Ghansham Dattatraya Tambde vs The State Of Maharashtra on 26 March, 2026

March 29, 2026

Bombay High Court

Ghansham Dattatraya Tambde vs The State Of Maharashtra on 26 March, 2026

“A criminal trial is not like a fairy tale wherein one is
free to give flight to one’s imagination and phantasy. It
concerns itself with the question as to whether the
accused arraigned at the trial is guilty of the crime
with which he is charged. Crime is an event in real life
and is the product of interplay of different human
emotions. In arriving at the conclusion about the guilt
of the accused charged with the commission of a
crime, the court has to judge the evidence by the
yardstick of probabilities, its intrinsic worth and the
animus of witnesses. Every case in the final analysis
would have to depend upon its own facts. Although
the benefit of every reasonable doubt should be given
to the accused, the courts should not at the same time
reject evidence which is ex facie trustworthy on
grounds which are fanciful or in the nature of
conjectures.”

SPONSORED


                           State of Punjab Vs. Jagir Singh And Ors1,


1 (1974) 3 SCC 277


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1)              A simple question to Accused No.1 by one of the three

deceased as to why the former had installed his roadside business stall at

the business place of the latter, probably, as a concern to earn his bread-

and-butter, became reason of the anger of Accused No.2 leading him to

brutally kill the deceased and two other innocent to meet their maker, well

before their time. According to the prosecution, the Accused No.1, Accused

No.3 and Accused No.4 were also equally responsible for these barbaric

deaths. This Court is therefore called upon to examine the correctness of

the guilt of all four accused, because, as alleged, the murders were

committed in furtherance of the common intention of the all.

All these Appeals are being decided by this common judgment

as the Appeals arise from the same Judgment and Order dated 29/03/2017,

in Sessions Case No.830 of 2012, passed by the learned Additional Sessions

Judge, Pune. Thereby the Appellants – Original Accused Nos.1 to 4 (“A-1,

A-2, A-3 and A-4”) were convicted for the offences punishable under

Sections 302 and 34 of the I.P.C. and sentenced to suffer imprisonment for

life and to pay fine of Rs.5,000/- each and in default, to suffer R.I. for one

year, by giving benefit of set off under Section 428 Cr.P.C. Out of fine

amount, an amount of Rs.5,000/- was directed to be paid to the spouse of

each deceased as compensation under Section 357 Cr.P.C. If the deceased

had no spouse, the money to be paid to either of their parents.

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2)              The prosecution case is, on 18/07/2012, the informant

Ms.Sheetal Santosh Kudale (PW-4) filed a Report/Complaint (Exh.73) with

Vishrambaug Police Station, entered in the General Diary at 16:05 hours.

wherein it is stated that PW-4’s husband Santosh and brother-in-law Sachin

were doing a ladies garment business in a tin-stall (pathari), on the road

side, at Tulshibaug. On 18/07/2012, at about 12 noon, PW-4 took her

children Sakshi and Smruti to Nutan Marathi Vidyalaya and son Sarthak to

Ranade Balak Mandir. She then came to their stall alongwith her brother

Sagar. There, Sachin’s friend Kailas Chavan met them and told that A-1, a

fruit vendor, assaulted Sachin on face and neck, and that, Sachin was

seated in a corner of the footpath near Vishrambaug Chowk. Immediately,

they went to Sachin and noticed bleeding injuries on his neck and lip. On

enquiry, Sachin told her that when he asked Dattatray Tambde (A-1) as to

why he installed his roadside business stall (Pathari stall) at his place,

Dattatray Tambde (A-1) and his one associate, who was fat and wearing

specs, assaulted him. At about 12.30 pm, Dattatray Tambde (A-1), his son

Sagar Tambde (A-2), another son Ghanshyam Tambde (A-3) and one fat

person wearing specs (A-4) came near them at the corner of Vishrambaug

Wada and all the four accused started to abuse and threaten PW-4, Sagar

and Kailas. The fat person wearing specs namely Sagar Tambde (A-2)

removed a knife and stabbed Sagar in his stomach and neck. PW-4 and

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Kailas went to rescue him. However, they pushed her. Consequently, she

suffered a scratch to her hand. The accused persons then assaulted Kailas

by kicks and fist blows and the fat person wearing specs Sagar Tambde (A-

2) stabbed Kailas in his stomach and in the neck. PW-4 again tried to

resolve the quarrel by pushing A-2. But, Ghanshyam Tambde (A-3)

threatened her not to talk much, otherwise, he would kill her too. Sagar

Tambde (A-2) then stabbed Sachin in his chest and stomach, who was lying

at the said corner.

The traffic police (PW-5), who was nearby and present on duty,

rushed to the spot and informed the incident to the Police Control Room.

PW-4 phoned her father Sambhaji Lahare and informed him about the

incident. Around the same time, Vishrambaug Police arrived and removed

Sachin to Sassoon Hospital in an ambulance, which was passing from there.

At that time, PW-4’s father came at the spot and removed deceased Sagar to

Surya hospital in an auto-rickshaw. She removed Kailas to Sassoon hospital

in another rickshaw where the police arrived. Later on, PW-4 learnt that her

father had admitted Sagar at Surya hospital. Therefore, she went there.

Meantime, the Police (PW-8) came to Surya Hospital. She then came to the

Police Station alongwith (PW-8) to file the Report. At that time, the A-1 to

A-3 were shown to her by the Police (PW-10). She pointed at them and

identified Dattatray Tambde as (A-1), Sagar Tambde as (A-2) and

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Ghanshyam Tambde as (A-3); that, said accused raised a quarrel on account

of they were asked as to why they occupied their place of pathari/stall;

that, said accused and one more person (A-4) associate with them assaulted

Sagar and Kailas with kicks and fists, abused and threatened them; that,

Sagar Tambde (A-2) stabbed them in the stomach and at waist, caused

them grievous injuries, attempted to commit their murder and committed

murder of Sachin by stabbing him in the neck, chest and stomach.

2.1) Arjun Sakunde (PW-8), then Senior Police Inspector recorded

the Report (Exh.73) as narrated by PW-4. The Police registered that Report

as FIR bearing Cr. No.199 of 2012 under Sections 302, 326 and 34 of I.P.C.

against A-1 to A-3 and one unknown fat person.

3) Before filing of the Report (Exh.73), Police Constables Gajanan

Jadhav (PW-6) and Mr. Naik, who were nearby and present on duty, had

received a massage from the Police Control Room. Immediately, PW-6 went

to the spot and apprehended the A-1 to A-3. PW-10 PI Khade went to the

spot, took the A-1 to A-3 into his custody from PW-6 and brought them to

the Police Station. After filing of the Report (Exh.73), A-1 to A-3 were

arrested by PW-10. The blood stained clothes on the person A-1 to A-3 were

seized by him under separate Arrest Panchnama. One mobile phone and

one blood stained knife found on the person of A-2 and one Nokia mobile

was found on the person of A-3 were also seized. Police Officer Mr.Nikumbh

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recorded the Spot Panchnama (Exh.49). PW-8 conducted the investigation

and recorded the statement of the witnesses. The blood stained clothes of

PW-4 came to be seized. Deceased Sagar died on the same day and Kailas

died in Surya Hospital on 29/07/2012. After Inquest Panchnamas of the

three bodies its postmortem examination was conducted. The clothes of the

three deceased were seized. PW-8 referred the muddemal articles to the FSL

for the purpose of CA. Investigation revealed that A-1 to A-3 alongwith A-4

committed the murder of the three in furtherance of their common

intention. Hence, charge sheet was submitted against A-1 to A-3 under

Sections 302, 307, 326 and 34 of I.P.C. as A-4 was not arrested at that time.

4) On 26/02/2014, the trial Court framed the charge against A-1

to A-3 under Sections 302, 325 and 34 of I.P.C. Later on, A-4 was arrested

on 20/11/2014 and supplementary charge-sheet was filed against him.

Hence, fresh charge was framed on 22/12/2014. The accused pleaded not

guilty to the charge and claimed to be tried. The defence of the accused was

of denial and false implication. It was their specific defence that the

deceased used to collect hafta/extort money from the stall owners at

Tulshibaug with the aid of PW-4’s husband. All the stall owners were

against the three deceased. Therefore, some unknown stall owners

committed their murder.


5)              To prove the charge, the prosecution examined 10 witnesses


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which include the informant, spot panch, seizure panch, the police who

immediately rushed to the spot, removed the injured to hospital and

apprehended the accused, medical officers and investigation officers.

After considering the oral and the documentary evidence

including the CA Report, the trial Court accepted that evidence, and hence,

convicted and sentenced the accused as noted in the paragraph 1 above.

6) We have heard Mr. Pendse, the learned Counsel for the

Appellant in Appeal No.341 of 2017, Mr. Joshi, the learned Counsel for the

Appellants in Appeal Nos.474 of 2017 and 1540 of 2018, Dr. Chaudhry, the

learned Counsel for the Appellant in Appeal No.908 of 2024 and Mr. Khan,

learned A.P.P. for the Respondent-State. Peruse the record.

7) Here it is necessary to note that the date, time and place of the

incident was not disputed by the defence. The defence has admitted the

Inquest Panchnamas and did not dispute the homicidal death of the three

deceased. However, they have disputed the weapon allegedly used by A-2.

8) PW-9 Dr. Jaysing Shinde has testified that he has done M.B.B.S.

& M.S. Since 1985, he was Founder Director and Chief Surgeon of Surya

Hospital Pune. Deceased Sagar Lahage was admitted in his hospital on

18/07/2012, at 1.30 p.m., with history of assault disclosed to the Casualty

Medical Officer. He was in a critical state. Accordingly, MLC was reported to

Vishrambaug Police Station at 1.45 p.m. He deposed that he had examined

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the patient at 1.45 p.m. He had multiple stab injuries as under :-

i) Cut throat 10 cm x 1 cm (stab muscles, strenomaltcidemastoid
cut open with bleeding from all superficial veins),

ii) Penetrating chest wound 2 cm x 1cm,

iii) Open abdominal stab wound with bowel and omentum
protruding 10 cm x 3 cm,

iv) Penetrating wound 2 cm x 1 cm on right hip.

9) PW-9 has deposed that the injuries were operated and sutured.

However, the patient expired at 5.30 p.m on the same day. In this regard,

PW-9 has referred the medical papers (Exh.145 colly.) and deposed that its

contents are in his handwriting, bears his signature and the same are true.

All the injuries referred above were sufficient in ordinary course of nature

to cause the death. The said injuries were possible by the knife (Art.2).

10) He has further deposed that deceased Kailas was admitted in

the same hospital on 23/07/2012, at about 10.50 a.m., with the history of

assault. Earlier, he was treated at Sassoon Hospital. At the time of the

admission, the patient was serious, unconscious, not responding and

painful stubbly. He had examined the patient and found following injuries :

1. stab wound over abdomen. (23 stitches in situ),

2. Wound near right shoulder (4 stitches in situ),

3. C.L.W. over Lt-index-finger, (8 stitches in situ),

4. C.L.W. just below occipital region Rt side (4 stitches in situ),

5. C.L.W over Rt-Neck (7 stitches in situ).

PW-9 has deposed that the patient succumbed to the injuries

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on 29/07/2012, at 4.55 a.m. In this regard, PW-9 has referred the medical

papers Exh.146 (colly). He has deposed that all the injuries referred above

were sufficient in the ordinary course of nature to cause death. Said injuries

were possible by the knife (Art.2).

