Jaswantsingh S/O. Udaysingh Chavan (In ... vs The State Of Maharashtra Thr. Police ...
2026 Latest Caselaw 2705 Bom

Bombay High Court

Jaswantsingh S/O. Udaysingh Chavan (In ... vs The State Of Maharashtra Thr. Police ... on 16 March, 2026

Author: Anil L. Pansare

Bench: Anil L. Pansare

2026:BHC-NAG:4309-DB


                                                  1                              apeal 738.18.odt




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


                CRIMINAL APPEAL NO. 738 OF 2018


                Jaswantsingh s/o Udaysingh Chavan,
                Aged about 39 years,
                R/o Devi Police Line, Akola.                          ....    APPELLANT

                             VERSUS

                The State of Maharashtra,
                through Police Station Officer,
                Police Station Old City Akola,
                District Akola.                                       ....    RESPONDENT

                ____________________________________________________________________

                   Mr. A.S. Mardikar, Senior Counsel a/b. Mr. P.V. Navlani, Counsel for the
                                                  appellant,
                 Mr. Avinash Gupta, Senior Counsel/Special P.P. a/b. Mr. A.B. Badar, Addl.P.P.
                                          for the respondent/State.
                ____________________________________________________________________


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

                DATE OF RESERVING THE JUDGMENT : 17-02-2026
                DATE OF PRONOUNCING THE JUDGMENT : 16-03-2026


                JUDGMENT :

(PER : NIVEDITA P. MEHTA, J.)

This appeal is directed against the judgment and order dated

27.09.2018 passed by the learned Additional Sessions Judge, Akola in

Sessions Trial No. 35 of 2016. By the said judgment, the present appellant,

original Accused No.3 - Jaswantsingh Udaysingh Chavan, has been convicted

for the offences punishable under Section 302 read with Section 34 of the

Indian Penal Code (for short, "IPC") and Section 120-B of the IPC. He has 2 apeal 738.18.odt

been sentenced to suffer imprisonment for life and to pay a fine of

Rs.20,000/-, in default to suffer further rigorous imprisonment for one year

for the offence under Section 302 read with Section 34 of the IPC. He has

also been sentenced to suffer imprisonment for life and to pay fine of

Rs.5,000/-, in default to suffer rigorous imprisonment for one year for the

offence under Section 120-B of the IPC. Both sentences are directed to run

concurrently.

2. The prosecution case, in brief, is that deceased Kishor Madanlal

Khatri was engaged in property and real estate business and had business

dealings with several builders in the city, including Accused No.2 -

Ranjitsingh Chungde, resident of Rajputpura, Akola. A mall was under

construction on land owned by Accused No.2 behind City Kotwali Police

Station, Akola. The deceased had acted as a mediator in the disputes that had

arisen among the builders involved in the said construction. An agreement

had been entered into between him and the developers of Balaji Mall at

Akola for facilitating sale of shops in the said mall.

3. On 03.11.2015 at about 12:00 noon, the deceased had been called

to Balaji Mall, by Delhi-based traders Khushwaji and Vikratji. At about 1:00

p.m., the deceased, the said traders and Accused No.2 discussed the proposed

date of inauguration of the mall. Thereafter, Accused No.2 went home and

returned to the mall in a white Tata Safari vehicle bearing registration No.

MH-30/P-3040. The deceased left the mall along with Accused No.2 in the 3 apeal 738.18.odt

said vehicle towards Somthana Shivar to see a field. It is further stated that

when the deceased did not return, phone calls were made to him. Later in the

afternoon, information was received that a dead body was found near

Somthana. The body was identified as that of Kishor Khatri.

4. On the basis of the oral report lodged by PW8 - Dilip Khatri, Crime

No. 169 of 2015 came to be registered at Old City Police Station, Akola for

the offences punishable under Sections 302 of the IPC. During the course of

investigation, the Investigating Officer visited the spot and prepared the spot

and inquest panchnamas. Blood-stained soil, simple soil, broken pieces of

rope and the mobile phone of the deceased were seized. On the same day, the

Tata Safari vehicle bearing No. MH-30/P-3040, allegedly used in the

commission of the offence, was found at the farm house of Accused No.2 and

was seized along with two firearms and live cartridges. The post-mortem

examination of the deceased was conducted. Subsequently, the present

appellant came to be arrested. At his instance, a knife (Kukari) and certain

clothes were seized under memorandum and recovery panchnamas.

Statements of witnesses came to be recorded. Call Detail Records were also

collected. Upon completion of investigation, charge-sheet came to be filed

before the learned Judicial Magistrate First Class, who committed the case to

the Court of Sessions. The learned trial Court framed charges against the

accused persons, which is at Exhibit No. 48. Insofar as appellant is concerned,

he was charged with offences punishable under Section 302 read with

Section 34 and Section 120-B of the IPC, as well as Sections 4/25 and 27 of 4 apeal 738.18.odt

the Arms Act, 1959. The accused persons pleaded not guilty and claimed to

be tried. In support of its case, the prosecution examined 21 witnesses,

including the eye-witnesses, panch witnesses, medical officer, nodal officers

and the investigating officers. Upon completion of prosecution evidence, the

statements of the accused persons under Section 313 of the Code of Criminal

Procedure were recorded, wherein they denied the allegations and claimed

false implication.

