Bombay High Court
Babu Sakharam Dive And Ors vs The State Of Maharashtra on 22 April, 2026
Author: Manish Pitale
Bench: Manish Pitale
2026:BHC-AS:19066-DB
Cr.A.1113-2012.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1113 OF 2012
1. Babu Sakharam Dive
Age- 70 Yrs.
Occ. Agriculturist
2. Laxman Raoji Dive
Age- 60 Yrs.
Occ. Agriculturist
3. Tryambak Raoji Dive
Age- 60 Yrs.
Occ. Agriculturist.
All r/o. Village Ojharkhed,
Tal. & Dist. Nashik. ...Appellants
Digitally (Ori. Accd.Nos.1, 2 & 4)
signed by
VISHAL
VISHAL SUBHASH
SUBHASH PAREKAR
vs.
PAREKAR Date:
2026.04.22 The State of Maharashtra ...Respondent
19:35:36
+0530
Mr. Shrirang Katneshwarkar a/w. Mr. Sandeep Gupta, for the Appellants.
Ms. Sangita Phad, APP for the State.
CORAM : MANISH PITALE &
SHREERAM V. SHIRSAT, JJ
RESERVED ON : 23rd JANUARY, 2026
PRONOUNCED ON : 22nd APRIL, 2026
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JUDGMENT (Per Shreeram Shirsat, J.)
1. The present Appeal has been filed by the Appellants challenging the
Impugned Judgment and Order dated 21.09.2012 passed by the Additional
Sessions Judge, Nashik in Sessions Case No. 41/2010 whereby the
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Appellants have been convicted under section 302 r.w. section 34 of the
Indian Penal Code (IPC) and are sentenced to undergo Imprisonment for
life and pay a fine of Rs. 1,000/- each and in default to undergo Rigorous
Imprisonment for 2 months each. The Appellants have also been convicted
for offence under section 324 r.w. section 34 of IPC and are sentenced to
undergo Rigorous Imprisonment for one year and to pay a fine of Rs. 500/-
each and in default to undergo Rigorous Imprisonment for 1 month each.
2. During the pendency of the Appeal, Appellant No. 3 expired and
therefore, in so far as Appellant No. 3 is concerned, the Appeal is abated.
This Court vide order dated 17th December, 2025 recorded the said fact.
3. Before proceeding with the facts of the case it will be advantageous to
give the names of all the accused and their status after conclusion of the trial,
in a tabular form for easy reference.
Sr Name of Accused Sentenced by Trial Court
1. Babu Sakharam Dive( Appellant No 1) Convicted u/s 302 and
324 r/w 34 of IPC
2. Laxman Raoji Dive ( Appellant No 2) Convicted u/s 302 and
324 r/w 34 of IPC
3. Shivaji Babu Dive Acquitted
4. Tryambak Raoji Dive(Appellant No 3) Convicted u/s 302 and
324 r/w 34 of IPC
5. Pandurang Raoji Dive Acquitted
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6. Somnath Tryambak Dive Acquitted
7. Bhavadu Babu Dive Acquitted
8. Vishnu Laxman Dive Acquitted
4. Brief Facts of the prosecution case are as under:
a. On 02/04/2009 at about 9.00 p.m. in front of
the house of Manglu Dive (PW 3) situated at village
Ojharkhed, all accused being members of unlawful
assembly in pursuance of common object of such assembly
committed offence of rioting and assaulted Kashiram on
his head by means of sticks and stones. It is also the case of
the prosecution that the accused also caused voluntarily
hurt to the witnesses viz PW1 Sampat, PW2 Ramnath,
PW3 Manglu, PW5 Tarabai, PW9 Anusayabai by means of
sticks & stones and thereby caused injuries to them. It is
further the case that thereafter Chandrabai Bendkule
reached the spot and brought the deceased Kashiram, PW3
complainant Manglu, PW1 Sampat and all other injured
persons to Civil Hospital, Nashik.
b. It is further the case that on 3/4/2009 at 13:05
hours, NC complaint came to be registered by PW 1
against Tryambak Ramji Dive, Babu Sakharam Dive,
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Laxman Ravji Dive, Somnath Tryambak Dive, Bhavdu
Babu Dive , Shivaji Babu Dive, Vishnu Laxman Dive
under section 323, 504, 506 IPC.
c. It is further the case that on 3/4/2009 at 00:35
hours, Mahadu Babu Dive also registered NC complaint
against Rangnath Manglu Dive, Sampath Hari Dive
( PW1), Lahanu Sampat Dive, Laxman Hari Dive under
section 323, 504, 506 IPC.
d. It is further the case that one complaint of PW1
came to be recorded on 3/4/2009 and also the statement of
PW3 came to be recorded.
e. PW1 Sampat and PW3 Manglu were discharged
from the hospital on 05.04.2009. On 09.04.2009 PW3,
Manglu went to Nashik Taluka Police Station and lodged
complaint regarding the incident that happened on
2/4/2009.
f. On the basis of his complaint, Taluka Police
Station registered FIR against all the accused vide CR
No.26/2009 under sections 143, 147, 148, 326, 504 and
506 r/w S. 149 of the Indian Penal Code and under
Section U/s 37(1) r/w S. 135 of Bombay Police Act.
g. Thereafter investigation commenced. The IO
recorded the statements of witnesses, namely PW1 Sampat
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Dive, PW2 Ramnath, PW9 Anusayabai Dive and PW5
Tarabai Dive. He arrested the accused nos. 1 Babu Dive
( Appellant No. 1), Accused No. 2 Laxman Raoji Dive
(Appellant No. 2) and Accused No. 3 (Shivaji Dive) on
the same day.
h. On 10.4.2009, injured Kashiram died in Civil
Hospital, Nashik. The Investigating Officer after getting
information added section 302 of Indian Penal Code and
gave information to Judicial Magistrate First Class, Nashik.
i. Accused nos. 4 Tryambak Dive (Appellant No
3) and Accused No 5 (Pandurang Dive) were arrested on
10.04.2009 and Accused nos. 6 (Somnath Dive), Accused
No 7 (Bhavdu Dive) and Accused No 8 (Vishnu Laxman
Dive) were arrested on 11.4.2009.
j. The charge-sheet came to be filed in the court of
Chief Judicial Magistrate, Nashik on 05.01.2010. The case
was thereafter committed to the Court of Session, Nashik
on 03.02.2010 for trial and disposal.
5. The prosecution in all examined all 13 witnesses in support of the
charges. No witness was examined on behalf of the defence.
6. The following 13 witnesses were examined by the prosecution during
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the course of trial:
Witness Name Nature of Evidence
PW1 Sampat Hari Dive Injured eyewitness/ nephew of the
deceased-Kashiram.
