Bombay High Court
Sumit Mahadeo Meshram (In Jail) vs State Of Mah., Thr. P.S.O. P.S., … on 4 August, 2026
CNR No : HCBM040092802020
2026:BHC-NAG:10127-DB
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.228 OF 2020
1. Sunil s/o Malku Deotale,
aged about 29 years, occupation labour.
2. Hanuman s/o Pandurang Pendor,
aged about 27 years, occupation labour.
3. Shubham s/o Suresh Tekam,
aged about 24 years, occupation labour.
All r/o Parwa, Yavatmal,
taluka and district Yavatmal. ..... Appellants.
:: V E R S U S ::
The State of Maharashtra,
through the Police Station Officer,
Police Station Audhutwadi, Yavatmal,
taluka and district Yavatmal. ..... Respondent.
================================
Shri P.R.Agrawal, Counsel for Appellants.
Shri S.S.Doifode, APP for the Respondent/State.
Shri P.S.Wathore, Counsel for the complainant.
================================
CRIMINAL APPEAL NO.238 OF 2020
Raj s/o Gopal Thakur,
aged 31 years, occupation labour,
r/o Parwa, Yavatmal,
.....1/-
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taluka and district Yavatmal. ..... Appellant.
:: V E R S U S ::
The State of Maharashtra,
through the Police Station Officer,
Police Station Audhutwadi, Yavatmal,
taluka and district Yavatmal. ..... Respondent.
================================
Shri Atharva Manohar, Counsel for Appellant.
Shri S.S.Doifode, APP for the Respondent/State.
Shri P.S.Wathore, Counsel for the complainant.
================================
CRIMINAL APPEAL NO.240 OF 2020
1. Munna s/o Gopal Thakur,
aged about 27 years.
2. Vinod s/o Prakash Chapariya,
aged about 36 years.
Both r/o old Umarsara Gowardhan Layout,
Yavatmal, tahsil and district Yavatmal. ..... Appellants.
:: V E R S U S ::
The State of Maharashtra,
through the Police Station Officer,
Police Station Awadhoot Wadi,
district Yavatmal. ..... Respondent.
================================
Shri R.M.Daga, Counsel for Appellants.
Shri S.S.Doifode, APP for the Respondent/State.
.....2/-
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Shri P.S.Wathore, Counsel for the complainant.
================================
CRIMINAL APPEAL NO.244 OF 2020
Sumit @ Pandya @ Sumedh Mahadeo Meshram,
aged about 22 years, occupation labour,
r/o Parwa, taluka and district Yavatmal. ..... Appellant.
:: V E R S U S ::
The State of Maharashtra,
through the Police Station Officer,
Police Station Audhutwadi, Yavatmal,
taluka and district Yavatmal. ..... Respondent.
================================
Shri Ankit Ambatkar, Counsel for Appellant.
Shri S.S.Doifode, APP for the Respondent/State.
Shri P.S.Wathore, Counsel for the complainant.
================================
CRIMINAL APPEAL NO.259 OF 2020
1. Pravin s/o Tukaram Bhagat,
aged about 44 years, occupation labour.
2. Bhimrao s/o Maroti Awathare,
aged about 58 years, occupation labour.
Appellant No.1 and 2 r/o Parwa,
taluka and district Yavatmal.
3. Swapnil s/o Raghunath Kumbhekar,
.....3/-
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aged about 21 years, occupation labour,
r/o Karli, taluka and district Yavatmal. ..... Appellants.
:: V E R S U S ::
The State of Maharashtra,
through the Police Station Officer,
Police Station Awadhootwadi, Yavatmal,
taluka and district Yavatmal. ..... Respondent.
================================
Shri Shashank Manohar, Counsel for Appellants.
Shri S.S.Doifode, APP for the Respondent/State.
Shri P.S.Wathore, Counsel for the complainant.
================================
CORAM : URMILA JOSHI-PHALKE & NIVEDITA P.MEHTA, JJ.