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

held that the death of Kishor Khatri was homicidal, relying upon the post-

mortem evidence which disclosed a deep incised injury on the neck and a

fire-arm injury on the chest. The learned trial Court observed that the

prosecution case rested upon both direct and circumstantial evidence. It

found the testimony of PW 5 and PW 10 to be natural and reliable, holding

that their account of the appellant assaulting the deceased with a Kukari and

Accused No.2 firing at him was consistent with the medical evidence. The

learned trial Court further observed that the circumstance of the deceased

having been last seen in the company of Accused No.2 when they left Balaji

Mall together, coupled with the recovery of the Tata Safari vehicle from the

farm house of Accused No.2 on the same day, constituted strong

incriminating circumstances. The seizure of fire-arms from the vehicle and

the recovery of the Kukari at the instance of the present appellant were

treated as corroborative links in the chain of circumstances. The Court also

noted that Accused Nos.2 and 3 were not immediately available after the 5 apeal 738.18.odt

incident and treated this conduct as an additional circumstance against them.

On cumulative consideration of the ocular testimony and the surrounding

circumstances, the learned trial Court concluded that the prosecution had

succeeded in establishing that Accused Nos.2 and 3 had committed the

murder of the deceased in furtherance of their common intention and

pursuant to a criminal conspiracy. However, the charges under the Arms Act

and the allegation against Accused Nos.1 and 4 were held not proved.

6. Mr. A.S. Mardikar, learned Senior Counsel for the appellant submits

that the conviction under Sections 302 read with 34 and 120-B of the IPC is

wholly unsustainable, as the prosecution has failed to prove the case beyond

reasonable doubt. It is pointed out that the appellant is not named in the First

Information Report and the initial suspicion was directed only against

Accused No.2. There is no evidence to show that the appellant was last seen

in the company of the deceased. The entire case against him rests primarily

on the testimonies of PW 5 and PW 10, who claim to be eye-witnesses. It is

submitted that the statements of PW 5 and PW 10 were recorded after an

unexplained delay of five days. Their conduct in not informing the police or

any authority, despite allegedly witnessing a brutal assault in broad daylight,

is unnatural. The learned Senior Counsel further suggested that PW 5 and

PW 10 are planted witnesses. Their presence at the spot has not been

independently established, and material contradictions have been brought on

record in their cross-examination. It is further contended that the Test 6 apeal 738.18.odt

Identification Parade was not conducted in accordance with the prescribed

procedure, thereby rendering the identification doubtful.

7. Learned Senior Counsel further submits that the alleged recovery of

the knife at the instance of the appellant is unreliable. The recovery is from

an open place accessible to all. The panch witness is a stock witness, and the

timing of the memorandum and recovery proceedings create serious doubt

about their genuineness. It is also pointed out that no blood was detected on

the clothes allegedly recovered from the appellant and that the forensic

evidence does not conclusively link him with the offence.

8. It is further submitted that no motive has been established against

the appellant and that there is no material to show any prior meeting of

minds so as to attract Section 120-B of the IPC. The investigation, according

to the defence, suffers from serious lapses, including non-recovery of the

bullet and failed to verify as to whether PW 5 and PW 10 had really visited

Somthana. In these circumstances, it is contended that the prosecution case is

doubtful and the appellant is entitled to acquittal.

9. Per Contra, Mr. Avinash Gupta, learned Senior Counsel/Special

Public Prosecutor supported the impugned judgment and submitted that the

prosecution has proved the guilt of the appellant. It is contended that the

homicidal death of Kishor Khatri stands established by medical evidence. The

testimony of PW 5 and PW 10, who have consistently deposed about the 7 apeal 738.18.odt

assault by the appellant with a knife and firing by Accused No.2, inspires

confidence and has been rightly accepted by the learned trial Court. It is

further submitted that the recovery of the Kukari at the instance of the

appellant, the seizure of the Tata Safari vehicle, the presence of blood stains

therein, and the conduct of the appellant in absconding after the incident

form a complete chain of circumstances. The medical opinion supports the

prosecution version regarding the weapon used. According to the State,

minor discrepancies or delay in recording statements do not affect the core of

the prosecution case. It is, therefore, urged that no interference is called for.

10. We have heard Mr. A.S. Mardikar, learned Senior Counsel for the

appellant and Mr. Avinash Gupta, learned Senior Counsel/Special Public

Prosecutor appearing for the respondent-State. We have gone through the

evidence, documents and the impugned judgment. Based on the material

available, following points arise for our determination and reasons therefor

are discussed hereinafter :

Points for Determination -

 Sr.                              Points                                Findings
 No.
 i       Whether the prosecution has proved that the death In the affirmative.
         of Kishor Khatri was homicidal?

 ii      Whether the circumstances relied upon by the In the affirmative.
         prosecution form a complete chain unerringly
         pointing towards the guilt of the appellant?

 iii     Whether the prosecution has proved that the In the affirmative.

appellant acted in furtherance of common intention and pursuant to a criminal conspiracy?

iv Whether interference is called for in the impugned In the negative.

judgment?

                                    8                            apeal 738.18.odt




 v       What order?                                          As per final order.