PW2 Ramnath Mahadu Dive Son of Manglu Malhari Dive
PW3 Manglu Malhari Dive Injured eyewitness and Complainant
PW4 Dr. Varsha Suresh Ahirrao Medical Examiner
PW5 Tarabai Mangalu Dive Wife of Manglu Malhari Dive (PW3)
PW6 Bhimrao Pandurang (Turned hostile)
Jadhav Panch witness for recovery of stones
and sticks from the house of Accused
No 3 - Shivaji (who was acquitted)
PW7 Motiram Mohan Achari (Turned hostile)
Driver who had taken the injured to
the Nashik Civil Hospital.
PW8 Ramesh Gangadhar Jagzap Head Constable, who registered the
crime no. 26/2009 on complaint.
PW9 Anusayabai Kashiram Wife of the Deceased- Kashiram
Dive
PW 10 Dr. Makarand Pandurang Medical Officer who conducted post-
Patil mortem examination of Kashiram-
the Deceased.
PW 11 Suraj Ruplal Sonawane Investigating Officer
(Recorded statements of witnesses on
2.8.2009, namely Motiram, Kacharu,
Namdeo and others.)
PW 12 Namdeo Mohan Shelke Nephew of Sampat Dive. He had
taken Kashiram- the Deceased to the
hospital along with Chandrabhagabai
(sister-in-law).
PW 13 Madhukar Gorakh Satote Investigating Officer
7. After hearing the arguments of prosecution and defence, vide order
dated 21/9/2012, the Sessions Court was pleased to convict the Appellants
i.e the original accused no 1,2,4 under Section 302 r/w 34 of the Indian
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Penal Code (IPC) and were sentenced to undergo Imprisonment for life and
pay a fine of Rs. 1,000/- each and in default to suffer Rigorous
Imprisonment for 2 months. The Appellants were also convicted for offence
under section 324 r/w section 34 of IPC and were sentenced to undergo
Rigorous Imprisonment for one year and to pay a fine of Rs. 500/- each and
in default to undergo Rigorous Imprisonment for 1 month each.
8. The trial court however acquitted the original Accused Nos. 3 and 5
to 7 under Section 302 read with Section 34 of the IPC and all the accused
including present Appellants from the offence punishable under Sections
143, 147, 148, 149, 504, 506 and 326 of the Indian Penal Code and Section
37(1) read with Section 135 of the Bombay Police Act.
9. Being aggrieved by the said impugned judgment and order of
conviction dated 21.09.2012 in Sessions Case No. 41/2010, passed by the
Additional Sessions Judge, Nashik, the Appellants have approached this
Hon’ble Court by way of Appeal.
10. We have heard Mr. Shrirang Katneshwarkar, the Learned Counsel for
the Appellant and Mrs. Sangeeta Phad, the Learned APP for the
Respondent-State.
11. The Learned Counsel for the Appellants has submitted that the
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evidence that has been brought on record is not sufficient to convict the
Appellants. The learned Counsel for the Appellant has submitted that there
is delay of 7 days in registration of FIR for which there is no plausible
explanation and therefore the possibility of the Appellants being falsely
implicated due to the previous enmity between them cannot be ruled out.
Ld. Counsel has further submitted that there are material discrepancies,
omissions and contradictions in the evidences of all the injured eye witnesses
on several material aspects, which makes the case of the prosecution highly
doubtful leading to the possibility of false implication. The Learned counsel
has further submitted that initially NC was registered and thereafter the FIR
came to be registered after a gap of 7 days and there are material
improvements in the FIR. The Learned Counsel has further submitted that
FIR was registered without following the mandate as enumerated in section
155(2) of CrPC. He has further submitted that there is no valid recovery of
weapons and recovery is not proved. The Learned Counsel has submitted
that the accused from whom the recovery is made has been acquitted by the
trial court and there is no recovery at the instance of the present Appellants.
The Ld. Counsel also submitted that the Appellant No. 1 is 84 years old and
Appellant No. 2 is 74 years and therefore their case be considered
sympathetically. The Ld. Counsel has further submitted that on the same set
of facts, the other co-accused have been acquitted and therefore the present
Appellants also deserve to be acquitted on the grounds of parity.
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12. The Learned Counsel for the Appellants has relied upon following
judgments:
(b) Jitendra Namdev Daravkar vs. The State of Maharashtra2. (c) Chander Pal vs. State of Haryana3. (d) Thulia Kali vs The State of Tamil Nadu4. (e) Khema Alias Khem Chandra and Ors.vs. State of U.P.5. (f) Kartarey And Others vs. The State of U.P.6. (g) Chunthuram vs. State of Chhattisgarh,7.
13. Per contra the Ld. APP has submitted that although the police have
registered a Non-Cognizable complaint in a cognizable and serious offence
at the initial stage, for the fault of the police, the case of the prosecution
should not suffer, which is otherwise proved by the prosecution witnesses.
She has submitted that is no delay in the registration of the FIR as the
injured witnesses had immediately approached the police station and it is the
fault of the police that despite the seriousness of the offence, it failed to
register FIR and instead recorded NC. She has further submitted that the
evidence of injured witnesses corroborates each other in material aspects and
it is also supported by the medical evidence. Ld. APP further submitted that
minor omissions have not demolished the fabric of the prosecution case. She
further submitted that due to the pre-meditated acts of the Appellants, an
1
2025 SCC OnLine Bom 4813 (Bombay High Court)
2
Cr.WP No. 4055 of 2025 (Bombay High Court)
3
(2002) 2 Supreme Court Cases, 755.
4
(1972) 3 Supreme Court Cases 393.
5
(2023) 10 Supreme Court Cases 451.
6
(1976) 1 Supreme Court Cases 172.
7
(2020) 10 Supreme Court Cases 733.
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innocent person has lost his life and that it is not a case of sudden quarrel.
The Ld. APP therefore submitted that the trial court has rightly convicted
the Appellants and considering the nature of evidence that has been brought
on record, conviction deserves to be maintained.
14. The Ld. APP has relied upon following judgments :
(b) Baljinder Singh @ Ladoo And Others vs. State of Punjab,9.
15. Considering the various issues raised during the course of arguments,
it will be necessary to deal with the same and to minutely analyze the
deposition of the material witnesses, to see whether on re-appreciation of
evidence led before the Sessions Court, the judgement recording conviction
of the Appellants for offence under section 302, 324, 34 of the IPC is
proper and maintainable.
16. Before analysing the evidence, it will be pertinent to deal with the
preliminary core issues raised by the Ld. Counsel for the Appellants.
17. The first contention raised by the Ld. Counsel for the Appellants is
that the investigation could not have commenced pursuant to registration of
8
AIR 2012 SC 3046.
9
Cr.A. 1389 of 2012 (Supreme Court)
10
(2011) 106 AIC, 76.
11
AIR OnLine 2023 SC 229.