11) PW-7 Dr. Harish Tatiya has deposed that on 18/07/2012,

between 5.00 p.m. to 6.00 p.m., he and Dr. A. B. Shinde had jointly

conducted the postmortem examination of the dead body of Sachin and

noted following external injuries :

 Nos.                                 Particulars of the injuries
   1     Stab wound over sternal region in mid line, size 3 x 2 cm cavity

deep, oblique left inferior, 4cm below suprasternal notch, angles
acute underlying sternum cut, reddish, margins clean cut.
2 Stab wound over pectoral region, on left side 3cm above nipple, size
5 x 2 cm x cavity deep oblique right inferior, size 6 cm from mid line
underlying fourth and fifth ribs cut, margins clean cut, reddish,
angles acute.

3 Stab wound over pectoral region on left side, 1 cm lateral to injury
no.2, size 3.5 x 2 cm x cavity deep, underlying forth and fifth rib,
cut vertical margins clean cut, angles acute, reddish.
4 Stab wound over left side of pectoral region, 1 cm below and lateral
to nipple, 9 cm from mid line, size 3 x 2 cm by cavity deep, oblique
lateral inferior, underlying 6th rib cut, margins clean cut, reddish,
angles acute.

5 Incised wound 3 cm above and lateral to injury no.3, size 3 x 1 cm
by muscle deep oblique left inferior, margins clean cut, reddish.
6 Stab wound over left lateral of chest in anterior axillary line, 3 x 2
cms by cavity deep, vertical underlying 6th rib cut, margins clean cut,
reddish.

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   7     Incised wound over left side of chest, 9 cm from mid line, 6cm

above costal margins in mid-clavicular line, 2 x 1 cm by tissue deep,
margins clean cut, reddish.

8 Incised wound over right side of chest, horizontal 7 cm from mid
line, 10 cm from sub costal margin, in anterior axillary line, 3 x 1
cm by tissue deep, margins clean cut, reddish.

9 Stab wound over sternal region in mid line, 8 cm below injury no.1,
3 x 2 cm by cavity deep, oblique left inferior, underlying sternum
cut, margins clean cut, angles acute, reddish.

10 Incised wound over left elbow, antero laterally, 5 x 2 cm by tissue
deep, oblique lateral upwards, margins clean cut, reddish.
11 Incised wound over left forearm, middle third, ventrally, 2 x 1 cm by
tissue deep, vertical margins clean cut, reddish.

12 Incised wound over dorsum of right hand at base of fourth finger,
3 x 1 cm by tissue deep, oblique inferior medially margins clean cut,
reddish.

13 Incised wound over, occipital region, on right side, 2 x 1 cm by bone
deep, vertical margins clean cut, reddish.

12) The internal injuries noted by PW-7 were as under :

Nos.                                  Particulars of the injuries
  1     Ribs, sternum, and plura cut corresponding to external injuries, as

mentioned under column no.17 of the postmortem report.
2 Stab wound was over lower lobe of left lung,
corresponding to said external injury no.6, 3 x 2 cm margins
clean cut, reddish, rest of lung pale. Pericardium cut
corresponding to said external injury nos.2 and 3, 5 x 2 cm and 3 x 2
cm respectively, margins clean cut, reddish.

3 Stab injuries over left ventricle corresponding to said external
injury nos.2 and 3, 5 x 2 cm and 3 x 2 cm respectively, cavity
deep, margins clean cut, reddish.

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  4     Peritoneum and diaphragm cut corresponding to said external
        injury no.9, 3 x 2 cm margins clean cut, reddish.
  5     Stab wound over left lobe of liver, anteriorly 3 x 2 x 2 cm, margins

clean cut, reddish, corresponding to said external injury no.9.

13) PW-7 has opined that, all the injuries were ante-mortem in

nature. The internal and external injuries were sufficient to cause death in

ordinary course of nature. Deceased Sachin had died because of shock and

haemorrhage due to multiple stab injuries. Accordingly, they had issued the

postmortem report (Exh.116). It bears his and Dr. Shinde’s signature. The

contents are true and correct. They had preserved the viscera, finger nail

clippings and scalp hairs for chemical analysis. The aforesaid injuries were

possible by the knife (Art.2).

14) PW-7 has deposed that on 19/07/2012, from 10.45 am to

11.45 am., they had conducted the postmortem examination of the dead

body of Sagar Lahare and they had noted following injuries on his body :

Nos.                                  Particulars of the injuries
  1     Stitched wound over right lateral aspect of chest, in fifth intercostal

space, 2 stitches in situ, in anterior axillary line, attached with 1 liter
blood bag, containing blood, (intercostal drain)
2 Stitched wound over abdomen in mid line, 1 stitch in situ in mid line
two liter blood bag attached containing blood (abdominal drain),
3 Stitched wound over left iliac region, one stitched in situ attached
with blood bag (pelvic drain),
4 Stitched wound over anterior of neck, horizontal, eight stitches in

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situ, 16 cm in length, 4 cm from adam’s apple and 6 cm from
suprasternal notch on removal of stitches underlying muscles
stitched in layers underlying jugular vessels cut, trachea cut margins
clean cut, reddish
5 Stitched wound over right side of chest, below right nipple, four
stitches in situ, oblique upwards laterally, 4 cm in length, four
stitches in situ in fifth intercostal space, on removal of stitches
margins clean cut, reddish,
6 Stitched wound over abdomen in epigastric region and right
hypochoandriac region, horizontal 15 cm in length, eight stitches in
situ, on removal of stitches underlying muscles stitched in layers,
margins clean cut, reddish, cavity deep,
7 Incised wound over right gluteal region, laterally, size 4X3 cm by
muscle deep, oblique upwards laterally reddish,
8 Abrasion over right knee, size 3X2 cm irregular, reddish.

15) PW-7 has deposed that, on internal examination, they had

noted following injuries :-

 Nos.                                 Particulars of the injuries
   1     Rib no.5 cut over upper margin, plura cut corresponding to said
         external injury nos.1 and 5.
   2     Trachea cut corresponding to said external injury no.4, margins
         clean cut, reddish.
   3     Stab wound present over lower lobe of right lung, laterally, size 2 x
         1 cm and 2 x 2 cm clean cut, reddish, rest of lung pale.
   4        Stitched wound present over, pyloric end of stomach and over

duodenal part of small intestine, 5 stitches in situ reddish,
about 250 ml blood present in cavity, reddish.



16)              In the opinion of PW-7, all the injuries were antemortem in



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nature. The internal and external injuries were sufficient to cause death in

the ordinary course of nature. The deceased Sagar died due to shock and

hemorrhage due multiple injuries. Accordingly, they had issued the

postmortem report (Exh.118). It bears his and Dr. Shinde’s signatures. The

contents are true and correct. They had preserved the viscera, finger nail

clippings and scalp hairs for chemical analysis. The aforesaid injuries were

possible by the knife (Art. No.2).

17) PW-7 deposed that, on 29/07/2012, he and Dr. A.A. Taware

together had conducted the postmortem examination of the dead body of

deceased Kailas. The following external injuries were present on the body :

Nos.                                 Particulars of the injuries
  1     Stitched wound over the nape of neck on right side, obliquely with

two stitches in situ, 2 cm below occiput, 1 cm from mid line,
2 Stitched wound over nape of neck, 2 cm below injury no.1
horizontal, four stitches in situ, 4 cm from mid line,
3 Stitched wound two stitches in situ present over posterior aspect of
right shoulder, 3 cm right to injury no.2, 7 cm from vertebra
prominence,
4 Abrasion present over, mid line forehead, over nasion, size 2X1 cm
brownish scab,
5 Stitched wound, five stitches in situ, 3 cm in length, 3 cm above
clavicle in right supra clavicular region,
6 Stitched wound of 3 cm, three stitches in situ, present over right
shoulder anteriorly,
7 Stitched wound of 3 cm over right anterior triangle of neck, four
stitches in situ,

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8 Stitched wound of 1 cm length, in right fifth intercostal space, in mid
axillary line, 15 cm from mid line, two stitches in situ, evidence of
intercostal drain,
9 Incised wound of one and half cm in length, in left intercostal space,
in mid axillary line, 14 cm from mid line, evidence of intercostal
drain,
10 Stitched wound with 16 stitches in situ, present over abdomen in
mid line, extending from xiphisternum to umbilicus 18 cm in length
vertical,
11 Stitched wound horizontal with 7 stitches in situ, starting from
middle of injury no.10 running towards right horizontally of length
11 cm,
12 Evidence of lumbar drain in right lumbar region of abdomen, 5 cm
above iliac crest in anterior axillary line, 2 cm in length, 10 cm from
mid line,
13 Stitched wound, three stitches in situ, two and half cm in length,
present 2 cm above injury no.12 in mid axillary line,
14 Stitched wound four stitches in situ, 3 cm in length, present
obliquely 1 cm above and posterior to injury no.13,
15 The evidence of lumbar drain in left lumbar region of abdomen 5 cm
above iliac crest, in anterior axillary line, 2 cm in length, 11 cm from
mid line,
16 Multiple abrasions present over back of left shoulder, over an area of
24 x 15 cm varying in sizes from 3 x 2 cm to 1 x 1 cm brownish
black with scab,
17 Multiple abrasions present over left anterior triangle of leg, varying
in sizes, from 1 x 1 cm to 1 x 0.5 cm brownish with scab,
18 Stitched wound with 8 stitches in situ, 5 cm in length. over left index
finger, dorso laterally,
19 Incised wound over the left index finger on medial aspect, 3 x 2 x
0.5 cm,
20 Abrasion over right knee, size 2 x 1 cm brownish scab present,

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21 Abrasion over lower third of right leg, medially, 2 x1 cm brownish
scab present,
22 Injection mark over, left forearm, extensor aspect of middle third,
(therapeutic),
23 Injection mark over right antecubital fossa, (therapeutic),
24 Injection mark present over left neck in anterior triangle
(therapeutic).

18) PW-7 has deposed that, on internal examination, they had

noted the following injuries:

There was evidence of laparotomy procedure with stitches over

right lobe of liver. All the injuries were ante-mortem, sufficient to cause

death in the ordinary course of nature, and individually, external injury

nos.10 and 11. In their opinion, the deceased Kailas died due to shock and

hemorrhage due multiple stab injuries. Accordingly, they had issued the

postmortem report (Exh.120). It bears his and Dr. Taware’s signature. The

contents are true and correct. They had preserved the viscera, finger nail

clippings and scalp hairs for chemical analysis. The aforesaid injuries were

possible by the knife (Art.2).

19) The aforesaid testimonies of PW-9 and PW-7 are very consistent

with each other and the medical record they had referred in their evidence.

