Bombay High Court
Sahdev S/O Shamrao Tadokar vs The State Of Mah. Thru P.S.O. And 7 Ors. on 24 March, 2026
2026:BHC-NAG:4698
1 APEAL.171-2007 & ANR.JUDGMENT.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 171 OF 2007
1. Laxmikant S/o Sakharam Nimkarde,
Aged about 55 years,
2. Amar @ Amardip S/o Laxmikant
Nimkarde,
Aged about 27 years,
3. Adesh @ Naresh S/o Laxmikant
Nimkarde,
Aged about 22 years,
4. Subhash S/o Sahadeo Tadokar,
Aged about 32 years,
5. Mahadeo S/o Sahdeo Tadokar,
Aged about 32 years,
6. Prakash S/o Gulabrao Tadokar,
Aged about 26 years,
7. Sadananad S/o Gulabrao Tadokar,
Aged about 35 years,
8. Sahadeo S/o Shamrao Tadokar,
Aged about 65 years,
All Agriculturists by Occupation and
all R/o Rampura Kokarda, Tahsil-
Anjangaon Surji, District- Amravati. APPELLANTS
Versus
The State of Maharashtra,
2 APEAL.171-2007 & ANR.JUDGMENT.odt
Thr. Police Station Officer, Police
Station Khallar, District- Amravati. RESPONDENT
WITH
CRIMINAL REVISION APPLICATION NO. 184 OF 2007
Sahdev S/o Shamrao Tadokar,
Aged about 69 years,
Occ. Agriculturist,
R/o Rampura, Police Station Khallar,
District- Amravati. APPLICANT
Versus
1. The State of Maharashtra,
Thr. Police Station Officer, Police
Station Khallar, District- Amravati.
2. Sahebrao S/o Trimbakrao Bobde,
Aged about 54 years,
3. Amol S/o Sahebrao Bobde,
Aged about 20 years,
4. Rahul S/o Sahebrao Bobde,
Aged about 19 years,
5. Vinod S/o Narayanrao Bobde,
Aged about 31 years,
6. Sanjay S/o Narayanrao Bobde,
Aged about 24 years,
7. Subhash S/o Sheshrao Bobde,
Aged about 31 years,
3 APEAL.171-2007 & ANR.JUDGMENT.odt
8. Chandrashekhar S/o Sheshrao
Bobde,
Aged about 29 years,
All 2 to 8 R/o Rampura
Post- Kokarda, Tq- Anjangaon,
(Surji) District - Amravati. NON-APPLICANTS
-----------------------------------------------
APPEAL NO. 171/2007
Mr. P.R. Agrawal, Advocate, Advocate for the Appellants.
Mr. A.M. Kadukar, APP for the Respondent/State.
REVN NO. 184/2007
Mr. P.R. Agrawal, Advocate, Advocate for the Applicant.
Mr. A.M. Kadukar, APP for the Non-applicant No.1/State.
Mr. Ankit Ambatkar, Advocate for the Non-applicant Nos. 2 to 6.
Mr. B.H. Tekam, Advocate for the Non-applicant Nos. 7 & 8.
-----------------------------------------------
CORAM : URMILA JOSHI PHALKE, J.
RESERVED ON : 06th MARCH, 2026.
PRONOUNCED ON : 24th MARCH, 2026.
ORAL JUDGMENT :-
1. This Appeal is directed against the judgment and
order of sentence passed in Session Trial No.12/2002 dated
14.05.2007 by Adhoc Additional Sessions Judge, Achalpur by
which the Appellants/accused are convicted of the offence
punishable under Sections 147 and 148 of the Indian Penal
Code and sentenced to suffer rigorous imprisonment for six
months and to pay a fine of Rs. 1,000/-, in default to suffer
4 APEAL.171-2007 & ANR.JUDGMENT.odt
simple imprisonment for one month. The Appellants are further
convicted of the offence punishable under Section 307 of the
Indian Penal Code and sentenced to suffer rigorous
imprisonment for five years and to pay a fine of Rs.2,000/-, in
default to suffer simple imprisonment for six months and of the
offence punishable under Section 135 of the Bombay Police Act
and sentenced to suffer rigorous imprisonment for four months
and to pay a fine of Rs. 100/-, in default to suffer simple
imprisonment for one month.
2. The original complainant in cross complaint
challenges the order of acquittal passed in Sessions Trial
No. 100/2006.
3. Brief facts of the prosecution case emerges from the
Police papers and recorded evidence are as under:
3(i). The accused and the informant as well as
prosecution witnesses are residing of the same Village
Anjangaon Surji. There is a political rivalry and old enmity
between the two groups. The prosecution witnesses belongs to
one group, whereas the accused persons are from another
group. Injured Subhash Bobde has lodged the FIR alleging that
5 APEAL.171-2007 & ANR.JUDGMENT.odton 05.06.2001 at about 6.30 to 07.00 a.m., all the accused
persons formed an unlawful assembly and in pursuance of
common object of the said assembly came in front of the house
of PW-3/Vinod Bobde by holding weapons like sword, spear,
axes and sticks in their hands. The accused No.1 Laxmikant and
accused No. 3/Adesh assaulted PW-3/Vinod. The accused No.1
Laxmikant was holding sword, gave a blow of sword on the
head of Vinod, whereas accused No.3/Adesh gave a blow of
handle of spear on the person of Vinod. When the other
prosecution witnesses namely Chandrashekhar Bobde, Sahebrao
Bobde, Ashok Bobde and Sanjay Bobde intervened to rescue
Vinod, accused persons assaulted them also by means of
weapons in their hands. In the said incident Rahul Bobde, Amol
Bobde, Subhash Bobde, Sanjay Bobde, Vinod Bobde, Ashok
Bobde, Rahul Sahebrao Bobde and Chandrashekhar Bobde
received grievous injuries on the vital parts of their body. It was
alleged that, accused persons in furtherance of their common
object assaulted the prosecution witnesses and thereby
committed an offence punishable under Section 307 of IPC.
3(ii). After registration of the crime the Investigating
6 APEAL.171-2007 & ANR.JUDGMENT.odtOfficer carried out the further investigation and visited the spot
of incident and drawn the spot panchanama. He further seized
the clothes of the injured persons, arrested the accused persons
on the basis of the statement of accused No.1 Laxmikant and
accused No. 3/Adesh recovered the sword Article A and spear
Article- D from them. The other weapons are recovered from the
accused persons seized the weapons and the blood stained
clothes are forwarded to CA. On completion of the investigation
the charge-sheet was submitted against the accused persons.
3(iii). As the offence punishable under Section 307 of IPC
is tried by Court of Sessions, the case was committed to the
Court of Sessions. The learned Adhoc Additional Sessions
Judge, Achalpur framed the Charge vide Exh. 51. The contents
of the charge are read over and explained to the accused
persons to which they pleaded not guilty and claimed to be
tried.
3(iv). In support of the prosecution case, the prosecution
has examined in all 18 witnesses, as follows:
(i) PW-1 Subhash Sheshrao Exh.144 Informant
Bobade
7 APEAL.171-2007 & ANR.JUDGMENT.odt
(ii) PW-2 Sanjay Narayanrao Exh.147 Injured
Bobade
(iii) PW-3 Vinod Narayanrao Exh.148 Injured
Bobade
(iv) PW-4 Ashok Trimbakrao Exh.150 Injured
Bobade
(v) PW-5 Shrikrishna Exh.153 Eye witness
Narayanrao Khiralkar
(vi) PW-6 Rahul Sahebrao Exh.154 Injured
Bobade
(vii) PW-7 Sahebrao Trimbakrao Exh.157 Injured
Bobade
(viii) PW-8 Purushottam Ramraoji Exh.158 Panch on
Vairale seizure of
weapons
(ix) PW-9 Chandrashekhar Exh.168 Injured
Sheshrao Bobade
(x) PW-10 Rajesh Pralhadrao Exh.169 Panch on
Zagade seizure
(xi) PW-11 Dr. Manoj Bhagwanji Exh.173 Medical Officer
Nichat
(xii) PW-12 Dr. Abhijit Vasantrao Exh.178 Medical Officer
Tale
(xiii) PW-13 Sanjay Sahadeorao Exh.181 Police
Udapure Constable
(xiv) PW-14 Vitthal Parashramji Exh.183 Police
Sarode Constable
(xv) PW-15 Arvind Govindrao Exh.185 Panch on
Mohod memorandum
statement and
recovery
8 APEAL.171-2007 & ANR.JUDGMENT.odtpanchanama
(xvi) PW-16 Sanjay Bhikaji Pande Exh.186 Investigating
Officer(xvii) PW-17 Bhujangrao Karutji Exh.198 Panch on
Dahat memorandum
statement and
recovery
panchanama(xviii) PW-18 Dr. Sivalaruselval Exh.201 Medical Officer
Sundaramoorthy3(v). Besides the oral evidence, the prosecution placed
reliance on Report-Exh. 145, FIR-Exh. 146, Seizure memo-
Exh. 149, Seizure memos-Exhs. 159 to 167, Seizure memo-
Exh. 170, Medical Certificates of the injured-Exhs. 174 to 177,
Medical Certificate of Sanjay Narayan Bobade-Exh. 179, Injury
Certificate of Sahebrao Trimbakrao Bobade-Exh. 180, Spot
Panchnama-Exh. 187, Memorandum statement of accused
No.1/Laxmikant Sakharam Nimkarde-Exh. 188, Memorandum
statement of accused No.3/Adesh Laxmikant Nimkarde-
Exh. 189, Recovery panchnamas-Exhs. 190 and 191, Requisition
to CA-Exh.192, CA Report-Exh. 193, Notification under Section
37(1)(3) of the Bombay Police Act-Exh. 194, Medical Certificate
of Chandrashekhar Bobade-Exh. 202.