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NC complaint and that permission ought to have been obtained from the
Ld. Magistrate as mandated under section 155(2) of Cr.PC. To buttress his
submissions, the Ld. Counsel has relied upon the judgment of this court in
Jitendra Namdev Daravkar v. State of Maharashtra Cr W.P No. 4055 of
2025 (Para 9) wherein it has been observed as under:
“9. It was, thus, concluded that, if on the narration of additional
facts, the Police desires to register an FIR in the backdrop of a non-
cognizable offence having been registered with reference to same
incident, he is required to approach the Magistrate under Section
174 of the BNSS (earlier Section 155 of the Cr.P.C.), seeking an
order to investigate. Without such order of the Magistrate, the
officer is not expected to investigate a non-cognizable case, which is
later on converted into an FIR. Under Section 174(2) of the BNSS,
with the clear bar on investigating an NCR without the order of a
Magistrate, Sub-section 3 of Section 174 of the BNSS, permits a
Police Officer, after receiving such order, to exercise the same
powers in respect of the investigation as an officer in charge of a
Police Station may exercise in a cognizable case.”
18. To counter this issue, the Ld. APP sought to rely upon the judgment
of Dayal Singh & Ors. V/S State of Uttranchal, (2012) SCC 263, wherein it
has been held as under :
“22. Now, we may advert to the duty of the Court in such cases.
In the case of Sathi Prasad v. The State of U.P. [(1972) 3 SCC
613], this Court stated that it is well settled that if the police
records become suspect and investigation perfunctory, it becomes
the duty of the Court to see if the evidence given in Court should
be relied upon and such lapses ignored. Noticing the possibility
of investigation being designedly defective, this Court in the case
of Dhanaj Singh @ Shera & Ors. v. State of Punjab [(2004) 3
SCC 654], held, “in the case of a defective investigation the Court
has to be circumspect in evaluating the evidence. But it would not
be right in acquitting an accused person solely on account of the
defect; to do so would tantamount to playing into the hands of
the investigating officer if the investigation is designedly
defective.
19. There can be no doubt about the propositions of law laid down in the
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aforementioned judgments. However, after going through the relevant
evidence, we do not find that the police commenced the investigation on an
NC complaint and later on converted it into FIR. No doubt there is a partial
infarction of section 155(2) of CrPC in terms of two statements of PW 1 and
one Mahadu Babu Dive (not an accused), which were recorded pursuant to
NC, however the police officer recording the statement pursuant to NC
complaint has explained to PW 1 and Mahadu Babu Dive who lodged the
NC complaint, to approach the Ld. Magistrate for the registering the
complaint and has not proceeded or taken any steps to convert the NC into
FIR. The FIR came to be registered on 09.04.2009 after which the
investigation has commenced in a cognizable offence. Even though there is a
partial infarction in terms of recording of statement, the same cannot be the
sole ground to reach any conclusion which would inure to the benefit to the
accused, without marshalling the evidence that has come on record.
20. The Ld. Counsel for the Appellant further submitted that there is
delay in the registration of FIR, which in the facts and circumstances of the
case has to be considered very seriously since there is high probability of
deliberate false implication and more specifically in this case where there has
been previous enmity. This issue will be dealt later on after going through
entire evidence of the witnesses and hence the same is not dealt at this stage.
21. The Ld. Counsel for the Appellant has argued that there is
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discrepancy in the evidence of witnesses with respect to the time, number of
Accused present at the spot, the mystery about the very spot of incident and
the convoluted evidences of the witnesses who were injured. It will therefore
be necessary to scrutinize and scan their evidences threadbare to arrive at
just and proper conclusion.
22. PW1, Sampat Dive, the injured witness, has deposed that on
02.04.2009 at around 9:30 p.m, Pandurang (Accused No 5), Tryambak
(Accused No 4), Laxman (Accused No 2), Babu (Accused No 1), Vishnu,
Somnath (Accused No 8), Shivaji (Accused No 3) and Bhavadu (Accused
No 7) came to his house and started assaulting him and the deceased-
Kashiram, Manglu, Ramnath with wooden logs, stones, fist and kicks.
Whereas, PW2, Ramnath has deposed that the above named accused came
to his house at around 9:30 p.m. and started assaulting him, Manglu,
Tarabai, Kashiram, Anusayabai, Sampat, Lahanu, Laxmibai, PW3, Manglu
Dive has deposed that while they were all sitting in the courtyard,
Pandurang started abusing Ramnath Dive in filthy language. Thereafter, on
hearing the shouts of Pandurang and all the other accused, i.e. Laxman,
Vishnu, Babu, Shivaji, Bhavdu, Tryambak and Somnath arrived at the spot
and started assaulting him, the deceased Kashiram, Ramnath, Sampat with
sticks and stones. PW5, Tarabai has deposed that at 7:00pm, Pandurang
intercepted her son and started abusing him in filthy language under the
influence of liquor and has further deposed that after they intercepted,
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Laxman called Babu, Pandurang, Somnath, Tryambak, Bhavadu, Shivaji and
Vishnu, and everyone came running to the spot and started assaulting her,
Manglu, deceased- Kashiram, Anusayabai. PW9, Anusayabai has deposed
that at about 9:00 pm, they heard noise coming from Manglu’s house. She
has deposed that she and her husband came out of the house and saw that
the accused were holding sticks and stones in their hands. She has deposed
that the Accused assaulted her, deceased- Kashiram, Manglu and Sampat.
Apart from this, the MLC register records the time of the incident as 8:00
p.m. Therefore, it can be seen that all the four witnesses are at total variance
with each other with respect to the timing of the incident and how many
witnesses were assaulted. Further, PW1 and PW2 have stated that the
Accused came to their house and assaulted them, whereas the other
witnesses have deposed that the incident took place outside in the courtyard.
Therefore, even the witnesses who claim to be injured are also at variance
about the spot of incident.
23. Further discrepancy can be noticed with respect to the assault that
took place near Maruti temple. PW.1, Sampat has deposed that after they
were assaulted, he went to Maruti temple to make a phone call to the police
where he was chased by Vishnu (Accused No 8), Bhavadu (Accused No 7)
Shivaji (Accused No 3) and Somnath (Accused No 6), who had assaulted
him at that spot as well. PW2, Ramnath has deposed that after they were
assaulted, he along with Sampat went to the Maruti temple to make a phone
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call to the police, where they were chased by all the accused and assaulted
near that place at the house of one Kacharu Somaji Dive. Whereas , PW3,
Manglu has deposed that after they were assaulted, Sampat Hari went to
Maruti Temple to make a phone call. PW5, Tarabai has deposed that after
they were assaulted, Ramnath and Sampat went to Maruti Temple to inform
the police. PW9, Anusayabai has not deposed about Sampat or Ramnath
going to the Maruti Temple and being assaulted there. Therefore, it is
pertinent to note that PW2 Ramnath in his deposition states that he had
accompanied PW1 Sampat to the Maruti Temple, whereas, Sampat himself
has deposed that it was only he who had gone to the Maruti Temple to
inform the police. Sampat Dive has deposed that he was chased by Accused
Vishnu, Bhavadu, Shivaji and Somnath till the Maruti Temple, whereas,
Ramnath has deposed that they were chased by all the accused. Ramnath has
deposed that he and Sampat were assaulted near Maruti Temple at the house
of one Kacharu Somaji Dive, but, the Prosecution has failed to examine
Kacharu Somaji Dive although his statement was recorded. Thus, there is
sustained discrepancy as to who was assaulted by whom near the Maruti
Temple.