CLOSED ON : 14/07/2026
PRONOUNCED ON : 04/08/2026
JUDGMENT :
(Per : Urmila Joshi-Phalke)
1. These appeals are directed against judgment and order
dated 20.1.2020 passed by learned Additional Sessions Judge-
2, Yavatmal (learned Judge of the trial court) in Special
(Atrocity) Case No.18/2018.
2. By the said judgment impugned, learned Judge of the
trial court convicted and sentenced the accused persons as
under:
…..4/-
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Cri. Ap- Name of Ac- Original Conviction Sentence
peal No. cused Accused under Sec-
No. tions
228/20 Sunil s/o 5 302 r.w. Imprisonment for life
Malku 149 r.w. & to pay a fine of
Deotale 34 IPC Rs.2000/-. In default
of payment of fine
shall suffer S.I. for
Six months.
Hanuman 302 r.w. Imprisonment for life
6 120-B IPC & to pay a fine of
s/o
Pandurang Rs.2000/-. In default
Pendor of payment of fine
shall suffer S.I. for
Six months.
Shubham 8 143 IPC R.I. for Six months &
s/o Suresh to pay fine of
Tekam Rs.500/-. In default
of payment of fine
to suffer S.I. for one
month.
147 & 148 R.I. for 2 years & to
IPC pay fine of Rs.1000/-
In default of pay-
ment of fine shall
suffer S.I. for 1
month.
238/20 Raj s/o 1 302 r.w. Imprisonment for life
Gopal 149 r.w. & to pay a fine of
Thakur 34 IPC Rs.2000/-. In default
of payment of fine
shall suffer S.I. for
Six months.
302 r.w. Imprisonment for life
.....5/-
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120-B IPC & to pay a fine of
Rs.2000/-. In default
of payment of fine
shall suffer S.I. for
Six months.
143 IPC R.I. for Six months &
to pay fine of
Rs.500/-. In default
of payment of fine
to suffer S.I. for one
month.
147 & 148 R.I. for 2 years & to
IPC pay fine of Rs.1000/-
In default of pay-
ment of fine shall
suffer S.I. for 1
month.
240/20 Munna s/o 2 302 r.w. Imprisonment for life
Gopal 149 r.w. & to pay a fine of
Thakur and 34 IPC Rs.2000/-. In default
of payment of fine
shall suffer S.I. for
Six months.
Vinod s/o 302 r.w. Imprisonment for life
3 120-B IPC & to pay a fine of
Prakash
Chapariya Rs.2000/-. In default
of payment of fine
shall suffer S.I. for
Six months.
143 IPC R.I. for Six months &
to pay fine of
Rs.500/-. In default
of payment of fine
to suffer S.I. for one
month.
.....6/-
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147 & 148 R.I. for 2 years & to
IPC pay fine of Rs.1000/-
In default of pay-
ment of fine shall
suffer S.I. for 1
month.
201 IPC R.I. for 2 years & to
pay a fine of
Rs.500/-. In default
of payment of fine
shall suffer S.I. for
one month.
244/20 Sumit @ 9 302 r.w. Imprisonment for life
Pandya @ 149 r.w. & to pay a fine of
Sumedh 34 IPC Rs.2000/-. In default
Mahadeo of payment of fine
Meshram shall suffer S.I. for
Six months.
302 r.w. Imprisonment for life
120-B IPC & to pay a fine of
Rs.2000/-. In default
of payment of fine
shall suffer S.I. for
Six months.
143 IPC R.I. for Six months &
to pay fine of
Rs.500/-. In default
of payment of fine to
suffer S.I. for one
month.
147 & 148 R.I. for 2 years & to
IPC pay fine of Rs.1000/-
In default of pay-
ment of fine shall
suffer S.I. for 1
.....7/-
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month.
