not stated by me before police.
It is not true to say that my friend Amol Atalkar was
also assaulted by my uncles Balaji and Chandrabhan by
means of stick on his head and by means of an axe on his
leg and at that time my friend Ilu Hate ran away. The
contents of portion mark I in my statement now read over
to me were not stated by me before police.
It is not true to say that there is dispute between my
father and accused person on account of field property. It
is true to say that Amol was my good friend. It is true to
say that I myself and Amol were doing similar business of
DJ. It is not true to say that I was on visiting terms at the
house of Amol."
42. The denial to the aforesaid suggestions reveals that PW-5 -
Vaibhav has, prima facie, given false evidence before the learned Trial
Court and hence, we are satisfied that such false statement made by
PW-5 - Vaibhav was deliberate, intentional and material to the case.
The Hon'ble Supreme Court of India in the case of Mahila Vinod
Kumari vs. State of M. P., reported in (2008) 3 SCC (Cri) 414, has
highlighted the serious menace of perjury and fabrication of evidence,
particularly in criminal trials dependent on oral testimony. The
Hon'ble Supreme Court has held that the provisions such as Sections
340 and 344 of the Code of Criminal Procedure are intended to
empower Courts to effectively deal with witness who intentionally
give false evidence in order to curb the growing problem of perjury
and to maintain the integrity of judicial proceedings.
43. For the reasons stated above, invoking the provisions of
Section 195 read with Section 340 of the Code of Criminal Procedure,
in our considered opinion, it is expedient in the interest of justice that
an inquiry should be made into the above offence of Section 193 of
the Indian Penal Code against PW-5 - Vaibhav Prakash Kawadkar,
which appears to have been committed in relation to the judicial
proceedings of Sessions Trial No.190 of 2018 and accordingly
authorize Shri. Prashant Bhorkar, Assistant Registrar, High Court of
Bombay, Bench at Nagpur, to make a complaint in writing to the
Magistrate of the First Class having territorial jurisdiction under
Section 340 of the Code of Criminal Procedure.
(RAJ D. WAKODE, J.) (ANIL L. PANSARE, J.)
TAMBE
Signed by: Mr. Ashish Tambe
Designation: PA To Honourable Judge
Date: 13/03/2026 17:23:07