In the cross-examination of PW-7, an attempt was made to show that the

injuries sustained by the three deceased were not caused by the knife

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(Art.2) but by different weapons. However, in cross-examination of PW-7

itself, it has come that, while withdrawing the knife (Art.2) from the

injury/body, internal organs must have been drawn alongwith with the

blade. That is why, as deposed by PW-7, the bowel and omentum protruded

from the external injury No.4 sustained by deceased Sagar. Therefore, we

hold that the injuries sustained by the three deceased were possible by the

knife in question. Moreover, there is nothing in the cross-examination of

PW-9 and PW-7 to disagree with their expert opinion as to the weapon by

which the said injuries could have been caused. Looking at the nature of the

injuries of the deceased persons, it is apparent that, said injuries were

inflicted with an intent to cause the death of all three deceased but without

any excuse. As such, the finding recorded by the trial Court that their death

was homicidal and amounting to murder, cannot be disagreed with.

20) Now, the question is, whether it has been proved by the

prosecution that the Appellants in furtherance of their common intention

committed the murder of all the three.

21) In this regard PW-4 Sheetal Kudale has deposed that, since 5 to

6 years prior to the incident, she used to reside at Rashtra Bhushan Chowk,

Khadakmal Aali, Pune, alongwith her in laws and three children. Deceased

Sagar Lahare was her brother. Deceased Sachin Kudale was her brother-in-

law (husband’s brother). Sachin used to reside with them and he was doing

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the business of ladies wear at Pathari Chowk/Chal, Tulshibaug, Pune.

deceased Sagar was running a fruit stall in Mandai and deceased Kailas was

running a stall at Tulshibaug. Deceased-Kailas was a friend of deceased-

Sachin. PW-4 has deposed that she knew all the accused.

PW-4 has deposed that, on 18/07/2012, at about 12 p.m., she

had taken her children Sakshi and Smruti to their school near S.P. College.

She then dropped her son Sarthak at Ranade Balak Mandir. On the way,

she and deceased Sagar met with deceased Kailas, who told them that, A-1

had assaulted deceased Sachin, he had sustained injuries behind the ear

and neck and Sachin was seated on the footpath, near Vishrambaug Wada.

She and deceased Sagar went there, and noticed that, Sachin had injuries

on his neck and his lip was torn. On inquiry, deceased Sachin told them that

when he had asked the accused as to why the stall was stationed on his

place, A-1 and A-2-Sagar Tambde, who was wearing specs, assaulted him.

PW-4 has deposed that, meanwhile, A-1 to A-4 came there and abused

them. A-2-Sagar Tambde then took out a knife and stabbed in the

abdomen and the neck of deceased Sagar. She and Kailas tried to intervene

but the accused pushed them, due to which she had sustained an abrasion

to her hand. She has deposed that the accused assaulted Kailas with fist and

kick blows. A-2-Sagar Tambde stabbed Kailas in his abdomen and the neck.

She again tried to intervene in the quarrel, but, A-3 threatened her to stay

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away, otherwise, he would kill her. A-2-Sagar Tambde then went to

deceased Sachin, who was lying at the corner of Vishrambaug Wada and

stabbed him in the chest and in the abdomen.

PW-4 has deposed that a traffic police (PW-5) came to the spot.

People had gathered there. She informed about the incident to her father

Sambhaji Lahare on mobile phone. PW-5 telephonically informed about the

incident to other police. PW-5 stopped one Ambulance that was passing by

the road and removed deceased Sachin to Sassoon hospital. Meanwhile,

her father Sambhaji Lahare came there and removed deceased Sagar to a

hospital in an auto-rickshaw. She removed deceased Kailas to Sassoon

hospital in another auto-rickshaw. At Sassoon hospital, she learnt that

deceased Sachin had expired and her brother Sagar was taken by her father

to Surya hospital. She, therefore, went to Surya hospital. The police were

present in Surya hospital. She then came to Faraskhana Police Station and

filed the Report (Exh.73), it bears her signature and, its contents are true

and correct. The printed report (Exh.74) bears her signature. PW-4 has

identified the A-1 to A-3 and deposed that they were shown to her in Police

Station. She had asked the police about the whereabouts of A-4. PW-4 has

deposed that after lodging the Report, she had shown the spot of the

incident to the police. The police recorded the spot panchnama. Her clothes

were stained with blood. She handed over her blood stained clothes to the

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police which the police had seized. She has identified the knife (Art-2) as

the same weapon of the offence and her seized clothes (Arts.23 to 25). She

has deposed that the Magistrate had recorded her statement.

22) In the cross-examination, PW-4 has deposed that, S.P. College is

at a distance of 10 to 15 minutes from Rashtra Bhushan Chowk, Khadakmal

Aali. She can not tell the distance between S.P. College and Ranade Balak

Mandir. She has admitted that, one requires about 10 to 15 minutes to

reach Tulshibaug from Ranade Balak Mandir. Mandai was at further

walking distance of 5 minutes from Tulshibaug. At the time of incident, the

school timings of her daughters were 12 noon to 5 p.m. and the timings of

the nursery of her son Sarthak were from 12 noon to 3 p.m.

PW-4 has admitted that, one year prior to the incident, her

husband Santosh was in jail. She used to be busy in household work,

looking after the children and their studies. Her occupation as ‘housewife’

shown in the Report was correct. She has not stated in her Report (Exh.73)

and the statement u/Sec.164 of Cr.P.C. that she used to assist in the

business of the brother of her husband. She has denied that, at the time of

incident, she and her children were dependent on the income of deceased

Sachin and her mother-in-law. She has admitted that her another bother-in-

law Sunil was running a tea stall. She had stated in her statement under

Section 164 of Cr.P.C. that before her husband was in jail, he and his

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brother were running a stall (pathari). A contradiction has been brought on

record by confronting PW-4 that she had stated in her Report (Exh.73) that,

after her husband had gone to jail, their business was given on rent to one

Mr. Shagir. She has denied having stated that fact (portion ‘A’), claiming

that, it was not correct, but, she cannot assign any reason as to why said

fact was recorded in the Report. She has denied that since the stall was

given to Shagir on rent, she had no occasion to go to Tulshibaug area.

PW-4 has admitted that, Tulshibaug area was connected with

three main roads. At places, there were traffic signals on the said roads.

There were footpaths abutting the three main roads. Stalls called as Pathari

were installed on the footpaths. The shops and stalls in Tulshibaug area

were adjacent to each other. Licences were given to the stall owners from

Tulshibaug area. She did not give the licence of her stall to the police. She

has voluntarily deposed that it was not issued at the time of the incident.

She has denied that she was not running the stall at the time of incident

and therefore she had no licence. She has denied that her husband and

deceased Sachin were not running any stall at Tulshibaug. She has denied

that A-1 was shown to her in the Police Station, by the police. She has

denied that she has falsely filed the Report against A-1 after police gave her

his name, address and occupation. She has denied that A-1 had not

assaulted with fists and kicks blows. She has denied that she has not

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witnessed the incident. She has denied that she has deposed false on the

say of police and her relatives.

23) PW-4 has admitted that her husband and deceased Sachin used

to run the stall at Tulshibaug. It was started about 10-12 years prior to the

incident. There was a stall of Shiva on one side of their stall, and of Sagar

Kamble, on the other. She daily used to go to the stall. PW-4 has admitted

that, on the day of the incident, she had left her house at about 11.00 to

12.00 hours. Deceased Sagar had come to her place by an auto-rickshaw

about half an hour before they had left the house. Deceased Sagar used to

come to her place daily and then he used to go to his stall. Deceased Sagar

used to proceed to start his stall at about 12.30 p.m. On the day of the

incident, she had gone to her son’s school by an auto-rickshaw and after

dropping her son there, she and deceased Sagar came walking towards

their stall. Deceased Kailas had met her at Tulshibaug near her stall, which

was already opened. She cannot tell the distance between her stall and the

place where deceased Sachin was lying injured. She has admitted that

Kailas was running a garment stall near their stall. She did not give

attention whether Shagir was present near the stall. She cannot tell the

distance between her stall and the fruit stall of A-1, and since how may

years A-1 was running the stall in Tulshibaug. She has denied that A-1

alone was running the stall.

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An omission is elicited that PW-4 has not stated in her Report

(Exh.73) that she knew all the four accused and she cannot assign any

reason as to why the said fact was not specifically recorded in the Report.

She has admitted that she did not disclose the names of all the four

accused. She has voluntarily deposed that she had disclosed the names of

three accused. She had disclosed the description of the fourth accused that

he was wearing thick specs. She had given the names of the persons

(accused) whom she knew and she gave the description of the person

(accused) whom she did not know by name. She has admitted that the

other stalls were operating and there were people on the road. There was a

traffic signal at a distance of 50 ft. from their stall. There was a road

intervening/in-between the place where deceased Sachin was lying and the

stall of A-1 and their stall. She had talked with deceased Sachin for about

20 minutes at the place where he was lying injured, Sachin had bleeding

injuries and blood was oozing from it. People did not gather at the spot.

PW-4 has admitted that, at the time of incident, she was using

a mobile phone. But, she does not remember that it was 976****194. She

had given a phone call to her father before the lady police (PW-5) had

arrived at the spot. She did not tell her father that she was taking injured

Sachin to Sassoon hospital. She did not ask her father as to which hospital

he was taking the injured Sagar Lahare. She has admitted that police were

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not present in Sassoon hospital when she had reached there. She cannot tell

the time when she had reached at Surya hospital. The police had visited at

Surya hospital after she had reached there. She had immediately gone to

the Police Station from Surya hospital. She did not talk with the police in

Surya hospital. Her father was present at Surya hospital but she had no talk

with him. Besides her father, there was nobody of her acquaintance in

Surya hospital. Nobody was shown to her before recording her Report.

After filing of the report, she left the police station. She has admitted that

while lodging the Report she had stated that there was one fat person

wearing thick specs. She had asked the police about the fourth person. She

has admitted that her narration in the Report that the person wearing thick

specs was A-2-Sagar Tambde, was correct. She has admitted that she had

stated before the police that she knew the fourth assailant. She cannot

assign any reason as to why the said fact was omitted in her statement

before the Magistrate.

24) PW-4 has admitted that she was having the same clothes when

she had gone to Sassoon hospital and then to Surya hospital. The Police had

inquired with her as to how her clothes got blood stained. Her father was

present with her in Surya hospital. But the Police did not record her father’s

statement. She does not remember whether she had given the description

of the fourth person to the Police while filing the Report and before the

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Magistrate. She has denied that she has identified the A-4 as he was shown

to her outside the Court by the Police. She has denied that deceased Sagar,

Sachin and Kailas used to collect hafta/extort money from the stall owners

at Tulshibaug with the aid of her husband. She has denied that all the stall

owners were against the three deceased. She has denied that some

unknown stall owners had committed the murder of the three.

25) The testimony of PW-4 is supported with the testimony of PW-5

Sandhya Kale. At the relevant time, PW-5 was attached to Faraskhana Police

Station at Traffic Branch. On 18/07/2012, from 9 a.m. to 9 p.m., she was

carrying out her duty on a tempo to lift the vehicles parked in “No Parking

Zone”. She has deposed that, at about 12 to 12.30 noon, after fueling the

tempo, she was proceeding from Kulkarni Petrol Pump at Laxmi Road.