9 APEAL.171-2007 & ANR.JUDGMENT.odt
3(vi). All incriminating evidence is put to the accused in
order to obtain their explanations. The defence of the accused
persons is that there was a free fight between the two groups,
wherein the accused persons as well as the prosecution
witnesses sustained the injuries. The cross compliant is filed
against the prosecution witnesses also as they have assaulted
the accused persons.
3(vii). After appreciating the evidence on record and on
going through the entire evidence, the learned Adhoc
Additional Sessions Judge, Achalpur held the present accused
persons guilty and convicted as aforestated.
3(viii). Being aggrieved and dissatisfied with the same, the
present Appeal is preferred by the Appellants/accused on the
ground that the injuries of the accused persons are not
explained by the prosecution. The entire genesis of the incident
is suppressed by the prosecution. The cross complaint which
was tried alongwith the present Sessions Case is bearing
Sessions Trial No. 100/2006, wherein the accused persons who
are the prosecution witnesses in the present case are acquitted
though some of the accused have received the grievous injuries.
10 APEAL.171-2007 & ANR.JUDGMENT.odt
The evidence of prosecution witnesses suffers from
inconsistency and not inspiring the confidence. During the
pendency of Appeal some of the accused i.e. Sahebrao
Trimbakrao Bobde, Rahul Sahebrao Bobde, Vinod Narayanrao
Bodbe and Sanjay Narayanrao Bobde entered into the
settlement. In view of the said settlement, the conviction and
sentence deserves to be quashed and set aside.
4. Heard Mr. Agrawal, learned Counsel for the Accused
persons, who submitted that during the pendency of this Appeal
some of the accused and the prosecution witnesses entered into
the settlement. In view of the settlement, the conviction and
sentence of the accused persons deserves to be quashed and set
aside. As to the merits of the case, he submitted that,
prosecution has not adduced the evidence to show that, all the
accused persons were members of the unlawful assembly and in
pursuance of the common object of the said assembly, they
assaulted the injured persons. He further submitted that, no
specific role is attributed to each of the accused, as the injuries
of the accused are not explained, which is fatal to the
prosecution and sufficient to show that, the genesis of the
11 APEAL.171-2007 & ANR.JUDGMENT.odt
incident is suppressed. The evidence adduced by the
prosecution witnesses is suffering from the omissions and
contradictions which are vital in nature and affects the
prosecution case. Section 149 of IPC cannot be invoked as the
fight between the two groups was free fight. Alternatively, he
submitted that, considering the nature of the incident, benefit of
extending the Probation of the Offenders Act be given to the
present accused persons and prays for acquittal of the accused.
5. Per contra, learned APP supported the judgment of
the learned Trial Court and submitted that, the evidence
adduced by the prosecution is consistent. The prosecution has
adduced the evidence explaining the role of each of the accused,
which is not shattered during the cross-examination. The oral
evidence is further corroborated by the medical evidence. The
prosecution evidence further shows that, the accused persons
were aggressors came in front of the house of PW-3/Vinod and
initiated the incident. The role of the accused No.1/Laxmikant
and accused No.3/Adesh is specifically stated by all the
prosecution witnesses, which sufficiently shows the involvement
of the present accused persons in the alleged crime. Considering
12 APEAL.171-2007 & ANR.JUDGMENT.odt
the nature of the incident merely because there was
compromise between some of the accused and prosecution
witnesses not sufficient to quash the conviction as the offence
alleged is grievous one. It would not be open to the present
Court as to acquit the accused on the basis of the settlement.
Moreover, the evidence of prosecution witnesses is supported by
the medical evidence and scientific evidence. In view of that,
the Appeal being devoid of merits and liable to be dismissed.
6. Mr. Tekam, learned Counsel submitted that, the
learned Trial Court was pleased to convict the accused persons
of the offence punishable under Section 307 read with Section
149 of IPC and sentenced them as aforestated. However, the
learned Trial Court failed to properly appreciate the evidence
and failed to appreciate that the present prosecution witnesses
have formed the unlawful assembly and caused the injuries to
the accused persons. No specific finding was recorded regarding
who initiated the incident. The Court wrongly discredited the
FIR for not specifying the exact weapon used by each accused
contrary to the settled law. The Trial Court failed to appreciate
that, the accused persons in cross complaint formed the
13 APEAL.171-2007 & ANR.JUDGMENT.odt
unlawful assembly and caused the injuries to the witnesses and
wrongly appreciated the evidence and acquitted the accused
persons in Sessions Trial No. 100/2006.
7. In support of the contentions, Mr. Agrawal, learned
Counsel placed reliance on Lakshmi Singh & Ors. Vs. State of
Bihar, (1976) 4 SCC 394; Kalyan & Ors., Vs. State of U.P.,
(2001) 9 SCC 632; State of M.P. Vs. Mishrilal (Dead) & Ors.,
(2003) 9 SCC 426; Bir Singh & Ors., Vs. State of Uttar Pradesh,
(1977) 4 SCC 420; State of Haryana Vs. Chandvir & Ors.,
1996(8) SCC 678; Angad & Ors., Vs. The State of Maharashtra,
2026 NCBHC-AUG 92; Ramesh Vs. State of Rajasthan, 2025
SCC Online SC 50.
8. Mr. Tekam, learned Counsel placed reliance on
Gajanand & Ors., Vs. State of Uttar Pradesh, A.I.R. 1954 S.C.
695; Lalji & Ors. Vs. State of U.P., AIR 1989 SC 754; Pal Singh
Vs. Sunder Singh (dead) by Lrs. & Ors., AIR 1989 SC 758; State
of Rajasthan Vs. Shiv Charan & Ors., AIR 2013 SC 2342; Karan
Singh Vs. State of Haryana & Anr., AIR 2013 SC 2348; State of
Madhya Pradesh Vs. Kanha Alias Omprakash, (2019) 3 SCC
605; State of Madhya Pradesh Vs. Laxmi Narayan & Ors.,
14 APEAL.171-2007 & ANR.JUDGMENT.odt
(2019) 5 SCC 688; State of M.P. Vs. Saleem Alias Chamaru &
Anr., (2005) 5 SCC 554; Superintendent of Police, CBI & Ors.
Vs. Tapan Kumar Singh, (2003) 6 SCC 175; Criminal Revision
Application No. 130/2016, Suman Shankar Patinge & Anr. Vs.
State of Maharashtra, decided on 15.06.2023; Criminal Appeal
No. 381/2019, Rohit Vijay Onkar & Ors. Vs. State of
Maharashtra, decided on 13.10.2025.
9. After hearing both the sides and on perusal of the
entire evidence, it has to be seen whether the prosecution is
succeeded in establishing the charge against the present accused
persons to prove that the accused Nos.1 to 8 were the members
of the unlawful assembly and in pursuance of the common
object of that assembly, assaulted the prosecution witnesses and
thereby committed and offence punishable under Sections 147,
148, 307 read with Section 149 of IPC and under Section 135 of
Bombay Police Act.
10. To prove that the accused persons were the
members of the unlawful assembly and in pursuance of the
common object they have assaulted the prosecution witnesses,
prosecution mainly relied upon on the evidence of
15 APEAL.171-2007 & ANR.JUDGMENT.odt
PW-1/Subhash Bobade examined vide Exh. 144, PW-2/Sanjay
Bobade examined vide Exh. 147, PW-3 Vinod Bobade examined
vide Exh. 148, PW-4/Ashok Bobade examined vide Exh. 150,
PW-5/Shrikrishna Khiralkar examined vide Exh. 153,
PW-6/Rahul Bobade examined vide Exh. 154, PW-7/ Sahebrao
Bobade examined vide Exh. 157 and PW-9/Chandrashekhar
Bobade examined vide Exh. 168.
11. The evidence of PW-1/Subhash Bobade shows that,
the alleged incident took place on 05.06.2001 at about 06.30 to
07.00 a.m. The incident occurred in front of the house of Vinod
Bobade who is PW-3. As per his evidence at that time he was
working on Tractor in front of the house of Vinod Bobade, all
the accused persons namely Laxmikant, Adesh, Amar, deceased
accused Mahadeo, accused No.11/Sahadeo, accused No.
4/Subhash, accused No.5/Mahadeo, accused No.6 Prakash,
accused No.7/Sadanand, deceased accused Vitthal and deceased
accused Gulabrao came there holding weapons in their hands.
His evidence further shows that, accused No.1
Laxmikant was holding sword, accused no. 2/Amar was holding
stick, accused No.3/Adesh was holding spear, accused No.
16 APEAL.171-2007 & ANR.JUDGMENT.odt
4/Subhash was holding axe, deceased accused Mahdeo holding
spear, accused No. 6/Prakash, accused No. 7/Sadanand and
accused No.8 Vitthal were holding sticks in their hands. He
further stated that, accused No. 1/Laxmikant and accused No.
3/Adesh started assaulting Vinod Bobade, accused
No.1/Laxmikant gave a blow of sword on the head of Vinod
Bobade, whereas accused No.3/Adesh gave a blow of handle of
spear on the person of Vinod Bobade. PW-9/Chandrashekhar
intervened. He was assaulted by deceased accused Mahadeo by
inflicting blow of a spear near the ear of Chandrashekhar.
Accused No.2/Amar also assaulted Chandkrashekhar with
sticks. The other prosecution witnesses Ashok, Sahebrao and
Sanjay came there to intervene and all the accused persons
assaulted Ashok, Sahebrao and Sanjay. The prosecution
witnesses Rahul Bobade and Amol Bobade also received the
injuries due to the blow of sword. PW-1/Subhash also went to
rescue them. He was also assaulted by accused No. 1/Laxmikant
by means of sword above his left eye. PW-1/Subhash also
received the injuries. Accused No.3/Adesh also assaulted him by
stick of spear. The villagers came there and separated the
accused persons. Thereafter accused left the spot. Injured Vinod
17 APEAL.171-2007 & ANR.JUDGMENT.odt
and Ashok sustained the bleeding injury. The clothes of all the
injured were stained with blood. All the injured were taken to
the Police out post Khallar Police Station. Thereafter they were
taken to the Government Hospital. He lodged the report Exh.