24. If the evidence is further perused, it can be seen that it is enigmatic as
to what act the accused have committed in the melee. The prosecution
witnesses have also failed to ascribe any precise role to the Accused. Except
PW5, Tarabai, no other witnesses in their respective depositions have
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described any specific roles of the accused as to who were holding stones and
who were holding sticks in their hands. It will be pertinent to ascertain this
aspect. PW5 Tarabai in her deposition has stated that Babu, Laxman,
Tryambak and Pandurang were having stones in their hands and Vishnu,
Somnath, Bhavadu and Shivaji were having wooden sticks in their hands.
PW9, Anusayabai has deposed that she was assaulted by Laxman on her
backside by a stick. This statement is contradictory to the deposition of
PW5, Tarabai who has specifically stated that Laxman was having stones in
his hands. PW3, Manglu, in his deposition has stated that while the accused
were assaulting others, Tarabai, his wife had intervened after which she was
also assaulted. Whereas, Tarabai, PW5 in her deposition is silent about any
such intervention, moreover she has deposed that as soon as all the accused
reached the spot of incident, all of them started assaulting her, Manglu,
deceased-Kashiram, Anusayabai. PW3, Mangalu has deposed that he
sustained injury on his head, stomach, legs and hands, whereas, PW4, Dr.
Varsha in her deposition has stated that upon examining Manglu she found
following injuries i.e. Blunt Trauma over right thumb, swelling of right
thumb and history of blunt trauma over left gluteal region. She has further
deposed that she couldn’t form any opinion as there were no visible injuries
from physical examination, therefore X-ray of right hand and left hip were
taken, and the reports were normal, hence the injuries were of simple nature.
PW1, Sampat has deposed that he had sustained injuries on his back and
chest. Whereas, PW4, Dr. Varsha in her deposition has stated that she
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examined Sampat Hari Dive and found the injuries, namely abrasion over
back of size 4 x 2 cm wherein weapon used is hard and blunt object and that
the age of injury is within 12 hours and it was simple injury, secondly, there
is history of blunt trauma on head and over left ear. She has further deposed
that there was no external evidence and when X-ray of skull was taken, it
came to be normal. Therefore, even to that extent there is a material
discrepancy which cannot be brushed aside.
25. Notably, the discrepancy is further demonstrated by these witnesses
when there is convolution in their depositions about who took them to the
hospital. Pw1, Sampat has further deposed that as there was no one to take
the injured witnesses to the hospital, his cousin Chandabai (Chandra bai)
Bhaskar Bendkule hired one vehicle that took all of them to Civil Hospital,
Nashik. PW2, Ramnath has further deposed that thereafter they called their
relatives i.e. Chandrabai and Namdeo Shelke who carried them to the Civil
Hospital, Nashik in a vehicle. PW5, Tarabai has further deposed that some
person had informed about the incident to her daughter, Chandrabhaga who
then hired a vehicle and took all the assaulted persons to Nashik Civil
Hospital. PW9, Anusayabai has further deposed that Chandrabai and
Namdeo took injured Kashiram and Sampat to Civil Hospital, Nashik.
PW12, Namdeo has deposed that his sister-in-law Chandrabhagabai had
come to his house seeking help to accompany her to the Civil Hospital, at
around 11:30 pm to which Namdeo agreed and took Kashiram to the Civil
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Hospital. It is pertinent to note that Chandrabhaga, who had taken the
injured witness to the hospital from the spot of incident has not been
examined by the Prosecution but only Namdeo has been examined who had
accompanied Chandrabhaga at her request and who has only mentioned
taking deceased Kashiram to the Civil Hospital and not the rest of the
injured people. PW 2 Ramnath in his deposition has stated that he had
called his relatives, i.e. Chandrabhaga and Namdeo who carried them to the
Civil Hospital, whereas PW12 Namdeo in his deposition has stated that it
was Chandrabhaga who came to his house directly from where he had
accompanied her to the hospital. The deposition of PW2 stands in direct
conflict with PW12, Namdeo Shelke, who has deposed that it was
Chandrabhagabai who came to his house in a jeep with Kashiram, narrated
the entire account of the quarrel, and thereafter requested him to accompany
her to the hospital. The two versions are irreconcilable i.e. if Chandrabhaga
had already proceeded to Namdeo’s house with Kashiram, PW-2 Ramnath
could not have called both of them from the spot. PW7, the driver who took
the injured to the civil hospital has turned hostile. The medical record of the
hospital shows that the injured were brought to the hospital by PW2
Ramnath. This Court further notes that Chandrabhaga, who finds consistent
mention across multiple depositions as the person who organized the
transport and possessed first-hand knowledge of the incident, has not been
examined by the prosecution, which is a significant lacuna warranting an
adverse inference.
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26. Therefore, from what has been discussed so far, it can be
conspicuously noted that there is no consistency in the depositions of the
witnesses on any material aspect and therefore it raises a doubt about the
genesis of the prosecution case especially when there is delay in lodging the
FIR.
27. Coming to the most crucial aspect of this appeal, what falls for
consideration is whether the prosecution has established its case beyond
reasonable doubt that the Appellants were the ones who struck the vital
blow that led to the death of deceased Kashiram, or whether the death of
Kashiram could have been caused by a fall during the course of the scuffle.
This Court has carefully cogitated the deposition of each prosecution witness
on this specific point. There is no doubt that some altercations have taken
place on the night of 02.04.2009. However, the manner in which the
prosecution has sought to portray the incident and the extent of the alleged
assault appears to be considerably exaggerated when tested against the
medical evidence and the material omissions established through the cross-
examination of PW13, the Investigating Officer. The real question that falls
for determination is whether, on the evidence brought on record, the charge
under Section 302 IPC read with Section 34 IPC can be said to have been
proved against the Appellants, specifically.
28. PW-1, Sampat Hari Dive, the injured eyewitness and nephew of the
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deceased, has deposed that on 02.04.2009 at around 9.30 p.m., Pandurang,
Tryambak, Laxman, Babu, Vishnu, Somnath, Shivaji and Bhavadu came to
their house and started beating deceased Kashiram, Manglu, Ramnath and
him with wooden logs, stones, fists and kicks. A careful reading of this
deposition reveals that this witness makes no more than an omnibus
statement. He attributes the assault collectively to all the named accused
without assigning any particular role, or any specific act, to any one of them.
He does not state which accused struck deceased Kashiram, with what type
of weapon, at what point during the incident, or which blow it was, that
caused the fall. The general, sweeping statement in the absence of any
specific attribution to any specific accused in the deposition cannot by itself
form the basis of a conviction for the charge of murder against the
Appellants. PW-2, Ramnath Mahadu Dive, another injured witness, has
deposed that Pandurang, Vishnu, Laxman, Babu, Shivaji, Bhavadu,
Tryambak and Somnath came and started assaulting Manglu, Tarabai,
Kashiram, Anusayabai, Sampat, Lahanu, Laxmibai and him. He then states
that Kashiram was assaulted by wooden sticks and fell down as he became
unconscious. The deposition of this witness is significant in two respects.