259/20 Pravin s/o 10 302 r.w. Imprisonment for
Tukaram 149 r.w life and fine
Bhagat 34 of IPC Rs.2000/- and in
default SI for 6
months
Bhimrao 120-B r.w. Imprisonment for
11
s/o Maroti 302 of life and fine
Awathare IPC Rs.2000/- and in
default SI for 6
months.
Swapnil 12
143 of RI for Six months
s/o IPC and fine Rs.500 in
Raghunath default SI for 1
Kumbhekar month
147 and RI for 2 years and
148 of fine Rs.1000/- in
IPC default SI for 2
month
3. Brief facts necessary for disposal of appeals are as
under:
4. Informant Nalini Mahesh Gawande and all accused
persons are resident of village Parwa, district Yavatmal. In the
month of April 2015, informant Nalini belonging to “Bouddha
Community” was elected as Member of Parwa Gram
…..8/-
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Panchayat. In the month of January 2016, “No Confidence
Motion” had passed against the then Gram Panchayat
Sarpanch Smt.Rama Chimurkar and informant Nalini was
elected as Sarpanch of village Parwa Gram Panchayat.
Accused No.2 Munna Thakur opposed the election of the
informant as Sarpanch and raised a dispute. As per the
allegation, since the informant was elected as Sarpanch, the
accused persons who are from opposite group started raising
disputes on various occasions. It is alleged that in December
2017, they abused the husband of the informant on his caste.
In January 2018, they raised a dispute on account of
allotment of Water Hand Pumps in the village. As
per the grievance of the accused persons, the post of Sarpanch
was for Open Category and the informant being the Member
of “Bouddha Community” became Sarpanch and, therefore,
they allegedly were obstructing activities of the Gram
Panchayat and were harassing the informant and her
husband. There was a dispute between them on account of
…..9/-
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Election of President of “Tanta Mukti Samiti.” On 27.1.2018,
accused No.2 Munna Thakur threatened the informant by
telephonic call by saying that “her husband would be killed.”
On 28.1.2018, quarrel took place and due to the dispute
accused No.2 Munna Thakur, accused No.3 Vinod, accused
No.5 Sunil Deotale, accused No.9 Sumit Meshram, accused
No.12 Swapnil and accused No.5 Sunil Deotale attacked the
house of the informant and in that incident Praful
Shambharkar was also assaulted and they have damaged the
household articles. Thus, as per allegations, there was
political rivalry between the accused persons and the
informant.
5. As per the grievance of the informant, due to the
frequent quarrels and disputes between her and the accused
persons, she along with her husband and son went to reside at
Yavatmal. On 27.3.2018, at about 12:00 pm, the informant
along with her husband Mahesh, her son Mayur, and nephew
…..10/-
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Samyak came to village Parwa. Deceased Mahesh called
persons Shaikh Imran and Shaikh Israil to repair his house. At
about 1:00 pm, deceased Mahesh along with Shaikh Imran
and Shaikh Israil left the house on a pretext of eating ‘kharra.”
They reached near Anganwadi and the deceased was talking
to Prashant Shambharkar, Nitin Lokhande, Raju Kawale, and
Prakash Bhagat who were playing cards there. At that time,
all the accused persons by forming unlawful assembly came
there with deadly weapons and assaulted deceased Mahesh
Gawande. Deceased was followed by her son Mayur and
nephew Samyak on her say. They immediately came to her
and disclosed to her that deceased Mahesh is attacked by the
accused persons by the deadly weapons and, therefore, she
rushed to the spot of the incident and witnessed all the
accused persons assaulting the deceased. She shouted for
help. The people gathered there and the accused persons fled
away from the spot of the incident.
…..11/-
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6. On receipt of the information, the police came at the
spot and shifted the dead body of the deceased in the
Yavatmal District Hospital, Yavatmal. In the evening, she has
lodged the report about the incident.