When the tempo had stopped at the signal in Seva Sadan Chowk, she saw

that people were running from Vishrambaug Wada side towards Seva Sadan

Chowk. She inquired with one person as to what happened, who told her

that some untoward incident took place near Vishrambaug Wada. She got

down from the tempo and went towards Vishrambaug Wada. PW-5 has

deposed that three persons were lying in pool of blood on the spot and four

persons were beating the said three persons. One of the four assailants had

specs, he was holding a knife and he was giving knife blows to the injured

persons. The assailants moved aside when they saw her. She called the

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Police Control Room with her mobile phone. PW-5 has deposed that she

stopped one auto-rickshaw and made two injured persons to sit in it. PW-4

was present there. PW-4 was requesting for help but nobody from the mob

helped her. PW-5 has deposed that the third injured was removed to the

hospital in an ambulance. The clothes of the assailants were blood-stained.

Vishrambaug Police arrived at the spot and took the assailants in custody.

PW-5 has deposed that she then went to her office as she was frightened.

On a phone call she had attended at Vishrambaug Police Station. The three

assailants who were caught at the spot, were brought to the Police Station.

Said assailants had told their names as Dattatraya Tambde, Ghanasham

Tambde and Sagar Tambde. The Police recorded her statement. PW-5 has

identified the accused persons before the Court including A-2, stating that,

A-2 was holding the knife.

26) In the cross-examination of PW-5, admissions have been

elicited that for the first time, she had seen such a horrifying incident; that,

she was little frightened but not disturbed; that, about 15 minutes time had

passed since her arrival at the spot till she went to Vishrambaug Police

Station; that, she did not give the description of the assailants in her

statement. She cannot assign any reason as to why it was not recorded in

her statement before the police and the Magistrate that she had inquired

with one person as what had happened. The four persons to whom she had

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seen at the time of incident, were not acquainted to her. She had seen them

for the first time at the time of incident. She was not called for a test

identification parade. She has denied that the accused were shown to her in

the Court, and therefore, she has deposed that the accused before the Court

were the same. She has denied that she did not witness the incident.

PW-5 has admitted that, after her call, Police Constables

Gavade and Jadhav had come to the spot. She did not give the description

of the clothes and age group of the assailants either before the police or the

Magistrate. An omission is elicited that she had not stated in her statement

before the Magistrate that the assailants were beating the three persons

when she had arrived at the spot. She has admitted that she had gone to

the Police Station at about 1.00 p.m. Her statement was recorded by Police

Shri. Sakunde at about 1.00 p.m. She had stated before the police that the

accused persons had given their names. She cannot assign any reason as to

why the said fact was not specifically mentioned in her statement. She has

admitted that huge crowd had gathered at Vishrambaug Wada Chowk.

PW-5 has admitted that always, there used to be traffic at

Vishrambaug Wada Chowk. Out of the four persons, only one had specs and

only one assailant had held a knife. Said four persons were from different

age group. There was one elderly/old person. It did not happen that the

person who was elder/old and had white clothes, was holding the knife. A

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contradiction has been brought on record that she had stated before the

Magistrate that one aged person had a knife and he had wore white colour

clothes. She cannot assign any reason as to why the said fact was recorded

in her said statement. She has admitted that the incident was going on for

about five minutes before her. The distance between two injured was about

15 to 20 feet. The third injured was at a distance of 4 to 5 feet from another

injured. She was at Vishrambaug Wada Chowk up-to 3.15 p.m., after she

had attended there. Immediately, she had called the control room after she

had reached there. She had informed the control room that three injured

persons were lying at Vishrambaug Wada and to send help. She does not

remember whether the two injured taken in the rickshaw were conscious or

unconscious. After removing the two injured to the Sassoon Hospital, police

from Shaniwar Chowky had come there. She had stopped one ambulance

which was passing from there. The third injured was sent in that ambulance

to Sassoon Hospital. No police officer was sent alongwith the ambulance.

27) Now coming to the testimony of PW-6 Gajanan Jadhav, who, at

the time of incident, was attached to Vishrambaug Police Station. PW-6 has

testified that, on 18/07/2012, from 9.00 hours to 21.00 hours, he and

Police Constable Mr. Naik were on Marching Duty at Mandai and Shaniwar

Police Chowky. When they were at Manda Lodge, at about 13.15 hours,

they received a call from the Police Control Room that some incident had

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occured at Vishrambaug Wada and directed them to immediately go there.

Accordinlgy, he and Police Gavade proceeded to the spot on a motorcycle.

When they arrived at Phadatare square on the way, there was traffic jam

and it was not possible to take the motorcycle ahead. So, he alighted from

the motorcycle and walked towards Vishrambaug Wada. There was mob of

people. One person was lying injured at the corner of Vishrambaug Wada.

He was sent to the hospital in an ambulance. One person with blood stains

on his clothes was present there. A-2 before the Court was the same person.

PW-5 was present there. PW-5 and others told him that A-2 and three others

with him had assaulted the injured person. He apprehended the A-1 to A-3.

They gave their names as Dattatray Tamble, Sagar Tambde and Ganesh

Tamble. The fourth person had fled away from the spot. He took the A-1 to

A-3 to Vishrambaug Police Station in the Government vehicle. He then went

to his patrolling duty. PW-6 has deposed that, on the same day, the police

recorded his statement. PW-6 has identified the A-1 and A-3 as the same

persons, who were present with A-2 at the spot. He could not identify the

fourth person because of the mob.

28) In the cross-examination, PW-6 has admitted that he had

arrived at Vishrambaug Wada at about 1.30 p.m. The distance between

Vishrambaug Wada and Shanipar Chowk was about 200 feet. The said road

was having heavy traffic. The ambulance was at Shanipar Square and the

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police were trying to move the other vehicles to give way to the ambulance.

He was at Vishrambaug Wada Square for about half hour. After about 15

minutes Constable Gavade came there. The accused were standing by the

side of the injured at a distance of about 5 feet. PW-5 was at a distance of

about 5 feet from the injured. He had apprehended the accused under the

belief that they had committed this crime. He himself had lifted the injured.

The distance between Mandar lodge to Vishrambaug Square was about half

a kilometer. He might have taken about 15 minutes to reach at the spot. He

had learnt that the other two injured were already removed to the hospital.

He remained at the spot till 2.30 p.m. to 2.45 p.m.

29) The testimony of PW-4, PW-5 and PW-6 is supported with the

testimony of PW-10 Lalchandra Khade, Police Inspector, who had taken the

A-1 to A-3 in his charge from the spot, brought them to the Police Station

and arrested. In this regard, PW-10 has deposed that on 18/07/2012 he

was working as Police Inspector at Vishrambaug Police Station. As ordered

by his superior, he had gone to the spot. PW-5 Ms. Kale, Bit martial Jadhav

(PW-6) and Mr. Gavade were present there. The injured were removed to

the hospital. At that time, PW-6 had apprehended the A-1 to A-3 at the spot.

PW-10 deposed that, he brought the three accused to the Police Station.

After about an hour, the Senior Police Inspector alongwith PW-4 came to

the Police Station. He then produced the A-1 to A-3 before them and later

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on arrested them in the presence of the two panchas. PW-10 has deposed

that first he had arrested the A-2 and conducted his body search. One knife

(Art.2) stained with blood and one mobile of Samsung Co. (Art.26) were

found on his person. The clothes on the person of A-2 (Arts. 3 to 5) were

stained with blood. He had seized the said knife, the clothes and the mobile

phone. He then arrested the A-1 and seized the clothes (Arts. 6 to 8) on his

person. Lastly, he had arrested the A-3 and seized the clothes on his person

and the mobile of Nokia Co. found in his possession (Arts. 9, 10 and 27

respectively). Accordingly, he had recorded the Arrest-cum-Seizure

Panchanamas in the presence of panchas (Exhs.68, 69 & 70 respectively).

He has deposed that the clothes of A-1 and A-3 were stained with blood. He

had packed and sealed the aforesaid articles with wax. He has deposed that

after carrying out the arrest and seizure procedure, he had submitted the

Report (Exh.149). He has deposed that, on 19/07/2012, PW-4 had

produced her blood stains clothes (Arts.23 to 25). He had seized the same

in presence of two panchas under Panchanama (Exh.150). PW-10 has

identified the aforesaid articles.

30) In the cross-examination, PW-10 has deposed that, in the

Report (Exh.149), there is no mention about receiving the information from

the Control Room at 1.50 p.m.; that, he had proceeded to the spot as per

the order of the superior; that, PW-8, the Senior Police Inspector had gone

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to the hospital from the spot; that, PW-8 alongwith PW-4 had come to the

Police Station after an hour; and that, he had then produced the A-1 to A-3

before them. He has denied that the said panchnamas were not recorded in

the presence of panchas and nothing was seized under said panchnamas.

31) PW-5 and PW-6 both have deposed that when A-1 to A-3 were

apprehended at the spot, their clothes were blood stained. In support of this

evidence, PW-3 Chandrashekhar Sangulkar has deposed that on

18/07/2012 the Police had called him and co-panch Vishal Dhumal. A-1 to

A-3 were arrested in his presence. First, Police had arrested the A-2 and

took his person search. There were no injuries on the person of A-2, but,

the clothes on his person were blood-stained, i.e., blueish pant, brown

colour shirt and banian (Arts.3 to 5). One blood stained knife (Art.2) and

mobile handset of Samsung co. (Art.26) were found on the person of A-2.

The police seized the said knife, clothes and the mobile phone, packed it in

separate papers, sealed the same with label bearing signature of the

panchas and recorded the seizure Panchnama (Exh.68), accordingly. He has

identified the seized articles. He deposed that in the similar manner the

Police had carried out the arrest of the A-1 and A-3, seized the blood

stained clothes which were on their person (Arts.6 to 8 and Arts. 9 & 10)

including a Nokia mobile phone (Art.27) found on the person of A-3. He

has deposed that those articles were also packed and sealed in the same

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manner, and accordingly, separate Panchanams were recorded (Exh.69 &

Exh.70). He has identified the A-1 to A-3, their seized clothes and the

mobile phones. This evidence of PW-3 is very consistent with the evidence

of PW-10, who had effected the arrest and the seizure.

In the cross-examination, PW-3 has deposed that the area of

Tulshibaug was of heavily trafficked and crowded. Approximately, there

were 3 signals from Tulshibaug to Vishrambaug. Vishrambaug Police Station

is not abutting the road, but one has to go inside from the road. He was

called by the police at about 3.00 p.m. to 3.15 p.m. He has denied that he

was well acquainted with Lehare and Kudale families from Vishrambaug;

that, the Panchanamas Ex.68, 69 and 70 were not prepared in his presence;

that, he has signed the same on the say of the relatives of the deceased; and

that, he has deposed false. There is no cross-examination of PW-3 on behalf

of A-2 and A-3 since the adjournment was refused and the cross-

examination for the A-4 was declined. It is not pointed out from the record

that thereafter PW-3 was recalled for the cross-examination.

32) The testimony of the spot panch PW-1 Prashant Pangal shows

that on 18/07/2012, the police had recorded the spot Punchnama (Exh.49)

in presence of him and co-panch Shankar. The spot was shown by PW-4.

The Police took the samples of the blood found at the spot and seized one

broken goggle lying there. Said samples and the goggle were packed and

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sealed with wax and signature of the panchas. PW-1 has identified the Spot

Panchnama and the signatures thereon.