145 and FIR Exh. 146.
12. The evidence of PW-2/Sanjay Bobade also on the
similar line that, accused No.1/Laxmikant was holding sword,
accused No.3/Adesh was holding spear and all other accused
persons were holding sticks and axes. Accused Nos. 1 and 3
were beating Vinod and Ashok. When PW-2/Sanjay intervened
accused No.8 Sahadeorao attempted to assault him. Accused
No.1/Laxmikant also made an attempt to assault him by sword
and while resisting the act he sustained the injury on his palm.
Accused No.5 Mahadeo (deceased) gave a blow of stick, due to
which he sustained the head injury.
13. PW-3/Vinod Bobade also attributed the role to the
accused No.1/Laxmikant for giving a blow of sword. As per his
evidence one of the accused gave a blow of axe on his head. His
clothes were stained with blood i.e. Art. ‘F’ is Baniyan and Art.
‘G’ is Paijama stained with blood was seized.
18 APEAL.171-2007 & ANR.JUDGMENT.odt
14. The evidence of PW-4/Ashok Bobade also shows
that, accused No.1/Laxmikant assaulted him by sword and
accused No.3/Adesh by stick and accused Sahadeo beat his
brother Sahebrao. He has sustained the injuries on right little
finger, above right eye and on left side of head. His blood
stained clothes i.e. Art.’H’ Paijama and Art. ‘I’ Baniyan are
seized by the Police.
15. PW-7/Sahebrao Bobade and PW-9/Chandrashekhar
Bobade also stated that the spot of incident was in front of the
house of Vinod Bobde. Accused No.1/Laxmikant was holding
sword, accused No. 3/Adesh was holding spear having wooden
handle, accused No.2/Amar, accused No. 5/Mahadeo, accused
No.6/Prakash and accused No.7/Sadanand were holding sticks,
whereas accused No.8/Sahadeo and accused No. 4/Subhash
were holding axe. As per his evidence accused No.1/Laxmikant
gave a blow of sword on Ashok on his head.
16. The evidence of PW-9/Chandrashekhar is also on
the similar line stating that, accused No.1/Laxmikant gave a
blow of sword, accused No. 3/Adesh by spear and accused No.
2/Amar also by spear.
19 APEAL.171-2007 & ANR.JUDGMENT.odt
17. The evidence of these witnesses is further
corroborated by PW-5/Shrikrishna Khiralkar who is an
independent witness also testified that, Sahebrao Bobde was
caught and accused No.1/Laxmikant, accused No.3/Adesh were
beating Ashok with sword and stick of the spear. The sword is in
the hand of Laxmikant, whereas the stick of the spear was used
by Adesh to assault Ashok. Accused No.1/Laxmikant gave a
blow on the head of Ashok and accused No. 3/Adesh gave a
blow of stick of spear on the back of Ashok. Accused Nos. 1 and
3 also beat Sahebrao who was also caught by Sahadeorao. He
lifted the injured Ashok and Sahebrao, hence his clothes were
stained with blood.
18. All these witnesses were cross-examined at length.
As far as the cross-examination is concerned, the spot of
incident is in front of the house of Vinod Bobade, is not denied
or shattered during the cross-examination. It was brought on
record that, there was previous enmity between the two
families. There are other houses near the spot of incident.
During cross-examination, the material omissions are brought
on record that, PW-1/Subhash has not narrated before the
20 APEAL.171-2007 & ANR.JUDGMENT.odt
Investigating Officer while lodging the FIR that each accused
was armed with which weapon. He has also not stated
specifically that accused No.1/Laxmikant gave a blow of sword
on the head of Vinod and accused No.3/Adesh gave a blow of
stick of spear on the person of Vinod. Thus, it was brought on
record that, the role of each of the accused was not narrated by
PW-1/Subhash while lodging the FIR which are the proved
omissions.
19. Evidence of PW-2/Sanjay i.e. the cross-examination
shows that, the cross complaint was filed against him also which
was admitted by him. Attempt was made to show that, though
he stated that his left hand’s finger was cut but he admitted that
he is having 10 fingers to both the hands. Similarly, PW-3/Vinod
also admitted that, he is not aware whether the accused persons
have also sustained the injuries on the day of incident and
admits that, on the basis of the report of accused Sahadeo he
was facing prosecution under Section 324 of IPC. His
cross-examination shows that, firstly accused No.1/Laxmikant
came on the spot then accused No. 3/Adesh and thereafter they
were followed by the other accused.
21 APEAL.171-2007 & ANR.JUDGMENT.odt
20. PW-4/Ashok stated during the cross-examination
that, there are several houses near to his house. Mahadeo
Bobade filed Civil suit against Shrikrishna Khiralkar i.e. PW-5.
He has given the evidence in the suit in favour of Khiralkar. This
cross-examination was taken to show that PW-5/ Shrikrishna
Khiralkar is the interested witness.
21. PW-5/Shrikrishna also stated during his
cross-examination that, Maramari took place between the two
parties. He stated before the Police that, on hearing the
commotion he went there. But he denied that no incident of
beating has taken place in his presence. He further denied that,
it was the prosecution witnesses who assaulted the accused
persons, and therefore, the accused persons sustained the
injuries. On recording his statement belatedly, it is brought on
record that on 4/5 days, the Police were visiting the Village but
he has not gone to the Police and asked to record his statement.
He denied that his statement was recorded after 10 days.
22. PW-6/Rahul’s evidence is also on the similar line as
to the assault by the accused persons and except the admission
that cross complaint is filed against them, nothing incriminating
22 APEAL.171-2007 & ANR.JUDGMENT.odt
is brought on record.
23. Evidence of PW-7/Sahebrao during cross-
examination shows that, he was Police Patil, but he denied that,
the case was filed against him to remove him from the post of
Police Patil. On the contrary, his cross-examination shows that
proceeding APT-5/Rampura-2006 was pending before the
S.D.O. for removing from the post of Police Patil. He also admits
that, the cross complaint is filed against him.
24. PW-9/Chandrashekhar also cross-examined but
nothing incriminating is brought on record to falsify his version.
Thus, the evidence of all these witnesses is consistent as far as
the role of accused No.1/Laxmikant, accused No. 3/Adesh and
accused No. 2/Amar are concerned. Though PW-1/Subhash has
admitted that he has not stated specific role of each of the
accused but other witnesses have specifically stated the role of
each of the accused and their evidence are not shattered during
the cross-examination. The evidence of all these witnesses also
shows that, the alleged spot of incident is in front of the house
of PW-3/Vinod Bobade. Admittedly, the cross-examination of
these witnesses nowhere disclose that there was any other spot
23 APEAL.171-2007 & ANR.JUDGMENT.odt
of incident. It further reveals from his cross-examination that,
regarding the said incident cross complaint was filed against the
prosecution witnesses bearing Sessions Trial No. 100/2006,
which was also conducted before the same Court. Thus, the
presence of the accused persons at the spot is established not
only by the evidence of the prosecution witnesses but also by
the fact that regarding the same incident one of the accused
Sahadeo filed complaint against the prosecution witnesses. The
trial was conducted against the prosecution witnesses. Thus, the
spot of incident which is in front of the house of PW-3/Vinod
Bobade is established by the prosecution witnesses and the said
evidence is not shattered, which sufficiently shows that the
accused persons were aggressors came in front of the house of
PW-3/Vinod and the alleged incident has occurred.
25. To corroborate the version of the prosecution
witnesses, the prosecution further relied upon on the medical
evidence PW-11/Dr. Manoj Nichat is examined vide Exh.173
who has examined injured Ashok Bobade, Vinod Bobade, Rahul
Bobade, Subhash Bobade.
26. On examination of Ashok Bobade, he found
24 APEAL.171-2007 & ANR.JUDGMENT.odt
following injuries on his person.
1. incised wound 5 x 2 cm. just above the right
eye it was caused by sharp object, probable age was,
6 hours,
2. incised wound 8 cm. x 1 cm. over the occipital
region,
3. abrasion 12 cm x 1/2 cm. on left anterior axillary
line inverticle,
4. incised wound 4 cm. x 1 cm. on right little finger
5. contusion 6 cm. x 2 cm. over left infra scapular
region,
6. contusion 6 cm. x 2 cm. over the abdomen right
lumber region.
Injuries Nos. 1, 2 and 4 of Ashok Bobade were
caused by sharp object. Injury No.3 was caused by pointed
object and injury Nos. 5 and 6 were caused by hard and blunt
object. The age of the injuries was within six hours. The injury
Nos. 1 and 2 were on head. Accordingly, he issued the certificate
Exh. 174. He opined that, injury Nos. 1, 2 and 4 can be caused
by sword and injury No.3 can be caused by spear and injury
Nos. 5 and 6 can be caused by stick.
25 APEAL.171-2007 & ANR.JUDGMENT.odt
27. On examination of injured Vinod Bobade, he found
following injuries.
1. contused lacerated 8 cm. x 1 cm. on left frontal
and parietal region, 3 cm. lateral to mid line
2. contused lacerated 4 cm. x 1 cm. over the frontal
region near midline
3. contused lacerated 3 cm. x 1 cm. over behind left ear
4. contusion with querry fracture over metacarpal bone 4
cm. x 2 cm. right palm.
All the above injuries caused on the person of Vinod
Bobade by hard and blunt object within six hours. Injury Nos. 1
and 2 were on head. Accordingly, he issued certificate Exh. 175.
28. On examination of Rahul Bobade, he found
following injuries.
1. Incised wound 1 cm. x 1 cm. over left infraclavicular
region
2. incised wound 1 cm. x 1 cm. over the left inframmary
area
3. contusion 5 cm. x 2 cm. on right scapular area
26 APEAL.171-2007 & ANR.JUDGMENT.odt
Injury Nos. 1 and 2 caused by sharp object and
injury No.3 was caused by hard and blunt object. Accordingly,
he prepared certificate Exh. 176. As per his evidence injury
Nos. 1 and 2 can be caused by spear, whereas injury No. 3 can
be caused by stick.