First, like PW-1, he too does not attribute any specific act to any specific
accused. No individual accused is named as having struck the deceased.
Second and of greater significance, this witness specifically states that the
assault on Kashiram was by wooden sticks. It is an admitted and proved
position on record that the three Appellants, Accused Nos. 1, 2 and 4, were
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holding stones and not wooden sticks, as specifically deposed by PW-5.
Thus, according to the version of PW-2 himself, the weapon that caused the
fall of Kashiram was a wooden stick, which is a weapon held not by the
Appellants but by the accused who have not been convicted under Section
302 IPC by the trial court. PW-3, Manglu Malhari Dive, the complainant
and brother of the deceased, has deposed that Laxman, Vishnu, Babu,
Shivaji, Bhavadu, Tryambak and Somnath arrived and started assaulting
Kashiram, Ramnath, Sampat and him by sticks and stones. He states that his
wife Tarabai intervened and was also assaulted. He further deposes that
Kashiram had fallen down at one side due to the assault. This witness also
makes no specific attribution of the fatal blow to any accused. It is further
pertinent to note that PW-3 himself admitted in cross-examination that he
did not state to the police that Kashiram had fallen down. The fact of
Kashiram falling, which is a vital circumstance going directly to the cause of
death, has thus come on record by way of an omission and is therefore of
considerably diminished evidentiary value. That such a significant fact was
not mentioned to the police immediately after the incident, raises a serious
question as to whether Kashiram’s falling down was perceived at that time as
a direct consequence of an assault or as a consequence of some other cause.
PW-5, Tarabai Mangalu Dive, wife of PW-3, is the witness whose deposition
is of the greatest significance on this point and which in fact operates most
strongly in favour of the Appellants. She has specifically deposed that Babu,
Laxman and Tryambak, the three Appellants, along with Pandurang, were
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holding stones in their hands, whereas Vishnu, Somnath, Bhavadu and
Shivaji (the acquitted accused) were holding wooden sticks. She further
states that the accused started assaulting Manglu, deceased Kashiram,
Anusayabai and her, and that during the assault, Kashiram sustained severe
injuries and injuries to his stomach and eye ball. This witness too makes no
specific attribution. She does not state that any one of the Appellants
specifically struck deceased Kashiram on the head. What is of critical
importance is the weapon attribution this witness makes. The three
Appellants who stand convicted had stones. The accused who had wooden
sticks stand acquitted. The post-mortem conducted by PW-10 establishes
that the cause of death was a head injury. Further there is a fracture of the
right parietal bone with intra-cerebral bleeding and extra-dural haematoma.
These are the injuries which appear to be more consistent with a blow from a
hard blunt object such as a wooden stick applied with force from a close
range rather than a stone, although there is no specific evidence of the
doctor to that effect and the other evidence which has come on record is
quite baffling. In any event this court is not coming to any conclusion on
mere conjectures and surmises. It is also important to note that statement of
PW-5, that Kashiram sustained injuries to his stomach and eye ball did not
form part of her statement recorded by the police under Section 161 CrPC,
as admitted by PW-13 in cross-examination. This is a material omission on a
substantive fact going to the nature and extent of the assault, which renders
this portion of her deposition unreliable.
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29. Further PW-9, Anusayabai Kashiram Dive, the wife of the deceased,
has deposed that at about 9.00 p.m. she and her husband came out upon
hearing noise and went in front of the house of Manglu, where they found
the accused holding sticks and stones. She states that deceased Kashiram
attempted to intervene to settle the dispute, whereupon the accused
assaulted him by sticks and stones on his head, due to which he fell on the
ground in an unconscious condition resulting in injuries to his head and left
eye. Even this witness, the wife of the deceased and perhaps the most natural
witness to fix liability on a specific person, does not depose as to which
accused specifically struck deceased Kashiram on the head. Her statement
that the assault was by both sticks and stones simultaneously implicates both
the stick-holding accused who stand acquitted and the stone-holding
Appellants who stand convicted, without identifying whose blow was the
fatal one. The position that therefore emerges from a combined and
cumulative reading of all five eyewitnesses is that, none of the prosecution
witnesses have stated, in specific terms, that any of the three Appellants
delivered the blow on the head of deceased Kashiram that caused his death.
The deposition is general and omnibus in nature. The only witness who
specifically distinguishes between the weapons held by different groups of
accused is PW-5, and she places the wooden sticks in the hands of the
accused who have not been convicted under Section 302 and the stones in
the hands of the Appellants. Given that the fatal injury is a parietal bone
fracture, more consistent with a stick blow than with a stone apparently
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though not conclusive, the evidence of PW-5 being general in nature
without attributing any specific overt act to the appellants is far from
establishing the guilt of the Appellants. Infact, it raises a serious and
reasonable doubt as to whether the Appellants were responsible for the fatal
injury at all. The situation is further compounded by the specific and
plausible defence raised by the Appellants that Kashiram’s fatal head injury
was caused by a fall rather than by a direct blow. There is evidence on record
that a stone platform, referred to as the “Par,” was constructed in front of the
house. PW-10, Dr. Makarand Patil, who conducted the post-mortem, has
given a specific and significant admission in cross-examination at paragraph
3 of his deposition, viz that if a person aged over 60 years of age were to fall
on a rocky substance from a height of 8 to 10 feet, the very injuries noted in
columns 17 and 19 of the post-mortem report, i.e the fracture of the right
parietal bone, intra-cerebral bleeding and extra-dural haematoma, would be
possible. Deceased Kashiram was aged approximately 60 years at the time of
the incident. PW-9 herself has deposed that Kashiram fell on the ground,
and PW-3 concurs with PW 9. The possibility of the fatal head injury having
been caused by an accidental fall, supported, as it is by the evidence of the
prosecution’s own medical witness, is not an implausible or remote
hypothesis. The defence seems to be reasonable and medically supported
alternative and when once such an alternative and probable theory is
brought on record by the accused which in the facts of the case appears to be
plausible and not fanciful, it will not be correct, to come to a conclusion on
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the touchstone of preponderance of probability, that the prosecution has
excluded every reasonable doubt or that the prosecution has proved the case
beyond reasonable doubt.
30. It is also pertinent to note that on an identical set of facts arising from
the very same incident and proved through the very same witnesses, the
Sessions Court acquitted five of the eight accused, including Accused No. 3
Shivaji Balu Dive, from whose house sticks and stones were purportedly
recovered pursuant to a memorandum statement. If the very same
prosecution evidence was held insufficient to sustain the conviction of those
five accused, there is no rational or legal basis to treat the Appellants
differently, particularly when not a single witness has attributed the fatal
blow specifically to any one of them. For all these reasons, this Court finds
that the prosecution has failed to prove beyond reasonable doubt that the
Appellants were the ones who delivered the vital blow that caused the death
of deceased Kashiram. The evidence, even taken at its highest, establishes no
more than the general presence of all the accused at the scene of the
altercation and a broad, undifferentiated assault on multiple persons. It falls
well short of establishing that the specific fatal head injury was caused by the
act of any of the Appellants. In the absence of such proof, the conviction of
the Appellants under Section 302 read with Section 34 IPC cannot be
sustained.