In the cross-examination, PW-1 has admitted that a CCTV

camera was installed on the pole near the spot. There was a traffic signal

near the spot. The place of the occurrence was visible from Chitale Shop.

Traffic Police used to stay in front of Chitale shop. He knew Santosh Kudale

and deceased Sachin Kudale. However, he has denied that he has signed the

Spot Panchanama in the Police Station on the say of Santosh Kudale.

33) PW-2 Vinayak Mahendre, the panch, has proved the seizure of

the blood stained clothes (Arts.19 to 22) of deceased Sagar under Seizure

Panchnama (Exh.66).

34) PW-8 Arjun Sakunde, then Sr. Police Inspector has deposed that

on 18/07/2012 he was present at the Police Station. At about 1.15 p.m., he

had received the information of this incident from the Police Control Room.

He had visited the spot. Traffic Police and Marshal were present there. PW-8

has deposed that, there he came to know that the injured were removed to

the hospital; that, the injured had quarreled with A-1, A-2, A-3 and one

unknown person; and that, A-2 had assaulted the injured persons with a

knife. He then went to the Sassoon Hospital. PSI Khade (PW-10) had

apprehended the A-1 to A-3 and taken them to the Police Station. After

visiting the Sassoon Hospital, he went to see the injured at Surya Hospital.

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PW-4 was present there. He took her to the Police Station and recorded her

Report (Exh.73) and sent that Report for registration of the crime with his

letter (Exh.124). Accordingly, this crime was registered. PW-8 has deposed

that PW-10 arrested the accused and recorded the Arrest Panchanamas. He

had seized the knife from A-2. This evidence of PW-8 appears very natural

and it is in line with the testimonies of PW-4, PW-5, PW-6 and PW-10.

35) PW-8 has deposed that, as directed by him, PSI Nikumbh had

visited the spot and recorded the Spot Panchanama (Exh.49). On the same

day, Police Naik Mr. Gavade had produced the clothes of deceased Sachin

(Arts.11 to 14) and of Kailas (Arts.15 to 18) and Police Naik Mr. Pathan had

produced the clothes of deceased Sagar Lahere (Arts.19 to 22). He had

seized the said clothes in the presence of panchas under the Panchanama

(Exhs.76 and 66 respectively). He has identified the said clothes. On

20/07/2012, he had referred the accused persons to the hospital alongwith

his letter (Exh.127) to obtain their body samples. On 21/07/2012, he had

forwarded the seized muddemal articles to the FSL alongwith his letter

(Exh.128), for purpose of C.A. On 23/07/2012, he wrote a letter (Exh.129)

to the Sassoon Hospital and obtained the samples of nail clippings, blood

and hair of A-1, A-2 and A-3. He then sent the said samples for C.A. with

his letter Exh.130/131.


36)             PW-8 has deposed that on 24/07/2012, A-4 Dablya @ Vinayak


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Chavan was called at the Police Station through staff. PW-4 was also called

at the Police Station. PW-4 had identified to A-4. Therefore, he recorded her

supplementary statement. However, A-4 was not arrested as he had

complained of blood pressure and giddiness. On 25/07/2012 he had called

for the CDR of the mobile phone of PW-4 and her father Sambhaji. He had

obtained the duty register extract of the traffic police from P.I. Traffic

Branch, Pune City along with his letter (Exh.133). He had recorded the

statement of the witnesses from time to time and obtained the statements

of witnesses recorded under Section 164 of the Cr.P.C. He received the C.A.

Reports (Exhs.134 to 137). On completion of investigation, he had filed the

charge-sheet. Another police officer had filed the additional charge-sheet.

37) In the cross-examination, PW-8 has admitted that he had

referred the medical papers of deceased Sagar which he had obtained from

Surya Hospital. He does not know whether the injured had narrated the

history of the assault to the doctor. He has denied that, on the basis of the

history of the assault, he had opined that, initially, the FIR of the injured

was against unknown persons. He has denied that after reading the medical

paper (Exh.138), it was transpired that, the FIR was against unknown

persons. He has denied that after reading the Inquest Panchnama (Exh.80),

it was transpired that deceased Kailas had died due to stabbing by 7 to 8

persons. He had recorded the statement of Munna Shaikh, who was witness

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to the incident. He had tried to obtain the CCTV footage. He has denied

that the CCTV footage was not favourable to the prosecution, therefore, he

has not produce the same. He has denied that A-1 has been falsely

implicated in this case.

38) PW-8 has admitted that the information of this incident was

received from the Police Control Room through wireless. The entry of

information received from the control room was taken. When information

of a cognizable offence is received, the Police Station Officer has to enter it

in the station diary. He has not obtained the copy of the such station diary.

The copy of extract “K” was not enclosed with the charge-sheet. He has

denied that the said information was not favourable, therefore, he has not

produced it on record. He has admitted that the Bank of Maharashtra was

in front of the spot of the offence. But he has not recorded the statement of

the bank employees and the employees of Chitale Sweet Mart. He had not

taken the identification parade of the A-4. He has denied that he has

deposed false that on 24/07/2012, he had called the PW-4 and she had

identified to A-4. He has admitted that in the report PW-4 had not stated

that she had identified the A-4; that, the A-4 had come near her at Vishram

Baug Wada; and that, she had seen blood stains on the person of A-4. PW-6

Gajanan Jadhav had not stated in his statement that the fourth

person/accused had ran away and he was not found.

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39)             PW-8 has admitted that the spot of the incident was at a

walking distance of 5 to 10 minutes from Vishrambaug Police Station. He

stayed at the spot for about 10 to 15 minutes. After leaving the Sassoon

Hospital, within half an hour he had reached at Surya Hospital. There, he

had stayed for about 30 to 45 minutes. He had met with PW-4 in Surya

Hospital. She was in a position to give a statement. He then reached to the

Police Station within 15 – 20 minutes alongwith PW-4. He did not verify the

timing of bringing the accused at the Police Station by PW-10 PSI Khade

and its entry in the station diary. PW-10 had not reported him about the

arrest. He has admitted that the description of the fourth accused was given

as “fat person having specs”. It is true that he had received the information

that the said person had stabbed the victims. He has admitted that while

recording the FIR, the informant pointed at accused, the accused disclosed

their names and those names were recorded in the FIR. It is true that based

on the description of the fourth accused, he was traced. The “Portion A”

marked in the Report (Exh.73) was narrated by PW-4. Her occupation was

recorded as per her say. She did not state that she knew all the accused

since long. He has admitted that the CCTV cameras were installed at the

spot of the offence by the Corporation. He did not call for its footage from

the concerned authority, in writing. He has denied that he has charge-

sheeted the accused without any material.

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40)             In view of the aforesaid evidence, the learned Counsel for the

Appellants have made the following submissions :

           In the Report (Exh.73), PW-4 stated that she was a 'housewife',

and that, the place of the business of her husband was given on
rent to one Mr. Shagir. As such, PW-4 had no reason to come to
the spot the incident, a place of business. Therefore, PW-4 has
falsely deposed her occupation was a ‘housewife’ and ‘business’.
 The evidence of PW-4 and PW-5 indicates that, prior to the
incident, they were not acquainted with any of the accused. As
mentioned in the admission history (Exh.138) of deceased Sagar,
recorded at Surya Hospital on dated 18/07/2012, at 1.15 p.m.,
the following report submitted to PW-8/the Police Station
(Exh.139) and the Inquest Panchnama dated 29/07/2012
(Exh.80) in respect of deceased Kailas, 7 to 8 unknown persons
had assaulted the deceased Sagar and committed his murder. Said
history was given by the father of PW-4 before she filed the
Report (Exh.73). That was the neutral and first information in the
case. Said history was maintained even till 29/07/2012 (11 days)
vide Exh.80. Thus, it clearly contradicted the evidence of PW-4.
The father of PW-4 was not examined as witness, for the best
reasons known to the prosecution. The CCTV footage of the CCTV
installed on the pole near the spot of the incident is suppressed.
As such, an adverse inference is permissible that the said history
was given by PW-4 to her father and it was only the fact.
 There is material inconsistency in the testimony of PW-4 and the
medical evidence.

           PW-4 has admitted that, PW-5 had arrived at the spot after the


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incident was over. Moreover, the timeline given by PW-5 that she
had fueled the tempo at about 1:00 p.m. and then came to the
spot at about 1:10 p.m. does not match with the evidence of PW-

4. Therefore, PW-5 cannot be accepted and relied as the
eyewitness.

 There is inconsistency in the evidence of PW-4, PW-5 and PW-6 as
to whether the three deceased were removed to the hospital in
two vehicles or three vehicles.

 PW-4 was available to record the prompt Report/FIR, however,
her Report (Exh.73) was recorded belatedly at 16.05 hours of
18/7/2012, that too after showing her the A-1 to A-3. But before
that, PW-5’s statement was already recorded at about 1.00 p.m.
Yet, the said statement was not treated as the FIR. Thus, the delay
in filing the FIR makes the prosecution version doubtful.
 Admittedly, the incident had occurred in the broad day light and
at a crowded place. However, not a single independent witness is
examined in by the prosecution. Considering the evidence as a
whole, PW-4, PW-5 and PW-6 were interested witnesses.
 PW-4 is relative of the two deceased and had vested financial
interest in the place of the business of A-1 to A-3. Said interest
was to be easily served with the conviction of the accused.
Therefore, PW-4’s evidence needs to be treated with great
caution, carefully scrutinized and subjected to corroborated. Her
evidence has failed on these tests.

 Mr. Joshi, the learned Counsel for the A-1 submitted that there is
no evidence that A-1 had assaulted to any of the deceased.
 Dr. Chaudhry and Mr. Pendse, the learned Counsel for A-2 and A-

4 submitted that as stated in the Report (Exh.73), initially, A-1

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and one fat person wearing specs had assaulted Sachin. And later
on, A-2 Sagar Tambde, who was fat and wearing specs, had
assaulted the three deceased and one fat person wearing specs,
i.e., A-4 was associated with A-1 to A-3. However, in the cross-
examination, PW-4 has admitted that she had described the
fourth accused/person as the person wearing thick spectacles.
PW-4 has admitted that her narration in the Report that the
person wearing thick specs was A-2-Sagar Tambde, was correct.
As admitted by PW-5, out of the four persons (assailants), only
one had spectacles and only one assailant was holding a knife.
The said four persons were from different age group. Before the
Magistrate, PW-5 had stated that he was aged man wearing white
clothes who was holding a knife, which fact completely
contradicts the evidence of PW-4. However, this ambiguity was
not removed by holding a TIP during the investigation, although,
A-4 was unknown to PW-4 and PW-5. Nor the prosecution
evidence is of any help to remove that ambiguity.
 The claim of PW-4 that she knew the accused persons is omission
in the Report and her statement u/Sec.164 Cr.P.C. This fact
couples with the other circumstances indicate that the assailants
were unknown to PW-4. The accused were not acquainted with
PW-5 prior to the incident. There is no dock identification of the
accused persons by PW-4 and PW-5 during the course of their
deposition. In the absence of such identification and TIP
evidence, the prosecution case is collapsed.

 The remaining evidence as to the seizure of the clothes of the
accused persons and the knife in question is not sufficient to
convict them because there is no evidence of proper sealing of the

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muddemal parcels and the result of the CA for blood grouping
was inconclusive.