                                   REASONING
As to Point No. (i) :

11. There is no dispute as to the homicidal nature of the death. On

03.11.2015, the dead body of Kishor Madanlal Khatri was discovered on a

Kachcha Road at Somthana Shivar. PW 2-Vaibhav Johare, who acted as a

panch witness, deposed that blood stains were visible on the neck, chest, and

hands of the deceased at the time the body was found. The spot panchnama

as well as the inquest panchnama also record the presence of such blood

marks.

12. PW 6-Dr. Nikhil Ingle conducted the post-mortem examination of

the deceased. On external examination, as noted in Column No. 17 of the

post-mortem report, he found the following ante-mortem injuries:

(i) A chopped wound over the lower border of the mandible starting from the left side, passing through the mid-line and extending up to the right angle of mandible, measuring 16 cm × 2 cm × bone deep; the left angle of the wound was 6 cm below the left angle of mouth and the right angle was 8 cm below the tip of right mastoid process; the wound was situated 8 cm above the suprasternal notch and was vertically placed;

(ii) A chopped wound over the neck starting from the lower border of mandible and extending up to 3 cm away from the mid-line towards the right side, obliquely placed, measuring 10 cm × 1 cm × muscle deep, situated 3 cm below Injury No. 1 and 5 cm above the suprasternal notch;

9 apeal 738.18.odt

(iii) Multiple small abrasions over the right cheek, ranging in size from 3 cm × 1.5 cm to 1.5 cm × 0.5 cm, with irregular margins, reddish in colour;

(iv) A lacerated wound over the right shoulder, obliquely placed, measuring 7 cm × 1 cm × muscle deep, margins blood infiltrated and reddish in colour;

(v) A lacerated gunshot entry wound over the mid-line of the chest between the two nipples, 12 cm from each nipple, 25 cm above the umbilicus and 11.5 cm below the suprasternal notch, measuring 0.8 cm × 0.8 cm × cavity deep; margins irregular with abrasion collar, reddish brown; circular in shape with surrounding area inflamed and pinkish; the direction of the wound was inward and downward;

(vi) An abrasion over the right side of chest, vertically placed, measuring 1 cm × 1 cm, reddish in colour;

(vii) A lacerated wound over the right side of abdomen, 11 cm lateral and upward to umbilicus and 19 cm below right nipple, measuring 3.5 cm × 1 cm × muscle deep, margins infiltrated and reddish;

(viii) A lacerated gunshot exit wound over the right side of back, mid 1/3rd, 10 cm lateral from mid-line, measuring 0.7 cm × 0.5 cm × cavity deep, margins blood infiltrated and reddish;

(ix) A chopped wound over the middle phalanx of the middle finger of right hand, measuring 4 cm × 2 cm × bone deep, margins blood infiltrated and reddish; and

(x) A chopped wound over the distal phalanx of the ring finger of right hand, measuring 3 cm × 2 cm × bone deep, margins blood infiltrated and reddish.

13. On examination of dead body, he noticed that rigor mortis was

partly present all over body. Therefore, he opined that the death might have

been caused between 12 to 24 hours of the post-mortem examination. He 10 apeal 738.18.odt

further clarified that Injury No. 8 was corresponding to Injury No. 5 and both

could have been caused by a firearm and were sufficient in the ordinary

course of nature to cause death. He also opined that injury No. 1 was

independently sufficient to cause death due to profuse haemorrhage, and that

in the present case the internal organs such as pleura, larynx, trachea,

bronchi, left lung and large vessels were pale due to excessive loss of blood.

14. In Column No. 20 relating to thorax, he found a circular gunshot

hole over the mid 1/3rd of sternum measuring 0.9 cm × 0.9 cm

corresponding to injury No. 5; a corresponding circular hole in the right

pleura of the same size; lacerated gunshot wound through and through the

lower lobe of right lung; lacerated gunshot wound through and through

upper right pericardium; and lacerated gunshot wound through and through

right atrium of the heart. The large vessels were intact but pale. The track of

the bullet passed through skin, subcutaneous tissues, sternum, pleura, right

lung, pericardium, right atrium and diaphragm, and exited through the 9 th

intercostal space.

15. He further stated that the abrasions, incised wounds and chopped

wounds could be caused by the weapon shown to him (Art. 36), that injury

Nos. 3, 4, 6 and 7 could also be caused by the said weapon, and that injury

Nos. 9 and 10 were possible in case of resistance by the victim. According to

him, the cause of death was haemorrhage and shock due to injuries to vital

organs in a case of firearm injury.

11 apeal 738.18.odt

16. The ballistic evidence lends assurance to the medical findings. PW

13-Dr. Nitin Longadage, the Ballistic Expert, has opined that the empty

cartridge case examined by him had been fired from one of the country-made

pistols seized in the case. He has also detected metallic residues on the shirt

and skin pieces of the deceased consistent with the passage of a bullet.

Though certain limitations were brought out in cross-examination, nothing

has emerged to discredit the presence of a firearm injury.

17. Apart from the fire-arm injury, the incised injury on the neck

clearly suggests use of a sharp-edged weapon. The defence has not suggested

that these injuries could be self-inflicted or accidental. The nature of injuries

does not admit of such a possibility. The combined effect of the medical and

forensic evidence leaves no room for doubt that the death was the result of a

deliberate assault.