29. He examined Subhash Bobade. On examination, he
found following injuries.
1. incised wound 2 cm. x 1 cm. on distal phalynx right
index finger
2. contused lacerated 2 cm. x 1 cm. on left eye brow
3. contusion 6 cm. x 2 cm. on left forearm
Injury No. 1 caused by sharp object and injury
Nos. 2 and 3 caused by hard and blunt object within six hours.
Accordingly, he issued certificate Exh. 177.
30. The evidence of PW-11/Medical Officer further
shows that, injury Nos. 1 and 2 on the person of injured Ashok
were on head i.e. on vital part of the body. Injury nos. 1 and 2
sustained by the injured Ashok were sufficient to cause death in
the ordinary course of nature. So also injuries sustained by
27 APEAL.171-2007 & ANR.JUDGMENT.odt
injured Vinod were on head i.e. on vital part of the body, were
sufficient to cause death in the ordinary course of nature.
31. The cross-examination shows that, witness has
denied that all contusions and abrasions are simple injuries. He
explained that, if the contusions and abrasions are on non-vital
part of the body are simple injuries. He further admits that,
incised wound can be caused during scuffle between 5-6
persons on one and side and five six persons on the other side.
He further admits, that merely because the injuries are on vital
part, it cannot be said that it is sufficient to cause death in the
ordinary course of nature. Thus, the attempt was made to show
that, merely because injuries are sustained on vital part of the
body is not sufficient to infer that, the said injuries are sufficient
to cause death of the injured.
32. PW-12/Dr. Abhijit Tale is the another Medical
Officer, who has examined Sanjay Bobade and found following
injuries on his person.
1. lacerated wound 10 cm. x 1 cm. on left hand palm,
anteriorly
28 APEAL.171-2007 & ANR.JUDGMENT.odt
2. incised wound 3 x 1 cm. on parietal area on head.
Injury No.1 can be caused by hard and sharp object,
whereas injury No. 2 can be caused by sharp object. The injuries
were within six hours. Accordingly, he issued the certificate
Exh. 179.
33. He has also examined Sahebrao Bobade. On his
person following injuries are found.
1. incised wound 8 cm. x 1 cm. on left temporal area on
head
2. incised wound 7 x 1 cm. on right temporal area of
head.
3. lacerated wound ½ x 1 x 4 cm. on left hard middle
finger
He issued the certificate Exh. 180. As per his
evidence, injury Nos. 1 and 2 on the person of Sahebrao can be
caused by sharp object and injury No.3 can be caused by hard
and sharp object.
His cross-examination shows that, only because
injuries on head is not sufficient to say that it would be
sufficient to cause death in the ordinary course of nature. He
29 APEAL.171-2007 & ANR.JUDGMENT.odt
further admits that, during scuffle also such type of injuries are
possible.
34. PW-18 is the another Medical Officer
Dr. Sivalaruselval Sundaramoorthy who has examined injured
Chandrashekhar Bobade, on whose person he has found
following injuries.
1) lacerated wound of 2.5 to 5 cm. size over the left ear,
upper part
2) a contusion of 1 x 1 cm. size over right knee
3) Abrasion / contusion of 1.5 x 1 cm. size over left knee
4) An abrasion of 1 x 3 cm. over posterio lateral aspect
below left elbow
5) Abrasion of 4 x 2 cm. in posterio lateral aspect of right
elbow
6) Abrasion / contusion of 12 x 5 cm. over upper part of
right side of back
Injury No.1 was by sharp object and other injuries
were by blunt object. Accordingly, he issued the certificate
Exh. 202. He also admits that, injury No.1 referred to in
Exh. 202 may be possible during the scuffle of two groups.
30 APEAL.171-2007 & ANR.JUDGMENT.odt
Thus, during the evidence of Medical Officer,
attempt was made to bring on record that such type of injuries
are possible during the scuffle between the two groups.
35. Besides the oral evidence of these witnesses,
evidence of PW-8/Purushottam Vairale is adduced to prove the
seizure of the weapons at the instance of the accused, who has
not supported the prosecution case. Though witness has turned
hostile, the panchnamas are shown to be proved during his
evidence, which is not correct. PW-10/Rajesh Zagade is
examined vide Exh. 169, in whose presence the blood stained
clothes of Ashok and Vinod were seized by drawing panchnama
Exh.170. He narrated that, in his presence the said panchnama
was drawn. During his cross-examination nothing incriminating
is brought on record. PW-15/Arvind Mohod and
PW-17/Bhujangrao Dahat who acted as a Panch on the
memorandum statement of accused No.1/Laxmikant and
accused No.3/Adesh, but both these witnesses have left loyalty
towards prosecution and not supported the prosecution case.
36. PW-13/Sanjay Udapure and PW-14/Vitthal Sarode
are the Police Constables who are the formal witnesses. PW-13/
31 APEAL.171-2007 & ANR.JUDGMENT.odt
Sanjay Udapure registered the FIR, whereas PW-14/Vitthal
Sarode registered the crime. PW-16/Sanjay Pande is the
Investigating Officer, who has narrated about the investigation.
His evidence discloses that, at the instance of the accused
Prakash, accused Mahadeo, accused Sadanand, he has seized
the sticks. At the instance of accused Vitthal and Mahadeo he
seized axe. From accused Subhash he has seized axe.
Accordingly, the panchnamas are drawn. On 20.06.2001
accused No.1/Laxmikant and accused No.3/Adesh made a
memorandum statement and shown their willingness to show
the place where the weapons are kept. Accordingly, their
memorandum statements Exhs. 188 and 189 were recorded. At
their instance, accused No.1/Laxmikant laid them in a cattle
shed and took out the sword concealed in heap of fodder, which
was seized by drawing panchnama Exh. 190 and accused
No.3/Adesh also shown the place cattle shed i.e. heap of fodder
and produce the spear in presence of panchas. Accordingly,
panchnama Exh. 191 was drawn.
37. His cross-examination shows that, he denied that he
interrogated accused Nos. 1 and 3 at the same time. It was
32 APEAL.171-2007 & ANR.JUDGMENT.odt
contended by the learned defence Counsel that, the time of
beginning and its completion are recorded at Exhs. 188 and 189
is having a distance of 15 km from Police Station. The place of
seizure is 30 minutes away from the Police Station and
therefore, the seizure panchnama is not believable. During his
cross-examination, the omissions which are brought on record
in the evidence of PW-1/Subhash are proved. There is no denial
as to the memorandum statement of the accused and the
recovery at the instance of the accused.
38. The judgment of the Trial Court is commented upon
by the learned Counsel for the accused on the ground that, the
genesis of the incident is suppressed by the prosecution as the
injuries on the person of the accused are not explained. It is an
admitted position that, the cross complaint was registered
against the prosecution witnesses. Admittedly, the record of the
cross complaint shows that, accused Mahadev Udebhanji,
accused Mahadeo Sahadeorao, accused Sahadeorao and
Subhash Sahadeorao sustained the injuries in the said incident.
The injury sustained by Mahadev Udebhanji is the abrasion
contusion over the back of left shoulder 4 x 1 c.m., simple in
33 APEAL.171-2007 & ANR.JUDGMENT.odt
nature. The accused Mahadev Sahadeorao sustained the injury a
lacerated wound of 2cm. X 0.3 c.m. The noting on medical
certificate shows that, he was referred for the X-ray to ascertain
the fracture but no further evidence is adduced that he
sustained the fracture injury. Similarly, Sahadevrao also referred
to ascertain whether he has sustained the fracture to skull.
There is no further evidence to show that he has sustained the
grievous injury. Similarly, Subhash sustained the lacerated
wound and suspected the dislocation of the left shoulder and
referred to X-ray but no further evidence that he sustained the
fracture or dislocation of left shoulder. The injuries of Amarjit
Nimkarde was also referred for X-ray of right tibia but there is
no evidence that he has also sustained the grievous injuries.
39. The law is settled that, where the prosecution fails
to explain the injuries on the accused two results follow (i) that
the evidence of prosecution witnesses is untrue and (ii) that the
injuries probabilise the plea taken by the Appellants.
40. In the case of Mohar Rai and Bharath Rai Vs. State
of Bihar, MANU/SC/0057/1968 and Lakshmi Singh & Ors. Vs.
State of Bihar, MANU/SC/0136/1976, wherein it is observed
34 APEAL.171-2007 & ANR.JUDGMENT.odt
that:
“In a murder case, the non-explanation of the injuries
sustained by the accused at about the time of the
occurrence or in the course of altercation is a very
important circumstance from which the Court can draw
the following inferences:
(1) that the prosecution has suppressed the genesis and
the origin of the occurrence and has thus not presented the
true version;
(2) that the witnesses who have denied the presence of the
injuries on the person of the accused are lying on a most
material point and, therefore, their evidence is unreliable;
(3) that in cases there is a defence version which explains
the injuries on the person of the accused assumes much
greater importance where the evidence consists of
interested or inimical witnesses or where the defence gives
a version which completes in probability completes with
that of the prosecution one.”
41. It has been further made clear that, failure of the
prosecution to offer any explanation regarding the injuries
found on the accused may show that the evidence related to the
incident is not true or at any rate not wholly true. Likewise, in
the case of Lakshmi Singh (supra) relied upon by Mr. Agrawal,
learned Counsel for the accused, it is observed that
non-explanation of the injuries on the accused by the
prosecution may affect the prosecution case and such
non-explanation may assume greater importance where the
defence gives a version which competes in probability with that
35 APEAL.171-2007 & ANR.JUDGMENT.odt
of the prosecution. These aspects further highlighted by the
Hon’ble Apex Court in the case of Vijayee Singh Vs. State of
U.P., MANU/SC 0284/1990, that if the prosecution evidence is
clear, cogent and creditworthy and the Court can distinguish the
truth from the falsehood the mere fact that the injuries are not
explained by the prosecution cannot by itself be a sole basis to
reject such evidence and consequently the whole case and much
depends upon the facts and circumstances of each case.