 The learned Counsel for A-1, A-3 and A-4 submitted there is no
sufficient evidence by the prosecution to establish that the A-1, A-
3 and A-4 had directly or indirectly participated in the assault and
the murders. Hence, they cannot be convicted taking aid of Sec.
34 I.P.C.

 Thus, according to the learned Counsel for the accused PW-4, PW-

5 and PW-6 are not “sterling witnesses”. There are various
infirmities in the prosecution case and it created a reasonable
doubt about the involvement of the accused persons in this crime.
The trial Court, however, ignored the said weaknesses and
shortcomings in the persecution evidence. As such, the impugned
Judgment and Order is not sustainable in law and it may to be
quashed and set aside.

41) In contrast, Mr. Tanveer Khan, the learned APP submitted that

there is sufficient evidence by PW-4 that when she had arrived at her stall,

deceased Kailas met her and told that deceased Sachin was assaulted by A-1

at his stall. PW-4 then went to deceased Sachin and inquired with him.

Deceased Sachin told her that the A-1 and A-2 had assaulted him. Soon

thereafter, as deposed by PW-4 and PW-5, the A-1 to A-4 jointly attacked on

deceased Sagar and Kailas during which, A-2 gave them stabs leading to

fatal injuries. Lastly, the A-2 again stabbed deceased Sachin and caused his

death. This testimony of PW-4 is supported with the testimonies of PW-5,

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PW-6 and other witnesses including the C.A. Reports. The accused persons

have not explained their presence at the spot and the human blood found

on the clothes which were on their person at the time of the incident. All

this evidence was properly considered by the learned Judge of the trial

Court before handing over them the conviction and the sentence. Thus, in

short, according to the learned APP, interference with the impugned

Judgment is unwarranted in view of the abundant evidence on record.

42) We have considered these submissions and carefully scrutinized

the oral and the documentary evidence adduced by the prosecution. On

such a scrutiny, we find that, the testimony of PW-4 is very consistence with

her Report (Exh.73), which was lodged very promptly. This aspect is also

supported with the testimony of PW-8 who had recorded her Report.

Considering the testimony of PW-4, her presence at the time and spot of the

incident appears natural. Because, her children were small. The schools

were little far from their home and the children were required to pass

through traffic/crowd to reach the schools. It is natural that small children

need their mother’s help to safely reach the school. The school timing stated

by PW-4 was not disputed. As come in the cross-examination of PW-4, there

was just 10 to 15 minutes walking distance from Ranade Balak Mandir to

Tulshibaug, where the incident had occurred.


43)             Attempt was made in the cross-examination of PW-4 to show


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that, as her husband was in jail, his business place was given to one Mr.

Shagir on rent. This fact was stated by PW-4 in the Report (Exh.73).

However, the Report also mentions that, deceased Sachin was doing the

garments business at Tulshibaug. In the cross-examination of PW-4, it has

come that, her husband and deceased Sachin used to run the stall at

Tulshibaug. It was also suggested to PW-4 that, at the time of incident, she

and her children were dependent on the income of the deceased Sachin and

her mother-in-law. Thus, the defence has conceded that Sachin was running

the business stall to earn. Just 8 days before the incident, PW-4’s husband

was released from jail. Therefore, and looking at the size of the family of

PW-4, it was probable that, she/her family would do some business to earn

their livelihood. Otherwise, PW-4 had no reason to unnecessarily go to

Tulshibaug.

44) The testimony of PW-4 that deceased Kailas had met her and

deceased Sagar and Kailas told them about the first assault on deceased

Sachin by A-1 and his associate appears very probable. Because, as came in

the cross-examination of PW-4, Kailas was running a garment stall near

their stall. So, naturally, Kailas would be the first person to witness that

assault on deceased Sachin and inform to his close relatives.

45) As noted in the admission history (Exh.138) of deceased Sagar

recorded at Surya Hospital on dated 18/07/2012, at 1.30 p.m., the episode

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of the assault on the three had occurred in the presence of PW-4 and it was

seen by her. Same fact was recorded in the following report (Exh.139)

submitted to PW-8/the Police Station. Said two documents were referred to

PW-8 in his cross-examination by the defence, hence, were admitted in the

evidence. Thus, said documents also confirmed that at the time of the

incident, PW-4 was present at the spot and she had witnessed the incident.

46) No doubt, the admission history and the following police report

(Exhs.138 & 139) mention that the alleged history of the assault was given

by Sambhaji Lahare that said assault was made by 7-8 unknown persons at

around 1.15 p.m. Even the Inquest Panchnama dated 29/07/2012 (Exh.80)

in respect of deceased Kailas mentions that 7 to 8 unknown persons had

assaulted the three deceased at the time and place of the incident. In view

thereof, the learned Counsel for the accused persons submitted that said

history was supplied to Sambhaji Lahare by PW-4, and accordingly, the

former had told to the doctor on duty. It was the first contemporaneous

record made without deliberation. Although PW-4 has deposed that she

knew all the four accused, she has omitted that fact in her Report (Exh.73).

In the backdrop, the learned Counsel urged that since the assailants were

unknown to PW-4, therefore, it was not possible for her to file the Report

naming the A-1 to A-3 therein with their alleged role in the crime. But to

salvage this difficulty, first, the accused were shown to PW-4 and were

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required to tell their name, and accordingly, the Report (Exh.73) was

recorded. According to the learned Counsel, this inference is permissible,

because, PW-8 has candidly admitted that while recording the FIR (Report),

the informant (PW-4) had pointed at the accused, the accused disclosed

their names and those names were recorded in the FIR. Therefore, the

learned Counsel submitted that the claim of PW-4 that the accused were the

assailants, is not reliable. To buttress these submission Dr. Chaudhry has

relied upon the decision in Gurja Bedia And Others Vs. State of Bihar2.

Therein, there was a possibility to state the name of the assailants in the

FIR, but, they were not so named. The FIR was filed against 5/6 unknown

persons. Therefore, the prosecution case was not accepted on account of

that infirmity. Additionally, reliance is placed on the decision in Ram Kumar

Pande Vs. The State of M.P.3. Therein it is held that omission of important

facts, affecting the probabilities of the case, are relevant under Section 11

of the Evidence Act in judging the veracity of the prosecution case.

These submission look attractive at the first blush, however, we

are not agreeable to said submissions, because, in the case in hand, in the

Report (Exh.73) PW-4 has specifically stated the names of the A-1 to A-3

and their role in the occurrence. In the cross-examination of PW-4 it has

come that she had disclosed the names of the persons whom she knew and

2. 1990 (Supp) SCC 521

3. (1975) 3 SCC 815

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she had given the description of the person whom she did not know.

Further, she has voluntarily deposed that she had disclosed the names of

the three accused. This is what exactly intelligible on a simple reading of

her Report (Exh.73). Considering the evidence, it appears that, since

deceased Sachin knew the A-1, he could, therefore, tell PW-4 that, initially,

A-1 and his associate had assaulted him. And soon after that first assault,

the three deceased were assaulted during which A-1 was present at the spot

with the other accused. The Report (Exh.73) was filed very promptly and

was entered in the General Diary at 16.05 hours.

As against this, the history of the assault recorded in the

admission history (Exh.138), was given to the doctor by the father of PW-4

and not by her. Considering the timings recorded in the admission history

(Exh.138), it appears that, the said history was given by the father of PW-4

before she had reached Surya hospital from the Sassoon hospital. However,

since her father was not running any business stall near the disputed place

at Tulshibaug, probably therefore, he could not reproduced the names of

the assailants before the doctor. In view thereof, we find it difficult to

accept that the deceased were assaulted by 7-8 unknown persons.

47) PW-4 has deposed that deceased Sachin had injury over lip.

This assertion does not find support from the evidence of the doctors PW-7

and PW-9. Highlighting this inconsistency, Dr. Chaudhry, the learned

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Counsel submitted that it is doubtful that PW-4 was present at the spot and

she had talked with deceased Sachin. To accept this submission, he has

relied upon the decision in State of Rajasthan Vs. Bhanwar Singh 4. Therein

the medical evidence was at total variance with the ocular evidence.

Therefore, it is held that, though ocular evidence has to be given

importance over medical evidence, where the medical evidence totally

improbables the ocular version that can be taken to be a factor to effect

credibility of the prosecution version.

However, this principle cannot be applied here for a simple

reason that deceased Sachin had sustained a serious injury over the

occipital region (near the neck), and therefore, it was probable that blood

oozed from that injury had flown up-to his lips, due to which, PW-4 might

have confused that deceased Sachin had the injury on his lip.

48) It is apparent that the testimony of PW-5 is very consistent with

the testimony of PW-4 and the Report (Exh.73). The evidence of PW-5

indicates that, when the incident occurred, she had come close to the spot

of the incident. Therefore, she could reach at the spot, when the assault on

the victims was going on. PW-5 was an independent Police who had neither

any closeness with the victim side nor any enmity with the accused persons.

PW-5 had not reason to depose false against the accused. As such, the claim

4. (2004) 13 SCC 147

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of PW-5 is reliable that in all four persons were involved in the assault on

the three deceased.

In the cross-examination of PW-4, it has come that the Police

Constable had reached at the spot after the incident was over. Therefore,

the learned Counsel for the accused submitted that PW-5 was not an

eyewitness. However, this admission cannot be related to PW-5, because, no

further question was put to PW-4 to clarify as to who was the said Police

Constable as both PW-5 and PW-6 were the Police Constable. Moreover,

from the evidence it is clear that it was PW-6 who had come to the spot

after the assault was over.

49) The learned Counsel pointed that, according to PW-4, two

deceased were removed to the hospital in separate auto-rickshaw and one

in the ambulance. PW-5 has deposed that two deceased were removed in

one auto-rickshaw and one deceased by ambulance. However, considering

the evidence as a whole, this inconsistency is not material because it relates

to the post incident situation, and therefore, it is not sufficient to disbelieve

the presence of PW-4 and PW-5 at the spot at the time of the incident.

Moreover, while appreciating the evidence, it is necessary to keep in mind

that there is bound to be some discrepancies between the narrations of

different witnesses when they speak on details, and unless the

contradictions are of material dimension, the same should not be used to

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jettison the evidence in its entirety. In other words, trivial discrepancies

ought not to obliterate an otherwise acceptable evidence.

50) PW-5 has clearly deposed that, as soon as she arrived at the

spot, she had informed the incident on phone to the Police Control Room.

The testimony of PW-6 shows that, like PW-5, he and another Police with

him were not far from the place of the occurrence. Therefore, PW-6 could

immediately reach the spot on getting the wireless message of the incident.

Further, PW-6 apprehended the A-1 to A-3 at the spot and detained them.