18. We, therefore, hold that the prosecution has proved that the death

of Kishor Khatri was homicidal. Accordingly, Point No. (i) stands answered in

the affirmative.

As to Point No. (ii) :

19. The prosecution has examined PW 5-Prashant Naghat (Exh.171)

and PW 10-Ravindra Dutonde as eye-witnesses. Both have stated that on

03.11.2015 at about 1.15 p.m., while proceeding along the kachcha road

from Somthana towards the National Highway, they noticed a white Tata-

Safari vehicle parked by the roadside. According to them, Accused No.2 and 12 apeal 738.18.odt

the present appellant were standing near one unknown person, and after a

brief exchange, the appellant inflicted a knife blow on the neck of that

person, whereupon Accused No.2 fired gun at him.

20. Learned Senior Counsel for the appellant has strongly contended

that PW 5 and PW 10 are chance witnesses and in fact planted witnesses. It is

submitted that their presence at Somthana on the date of incident is doubtful.

It was argued that PW 5 claimed that he had gone to Somthana for bringing

chopped fodder, whereas fodder was available in Akola itself within short

distance from his house. It was further contended that PW 10 had no house

or agricultural land at Somthana and, therefore, there was no occasion for

him to visit that village on the date of incident. Reliance was also placed on

the evidence of PW 4-Police Patil Kishor Dutonde to contend that there was

no regular fodder market at Somthana.

21. PW 5 has stated that he and PW 10 had gone to Somthana by

motorcycle as PW 10 intended to bring chopped fodder for the cow. PW 10

has also stated that he and PW 5 had gone to Somthana and had first visited

the house of his uncle where they found the house locked. He further stated

that when the fodder owner was not found available, PW 10 informed him

that there was an open plot in front of his house which he intended to

purchase and that the owner of the plot was residing near the National

Highway and for that purpose they proceeded towards the National Highway

by the kachcha road. During that journey they witnessed the incident. In re-

13 apeal 738.18.odt

examination, PW 10 produced documents relating to the house of his uncle

Devidas Dutonde at Somthana, including a copy of Aadhar Card (Exh.212)

and property related record (Exh.213). The production of these documents

lends assurance to his statement that his uncle resided at Somthana and that

he had occasion to visit the village.

22. The evidence of PW 4, Police Patil Kishor Dutonde, only shows that

fodder was not ordinarily sold in the village. That by itself does not render

the explanation of PW 5 and PW 10 false. Their presence on a public road

cannot be rejected merely because the precise purpose of their visit has not

been independently corroborated. The prosecution is not required to establish

the exact reason for the presence of a witness at the spot when his testimony

regarding the occurrence is otherwise found reliable.

23. The defence has emphasised that PW 10 admitted that no house

stood in his own name or in the name of his father at Somthana. However,

PW 10 has consistently stated that the house belonged to his uncle and that

he had gone there on the date of occurrence. The documents produced by

him support this part of his testimony. The mere fact that the property was

not in his own name does not render his presence doubtful.

24. The place of occurrence is a kachcha road connecting Somthana to

the National Highway and is surrounded by agricultural fields. The incident

occurred in broad daylight. The presence of travellers on such a road cannot 14 apeal 738.18.odt

be regarded as unusual. The evidence on record does not establish that the

presence of PW 5 and PW 10 on that road at the relevant time was impossible

or unnatural.

25. The law is well settled that the evidence of a so-called chance

witness cannot be discarded merely on that ground if his presence is

otherwise natural and his testimony is found reliable. In Rana Pratap and

others v. State of Haryana, (1983) 3 SCC 327 , the Hon'ble Supreme Court has

observed that the expression "chance witness" is borrowed from countries

where crimes are usually committed in secluded places, and that in our

conditions where people frequently move about in public places, the presence

of such witnesses cannot be regarded as unnatural. Similarly, in Thangaiya v.

State of Tamil Nadu, (2005) 9 SCC 650, it has been held that evidence of

chance witnesses requires careful scrutiny but cannot be rejected solely on

that ground when their presence is satisfactorily explained. The relevant

paragraphs of the said judgments are reproduced as below -

Paragraph No. 3 of Rana Pratap (supra) is as under -

"3. There were three eye-witnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing his laden cart along the road. The learned Sessions Judge and the learned counsel described both the independent witnesses as 'chance witnesses' implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression 'chance witnesses'. Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passersby will be 15 apeal 738.18.odt

witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere 'chance witnesses'. The expression 'chance witnesses' is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are 'chance witnesses', even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence."

Paragraph No. 8 of Thangaiya (supra) is as follow -

"8. Coming to the plea of the accused that PW 3 was a "chance witness" who has not explained how he happened to be at the alleged place of occurrence, it has to be noted that the said witness was an independent witness. There was not even a suggestion to the witness that he had any animosity towards the accused. In a murder trial by describing the independent witnesses as "chance witnesses" it cannot be implied thereby that their evidence is suspicious and their presence at the scene doubtful. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witness" is borrowed from countries where every man's home is considered his castle and everyone must have an explanation for his presence elsewhere or in another man's castle. It is quite unsuitable an expression in a country where people are less formal and more casual, at any rate in the matter of explaining their presence. Therefore, there is no substance in the plea that PW 3's evidence which is clear and cogent is to be discarded."