42. Thus, the law is settled that the non-explanation of
the injuries by the prosecution will not affect the prosecution’s
case where the injuries sustained by the accused are minor and
superficial or where the evidence is so clear and cogent, so
independent and disinterested, probable, consistent and
creditworthy, it would not affect the omission on the part of the
prosecution to explain the injuries.
43. In the case of Ramlagan Singh Vs. State of Bihar,
MANU/SC/0216/1972, it is observed that, prosecution is not
called upon in all cases to explain the injuries received by the
accused persons. It is for the defence to put the questions to the
prosecution witnesses regarding the injuries of the accused
36 APEAL.171-2007 & ANR.JUDGMENT.odt
persons. When that is not done, there is no occasion for the
prosecution witnesses to explain any injury on the person of the
accused.
44. In Hare Krishna Singh & Ors. Vs. State of Bihar,
MANU/SC/0181/1988, it was observed that, the obligation of
the prosecution to explain the injuries sustained by the accused
in the same occurrence may not arise in each and every case. In
other words, it is not an invariable rule that the prosecution has
to explain the injuries sustained by the accused in the same
occurrence.
45. Here in the present case, the evidence on record of
the injured witnesses shows that, there was a previous enmity
between the accused and the prosecution witnesses.
PW-5/Shrikrishna Khiralkar is the independent eyewitness of
the said incident. Despite their cross-examination the evidence
is not shattered to show that it was the prosecution witnesses
who were involved in the assault. On the contrary, the evidence
shows that, it was the accused persons who were aggressors
came in front of house of PW-3/Vinod Bobade and the incident
was initiated as they have started assaulting Vinod Bobade.
37 APEAL.171-2007 & ANR.JUDGMENT.odt
Other prosecution witnesses intervened and they were also
assaulted by the present accused persons.
46. Thus, the evidence sufficiently shows that, it was the
accused persons who are the aggressors raised the quarrel with
the prosecution witnesses and caused them grievous injuries. It
is settled law that, if there are serious injuries or grievous
injuries found on the body of the accused then the prosecution
owes the duty to explain such injuries and the failure on the
part of the prosecution to explain may point towards the
innocence of the accused. At the same time, the well settled law
is that, if the injuries are superficial and minor in nature then
the prosecution need not explain such injuries. Here in the
present case, admittedly, the accused has not offered any
explanation to show that they have sustained the injuries at the
hands of the prosecution witnesses, which are grievous in
nature. Their statements recorded under Section 313 of Cr.P.C.,
wherein also they have not explained that, they have sustained
the grievous injuries. The medical certificates in the cross
complaint though shows that, they have sustained the injuries
but there is no evidence on record to show that they have
38 APEAL.171-2007 & ANR.JUDGMENT.odt
sustained the grievous injuries. Therefore, the prosecution is not
under the obligation to explain the said injuries in the light of
the evidence adduced by the prosecution which is clear, cogent
and creditworthy, on the basis of which, it can be distinguish
what is the truth. A mere fact that, injuries are not explained by
the prosecution, is not sufficient to reject the prosecution’s case.
On the contrary, the evidence on record shows that, it was the
accused persons who were aggressors as the incident has
occurred in front of the house of one of the injured.
47. Another ground raised by the learned Counsel for
the accused, is that it was a free fight between the accused
persons and the prosecution witnesses and in the said free fight
accused as well as the prosecution witnesses has sustained the
injuries. The testimony of the witnesses relied upon by the
prosecution would indicate that, the incident occurred as the
accused persons came in front of the house of injured Vinod and
thereafter the incident starts. Thus, the accused were the
aggressors as they went armed with weapons in front of the
house of injured Vinod and assaulted the prosecution witnesses.
On the facts and circumstances of the case, it was the accused
39 APEAL.171-2007 & ANR.JUDGMENT.odt
persons who with a preparation went at the spot of incident and
the alleged incident has occurred. By no stretch of imagination
it can be said that, it is a free fight.
48. Though Mr. Agrawal, learned Counsel for the
Appellants, placed reliance on the decision of State of Haryana
Vs. Chandvir and Angad & Ors., Vs. The State of Maharashtra
(supra). The facts of the cited case shows that, in both the cases
it was the prosecution witnesses who were aggressors went at
the spot of incident with preparation, but in the present case,
the accused persons are the aggressors and the incident was
initiated by the accused persons, and therefore, the observation
in both these cases is not helpful to the accused persons.
49. As per the prosecution case, the accused persons
were the members of unlawful assembly and in furtherance of
common object of that assembly they entered into the courtyard
of the house of Vinod Bobade alongwith the weapons in their
hands and started assaulting the injured Vinod Bobade. At the
relevant time, the other prosecution witnesses intervened and
they have also sustained the injuries. It is submitted by the
learned Counsel for the accused persons that, no specific role is
40 APEAL.171-2007 & ANR.JUDGMENT.odt
attributed to each of the accused. During the evidence of PW-1/
Subhash some omissions are brought on record to show that, he
has not stated while lodging the FIR as to which accused was
holding which weapon. Admittedly, PW-1/Subhash has not
stated but his evidence is to the extent that all the accused
persons entered into the courtyard of the house of the injured
Vinod Bobade by holding weapons in their hands and caused
the injuries to all prosecution witnesses.
50. At this juncture, the relevant legal provision 141 of
IPC which defines unlawful assembly. It says an assembly of 5 or
more persons as designated as unlawful assembly if the
common object of the persons composing that assembly is to
commit an illegal act by means of criminal force.
51. As per Section 148 of IPC which deals with rioting
armed with deadly weapons, whoever guilty of rioting, being
armed with a deadly weapon or with anything which used as
weapons of offence is likely to cause death, shall be punished
with imprisonment either description for a term which may
extend to three years or with fine or with both. The offence of
riot is defined in Section 146 of IPC. In view of the said
41 APEAL.171-2007 & ANR.JUDGMENT.odt
definition, whenever force or violence is used by the unlawful
assembly, or by any member thereof, in prosecution of the
common object of such assembly, every member of such
assembly is guilty of the offence of rioting.
52. As already observed that, the evidence of all the
injured witnesses i.e. PW-1/Subhash, PW-2/Sanjay, PW-3/Vinod,
PW-4/Ashok, PW-5/Shrikrishna, PW-6/Rahul, PW-7/Sahebrao
and PW-9/Chandrashekhar consistently stated that all the
accused came in the courtyard by holding weapons in their
hands and started assaulting Vinod, therefore they intervened
and they were also assaulted. The evidence of these witnesses is
consistent to show that, accused No.1/Laxmikant was holding
sword, accused No.3/Adesh was holding spear and accused
No.2/Amar was holding stick. They have specifically narrated
who has assaulted whom. These witnesses evidence consistently
shows that, it was the accused No.1/Laxmikant and accused
No.3/Adesh who assaulted injured by means of sword and
spear.
53. Section 149 of IPC creates a constructive or
vicarious liability of the members of the unlawful assembly for
42 APEAL.171-2007 & ANR.JUDGMENT.odt
the unlawful acts committed pursuant to the common object by
any other member of that assembly. By applying this principle
every member of an unlawful assembly to be held guilty of the
offence committed by any member of that assembly in
prosecution of the common object of that assembly. The factum
of causing injury or not causing injury would not be relevant
when an accused is roped in with the aid of Section 149 of IPC.
The question which is relevant and which is required to be
answered by the Court is whether the accused is the member of
an unlawful assembly or not.
54. In the case of Vinubhai Ranchhodbhai Patel Vs.
Rajivbhai Dudabhai Patel (2018) 7 SCC 743, wherein the
Hon’ble Apex Court held that:
“in a cases where a large number of accused constituting
“unlawful assembly” are alleged to have attacked and
killed one or more persons, it is not necessary that each of
the accused should inflict fatal injuries or any injury at all.
Invocation of Section 149 of IPC is essential in such cases
for punishing the members of such unlawful assembly on
the ground of vicarious liability even though they are not
accused of having inflicted fatal injuries in appropriate
cases if the evidence on record justifies. The mere presence
of an accused in such an unlawful assembly is sufficient to
render him vicarious liable under Section 149 of IPC for
causing the death of the victim of the attack provided that
the accused are told that they have to face a charge
rendering them vicarious liable under Section 149 of IPC
for the offence punishable under Section 302 of IPC.”
43 APEAL.171-2007 & ANR.JUDGMENT.odt
55. In Nitya Nand Vs. State of U.P. & Anr. in Criminal
Appeal No. 1348/2014 decided on 04.09.2024 , the Hon’ble
Apex Court observed by reproducing para No.22 of the
judgment of Vinubhai Ranchhodbhai Patel Vs. Rajivbhai
Dudabhai Patel.
“22. When a large number of people gather together
(assemble) and commit an offence, it is possible that only
some of the members of the assembly commit the crucial act
which renders the transaction an offence and the remaining
members do not take part in that “crucial act” — for
example in a case of murder, the infliction of the fatal
injury. It is in those situations, the legislature thought it fit
as a matter of legislative policy to press into service the
concept of vicarious liability for the crime. Section 149 IPC
is one such provision. It is a provision conceived in the
larger public interest to maintain the tranquility of the
society and prevent wrongdoers (who actively collaborate
or assist the commission of offences) claiming impunity on
the ground that their activity as members of the unlawful
assembly is limited.”
56. Recently, in the judgment of Zainul Vs. The State of
Bihar in Criminal Appeal No. 1187/2014 dated 07.10.2025 , the
Hon’ble Apex Court has held that:
“49. The expression observed that “in prosecution of the
common object” means that the offence committed must
be directly connected with the common object of the
assembly, or that the act, upon appraisal of the evidence,
must appear to have been done with a view to accomplish
that common object. In Charan Singh Vs. State of U.P.
reported in (2004) 4 SCC 205, this Court held that the test
for determining the “common object” of an unlawful
assembly must be assessed in light of the conduct of its
members, as well as the surrounding circumstances. It can
be deduced from the nature of the assembly, the weapons
44 APEAL.171-2007 & ANR.JUDGMENT.odtcarried by its members, and their conduct before, during,
or after the incident.”