7. On 27.3.2018, Awadhootwadi Police received
information at about 2:05 pm regarding the quarrel in village
Parwa and, therefore, they have taken general diary entry and
API Chaudhary and PSI Dhawane along with other police staff
proceeded towards village Parwa. At about 15:27 (3:27 pm)
API Chaudhary returned the police station and has taken
entry in general diary to the effect that he shifted the
deceased Mahesh to hospital at Yavatmal and called the
Government Servants to act as panchas for conducting spot
panchanama. . on completion of investigation chargesheet
was submitted against the accused persons.
8. Learned Judge of the trial court framed charge vide
Exh.73. The contents of the charge were read over and
…..12/-
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explained to the the accused persons in their vernacular. They
pleaded not guilty and claimed to be tried.
9. In support of the prosecution case, the prosecution has
examined in all 18 witnesses, as follows:
PW Names of Witnesses Witness Ex-
NO. examined as h.N
os.
1 Nalini Tulsidas @ Mahesh Eyewitness 117
Gawande, wife of the deceased
2 Mayur Gawande, son of the de- Eyewitness 132
ceased
3 Sharda Bhagwan Narayane Eyewitness 135
4 Prashant Shambharkar Eyewitness 137
5 Devidas Sathe Pancha on 141
spot
panchanama
6 Mukhtar Ali Ahmad Ali Pancha on 143
inquest
panchanama
7 Sunil Gulabrao Wanjari Pancha on 148
memorandu
m statements
of accused
Shubham
Tekam and
Vinod
Chapariya
.....13/-
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and pancha
on house
search of
accused
Gajanan
8 Sanjay Pawar Pancha on 156
seizure of
mobile of
accused
Shubham
Ade and
pancha on
memorandu
m statements
of accused
Munna
Thakur and
Sumit Pandya
9 Sawan Munnaswami Nerle Pancha on 165
memorandu
m statement
of accused
Bhimrao and
recovery
panchanama
10 Akash Arun Gohokar Pancha on 169
memorandu
m statement
of accused
Sunil Devtale
11 Geeta Bhuraji Botre Pancha on 172
house search
of accused…..14/-
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Pravin
Bhagat and
Bhimrao,
pancha on
memorandu
m statements
of accused
Pravin
Bhagat,
pancha on
seizure of
clothes the
deceased
which were
seized and
sealed at the
time of
postmortem
examination
12 Mukund Karanjkar Pancha on 185
memorandu
m statement
of accused
Raj Thakur
13 Devidas Dalavi Pancha on 188
memorandu
m statement
of accused
Swapnil
14 Namdeo Uike Pancha on 193
memorandu
m statements
of accused
Nitin Maroti
…..15/-
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Awari
15 Shilpa Nagrale Naib 202
Tahsildar
who
conducted
the TIP
16 Nilesh Jadhav Medical 215
Officer
17 Mangesh Bhoyar Investigating 230
Officer
18 Piyush Jagtap SDPO and 269
Investigating
Officer
10. Besides the oral evidence, the prosecution placed
reliance on following documents:
Sr.No Documents Exhs. 1 Report 118 2 FIR 119 3 FIR in earlier crime No.851/2017 120 4 Statement of the informant under Section 124 164 of the CrPC 5 Statement of PW Mayur, the son of the 133
deceased under Section 164 of the CrPC
6 Statement of Sharda Narayane under 136
Section 164 of the CrPC
…..16/-
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7 Statement of Prashant Shambharkar under 138
Section 164 of the CrPC
8 Spot panchanama 142
9 Inquest panchanama 144
10 Memorandum statement of accused 149
Shubham
11 Discovery panchanama 150
12 House search panchanama of house of 151
Gajanan Laxman Ade
13 Seizure memos 152 &
153
14 Memorandum statement of accused Vinod 154
Chapariya
15 Discovery panchanama 155
16 Mobile seizure memo 156
17 Property seizure memo (mobile) 157
18 Memorandum statement of accused Munna 158
Thakur
19 Discovery panchanama 159
20 Memorandum statement of accused Sumit 160
Meshram