26. The principles laid down in Manoj and others v. State of Madhya

Pradesh, (2023) 2 SCC 353, relied upon by the defence, only require that the

evidence of such witnesses be carefully scrutinized. Having subjected the

testimony of PW 5 and PW 10 to such scrutiny, we find that the evidence 16 apeal 738.18.odt

emerging in record shows that PW 10 has connection with his native place

and his uncle was residing there. It can also be seen from the evidence of PW

4 that Shri Devidas Dutonde (uncle of PW 10), was a resident of village

Somthana and the father of PW 10 was also residing there. Hence, their

presence at the spot cannot be said to be improbable and their version

inspires confidence.

27. The mere fact that PW 5 and PW 10 were not personally

acquainted with the deceased does not render their evidence unreliable. Both

have stated that they witnessed an assault upon an unknown person and

subsequently vide newspaper they came to know that the deceased was

Kishor Khatri. Further, the testimony of PW 10 strengthened when in cross-

examination he described the deceased as a middle-aged man of about 45

years, having a light complexion and long hair. This description matched with

the appearance of the deceased as reflected in the photographs produced at

Exh.198 to Exh. 210. Moreover, there is no suggestion pointed out by the

Investigating Officer about their statements being made up or fabricated.

Their evidence finds assurance from the medical evidence which discloses

both sharp and firearm injuries corresponding to their version.

28. It is true that both witnesses came forward after a few days and

disclosed what they had seen. Though such delay warrants careful scrutiny, it

is not fatal if the evidence is otherwise consistent and trustworthy. The

learned Senior Counsel for the appellant has relied on the judgment Lahu 17 apeal 738.18.odt

Kamlakar Patil & Anr. V. State of Maharashtra, (2013) 6 SCC 417 to contend

that while there cannot be uniformity in human reaction, the court has to

keep in mind that if the conduct of the witness is so unnatural and not in

accord with acceptable human behaviour, his testimony becomes

questionable and can likely be discarded.

29. In the above judgment relied by the learned Senior Counsel for the

appellant, the witness's conduct in not informing anyone of the incident was

observed as defying normal human behaviour. However, in the present case

in hand both the eye witnesses, PW 5 and PW 10 had narrated the incident to

their close ones. Their conduct of being hesitant in immediately approaching

the police can be affirmed as it involved persons of high influence, which

cannot be viewed as wholly unnatural. However, both have admitted this

circumstance and have been cross-examined at length and their statement

remained unchallenged by the defence. The alleged contradictions between

PW 5 and PW 10 do not go to the root of the matter. On the material aspects

i.e. the presence of the white Tata Safari vehicle, the assault by the appellant

with a sharp weapon on the neck, which is in consonance with the medical

evidence and the subsequent firing by Accused No.2, both witnesses are

consistent. The identification of the appellant has not been shaken in cross-

examination, nor has any motive suggested for false implication.

30. Having subjected the testimony of PW 5 and PW 10 to careful

scrutiny, we do not find that their presence at the spot is so improbable as to 18 apeal 738.18.odt

discard their evidence. The suggestion that they were chance witnesses is not

supported by any material on record. Their testimony regarding the assault

remains consistent on material particulars and finds support from the medical

evidence. It can further be seen from their conduct that they would not have

deposed against the Accused No. 2 and the appellant without reason,

especially as they were in fear of Accused No. 2, who was an influential

person. The very fact that they chose to depose despite of being under fear of

Accused No. 2 advances credibility to their version and dismisses the

possibility of false allegation.

31. Apart from the ocular account of PW 5 and PW 10, the prosecution

relies upon certain surrounding circumstances. From the evidence of PW 1

Ashok Dhanuka (Exh.132) and PW 3-Pranvirsingh Kushwah, it emerges that

prior to the occurrence of the offence the deceased had left Balaji Mall in the

company of Accused No.2 in the white Tata Safari vehicle bearing No. MH-

30/P-3040. When the deceased did not return for a considerable time, PW 1

contacted him telephonically. During the first conversation the deceased

requested him to wait at the Mall, and during the second call at about 1.15

p.m. he informed PW 1 that he was with Accused No.2 and others at a field

in Somthana Shivar and asked him to return home.

32. PW 5 and PW 10 have stated that at about 1.00 to 1.15 p.m.,

while proceeding towards a plot near the National Highway by the Kachcha

road from Somthana, they noticed a white Tata Safari vehicle parked by the 19 apeal 738.18.odt

roadside with one person sitting inside and three persons standing nearby.

They identified Accused No.2 and the present appellant amongst them. The

said vehicle was found on the very same day at the farm house of Accused

No.2. The seizure panchnama (Exh.144) shows that two country-made pistols

were recovered from the dashboard and blood stains were noticed on the seat

cover. These facts provide important corroboration to the ocular account.

33. The ballistic evidence of PW 13-Dr. Nitin Longadage (Exh.236)

further strengthens the prosecution case. He has opined that the empty

cartridge case (Exh.5) had been fired from the country-made pistol marked as

Exh.1, and the barrel washing disclosed residue of prior firing. Though the

bullet which caused death was not recovered, the expert evidence establishes

that the cartridge case recovered from the scene corresponded with the pistol

seized from the vehicle and that the weapon had been used for firing prior to

examination. This evidence supports the prosecution version regarding use of

a firearm during the occurrence.