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31. A profitable reference can be made to the judgment of Yogarani v.
State By The Inspector of Police (2024 INSC 721) , wherein it is held as
under:
“10. The Court cannot convict one accused and acquit the
other when there is similar or identical evidence pitted
against two accused persons. In the case of Javed Shaukat
Ali Qureshi v State of Gujarat reported in 2023 INSC
829, this court has held that:
15. When there is similar or identical evidence of
eyewitnesses against two accused by ascribing them the
same or similar role, the Court cannot convict one
accused and acquit the other. In such a case, the cases of
both the accused will be governed by the principle of
parity. This principle means that the Criminal Court
should decide like cases alike, and in such cases, the Court
cannot make a distinction between the two accused,
which will amount to discrimination.”
32. At this stage a reference can also be made to the judgment of the
Hon’ble Apex Court in the case of Pandurang and other v State of
Hyderabad reported in 1954 Supreme(SC) 172, wherein it is held as under :
32. Now in the case of section 34 we think it is well
established that a common intention presupposes prior
concert. It requires a prearranged plan because before a man
can be vicariously convicted for the criminal act of another,
the act must have been done in furtherance of the common
intention of them all: – Mahbub Shah v. Emperor , AIR
1945 PC 118 at pp. 120 & 121 (B). Accordingly, there must
have been a prior meeting of minds. Several persons can
simultaneously attack a man and each can have the same
intention, namely the intention to kill, and each can
individually inflict a separate fatal blow and yet none would
have the common intention required by the section because
there was no prior meeting of minds to form a pre-arranged
plan. In a case like that, each would be individually liable
for whatever injury he caused but none could be vicariously
convicted for the act of any of the others; and if the
prosecution cannot prove that his separate blow was a fatal
one he cannot be convicted of the murder however clearly
an intention to kill could be proved in his case: AIR 1925
PC 1 at pp 5 & 6 (A) and AIR 1945 PC 118 (B). As their
Lordships say in the latter case, “the partition which dividesVishal Parekar …26
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is real and substantial, and if overlooked will result in
miscarriage of justice”.
33. Another important aspect which is required to be considered before
fastening the liability is whether the prosecution has discharged its burden,
which duty is also cast upon the court as well, to show the alleged weapon to
the medical witness and invite his opinion on whether the injuries could
have been caused by it. We do not find any such evidence. The Ld. Counsel
for the Appellants has relied on the Judgment of the Hon’ble Supreme
Court in Kartarey and Others vs. State of U.P., 1976. In para 26 it is
observed as under :
26. We take this opportunity of emphasising the importance
of eliciting the opinion of the medical witness, who had
examined the injuries of the victim, more specifically on this
point, for the proper administration of justice. particularly in
a case where injuries found are forensically of the same
species, e.g. stab wounds, and the problem before the Court
is whether all or any of those injuries could be caused with
one or more than one weapon. It is the duty of the
prosecution, and no less of the Court, to see that the alleged
weapon of the offence, if available, is shown to the medical
witness and his opinion invited as to whether all or any of
the injuries on the victim could be caused with that weapon.
Failure to do so may, sometimes, cause aberration in the
course of justice.”
34. In the present case, despite the recovery of four sticks and four stones
pursuant to the memorandum statement of accused Shivaji Babu Dive (Exh.
57), the prosecution failed to show these weapons to the medical witness
who was examined by the prosecution. This omission is particularly
significant as PW 10 the doctor, himself opined that the injuries mentioned
in column nos. 17 and 19 may be possible by fall on rocky substance and
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therefore it was imperative that the recovered stones and sticks were placed
before PW 10 to resolve this very uncertainty. This failure constitutes a
material gap in the prosecution’s case as the Court observed, which may
cause aberration in the course of justice.
35. The prosecution has not been able to prove the recovery of weapon of
assault. It is the case of the prosecution that the recovery of 4 sticks and 4
stones were from the house of Accused No 3. The recovery from the house
is on 11/4/2016. This court finds it obscure as to why, after the assault, any
prudent person would keep the incriminating articles like sticks and stones
stored in the house for a period of 8 days, only for the police to recover.
Further, the panch witness PW 6 has also turned hostile and more
importantly, the accused at whose instance the recovery is made has been
acquitted by the trial court. There is no recovery of any weapons at the
instance of the present Appellants.
36. The Ld. Counsel for the Appellant has rightly relied upon the
judgment of Thulia Kali vs The State of Tamil Nadu, (supra) in support of
his contention wherein it is observed as under :
“It is also not clear as to why the accused should leave knife Ex. 1
in his bed in the house of Chakravarthi (PW 9) when he had
ample opportunity to throw away the knife in some lonely place
before arriving at the house of Chakravarthi. The knife in
question was found by Chemical Examiner to be not stained with
blood and according to the prosecution case, the accused had
washed it before leaving it in the bed in the house of
Chakravarthi. If the accused realised the importance of doing
away with the bloodstains on the knife, it does not seem likelyVishal Parekar …28
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leave it in the bed”.
37. Further it also remains unexplained as to why it took 6 hours for the
injured to reach the hospital at Nashik. This has to be examined in the light
of the fact that as per the deposition of prosecution witnesses, after the
assault Kashiram was unconscious. This court finds substance in the
contention of the Ld. Counsel for the Appellants that if Kashiram was
unconscious after the assault, then it is beyond comprehension that he
would be taken to the hospital after a long gap of six hours. Contra to this
evidence, PW 3 Manglu in his statement at exhibit 28 has stated that after
the assault, he and deceased Kashiram went inside the house and were sitting
there. He does not state that Kashiram was unconscious. What can therefore
be inferred is that Kashiram does not seem to have been in an unconscious
state after the alleged incident/assault and the head injury due to the assault
seems less likely. It has also come in the evidence of PW 9 the wife of the
deceased that there is PAR constructed in stone, just in front of the house.
PW 10 Doctor has admitted in his cross-examination that if a person more
than 60 years old falls on a rocky substance from a height of 8 to 10 feet,
then the injuries mentioned in column number 17 and 19 are possible. All
this cumulatively taken together raises a doubt as to whether the death of the
deceased was caused due to the assault by the appellants or by a fall.