This evidence is well supported with the evidence of PW-10 who has

categorically deposed that, when he had arrived at the spot, said accused

were in charge of PW-6 and he took them in his charge and brought them

to the Police Station. Said evidence of PW-10 has remained unchallenged in

the cross-examination and received support from the testimony of PW-8. In

fact, there is no denial to PW-10’s evidence that, immediately after the

incident, he went to the spot, took the A-1 to A-3 in his custody from PW-6

and he then brought them to the Police Station. Even a suggestion of

denying said fact was not put to PW-5 and PW-6. In the cross-examination

of PW-6, it has come that he had apprehended the accused persons on the

belief that they had committed this crime. Thus, the defence has conceded

the fact of apprehending the A-1 to A-3 at the spot. The A-1 to A-3 have not

explained as to why they were present at the spot when PW-5, PW-6 and

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PW-10 had come there. It is not the case of the A-1 to A-3 that, at the

relevant time, they were at different place/s, they were apprehended from

different place/s and then brought to the Police Station. Therefore, the said

testimony of PW-6 and PW-10 cannot be brushed aside.

51) No doubt, PW-5 has admitted that her statement was recorded

at about 1.00 p.m. by Shri.Sakunde/PW-8. But, in further cross-examination

of PW-5, it has come that she was at Vishrambaug Chowk till 3.15 p.m. and

she was called at Vishrambaug Police Station at about 3.45 p.m. to 4.00

p.m. Around the same time the Report (Exh.73) was recorded and entered

in the General Diary at 16.05 hours. As deposed by PW-8, he had received

the information of the occurrence at about 1.15 p.m. and he then went to

the spot. As such, till 1.15 p.m. recording of the statement of PW-5 was not

possible. Hence, on the basis of such a stray admission by PW-5 it cannot be

held that there was delay in filing the Report (Exh.73).

52) Now coming to the circumstantial evidence. On the strength of

the testimonies of PW-3 and PW-10 the prosecution has proved the seizure

of the clothes of A-1 to A-3. The panch witness to the Panchnama (Exh.150)

as to seizure of the clothes of PW-4 was not examined and that Panchnama

was proved by PW-4. Nevertheless, Mr. Chaudhry, the learned Counsel

submitted that there is no evidence as to sealing the alleged clothes parcels

with wax. He submitted that the contents of the panchnama (Exh.150)

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were in form of a statement recorded u/Sec.161 Cr.P.C. and proving its

contents through PW-10 was in violation of Section 162 Cr.P.C. Therefore,

the evidence as to the proof of the seizure of the said clothes is not lawful

and of no avail to the prosecution.

To make these submissions acceptable, first, reliance is placed

on the decision in Arjun Rangrao Patil Vs. State of Maharashtra 5. Therein

there was no satisfactory evidence that the clothes of the accused on their

seizure were immediately sealed and were in the same condition in which

they were received by the C.A. The panch witness has admitted that the

wax seal had not been put on the clothes which have been seized.

Therefore, the Division Bench of this Court observed that the prosecution,

did not rule out the possibility of the clothes being tampered with. There

was no evidence on record to indicate that the clothes, which were seized,

were, in fact, the clothes belonging to the accused and were the same

clothes which had been worn by the accused at the time of the incident.

None of the eye witnesses had identified the clothes of the accused to be

the same clothes which were worn by the accused at the time of the

incident. Therefore, it was held that mere discovery of the clothes would

not lead to an irresistible inference or hypothesis that there were the same

clothes which the accused had worn at the time of the incident. As such,

5. 2015 SCC OnLine Bom 184

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and in the absence of strong and satisfactory evidence regarding sealing of

the clothes, it was held that implicit reliance on the report of the C.A.

cannot be placed. Another decision cited is Rajesh And Another Vs. State of

Madhya Pradesh6. Therein it is held that a panchnama would be

inadmissible in a Court of law if it is recorded by the Investigating Officer in

a manner violating Section 162 Cr.P.C. as the procedure requires the

Investigating Officer to record the search proceedings as if they were

written by the panch witnesses themselves and it should not be recorded in

the form of examining witnesses, as laid down in Section 161 Cr.P.C.

However, it is also observed that, the entire panchnama would not be liable

to be discarded in the event of deviation from the procedure and if the

deviation occurred due to a practical impossibility, then the same should be

recorded by the Investigating Officer so as to enable him to answer during

the time of his examination as a witness in the Court of law.

Yet, in the facts of the case in hand, we have to disagree with

the said submissions. Because, the testimonies of PW-3 and PW-10 on the

point of seizure of the blood stained clothes of A-1 to A-3 is very consistent

with the Arrest Panchnamas of the respective accused. There is nothing in

the cross-examination of PW-3 and PW-10 to reject the seizure of the

clothes as aforestated. Even no specific suggestion of denying the fact that

6. (2023) 15 SCC 521

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said clothes were on the person of A-1 to A-3 and said clothes were

seized, was put to these witnesses. PW-10 has specifically deposed that he

had sealed the said clothes with wax seal and said fact was specifically

recorded in the respective Seizure Panchnamas. As noted above, PW-3 was

not cross-examined on behalf of A-2 and A-3. That apart, unlike in the case

of Arjun Rangrao Patil (supra), the clothes of A-1 to A-3 were seized

immediately after the incident. Said clothes were identified by PW-3 and

PW-10. In so far as the seizure of the clothes of PW-4 is concerned, her

testimony to that effect and identification of her clothes by herself, is not at

all challenged in her cross-examination. Moreover, PW-10 has supported

her. There is nothing indicating that it was a created evidence.

53) PW-8 has specifically deposed that on 21/07/2012, he had

forwarded the seized muddemal articles to the FSL alongwith his letter at

Exh.128, for CA purpose. The Report of the CA (Exh.136) clearly mentions

that human blood was found on the clothes of the PW-4, A-1 to A-3 and the

seized knife. The A-1 to A-3 had not explained the presence of human blood

on their clothes and the A-2 on seized the knife. Theses circumstances

supported the testimonies of PW-4, PW-5 and PW-6. In the backdrop, it is

safe to conclude that the A-2 had assaulted the three deceased by the said

knife; that, during said assault, A-1 and A-3 had pushed PW-4 and Kailas

and assaulted Kailas with fist and kick blows, therefore, the clothes on the

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person of A-1 to A-3 and the said knife got stained with the human blood.

54) Considering the evidence of PW-4, it is acceptable that there

are some omissions and contradictions in her evidence. As held in the cited

decision between Ramesh Baburao Devaskar And Others Vs. State of

Maharashtra7, when the FIR contradicts the subsequent statement before

Police and the evidence, it raises doubt on the entire investigation.

However, it is significant to note that minor embellishment, there may be,

but that itself cannot be allowed to be a foundation to discard the evidence

of the eye witnesses when it is confidence inspiring and quite dependable.

55) PW-4 is close relative of deceased Sagar and Sachin. Deceased

Kailas was friend of deceased Sachin. In the decision State of Maharashtra

Vs. Ahmed Shaikh Babajan And Others8, cited by the learned Counsel Dr.

Chaudhry, it is held that a close relative, though not characterised as an

interested witness, may be held so, if he had oblique and animus motive to

somehow convict the accused. However, in the another cited decision Anil

Phukan Vs. State of Assam9, it is enunciated that, in the normal course a

close relation would be the last person to spare the real assailant and

implicate a false person. However, the possibility that he may also implicate

some innocent person alongwith the real assailant cannot be ruled out.

7. (2007) 13 SCC 501

8. (2009) 14 SCC 267

9. (1993) 3 SCC 282

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Therefore, as a matter of prudence, Court should look for some

independent corroboration of his testimony to decide about the

involvement of the other accused in the crime. Dr. Chaudhry, emphatically

submitted that looking at the quality of the evidence on record, PW-4

cannot be rated as a “sterling witness” as enunciated by the Hon’ble

Supreme Court in Rai Sandeep Alias Deepu Vs. State (NCT of Delhi) 10 in

paragraph 22 and it reads :

“22. In our considered opinion, the “sterling witness” should
be of a very high quality and caliber whose version should,
therefore, be unassailable. The Court considering the version of
such witness should be in a position to accept it for its face
value without any hesitation. To test the quality of such a
witness, the status of the witness would be immaterial and
what would be relevant is the truthfulness of the statement
made by such a witness. What would be more relevant would
be the consistency of the statement right from the starting point
till the end, namely, at the time when the witness makes the
initial statement and ultimately before the Court. It should be
natural and consistent with the case of the prosecution qua the
accused. There should not be any prevarication in the version of
such a witness. The witness should be in a position to withstand
the cross-examination of any length and howsoever strenuous it
may be and under no circumstance should give room for any
doubt as to the factum of the occurrence, the persons involved,
as well as the sequence of it. Such a version should have co-
relation with each and every one of other supporting material
such as the recoveries made, the weapons used, the manner of
offence committed, the scientific evidence and the expert
opinion. The said version should consistently match with the

10. (2012) 8 SCC 21

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version of every other witness. It can even be stated that it
should be akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in the
chain of circumstances to hold the accused guilty of the offence
alleged against him. Only if the version of such a witness
qualifies the above test as well as all other such similar tests to
be applied, can it be held that such a witness can be called as a
“sterling witness” whose version can be accepted by the Court
without any corroboration and based on which the guilty can be
punished. To be more precise, the version of the said witness on
the core spectrum of the crime should remain intact while all
other attendant materials, namely, oral, documentary and
material objects should match the said version in material
particulars in order to enable the Court trying the offence to
rely on the core version to sieve the other supporting materials
for holding the offender guilty of the charge alleged.”

In the case in hand, when we tested the testimony of PW-4 on

the touchstone of the aforestated principles, we find that, she has passed all

the said tests. Because, her testimony is very consistent with her Report

(Exh.73), which was lodged very promptly, thus, completely ruled out the

possibility of deliberation and concoction. Secondly, her testimony was

corroborated with PW-5, PW-6, PW-10, PW-8 and the Report of C.A. None

of these witnesses had an Axe to grind against the accused. The A-1 to A-3

have failed to explain their presence at the spot, in particular, the A-2 with

the knife in the hand and human blood stains on his clothes. Thus, PW-4

can be rated as the “sterling witness”, and therefore, she cannot be

disbelieved merely because she was close relative of the deceased.

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56)             It is fact that besides relative witness PW-4, no other civilian

who had seen the incident was examined by the prosecution. However, in

view of Section 134 Evidence Act, no particular numbers of witness shall in

any case, be required for the proof of any fact. Evidence to be weighed and

not counted. The testimony of single witness is sufficient to establish any

fact, if it inspires confidence. In the case in hand, the testimony of PW-4 has

been strongly supported by two police – PW-5 and PW-6, who were neutral

to both sides. Therefore, non-examination of any member from the crowd

who had witnesses the incident is of no consequence in this case or say fatal

to the prosecution case.

57) It is obvious from the evidence that PW-4 was not acquainted

with A-4 and PW-5 was not acquainted with any of the four accused. Dr.

Chaudhry, submitted that, therefore, TIP was necessary to be held by PW-8

during the investigation. However, no such TIP was held. He submitted that

during their deposition PW-4 and PW-5 have not identified the accused

persons in the dock by pointing at them. The evidence of PW-4 that she

knew all the four accused is an omission in her Report (Exh.73) as well as

the statement before the Magistrate. Therefore, there is no substantive

identification of the individual accused in the Court. As a result, the entire

prosecution case has collapsed. To support this submission Dr. Chaudhry

has relied upon the decision in Tukesh Singh And Others Vs. State of

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Chhattisgarh11. Therein it is held that in the situation where the eyewitness

did not know the accused before the occurrence, in the normal course, it is

necessary to hold the TIP. If it is not held, the identification of such an

accused by the eyewitness in the Court becomes vulnerable. Another

decision cited is Renuka Prasad Vs. State Represented by Assistant

Superintendent of Police12. If there was an identification at the stage of

investigation, as per the precedents, it only aids the investigation and

cannot lead to conviction, unless the accused are identified in the box at the

time of trial in Court.