21 Discovery panchanama 161
22 Memorandum statement of accused 166
Bhimram Maroti Awathare
23 Discovery panchanama 167
24 Seizure memo 168
25 Memorandum statement of accused Sunil 170
Devtale
…..17/-
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26 Discovery panchanama 171
27 House search panchanama of house of 173
accused Pravin Bhagat
28 House search panchanama of house of 174
accused Bhimrao Awathare
29 Seizure memos 175 &
176
30 Water Tax Receipts 177
31 Memorandum statement of accused Pravin 179
Bhagat
32 Discovery panchanama 180
33 Panchanama as to seizure of clothes 181
collected at the time of postmortem
34 Memorandum statement of accused Raj 186
Thakur
35 Discovery panchanama 187
36 Memorandum statement of accused Swapnil 189
37 Discovery panchanama 190
38 Seizure memo 191
39 Memorandum statement of accused Nitin 194
Awari
40 Discovery panchanama 195
41 Seizure memo 196
42 House search panchanama of house of 197
accused Nitin
43 Property seizure memo 198
44 Requisition to hold TIP 203
45 Notice to informant to remain present for 204
…..18/-
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TIP
46 Notice to witness Prashant 205
47 Notice to witness Imran 206
48 TIP Memorandums 207-
210
49 Forwarding letter by PW15 Shilpa Nagrale, 211
Naib Tahsildar to the Investigating Officer
50 Requisition to medical officer to conduct 216
postmortem and ascertain cause of death
51 Form by which viscera of the deceased 217
forwarded to FSL
52 Postmortem Report 218
53 Requisition to CA by MO 219
54 Death information Report 220
55 Provisional cause of death certificate 221
56 Query by IO to MO 222 &
223
57 Report by MO 224
58 Requisition by IO to MO forwarding the 225
weapons for its examination
59 Query reports 226 to
228
60 SIT formed for investigation by SDPO 231
61 Authorization letter by SDPO to PW17 to 232
conduct investigation
62 Letter to District Irrigation Office to depute 233
two employees as panchas
63 Office order by District Irrigation Office to 234
depute panchas
…..19/-
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64 Authorization by SDPO to PW17 237
65 House search panchanama of house of 239
Tulshiram Sitaram Patil, Khopoli
66 Seizure memo 240
67 Letter to senior officer Aak Kamani Pvt.Ltd. 241
68 Information by Senior Officer, Aak Kamani 242
Pvt.Ltd.
69 Letter to Manager of Shiv Construction 243
70 Information supplied by Manager of Shiv 244
Construction
71 Seizure memos 245 &
247
72 Arrest memo of accused Pravin 271
73 Arrest memo of accused Bhimrao Awathare 272
74 Requisition to MO to obtain samples of 273
accused Pravin Bhagat and Bhimrao
Awathare
75 Requisition to Divisional Controller MSRTC 274
to depute panchas
76 Letter by Divisional Controller deputing 275
panchas
77 Arrest memo of accused Sunil Devtale 276
78 Arrest memo of accused Hanuman Pendor 277
79 Requisition to MO to obtain samples of Sunil 278
Devtale and Hanuman Pendor
80 Requisition to CEO, Nagar Parishad, 280
Yavatmal to depute employees as panchas
81 Letter by CEO to IO deputing 2 employees 281
82 Requisition to Divisional Controller to 285
…..20/-
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depute two employees
83 Letter by Divisional Controller deputing 286
employees
84 House search panchanama of house of 287
accused Sunil Devtale and Hanuman Pendor
85 Property seizure memos 288 &
289
86 House Tax Receipt 290
87 Requisition to Range Forest Officer to depute 293
employees as panchas
88 Letter by Range Forest Officer 294
89 Requisition to Director of FSL for 296
examination of viscera deputing panchas
90 Arrest panchanama of accused Raj Thakur 300
91 Arrest panchanama of accused Munna 301
Thakur
92 Arrest panchanama of accused Vinod 302