38. It is a trite law that intention on the part of the accused plays an
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important role when the court is considering the question of culpability. The
Ld. Counsel has emphatically submitted that there was no intention on the
part of the Appellants to cause the death of deceased Kashiram. Before
proceeding further on the question of intention, it will be advantageous to
refer to the judgment of the Hon’ble Supreme Court in Pulicherla Nagaraju
v. State of A.P. (2006) 11 SCC 444 wherein it has been held as under :
29. Therefore, the court should proceed to decide the pivotal
question of intention, with care and caution, as that will decide
whether the case falls under Section 302 or 304 Part I or 304 Part
II. Many petty or insignificant matters — plucking of a fruit,
straying of cattle, quarrel of children, utterance of a rude word or
even an objectionable glance, may lead to altercations and group
clashes culminating in deaths. Usual motives like revenge, greed,
jealousy or suspicion may be totally absent in such cases. There
may be no intention. There may be no premeditation. In fact,
there may not even be criminality. At the other end of the
spectrum, there may be cases of murder where the accused
attempts to avoid the penalty for murder by attempting to put
forth a case that there was no intention to cause death. It is for the
courts to ensure that the cases of murder punishable under Section
302, are not converted into offences punishable under Section
304 Part I/II, or cases of culpable homicide not amounting to
murder, are treated as murder punishable under Section 302. The
intention to cause death can be gathered generally from a
combination of a few or several of the following, among other,
circumstances: (i) nature of the weapon used; (ii) whether the
weapon was carried by the accused or was picked up from the
spot; (iii) whether the blow is aimed at a vital part of the body; (iv)
the amount of force employed in causing injury; (v) whether the
act was in the course of sudden quarrel or sudden fight or free for
all fight; (vi) whether the incident occurs by chance or whether
there was any premeditation; (vii) whether there was any prior
enmity or whether the deceased was a stranger; (viii) whether
there was any grave and sudden provocation, and if so, the cause
for such provocation; (ix) whether it was in the heat of passion; (x)
whether the person inflicting the injury has taken undue
advantage or has acted in a cruel and unusual manner; (xi)
whether the accused dealt a single blow or several blows. The
above list of circumstances is, of course, not exhaustive and there
may be several other special circumstances with reference to
individual cases which may throw light on the question of
intention. Be that as it may.”
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39. Applying the above guidelines, this court does not find that the
circumstances of the present case satisfy the threshold of intention required
under Section 302 or 304 Part I or 304 Part II. In the present case, the
incident erupted suddenly from a verbal altercation at night with no prior
planning or design to cause death. The deceased was not even the original
subject of the dispute, as per the evidence of PW 9, the deceased intervened
only to settle the dispute. The weapons used were sticks and stones,
ordinarily available in rural area and while PW-5 states the accused arrived
with them, their nature does not establish any intent to murder. The medical
evidence further weakens the prosecution’s case as the doctor himself
admitted the injuries could also be consistent with a fall on a rocky surface,
leaving the cause of death unexcluded by any independent source. Of the
seven other victims, MLC reports show only simple or no external injuries,
inconsistent with any claim of a premeditated brutal assault. The act was
committed in the heat of passion and the accused fled without any
continued attack. Though prior enmity is alleged, the Ld. Sessions Court has
itself disbelieved the theory of unlawful assembly and acquitted five accused,
leaving the alleged motive insufficient to establish intent to kill. Upon
conclusion, this Court finds that the circumstances do not establish the
intention to cause death as required under Section 302 IPC. Since the
prosecution has further failed to establish beyond reasonable doubt the
causal nexus between the alleged act of the appellants and the death of the
deceased, a reduction of conviction to Section 304 IPC is equally not
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Cr.A.1113-2012.docwarranted. It is well settled that where two views are reasonably possible on
the evidence, one pointing to guilt and the other to innocence, the view
favorable to the accused must prevail, and the benefit of doubt must accrue
to them.
40. The Ld. Counsel for the Appellant has relied upon the judgment to
Chunthuram vs. State of Chattisgarh (2020) 10 SCC 733; Para 16).
16. We might also reiterate the well-established principle in
criminal law which propagates that if two views are possible on
the evidence adduced in a case, one pointing to the guilt of the
accused and the other Page 12 of 13 to their innocence, the view
favourable to the accused should be adopted.”
41. As this court has already come to a conclusion that the prosecution
has failed to establish offence under section 302 r/w 34 IPC, this court also
does not find any sufficient evidence to convict the Appellants under section
324 r/w 34 IPC more specifically when on the same set of facts other
accused have been acquitted.
42. The judgments relied upon by the APP viz State of U.P. v. Naresh &
Ors. (2011) 4 SCC 324 ( supra), Balu Sudam Khalde And Another Vs. The
State of Maharashtra (supra) and Baljinder Singh @ Ladoo and Ors. v/s
State of Punjab are with respect to the due weightage to be given to the
testimony of the injured witness and that statement of injured witness is
generally considered to be very reliable and it is unlikely that he has spared
the actual assailant in order to falsely implicate someone else. In other words,
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Cr.A.1113-2012.docthe credibility of the injured eyewitnesses should not be discarded lightly
unless material contradictions exist. Secondly, that mere relationship with
the deceased does not render a witness unreliable, as related witnesses can
still be credible if their evidence is cogent and trustworthy, particularly
where independent witnesses may be reluctant to come forward. Thirdly,
that the Court recognizes that minor discrepancies, inconsistencies, or
improvements in testimony as natural due to lapse of time, shock, or errors
of observation, and that such trivial variations should not lead to rejection of
otherwise reliable evidence unless they materially affect the core of the
prosecution case or create serious doubt about its truthfulness.
43. There can be no doubt about the observations made by the Apex
Court in the above referred judgments that the testimony of an injured
witness carries special evidentiary value because their presence at the scene is
established by the injury itself, making it unlikely that they would falsely
implicate another while shielding the real offender. However, the Apex
Court has caveated it by cautioning that there should not be any material
contradictions. The said proposition about credibility of injured witness
cannot be doubted, however as cautioned, with the material contradictions
as discussed above, the rulings will not apply to the facts of the present case.
The injured witnesses in the present case cannot be believed in the facts of
the case due to their diametrically different versions on the point of assault
further compounded by the exaggerated versions, the discrepancies in the
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nature of injuries, inconsistency in the evidence about place of assault and
delay in lodging FIR etc. Further, this court does not find evidence of
related witness to be free from embellishments. So also the discrepancies and
inconsistencies which have surfaced, go to the root of the matter.
44. A reference can be made to the judgment of Ranbir Yadav Versus
State of Bihar, 1995 Supreme(SC) 390 wherein it has been held that :
“47. In drawing the above conclusions we have taken note of the
following passage from the judgment of this Court in Bajwa v. State
of U.P.(1973) 3 SCR 571, to which our attention was drawn by Mr.
Jethmalani.
“The evidence through which we have been taken by the counsel at
the bar has been examined by us with care and anxiety because in
cases like the present where there are party factions, as often
observed in authoritative decisions there is a tendency to include the
innocent with the guilty and it is extremely difficult for the Court to
guard against such a danger. The only real safeguard against the risk
of condemning the innocent with the guilty lies in insisting on
acceptable evidence which in some measure implicates such accused
and satisfies the conscience of the Court.(see Kashmira Singh v. State
of M.P.,AIR 1952 SC 159″.