In this context we have noticed that PW-4 has not stated in her

Report (Exh.73) and in the statement before the Magistrate that she knew

all the four accused. Similarly, PW-5 was not acquainted with any of the

accused. Nevertheless, these circumstances are not sufficient to hold that

the identity of A-1 to A-3 was not established. Because, PW-4 has

specifically deposed that, just before the assault, all the four accused had

come close to her and to the three deceased. PW-5 has specifically deposed

that she had seen all four accused while assaulting the three deceased and

identified the accused persons before the Court as the same persons whom

she had seen at the spot. The incident had occurred in the broad day light.

It is common experience that such incidents create a long lasting impression

11. 2025 SCC OnLine SC 1110

12. 2025 SCC OnLine SC 1074

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on one’s mind. PW-6 has specifically deposed that when he had arrived at

the spot, A-1 to A-3 were present there. PW-5 had told him that A-2 and

three others with him had assaulted the injured persons. He, therefore,

apprehended the A-1 to A-3. They gave their names as Dattatray Tamble,

Sagar Tambde and Ganesh Tamble respectively. PW-6 has identified the A-2

as the same person who was present at the spot holding a knife and had

blood stains on his person and that, the A-1 and A-3 were the same persons

who were present there with the A-2. It is significant to note that PW-5 and

PW-6 both were police. Hence, they must have seen the A-1 to A-3 for

sufficient time. Therefore, according to us, it cannot be maintained that the

identity of the A-1 to A-3 was not established before the trial Court.

58) As noted above, deceased Sachin was attacked twice. As

regards the first attack, PW-4 has deposed that, when she had enquired

with deceased Sachin about the first attack, he had told her that A-1 and A-

2-Sagar Tambde who was wearing specs had assaulted him. This evidence,

however, is not sufficient to conclude that, it was A-2 who was associated

with A-1 when deceased Sachin was assaulted for the first time. Because, in

the Report (Exh.73), PW-4 had stated that when she had enquired with

deceased Sachin, he had told her that as he had asked Dattatray Tambde

(A-1) as to why he installed his stall at his place, Dattatray Tambde (A-1)

and his one associate, who was fat and wearing specs, assaulted him. At

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this part of the Report (Exh.73), PW-4 has not referred to the name of A-2.

Secondly, in the said Report, both A-2 and A-4 were referred to as the fat

person with specs. However, there is no evidence to establish the identity of

the fat person wearing specs who was associated with A-1 at the time of the

initial assault on Sachin.

59) PW-4 has admitted that she had described the fourth accused

as the person wearing thick spectacles. PW-4 has admitted that, her

narration in the Report that the person wearing thick specs was A-2, Sagar

Tambde, was correct.

Nevertheless, the said admissions are not sufficient to hold that

the prosecution has failed to establish as to who from the A-2 and A-4 had

assaulted the three deceased during the subsequent assault. Because, on a

careful reading of PW-4’s Report (Exh.73), it can be seen that, when A-2

had assaulted deceased Sagar with the knife, PW-4 had referred the A-2 as

“the fat person wearing specs namely Sagar Tambde ( चष्मा घातले ल्या जाड

इसम सागर तांबडे याने )”. Similarly, when A-2 had assaulted deceased Kailas

with the knife, PW-4 had referred the A-2 as “fat – specs wearing Sagar

Tambde (जाड चष्मे वाल्या सागर तांबडे याने )”. Thus, never PW-4 had referred

the A-2 with/using words “thick specs”. As such, in our view, the mistaken

admissions stated in the opening of this paragraph are of no avail to the

defence. In this regard following observations in case of Jayshri Yadav Vs.

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State of U.P.13 are relevant and it reads: “When a witness is subjected to

lengthy and arduous cross-examination over a lengthy period of time, there

is always a possibility of his committing mistakes which can be termed

‘omission’, ‘improvements’ and ‘contradictions’.” Thus, in the words of the

Hon’ble Supreme Court, those infirmities have to be appreciated in the

background of the entire relevant material and not in isolation.

As admitted by PW-5, the said four persons (assailants) were

from different age group. Before the Magistrate, PW-5 had stated that he

was aged man wearing white clothes who was holding a knife. However,

these circumstances are also not sufficient to doubt the veracity of the

prosecution case. Because, the evidence of PW-4, PW-5, the Report (Exh.73)

and the C.A. Reports only pointing at A-2, who was fat, had specs and had

assaulted the three deceased and committed their murder. Moreover, A-2 is

son of A-1 and the dispute about the place of the business had arisen

between the A-1 and the deceased Sachin.

60) However, we find it difficult to accept that the identity of A-4

was satisfactorily proved by the prosecution as one of the co-accused who

had accompanied with the rest accused and shared the common intention

to commit the murders. Because, in the report (Exh.73) PW-4 had not

stated that she knew the A-4. Admittedly, A-4 was unknown to PW-4 and

13. AIR 2004 SCC 1443

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PW-5. However, the prosecution has not clarified as to on what basis PW-4

has deposed that she knew the A-4. Although PW-5 has identified the A-4,

he had fled away before he could be apprehended. In this background, the

PW-8 should have held the TIP to confirm the identity of the A-4 as one of

the co-accused. However, the TIP was not held. On the contrary, as deposed

by PW-8, after apprehending the A-4 he was shown to PW-4 to confirm his

involvement in the crime and then charge-sheet was filed against him. This,

according to us, was not proper. Therefore, it would be risky to hold that

the A-4 was the same person who was associated with the other accused at

the time of the assault on the three deceased and that he had also

participated in the assault.

61) In view of the above discussion, we conclude that, at the

relevant time and place of the incident, first, deceased Sachin was assaulted

by A-1 and his associate who was fat and wearing specs and later on all the

three deceased were assaulted by A-2 and at that time, A-1, A-3 and an

unknown accused were present with him.

62) Now, the question is whether the A-1 to A-3 and the unknown

accused in furtherance of their common intention had committed the

murder of the three. As noted from the evidence of PW-4, in the first

assault, Sachin had sustained only one injury on the neck. It should be the

external injury No.13, i.e., “Incised wound over, occipital region, on right

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side, 2 x 1 cm by bone deep, vertical margins clean cut, reddish.” The

statement made by deceased Sachin before PW-4 immediately after the first

assault was in the nature of a dying declaration as against A-1 and his

associate who was fat and wearing specs. Independently, the said injury was

not sufficient to cause the death of Sachin in the ordinary course of nature.

However, it must be noted that when Kailas met PW-4, he had also told her

that A-1 had assaulted deceased Sachin. Said disclosures by deceased

Sachin and Kailas were relevant u/Sec. 6 of The Evidence Act. Soon after,

the first assault, all three deceased were assaulted by A-2 when A-1 was

also present there. This presence is relevant u/Sec.8 of the Evidence Act.

62.1) Next, we have noted that, immediately after the first assault,

when PW-4 and Kailas were enquiring with deceased Sachin, the A-1 to A-3

and the unknown accused came there and abused to PW-4, deceased Sagar

and deceased Kailas. At that very juncture, A-2-Sagar Tambde took out a

knife and stabbed deceased Sagar in the abdomen and the neck. However,

the rest accused persons did not stop the A-2 and he continued inflicting

the injuries which are 8 in numbers including one abrasion. Additionally,

the attempt of PW-4 and Kailas to rescue deceased Sagar was foiled as the

accused persons had pushed them and assaulted Kailas with fist and kick

blows. And A-2, Sagar Tambde stabbed Kailas in the abdomen and the neck.

Therefore, PW-4 again tried to intervene in the quarrel, but now, A-3 had

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stopped her threatening to stay away, otherwise, he will kill her. A-2 Sagar

Tambde then stabbed Sachin in the chest and abdomen. However, the other

accused persons even did not think it to intervene and stop him from

causing the fatal injuries to Kailas and Sachin. Consequently, Kailas and

Sachin had suffered large number of knife injuries. In other words, the rest

three accused let the barbaric murder happen in their presence, thus,

abetted the A-2 for the same. The testimony of PW-5 also indicates that

when the A-2 was assaulting the three deceased, the rest accused were

beating them. Therefore, we are of the considered view that the A-1, A-3

and the unknown accused had shared the common intention with the A-2

for committing the murder of deceased Sagar, Kailas and Sachin.

63) The conspectus of the above discussion is that A-2 was guilty of

offence of Section 302 I.P.C. for committing murder of the three deceased

and the A-1 and A-3 were guilty under Section 302 and 34 I.P.C. as they

alongwith an unknown accused had shared the common intention with the

A-2 to commit the murders. However, there is no sufficient evidence to hold

that A-4 was the same unknown accused who was associated with A-1 to A-

3. Yet, the trial Court failed to appreciate the evidence on record with that

perspective and therefore, erroneously held the A-4 guilty of the three

murders by virtue of Section 34 I.P.C. As such, the impugned Judgment is

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suffering from infirmity to that extent and liable to be set aside, accordingly.

In the result, the Appeals by A-1, A-2 and A-3 are liable to be

dismissed and the Appeal by A-4 deserve to be allowed. Hence, we pass the

following Order :-

(a) Criminal Appeal No.1540/2018 filed by Dattatraya
Ramchandra Tambde (Accused No.1), Criminal Appeal
No.908/2024 filed by Sagar Dattatraya Tambde (Accused
No.2) and Criminal Appeal No.474/2017 filed by Ghansham
Dattatraya Tambde (Accused No.3) are dismissed.

(b) Criminal Appeal No. 341/2017 filed by Vinayak Madhav
Chavan (Accused No.4) is allowed.

(c) The impugned Judgment and Order of conviction and sentence
dated 29/03/2017, passed in Sessions Case No.830/2012 by
the learned Additional Sessions Judge, Pune is upheld against
Accused Nos.1 to 3 and quashed and set aside to the extent of
Accused No. 4.

(d) The Appellants – Vinayak Madhav Chavan (Accused No.4) is
acquitted of the offence punishable under Sections 302 and 34
of the I.P.C.

The fine amount, if paid by Accused No. 4, shall be returned.

(e) Record indicates that, presently Appellant – Vinayak Madhav
Chavan (A-4) has been lodged in Yerwada Central Prison,
Pune.

Hence, the Appellant – Vinayak Madhav Chavan (A-4),
shall be released from the prison forthwith, if not required to
be detained in any other crime/case.

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(f) Appellant – Vinayak Madhav Chavan (A-4) shall execute a P.R.
Bond in the sum of Rs.50,000/- each with one surety in the like
amount under Section 437A of the Cr.P.C.(corresponding to
Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023)
for his appearance, in case an Appeal is preferred.

64) The Appeals are disposed of. As a result, pending Interim

Applications does not survive and stand disposed off, accordingly.

  (SHYAM C. CHANDAK, J.)                             (BHARATI DANGRE, J.)




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Ghansham Dattatraya Tambde vs The State Of Maharashtra on 26 March, 2026

Bombay High Court