57. It is further observed that, Section 149 of IPC makes
all the members of an unlawful assembly constructively liable
when an offence is committed by any member of such assembly
with a view to accomplish the common object of that assembly
or the members of the assembly knew that such an offence was
likely to be committed. However, such liability can be fasten
only upon proof that the act was done in perusal of the common
object.
58. Thus, once the existence of a common object
amongst the members of an unlawful assembly is established, it
is not imperative to prove that each member committed an
overt act. The liability under this provision is attracted once it is
certain that an individual had knowledge that the offence
committed was a probable consequence in furtherance of the
common object, thereby rendering him a “member” of the
unlawful assembly. Utmost it is important to consider whether
the assembly consisted of some members who were merely
viewers and who were there out of curiosity, without the
knowledge, then such persons cannot be said to be members of
45 APEAL.171-2007 & ANR.JUDGMENT.odt
the unlawful assembly. Thus, the existence of a common object
is to be inferred from certain circumstances such as:
a. the time and place at which the assembly was formed;
b. the conduct and behaviour of its members at or near
the scene of the offence;
c. the collective conduct of the assembly, as distinct from
that of individual members;
d. the motive underlying the crime;
e. the manner in which the occurrence unfolded;
f. the nature of the weapons carried and used;
g. the nature, extent, and number of injuries inflicted, and
other relevant considerations.
59. By applying these consideration in the present case,
oral evidence of injured witnesses shows that, all accused came
at the spot together with deadly weapons like swords, spear and
sticks in their hands and assaulted the injured mentioned above
and thereafter left the place. The appearance of all the accused
at the spot alongwith the weapons causing the injuries to the
injured, is sufficient to show their common object. Therefore,
there is no hesitation to hold that, all the Appellants accused
were the members of unlawful assembly and in prosecution of
46 APEAL.171-2007 & ANR.JUDGMENT.odt
their common object they have assaulted the injured persons.
60. The evidence of these injured witnesses
corroborated by PW-11/Dr. Manoj Nichat Medical Officer shows
that, the injuries sustained by PW-3/Vinod and PW-4/Ashok are
on vital part of the body and sufficient to cause death in the
ordinary course of nature. These injuries are attributed to the
accused No.1/Laxmikant and accused No.3/Adesh. The CA
report on record also shows that, blood stains are found on the
clothes of injured Ashok and Vinod corroborates the prosecution
case. The CA report further shows that, the soil which was
collected from the spot of incident i.e. in front of the house of
injured Ashok also mixed with blood, which also corroborates
with the fact that the alleged incident has occurred in front of
the house of injured Vinod. Thus, prosecution has proved that
the alleged incident has occurred in front of the house of
injured Vinod.
61. The prosecution placed reliance on the evidence of
Investigating Officer to prove the memorandum statement of
the accused and the discovery of the place where the weapons
were concealed. Admittedly, the panch witnesses have not
47 APEAL.171-2007 & ANR.JUDGMENT.odt
supported the prosecution case. The evidence of Investigating
Officer shows that, the accused No.1/Laxmikant and accused
No.3/Adesh had made the memorandum statement in presence
of panch witnesses. The said memorandum statement was
reduced in writing. The evidence of Investigating Officer as to
the memorandum statement of accused No.1/Laxmikant and
accused No.3/Adesh was commented on the ground that, the
statement of accused No.1/Laxmikant was started at 06.35 p.m.
and there is no mention of the conclusion of the said statement.
The statement of the accused No.3/Adesh was started at 06.55
p.m. The recovery panchnama shows the timing at 07.00 O’
clock and concluded at 08.45 p.m. The spot from which the
weapons were recovered was at a distance of 30 minutes.
Admittedly, the said timing is mentioned by the Investigating
Officer since starting from the Police Station till conclusion of
the panchnama i.e. the recovery part is concerned. Therefore,
no much importance can be given to the said submissions.
Admittedly, the panch witnesses PW-15/Arvind Mohod and
PW-17/Bhujangrao Dahat has not supported the prosecution
case, therefore prosecution placed reliance on the evidence of
Investigating Officer. The conditions necessary for the
48 APEAL.171-2007 & ANR.JUDGMENT.odt
applicability of Section 27 of the Indian Evidence Act are
broadly discussed as under:
“(1) Discovery of facts in consequence of an information
received from accused;
(2) Discovery of such fact to be deposed to;
(3) The accused must be in police custody when he gave
information; and
(4) So much of information as relates distinctively to
the fact thereby discovered is admissible.”
62. Thus, what is admissible is the information and the
same has to be proved and not the opinion formed on it by the
Police Officer. In other words, the information given by the
accused while in custody which led to recovery of the articles
has to be proved. The basic idea embedded in Section 27 of the
Indian Evidence Act, is the doctrine of confirmation by
subsequent events. The doctrine is founded on the principle that
if any fact is discovered as a search made on the strength of any
information obtained from prisoner such a discovery is made on
the strength of any information obtained from a prisoner, such
discovery is guarantee that the information supplied by the
prisoner is true. The legislative idea in insisting on such
searches to be made in presence of two independent witnesses
of the locality is to ensure the safety of such all articles middled
49 APEAL.171-2007 & ANR.JUDGMENT.odt
with and to protect the rights of the persons entitled thereto.
But recovery of an object pursuant to the information supplied
by an accused in custody is different from the searching
endeavour envisaged in Chapter VII of the Code.
63. Admittedly, in the present case, PW-15/Arvind and
PW-17/Bhujangrao have not supported the prosecution’s case.
However, the evidence of Investigating Officer PW-16/Sanjay
shows that, during interrogation accused No.1/Laxmikant and
accused No.3/Adesh gave a statement that they would produce
the weapons of the offence and accordingly their statements
were recorded in presence of the panchas. The accused Nos. 1
and 3 took them in cattle shed and took out a sword concealed
in a heap of fodder. There is some inconsistency in the evidence
of Investigating Officer as he has not stated anything about the
voluntariness of the statements of the accused. However, the
evidence specifically states that on 20.06.2001 the accused
No.1/Laxmikant initially made a statement in presence of the
panchas which was recorded at Exh. 188 and the accused No.3/
Adesh also made a statement on the same day in presence of the
panchas, which is at Exh. 189. It further shows that, thereafter
50 APEAL.171-2007 & ANR.JUDGMENT.odt
both the accused took them in the cattle shed and shown the
respective places where the articles were concealed. The aspect
of statement whether it is voluntary or not is not challenged by
the defence. It is only denied that, they have not made the
statement. Therefore, the evidence of PW-16/Sanjay is sufficient
to show that, the accused made a voluntary statement in
presence of panchas and the place of concealment was
discovered at the instance of the accused persons. The evidence
of the Investigating Officer as to the recovery is not shattered
during the cross-examination.
64. In Modan Singh Vs. State of Rajasthan, MANU/SC/
0126/1978, wherein it was observed that, if the evidence of
Investigating Officer who recovered the material objects is
convincing, the evidence as to recovery need not be rejected on
the ground that, seizure witnesses do not support the
prosecution version. Similar view was expressed in Mohd.
Aslam Vs. State of Maharashtra, MANU/SC/2255/2000, and
Anter Singh Vs. State of Rajasthan, MANU/SC/0096/2004 , that
even if panch witness turns hostile, the evidence of person who
affected the recovery would not stand vitiated.
51 APEAL.171-2007 & ANR.JUDGMENT.odt
65. Thus, the evidence of the Investigating Officer can
be considered for proving the recovery as official acts are done
by him is a wise presumption of law recognized by the
Legislature as seen from the provisions of Section 114 of the
Indian Evidence Act.
66. Though the evidence of the Informant is suffering
from inconsistencies as there are improvements in the evidence,
however, the evidence of other injured eyewitnesses who would
stand on the higher pedestal and their evidence were not
shattered during cross-examination sufficiently shows that the
accused persons were the aggressors, therefore the contention
of the learned Counsel for the accused that it was a free fight is
not sustainable.
67. The law as to the appreciation of evidence is settled.
The appreciation of the ocular evidence, there is no straight
jacket formula. In the case of Balu Sudam Khalde & Anr. Vs. The
State of Maharashtra in Criminal Appeal No. 1910/2010
decided by the Hon’ble Apex Court on 29.03.2023 laid down the
principles for appreciation of ocular evidence in a criminal case
as follows:-
52 APEAL.171-2007 & ANR.JUDGMENT.odt
“APPRECIATION OF ORAL EVIDENCE
25. The appreciation of ocular evidence is a hard task.
There is no fixed or straight-jacket formula for appreciation
of the ocular evidence. The judicially evolved principles for
appreciation of ocular evidence in a criminal case can be
enumerated as under:
“I. While appreciating the evidence of a witness, the
approach must be whether the evidence of the
witness read as a whole appears to have a ring of
truth. Once that impression is formed, it is
undoubtedly necessary for the Court to scrutinize the
evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out in
the evidence as a whole and evaluate them to find
out whether it is against the general tenor of the
evidence given by the witness and whether the
earlier evaluation of the evidence is shaken as to
render it unworthy of belief.
II. If the Court before whom the witness gives
evidence had the opportunity to form the opinion
about the general tenor of evidence given by the
witness, the appellate court which had not this
benefit will have to attach due weight to the
appreciation of evidence by the trial court and unless
there are reasons weighty and formidable it would
not be proper to reject the evidence on the ground of
minor variations or infirmities in the matter of trivial
details.
III. When eye-witness is examined at length it is quite
possible for him to make some discrepancies. But
courts should bear in mind that it is only when
discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that
the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not
touching the core of the case, hyper technical
approach by taking sentences torn out of context here
or there from the evidence, attaching importance to
some technical error committed by the investigating
officer not going to the root of the matter would not
ordinarily permit rejection of the evidence as a
whole.