34. Insofar as the present appellant is concerned, the prosecution

relies upon the recovery of a Kukari at his instance pursuant to a

memorandum statement. The memorandum and recovery panchnamas show

that the appellant agreed to show the place where the weapon was

concealed, and in pursuance thereof he led the police and panch witnesses to

the spot and took out the Kukari concealed beneath a mango tree. The 20 apeal 738.18.odt

Medical Officer has opined that the incised injury on the neck was possible by

such weapon.

35. Learned Senior Counsel for the appellant contended that the

recovery cannot be relied upon since the memorandum does not contain a

detailed description of the place of concealment. Reliance was placed on

Adina & Anr. vs. State of Maharashtra, 2024 SCC OnLine Bom 2474, Manoj

Madanlal Tekam vs. State of Maharashtra, 2014 SCC OnLine Bom 1236,

State of Karnataka vs. David Rozario and Another, (2002) 7 SCC 728, and

Subramanya vs. State of Karnataka (2023) 11 SCC 255 to submit that in

absence of a specific disclosure the recovery is inadmissible under Section 27

of the Indian Evidence Act.

36. It is true that the memorandum does not describe the precise

location in detail. However, the evidence clearly shows that the discovery of

the weapon was a direct consequence of the information supplied by the

appellant. The requirement of Section 27 of the Indian Evidence Act is that

the information must relate distinctly to the fact discovered, which includes

not merely the object but also the knowledge of the accused as to the place of

concealment. When the accused himself leads the police to the spot and

produces the weapon, the requirement of discovery stands satisfied even if

the memorandum does not contain elaborate particulars. The decisions relied

upon by the appellant turned on facts where the disclosure statements were

vague and the discovery itself was doubtful. In the present case the recovery 21 apeal 738.18.odt

is duly proved through the evidence of the panch witnesses and the

Investigating Officer and is consistent with the medical evidence. The

recovery of the Kukari therefore constitutes a relevant incriminating

circumstance.

37. The Hon'ble Supreme Court in case of Boby v. State of Kerala,

(2023) 15 SCC 760 has in detail delve upon the scope of Section 27 of the

Indian Evidence Act. It referred to its earlier judgment in case of State of

Karnataka v. David Rozario, (2002) 7 SCC 728 wherein it was held that the

statement which is admissible under Section 27 is the one which is the

information leading to discovery. Accordingly, the Court further held that it is

necessary for the benefit of both accused and prosecution that information

given should be recorded and proved and if not so recorded, the exact

information must be adduced through evidence. The Court therefore held

that the basic idea embedded in Section 27 of the Indian Evidence Act is the

doctrine of confirmation by subsequent event. The Hon'ble Supreme Court

referred to Three Judge Bench in Subramanya v. State of Karnataka, (2023)

11 SCC 255. The Court referred to Section 27 of the Evidence Act and

observes thus :

"If the accused while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes, etc. then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the 22 apeal 738.18.odt

weapon of offence, etc. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. (Para 32)

Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or bloodstained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act."

Prior thereto the Hon'ble Supreme Court referred to the well

celebrated judgment of the Privy Council in case of Pulukuri Kotayya v. King-

Emperor , 1946 SCC OnLine PC 47 wherein the Court held that -

"Section 27 of the Evidence Act requires that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to the said fact. The information as to past user, or the past history, of the object produced is not related to its discovery."

The Hon'ble Supreme Court then referred to another judgment of

Suresh Chandra Bahri v. State of Bihar, 1995 Supp (1) SCC 80 and observed

as under :

23 apeal 738.18.odt

"40. A perusal of para 71 of Suresh Chandra Bahri case would reveal that the Court has reiterated that the two essential requirements for the application of Section 27 of the Evidence Act are that (1) the person giving information must be an accused of any offence and (2) he must also be in police custody. The Court held that the provisions of Section 27 of the Evidence Act are based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and consequently the said information can safely be allowed to be given in evidence."

As could be seen in none of the judgments referred to by the

Hon'ble Supreme Court and also in its finding the Court held that it is

mandatory for the accused to give details or description of place of

concealment, rather in the case of David Rozario (supra), the Supreme Court

observed that the information given by the accused should be recorded and

proved and if not so recorded, the exact information must be adduced

through evidence. In the case of Subramanya (supra), the Supreme Court

observed that when the accused while in custody on his own free will and

volition made a statement that he would lead to the place where he had

hidden the weapon of offence, then the first thing the Investigating Officer

should do is to call two independent witnesses.