45. Thus, analysis of the evidence makes this court to believe that the
prosecution witnesses who have deposed cannot fall into the category of
totally reliable witnesses.
46. The Appellant has relied upon the judgment of Roshan Pagare vs.
State of Mah. 2025 SCC OnLine Bom 4813 and has specifically invited the
attention of this court to paras 54 & 55, wherein it is held as under :
“54. A reference has been made on behalf of the appellants to the
judgment of the Supreme Court in the case of Vadivelu Thevar
and another vs. State of Madras (supra). In this judgment, the
Supreme Court has elaborated upon the categories of witnesses,Vishal Parekar …34
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Cr.A.1113-2012.docclassifying them into three categories i.e. wholly reliable, wholly
unreliable and neither wholly reliable nor wholly unreliable. It has
been categorically laid down in the said judgment that in the third
category i.e. when the witness is neither wholly reliable nor wholly
unreliable, the Court has to be circumspect in accepting the
evidence of such witness and that the Court must look for
corroboration in material particulars by reliable testimonies. This
Court is of the opinion that both the injured eye-witnesses i.e.
Suraj Khode (P.W.4) and Amol Nikam (P.W.5) indeed fall in the
aforesaid third category. Since they suffered injuries, their presence
at the time of the incident is established, but the manner in which
they have described the incident implicating the accused persons,
including the appellants, is shrouded in a cloud of doubt because
of the background of serious previous enmity. The nature of
evidence of these two witnesses required corroboration by other
material particulars and testimonies. The testimony of the third
purported eye-witness Sachin Kadam (P.W.6) was found to be
riddled with major contradictions and the trial Court itself
discarded the same. The recoveries of weapons was disbelieved by
the trial Court. The ballistic report was negative. As noted
hereinabove, a number of panch witnesses were found to be
friends of the deceased and the injured eye-witnesses. Therefore,
there is no credible corroboration of the evidence of the two
injured eye-witnesses, thereby raising a serious doubt about their
version involving the accused persons, including the appellants.
Any doubt in such matters must accrue to the benefit of the
accused. This aspect was not properly appreciated by the trial
Court, while convicting the appellants, in the facts and
circumstances of the present case.”
“55. The overall appreciation of the evidence and material on
record demonstrates that while the incident indeed took
place, but the evidence falls short of proving that the accused
in the present case, including the appellants herein could be
said to be responsible for the incident.”
47. The Ld. Counsel for the Appellants place reliance on the principle
enunciated in Vadivelu Thevar and Another v. State of Madras, as elaborated
by this Hon’ble Court in para 54 of Roshan Pagare vs. State of Maharashtra,
supra wherein the Supreme Court classified witnesses into three categories –
wholly reliable, wholly unreliable, and neither wholly reliable nor wholly
unreliable, holding that in the third category, the Court must look for
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corroboration in material particulars by reliable testimony. This court finds
that in the present case the eyewitnesses fall squarely under the third
category and cannot be treated as wholly reliable. Being family members of
the deceased with a history of enmity rooted in land disputes and election
rivalry, their depositions are inherently interested. Their testimony is not
free from internal contradictions, and the corroborative material is neither
strong nor independent. As held in the relied-upon judgments, where no
credible corroboration exists, the doubt so raised must accrue to the benefit
of the accused. Crucially, no witness specifically confirms the exact manner
in which the fatal injuries were caused and the prosecution witnesses
themselves have not ruled out injuries from a fall. The recovered weapons
were never shown to the doctor, and no opinion was elicited on whether
injuries were consistent with those weapons. In the absence of meaningful
corroboration, testimony of interested witnesses alone cannot sustain a
conviction and benefit of doubt must necessarily accrue to the appellants.
48. Further, the alleged incident has taken place on 2/4/2016 whereas the
FIR has been lodged on 10/4/2016 with an exaggerated version than what
was mentioned in the NC complaint. On the point of delay in FIR, the Ld.
Counsel for the Appellant has relied upon Thulia Kali vs The State of Tamil
Nadu, (supra) wherein it has been observed as under :
“12…..First information report in a criminal case is an extremely vital
and valuable piece of evidence for the purpose of corroborating the
oral evidence adduced at the trial. The importance of the above report
can hardly be overestimated from the standpoint of the accused. The
object of insisting upon prompt lodging of the report to the police inVishal Parekar …36
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Cr.A.1113-2012.docrespect of commission of an offence is to obtain early information
regarding the circumstances in which the crime was committed, the
names of the actual culprits and the part played by them as well as the
names of eye witnesses present at the scene of occurrence. Delay in
lodging the first information report quite often results in
embellishment which is a creature of afterthought. On account of delay
the report not only gets bereft of the advantage of spontaneity danger
creeps in of the introduction of coloured version, exaggerated account
or concocted story as a result of deliberation and consultation. It is,
therefore, essential that the delay in the lodging of the first information
report should be satisfactorily explained.”
49. Therefore, considering the evidence that has been brought on record
it can be seen that the incident has taken place on 2/4/2016, PW 3 was
discharged on 5/4/2016, whereas the FIR has been lodged on 10/4/2016 for
which there is no cogent and palatable explanation given. Even the contents
of NC and of the FIR are at variance which gives rise to a suspicion about
the possibility of exaggeration and embellishment.
50. Taking into consideration the overall evidence brought on record, this
Court has come to a conclusion that the incident has indeed taken place but
not in the manner in which the prosecution has sought to project it. The
evidence falls short of proving that the Appellants herein could be said to be
the only accused responsible for the death of the deceased or for the injuries
sustained by other witnesses, when on the same set of facts, the other
accused are acquitted. The trial court erred in convicting the Appellants. The
prosecution has failed to prove its case beyond reasonable doubt and
therefore the Appellants deserve to be acquitted of the charges they are
charged for.
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51. As a result, we pass the following order:
i. The Appeal is allowed.
ii. The conviction and sentence of the Appellants under
Section 302 r/w 34 and 324 r/w 34 of the Indian Penal Code,
1860 recorded vide impugned Judgment and Order dated
21.09.2012 passed by the Additional Sessions Judge, Nashik in
Sessions Case No. 41/2010 is quashed and set aside. The
Appellants are acquitted of all the charges they are charged
with.
iii. The Appellant Nos. 1 and 2 are on bail. The Appellant No.
3 has expired. Their bail bond stands cancelled and sureties are
discharged.
iv. The Appellant Nos. 1 and 2 shall within a period of one
week from the date of the order, execute P R Bond in the sum
of Rs. 25,000/- (Twenty Five Thousand) under section 481 of
the Bhartiya Nagrik Suraksha Sanhita, 2023 (corresponding to
Section 437A of the Cr.PC) for their appearance, in the event
an appeal is preferred against acquittal.
52. Appeal stands disposed of accordingly. Pending Applications, if any,
also stand disposed of.
(SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.)
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