V. Too serious a view to be adopted on mere
53 APEAL.171-2007 & ANR.JUDGMENT.odtvariations falling in the narration of an incident
(either as between the evidence of two witnesses or
as between two statements of the same witness) is an
unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to
possess a photographic memory and to recall the
details of an incident. It is not as if a video tape is
replayed on the mental screen.
VII. Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence which so often has an
element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the
details.
VIII. The powers of observation differ from person to
person. What one may notice, another may not. An
object or movement might emboss its image on one
person’s mind whereas it might go unnoticed on the
part of another.
IX. By and large people cannot accurately recall a
conversation and reproduce the very words used by
them or heard by them. They can only recall the
main purport of the conversation. It is unrealistic to
expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make their
estimates by guess work on the spur of the moment
at the time of interrogation. And one cannot expect
people to make very precise or reliable estimates in
such matters. Again, it depends on the time-sense of
individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in
rapid succession or in a short time span. A witness is
liable to get confused, or mixed up when
interrogated later on.
XII. A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing
cross examination by counsel and out of nervousness
mix up facts, get confused regarding sequence of
events, or fill up details from imagination on the spur
of the moment. The sub-conscious mind of the
witness sometimes so operates on account of the fear
54 APEAL.171-2007 & ANR.JUDGMENT.odtof looking foolish or being disbelieved though the
witness is giving a truthful and honest account of the
occurrence witnessed by him. XIII. A former
statement though seemingly inconsistent with the
evidence need not necessarily be sufficient to amount
to contradiction. Unless the former statement has the
potency to discredit the later statement, even if the
later statement is at variance with the former to some
extent it would not be helpful to contradict that
witness.”
68. In the light of the above principles if the evidence of
all the injured witnesses corroborated by the medical evidence
and the CA reports which shows blood stains found on the
clothes of PW-3/Vinod and PW-4/Ashok, is sufficient to prove
the charges against the accused. The evidence of the Medical
Officer sufficiently shows that, the injuries sustained by both of
them was sufficient to cause death in the ordinary course of
nature. Therefore, as far as the charge under Sections 147, 148,
307 read with Section 149 of IPC is duly proved against the
accused persons.
69. The learned Counsel for the accused, submitted that
during the pendency of this Appeal some of the accused and the
original Complainant entered into the settlement and filed an
application for compounding and recording of compromise. The
Criminal Application (APPA) No. 127/2025 is filed contending
55 APEAL.171-2007 & ANR.JUDGMENT.odt
that, during the pendency of the Criminal Appeal, the
Appellants and Respondent Nos. 2, 4, 5 and 6 in Criminal
Revision No. 184/2007 i.e. Sahebrao Trimbakrao Bobde, Rahul
Sahebrao Bobde, Vinod Narayanrao Bobde and Sanjay
Narayanrao Bobde decided to settle the dispute between them
as by passage of time the relations between them becomes
cordial and to keep their relations healthy they have decided to
settle the dispute amicably.
70. As can be seen from the evidence, the offences
proved against the accused persons are mainly under Section
307 of IPC which reads as under:
“307. Attempt to murder.–Whoever does any act with
such intention or knowledge, and under such
circumstances that, if he by that act caused death, he
would be guilty of murder, shall be punished with
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine; and if
hurt is caused to any person by such act, the offender shall
be liable either to imprisonment for life, or to such
punishment as is hereinbefore mentioned.”
71. While dealing with an identical situation, where an
offence under Section 307 of the Indian Penal Code, is sought to
be quashed on the basis of a settlement, parameters are laid
down by the Hon’ble Apex Court in the judgment of Narinder
56 APEAL.171-2007 & ANR.JUDGMENT.odt
Singh and others Vs. State of Punjab and another, 2014 SCC
Online 265, which reads as under:
“(VI) Offences under Section 307, I.P.C. would fall in the
category of heinous and serious offences and therefore is to
be generally treated as crime against the society and not
against the individual alone. However, the High Court
would not rest its decision merely because there is a
mention of Section 307 LP.C. in the FIR or the charge is
framed under this provision. It would be open to the High
Court to examine as to whether incorporation of Section
307 LP.C. is there for the sake of it or the prosecution has
collected sufficient evidence, which if proved, would lead
to proving the charge under Section 307 I.P.C. For this
purpose, it would be open to the High Court to go by the
nature of injury sustained, whether such injury is inflicted
on the vital/delecate parts of the body, nature of weapons
used etc. Medical report in respect of injuries suffered by
the victim can generally be the guiding factor. On the basis
of this prima facie analysis, the High Court can examine as
to whether there is a strong possibility of conviction or the
chances of conviction are remote and bleak. In the former
case it can refuse to accept the settlement and quash the
criminal proceedings whereas in the later case it would be
permissible for the High Court to accept the plea
compounding the offence based on complete settlement
between the parties. At this stage, the Court can also be
swayed by the fact that the settlement between the parties
is going to result in harmony between them which may
improve their future relationship.”
72. Similarly, in the judgment of Naushey Ali and others
Vs. State of U.P. and Anr., 2025(4) SCC 78 , in paragraph Nos. 10
and 11, which is apropos to reproduce the same as under :
“10. In State of Madhya Pradesh v. Laxmi Narayan and
Others, (2019) 5 SCC 688, after discussing the ratio in
Narinder Singh and Others v. State of Punjab and Another,
(2014) 6 SCC 466 and other judgments, this Court held:
57 APEAL.171-2007 & ANR.JUDGMENT.odt
15……….
15.1……..
15.2……..
15.3……..
15.4. Offences under Section 307 IPC and the Arms Act,
etc., would fall in the category of heinous and serious
offences and therefore are to be treated as crime against
the society and not against the individual alone, and
therefore, the criminal proceedings for the offence under
Section 307 IPC and/or the Arms Act, etc. which have a
serious impact on the society cannot be quashed in
exercise of powers under Section 482 of the Code, on the
ground that the parties have resolved their entire dispute
amongst themselves. However, the High Court would not
rest its decision merely because there is a mention of
Section 307 IPC in the FIR or the charge is framed under
this provision. It would be open to the High Court to
examine as to whether Incorporation of Section 307 IPC is
there for the sake of it or the prosecution has collected
sufficient evidence, which if proved, would lead to framing
the charge under Section 307 IPC. For this purpose, it
would be open to the High Court to go by the nature of
injury sustained, whether such injury is inflicted on the
vital/delicate parts of the body, nature of weapons used.
etc. However, such an exercise by the High Court would be
permissible only after the evidence is collected after
investigation and the charge-sheet is filed/charge is framed
and/or during the trial. Such exercise is not permissible
when the matter is still under investigation. Therefore. the
ultimate conclusion in paras 29.6 and 29.7 of the decision
of this Court in Narinder Singh should be read
harmoniously and to be read as a whole and in the
circumstances stated hereinabove:
11. Before we apply this judgment to the facts, it will be
worthwhile to recall the observations of Sikri, J. in
Narinder Singh (supra):
“26. Having said so, we would hasten to add that though it
is a serious offence as the accused person(s) attempted to
take the life of another person/victim, at the same time the
court cannot be oblivious to hard realities that many times
whenever there is a quarrel between the parties leading to
physical commotion and sustaining of injury by either or
58 APEAL.171-2007 & ANR.JUDGMENT.odtboth the parties, there is a tendency to give it a slant of an
offence under Section 307 IPC as well. ”
73. In the judgment of State of Madhya Pradesh Vs.
Laxmi Narayan & Ors., [2019] 2 S.C.R. 864 , after elaborately
considering the entire law on the subject, the Hon’ble Supreme
Court has stated in paragraph No. 9.1 as under:
“9.1 However, the High Court has not at all considered the
fact that the offences alleged were non compoundable
offences as per Section 320 of the Cr.P.C. From the
impugned judgment and order, it appears that the High
Court has not at all considered the relevant facts and
circumstances of the case, more particularly the
seriousness of the offences and its social impact. From the
impugned judgment and order passed by the High Court, it
appears that the High Court has mechanically quashed the
FIR, in exercise of its powers under Section 482 Cr.P.C. The
High Court has not at all considered the distinction
between a personal or private wrong and a social wrong
and the social impact. As observed by this Court in the case
of State of Maharashtra vs. Vikram Anantrai Doshi, (2014)
15 SCC 29, the Court’s principal duty, while exercising the
powers under Section 482 Cr.P.C. to quash the criminal
proceedings, should be to scan the entire facts to find out
the thrust of the allegations and the crux of the settlement.
As observed, it is the experience of the Judge that comes to
his aid and the said experience should be used with care,
caution, circumspection and courageous prudence. In the
case at hand, the High Court has not at all taken pains to
scrutinise the entire conspectus of facts in proper
perspective and has quashed the criminal proceedings
mechanically. Even, the quashing of the FIR by the High
Court in the present case for the offences under Sections
307 and 34 of the IPC, and that too in exercise of powers
under Section 482 of the Cr.P.C. is just contrary to the law
laid down by this Court in a catena of decisions.”
74. Thus, the offence punishable under Section 307 of
59 APEAL.171-2007 & ANR.JUDGMENT.odt
IPC is not covered under the list of compoundable offences. In
view of Section 320 of Cr.P.C. which prohibits any compounding
except as permitted under the said provision, it would not be
possible to compound the above said offences. As observed by
the Hon’ble Apex Court in the case of Murali Vs. State rep. by
the Inspector of Police by referring the judgment of Ram Pujan
Vs. State of UP, [(1973) 2 SCC 456 , that the fact of amicable
settlement can be a relevant factor for the purpose of reduction
in the quantum of sentence and observed the major offence for
which the Appellants have been convicted is no doubt
non-compoundable, but the fact of compromise can be taken
into account in determining the quantum of sentence. It would,
in our opinion, meets the ends of justice if the sentence of
imprisonment awarded to the Appellants is reduced to the
period already undergone. It has further held that, in our
considered opinion, it would not be appropriate to order
compounding of an offence not compoundable under the Code
ignoring and keeping aside statutory provisions.