38. Thus what is important is the free will and volition of the accused

to make a statement. If the accused has to make a statement on his own free

will and volition, the Court or the investigating agency cannot expect a

particular format of making statement. In a given case, the accused may say

that he will lead the police to the place where he had hidden the weapon and

in the other he may broadly describe the place saying that the weapon is kept 24 apeal 738.18.odt

in the house but without describing the exact place in the house or may

provide exact details. Thus what is important is not the form of the

statement but discovery of facts on the basis of statement made by the

accused while he was in custody. That being so, the discovery made of a fact

in terms of Section 27 of the Indian Evidence Act cannot be ignored only for

the reason that detailed description of place of concealment was not given by

the accused. In fact, to expect the accused to give details of description of

place of concealment will attract a risk. Mr. Gupta, learned Senior Counsel/

Special Public Prosecutor has rightly argued that if such details are given

while in custody, the possibility of removing the weapon/article from the

place or planting the same cannot be ruled out. The realistic approach will

concur this possibility.

Thus, the judgments referred to by the appellant will be of no

help, in fact two out of four judgments were referred to by the Supreme

Court in Boby's case. The first judgment is in the case of State of Karnataka

v. David Rozario (supra) and the second Subramanya vs. State of Karnataka

(supra). We did not find in the said judgments that the law is laid down that

in absence of detailed description of place of concealment of the

weapon/article, the recovery is inadmissible under Section 27 of the Indian

Evidence Act. What is held is that information given should be recorded and

proved. However, there is nothing to show that the voluntary statement

should contain the detailed description of the place of concealment. In fact,

such expectation would take away the essence of involuntariness to make

statement by the accused. It all depends on the ability to express oneself and, 25 apeal 738.18.odt

therefore, to expect accused to make a voluntary statement in a particular

manner runs contrary to the provision itself. The other two judgments

referred to by the appellant are such that in the case of Manoj Madanlal

Tekam (supra), the Supreme Court has not considered the law laid down in

the landmark judgment of Pulukuri Kotayya (supra). In the case of Adina

and Another (supra), though the judgment of Privy Council is considered, the

law laid down in Boby's case is not considered. That being so and taking into

account the consistent view of the Supreme Court, we do not find any

substance in the argument of the appellant that in absence of a detailed

description of place of concealment in the first part of muddemal, the

recovery is inadmissible. The argument is accordingly rejected.

39. It has also come in evidence through PW 18 that a communication

was addressed to the SRPF Headquarters where the appellant was attached

seeking details of his duty chart, and it was reported that the appellant had

remained absent from duty from 02.11.2015. Though the defence contended

that the officer who supplied such information was not examined and the

letter (Exh.259) could not be relied upon, it is significant that in his

statement under Section 313 of the Code of Criminal Procedure the appellant

did not assert that he was present on duty during the relevant period till his

arrest on 08.12.2015. While abscondence by itself is not conclusive proof of

guilt, unexplained absence around the date of occurrence is a relevant

circumstance under Section 8 of the Evidence Act and may be considered

along with other evidence on record.

26 apeal 738.18.odt

40. Learned Senior Counsel for the appellant further contended that

the investigation suffered from certain lapses such as non-recovery of the

bullet, absence of fingerprint examination and non-examination of tyre

marks. It is true that the investigation is not free from imperfections.

However, minor lapses on the part of the investigating agency in the present

case do not necessarily enure to the benefit of the accused when the

substantive evidence otherwise inspires confidence. The principal

circumstances, namely the presence of the accused with the deceased, the

vehicle used in the occurrence, the recovery of firearms and cartridge case,

the recovery of the sharp weapon and the medical evidence remain

unaffected by such omissions.

41. Reliance was placed on Ashish Batham vs. State of Madhya

Pradesh, (2002) 7 SCC 317; Sudama Pandey and others vs. State of Bihar,

(2002) 1 SCC 679; Subhash Chand vs. State of Rajasthan, (2002) 1 SCC 702;

and Varun Chaudhary vs. State of Rajasthan, (2011) 12 SCC 545 to contend

that the circumstances do not form a complete chain. The principles laid

down in the said decisions are well settled in cases resting purely on

circumstantial evidence. The present case, however, rests primarily on

reliable ocular testimony of PW 5 and PW 10 which stands corroborated by

medical and ballistic evidence. The surrounding circumstances serve as

additional assurance to the prosecution version. The omissions pointed out in

investigation do not affect the core of the prosecution case and the decisions

relied upon are, therefore, distinguishable on facts.

27 apeal 738.18.odt

42. When the aforesaid circumstances are considered together with

the ocular and medical evidence, they form a consistent chain pointing

towards the guilt of the appellant and are incompatible with any reasonable

hypothesis of innocence. Hence, we answer Point No. (ii) in the affirmative.

As for Point No. (iii) :

43. The question that arises next is whether the prosecution has

proved that the present appellant acted in furtherance of common intention

with Accused No.2 and that the offence was the result of a criminal

conspiracy. The offence of conspiracy under Section 120-B of the IPC requires

proof of an agreement between two or more persons to commit an illegal act.

Such agreement is seldom proved by direct evidence and may legitimately be

inferred from proved circumstances and the conduct of the parties before,

during and after the occurrence. At the same time, such inference must rest

upon established facts and not upon mere conjecture.

44. Learned Senior Counsel for the appellant submitted that no motive

has been established against the appellant and that there is no evidence of

prior meeting of minds. It was contended that in the absence of clear proof of

conspiracy, conviction under Section 120-B of the IPC cannot be sustained.

Reliance was placed upon K.R. Purushothaman vs. State of Kerala, (2005) 12

SCC 631, particularly paragraphs 11 to 15, wherein it is observed that

conspiracy cannot be inferred merely on suspicion and that the agreement

between conspirators must be established by reliable evidence.