75. In the present case, admittedly, all the accused have
not entered into a settlement. It is a part settlement with some
of the accused. The Trial Court has already considered the
60 APEAL.171-2007 & ANR.JUDGMENT.odt
aspect that there was a previous enmity and out of previous
enmity the alleged incident has occurred and shown the
leniency while awarding the punishment. Therefore, I do not
find any reason to interfere even in the aspect of reduction of
sentence, considering the nature of the offence and considering
the fact that, in all 7 to 8 persons sustained the injuries. Out of
them, PW-3/Vinod and PW-4/Ashok sustained the grievous
injuries. Therefore, even accepting the fact that some of the
accused entered into the settlement, no interference is called
for.
76. The Criminal Revision Application No. 184/2007 is
preferred by one of the accused who is the original complainant
in a cross complaint in connection with Crime No. 19/2001. The
allegations levelled on the basis of a report lodged by Sahadev
Shamrao Tadokar against Sahebrao Bobde, Amol Bobde, Rahul
Bobde, Vinod Bobde, Sanjay Bobde, Subhash Bobde and
Chandrashekhar Bobde that on 05.06.2001 at about 07.00 a.m.
these accused persons formed an unlawful assembly and in
prosecution of common object of such an assembly caused the
injury to Sahadev Tadokar and other injured witnesses and
61 APEAL.171-2007 & ANR.JUDGMENT.odt
thereby committed an offence punishable under Sections 148,
324 read with Section 149 of IPC. After completion of the
investigation the charge-sheet was submitted against the
accused. Though the offences are triable by the Court of
Magistrate but being it is a cross complaint and both the cross
cases to be decided by the same Court, the case was committed
to the Court of Sessions. Learned Adhoc Additional Sessions
Judge, framed the Charge vide Exh. 21.
77. In support of the charge prosecution has examined
in all 9 witnesses, as follows:
(i) PW-1 Mahadeo Ramrao Exh.32 Panch
Wanoskar
(ii) PW-2 Ishwar Jairam Exh.34 Panch
Jamodkar
(iii) PW-3 Sahadeo Shamrao Exh.35 Informant
Talokar
(iv) PW-4 Subhash Sahadeorao Exh.38 Injured
Talokar
(v) PW-5 Amardeep Laxmikant Exh.39 ....
Nimkarde
(vi) PW-6 Mahadeo Sahadeorao Exh.40 ......
Talokar
(vii) PW-7 Laxmikant Sakharamji Exh.41 .......
Nimkarde
62 APEAL.171-2007 & ANR.JUDGMENT.odt
(viii) PW-8 Sanjay Bhikaji Pande Exh.43 Investigating
Officer
(ix) PW-9 Dr. Sivalaruselval Exh.51 Medical Officer
Sundaramoorthy
78. On consideration of the evidence, admittedly, PW-1/
Mahadeo and PW-2/Ishwar only stated that, they have signed
on the panchnama. As per the evidence of PW-3/Sahadeo, the
alleged incident has occurred when he was present in the house
and they were beaten by all the accused who came there
alongwith the weapons in their hands. As per his evidence
accused No.2/Amol gave a blow of stick on his head. His son
Subhash was also beaten by all the accused. His
cross-examination shows that, the relationship between him and
accused were strained. It further came in his evidence that, he
was prosecuted in a cross complaint. It further came that there
were quarrels between him and the accused before the incident.
As far as the spot of incident is concerned, nothing is on record
to show that, the alleged incident has occurred in front of his
house.
79. Evidence of PW-4/Subhash also shows that, after
hearing a commotion near his house, he went near the house of
63 APEAL.171-2007 & ANR.JUDGMENT.odt
Vairale, wherein the quarrel was going on between his father
and the accused. Accused persons beat his father and brother
and they both have sustained the injuries. He was assaulted by
accused Chandrashekhar. During his cross-examination this
aspect that he was assaulted by Chandrashekhar was brought on
record in the manner of omission. Thus, he has not stated
during his statement that he was assaulted by Chandrashekhar.
80. PW-5/Amardeep only states that, the accused
persons beat PW-3/Sahadeo, PW-4/Subhash, and one Mahadeo
Talokar and he received the injuries when he was separating the
quarrel. As per his evidence the place of incident is at a distance
of 100 feet from his house. He has also not narrated regarding
the exact place of incident. On the contrary, his evidence shows
that the alleged incident has taken place near the house of Dilip
Bobde. Thus, admittedly the alleged incident has taken place
near the house of Dilip Bobde and Vinod Bobde.
81. Evidence of PW-6/Mahadeo and PW-7/Laxmikant is
also on the similar line. They were also accused in the cross
complaint.
64 APEAL.171-2007 & ANR.JUDGMENT.odt
82. The evidence of the Investigating Officer also shows
that spot of incident is in the middle of the locality. He further
admits that, Subhash Bobde gave a report against the
Informant. On the basis of which, Crime No.18/2001 was
registered.
83. There is no dispute that, Mahadeo Talokar, Sahadeo
Talokar, Subhash Talokar and Amardip Nimkarde has received
the injuries in the said incident. The evidence on record shows
that, there was a scuffle between the prosecution witnesses and
the accused persons. The accused persons in Crime No. 18/2001
who are the prosecution witnesses in Crime No. 19/2001 were
the aggressors. The learned Sessions Judge has rightly
considered that, the evidence in cross complaint sufficiently
shows that, the prosecution witnesses are the aggressors and
initiated the quarrel. In the said incident, these witnesses have
also sustained the injuries. The evidence of prosecution
witnesses is not consistent with the evidence of Medical Officer.
84. The learned Counsel for the Applicant, placed
reliance on various judgments and submitted that, the accused
persons who are the Respondents in Criminal Revision were the
65 APEAL.171-2007 & ANR.JUDGMENT.odt
members of the unlawful assembly and in prosecution of the
common object of the said assembly they have assaulted the
Applicant and other prosecution witnesses. However, the entire
evidence nowhere states that the Respondents in Criminal
Revision were the members of the unlawful assembly. On the
contrary, the alleged incident has occurred in front of the house
of one of the Respondent Vinod Bobde. The prosecution
witnesses in cross complaint proved the spot of incident as well
as the Applicant and the other prosecution witnesses were the
aggressors. The Respondents in criminal Revision have received
the grievous injuries. It is further proved that, it was the
Applicant and other prosecution witnesses formed the unlawful
assembly and went in front of the house of Vinod Bobde and
assaulted him as well as other Respondents. Thus, the entire
evidence shows that it was the Applicant and other prosecution
witnesses who formed the unlawful assembly and in prosecution
of their common object went at the house of the Respondents
and in pursuance of the common object assaulted them.
85. The present Criminal Revision Application is filed by
the Applicant for setting aside the acquittal passed by the Adhoc
66 APEAL.171-2007 & ANR.JUDGMENT.odt
Additional Sessions Judge, Achalpur. Considering the scope of
Revision, reappreciation of the evidence is not permissible. The
only thing this Court has to see is whether any illegality or error
is committed by the Court while acquitting the accused. In view
of Section 397 of Cr.P.C., this Court or the Sessions Court is
empowered to call for and examine record of any proceeding
before any inferior criminal Court situated within its or its local
jurisdiction for the purpose of satisfying itself or himself as to
the correctness, legality or propriety of any finding. Sentence or
order, recorded or passed and as to the regularity of any
proceeding of such inferior Court and may, when calling for
such record direct that the execution of any sentence or order
be suspended, and if the accused is in confinement, that he be
released on bail or on his bond pending the examination of the
record.
86. Thus, the scope of the Revision is very limited, only
to see as to the correctness, legality or propriety of any finding
and sentence or order. While exercising the revisional powers
especially while dealing with the orders of acquittal, cardinal
principle to be kept in mind is that there is a presumption of
67 APEAL.171-2007 & ANR.JUDGMENT.odt
innocence in favour of the accused unless the accused is proved
to be guilty, the presumption continues and finally culminates
into fact when the case ends in acquittal. The possibility of two
views in criminal cases is not an extraordinary phenomenon
while considering the orders of acquittal. A fact cannot be lost
sight that the Trial Court has appreciated the entire evidence
and passed an order of acquittal. Admittedly, the order of
acquittal passed by the Trial Court after appreciating the
evidence, the High Court is not expected to sit as a Court of
Appeal and re-appreciate the evidence. However, when the
findings of the Courts below where on the basis of no evidence
or evidence which even if believe in entirety cannot prove the
guilt of accused for the offence charged exercise of revisional
jurisdiction.
87. After considering the record, the view taken by the
learned Trial Judge while acquitting the Respondents is a
plausible view and therefore, no interference is called for.
88. For the reasons discussed above and on
consideration of the oral evidence, medical evidence and
scientific evidence and other proven fact, in my considered
68 APEAL.171-2007 & ANR.JUDGMENT.odt
opinion, the prosecution has proved the guilt of the accused
Appellants in Criminal Appeal No.171/2007. Therefore, no
interference is called for. The Criminal Revision is also devoid of
merits and liable to be dismissed. In view of that, I proceed to
pass the following order.
ORDER
i. The Criminal Appeal No. 171/2007 is dismissed.
ii. The Criminal Revision Application No.184/2007 is
dismissed.
iii. The Appellants in Criminal Appeal No. 171/2007
shall surrender before the Superintendent Central
Prison, Amravati on 06.04.2026 to undergo the
sentence.
iv. R & P be sent to the Trial Court.
89. Pending application/s, if any, shall stand disposed of
accordingly.
(URMILA JOSHI PHALKE, J.)
S.D.Bhimte
Signed by: Mr.S.D.Bhimte
Designation: PA To Honourable Judge
Date: 24/03/2026 18:17:26