28 apeal 738.18.odt

45. It is true that there is no direct evidence showing the manner in

which the appellant reached the place of occurrence or the precise agreement

between the accused persons. However, absence of such direct evidence is not

unusual in cases of conspiracy. The law only requires that the surrounding

circumstances should reasonably indicate a meeting of minds.

46. The evidence on record shows that on the day of occurrence, the

deceased left Balaji Mall with Accused No.2 in the Tata Safari vehicle owned

by him. PW 1 also deposed that during telephonic conversation, the deceased

informed him that he was at Somthana Shivar with Accused No.2 and his

associates shortly before the occurrence. Within a short span thereafter, the

deceased was found dead at Somthana Shivar. The ocular evidence of PW 5

and PW 10 establishes that both Accused No.2 and the present appellant

were present with the deceased at the spot. According to them, the appellant

first inflicted a blow with a Kukari on the neck of the deceased and

immediately thereafter Accused No.2 fired a gunshot. The sequence of events

indicates coordinated action and not an isolated or accidental occurrence.

47. The place of occurrence is a kachcha road surrounded by fields

and not a place of usual public congregation. The deceased was taken there

by Accused No.2 in his own vehicle. The appellant was also present at that

spot armed with a deadly weapon. The use of two different lethal weapons,

namely a sharp-edged Kukari and a firearm, and the successive assault on 29 apeal 738.18.odt

vital parts of the body clearly indicate preparation and concert rather than a

sudden quarrel.

48. The subsequent conduct also lends assurance to the prosecution

case. The Tata Safari vehicle used in the occurrence was removed from the

spot and found at the farm house of Accused No.2. The appellant remained

absent from duty from the relevant period and was arrested after a lapse of

time. The fact that immediately after commission of crime both the appellant

and Accused No. 2 absconded, this has relevance under Section 8 of Indian

Evidence Act. Though abscondence by itself is not conclusive, it constitutes a

relevant circumstance when considered along with the other evidence on

record.

49. So far as Section 34 of the IPC is concerned, the evidence

unmistakably shows that the appellant and Accused No.2 acted in furtherance

of a common intention. The appellant inflicted a blow with a deadly weapon

on a vital part of the body and the co-accused immediately followed it with a

gunshot. The assault was sequential and complementary. Even if the fatal

injury is attributed to the firearm, the role of the appellant in initiating the

assault by a dangerous weapon clearly attracts Section 34 of the IPC.

50. The reliance placed by the defence on K.R. Purushothaman (supra)

does not advance the case of the appellant. In said case, the conviction for

conspiracy was found unsustainable as the prosecution had failed to establish 30 apeal 738.18.odt

any connecting circumstances showing a prior agreement between the

accused. The present case stands on a different footing. Here, the presence of

both accused persons with the deceased at a secluded place, the fact that

both were armed with deadly weapons, the coordinated manner of assault

and the subsequent conduct of the accused persons constitute a chain of

circumstances reasonably pointing towards a prior meeting of minds.

51. Though the precise motive behind the offence is not established in

detail, the evidence of PW 3 and the agreement (Exh.104) show the

involvement of the deceased in the affairs of Balaji Mall and his dealings with

Accused No.2. In any event, where there is reliable ocular evidence of

participation in the crime, absence of proof of motive is not fatal to the

prosecution case.

52. Upon cumulative consideration of the evidence, we are satisfied

that the prosecution has proved beyond reasonable doubt that the appellant

acted in furtherance of common intention with Accused No.2 and that the

offence was committed pursuant to a pre-arranged plan. Accordingly, Point

No. (iii) is answered in the affirmative.

As to Point No (iv) :

53. In view of the foregoing discussion, we find that the prosecution

has succeeded in establishing, beyond reasonable doubt, the homicidal death

of Kishor Madanlal Khatri and the active participation of the present 31 apeal 738.18.odt

appellant in the commission of the offence. The ocular evidence of PW 5 and

PW 10 stands corroborated by the medical and ballistic evidence, the

recoveries effected during investigation, and the surrounding circumstances

including the unexplained absence of the appellant from duty immediately

around the date of occurrence. The findings recorded are based upon proper

appreciation of evidence and do not suffer from perversity, misapplication of

law, or overlooking of material evidence.

54. In view of aforesaid discussion and the evidence on record, both

documentary and oral, we are of the considered opinion that the learned

Sessions Judge was completely justified in convicting the present appellant

for the offence under Section 302 read with Section 34 and Section 120-B of

the IPC. Accordingly, Point No. (iv) is answered in the negative.

55. The appeal, being devoid of merit, deserves to be dismissed.

Hence, we proceed to pass the following order -

                                                                      Order

                               (i)    The Criminal Appeal stands dismissed.

(ii) The conviction and sentence imposed upon the appellant for the offences punishable under Section 302 read with Section 34 and Section 120- B of the IPC are hereby confirmed.

                                       (Nivedita P. Mehta, J.)                   (Anil L. Pansare, J.)
             adgokar
Signed by: MR. P.M. ADGOKAR
Designation: PS To Honourable Judge
Date: 16/03/2026 16:18:14