93 Arrest memo of Bhupendra 303
94 Arrest memo of accused Shubham 304
95 Arrest memo of accused Sumit 305
96 Requisitions to MO for obtaining samples of 306
accused Raj Thakur, Munna Thakur,
Bhupendra, Sumit, Shubham and Vinod
97 House search panchanama of house of 307
accused Bhupendra
98 Seizure memo 308
99 House search panchanama of accused Raj 309
Thakur
100 Seizure memo 310
…..21/-
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101 House search panchanama of accused Vinod 311
Chapariya
102 Seizure memo 312
103 House search panchanama of house of 313
accused Sumedh Meshram
104 Seizure memo 314
105 House search panchanama of house of 315
accused Shubham Tekam
106 Requisition to District Malaria Officer to 317
depute employees as panchas
107 Letter by the District Malaria Officer 318
deputing panchas
108 Tax Receipt 319
109 Requisition to the District Veterinary Officer 324
to depute employees
110 Letter by the District Veterinary Officer 325
deputing panchas
111 Requisition to the District Water 328
Conservation Officer to depute employees as
panchas
112 Letter by the District Water Conservation 329
Officer deputing panchas
113 Seizure memo 331
114 Requisition to the Director of FSL for 333
recovery of CCTV Footage from DVR Box
115 Duty pass 334
116 Acknowledgment by FSL Office 335
117 Arrest memo of accused Ankush 336
118 Seizure memo of seizure of mobile of 337
…..22/-
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accused Ankush
119 House search panchanama of house of 339
accused Ankush
120 Arrest panchanama of accused Swapnil 340
Kumbhekar
121 Arrest panchanama of accused Nitin Awari 341
122 Requisition to MO to obtain samples of 342
accused Nitin
123 Requisition to the Divisional Controller to 343
depute employees as panchas
124 Letter by the Divisional Controller deputing 344
employees as panchas
125 Arrest panchanama of accused Gajanan Ade 351
126 Chain of custody of muddemal recovered 351A
from child in conflict Rahul
127 Chain of custody of muddemal simple soil 352
and blood stained soil
128 Chain of custody of muddemal handed over 353
by MO to IO
129 Chain of custody of blood samples of 354
accused Raj Thakur, Vinod Chapariya,
Bhupendra, Shubham Tekam, Sumit
Meshram
130 Chain of custody of muddemal samples of 355
accused Sunil Devtale and Hanuman Pendor
131 Chain of custody of muddemal of samples of 356
accused Pravin Bhagat and Bhimrao
Awathare
132 Chain of custody of muddemal of clothes of 357
the deceased
…..23/-
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133 Chain of custody of muddemal shirt of 358
accused Raj Thakur
134 Chain of custody of muddemal clothes of 359
accused Munna Thakur
135 Chain of custody of muddemal clothes of 360
accused Vinod Chapariya
136 Chain of custody of muddemal clothes of 361
accused Sunil Devtale
137 Chain of custody of clothes of accused 362
Hanuman
138 Chain of custody of clothes of accused 363
Bhupendra
139 Chain of custody of clothes of accused 364
Shubham Tekam
140 Chain of custody of clothes of accused Sumit 365
Meshram
141 Chain of custody of clothes of accused 366
Pravin
142 Chain of custody of clothes of accused 367
Bhimrao
143 Chain of custody of sword recovered from 368
accused Raj Thakur
144 Chain of custody of gupta recovered from 369
accused Munna Thakur
145 Chain of custody of sword recovered from 370
accused Vinod Chapariya
146 Chain of custody of Sattur and Sickle 371
recovered from Sunil Devtale
147 Chain of custody of weapon sickle seized 372
from Bhupendra
…..24/-
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148 Chain of custody of weapon recovered from 373
accused Shubham
149 Chain of custody of weapon recovered from 374
accused Shubham
150 Chain of custody of muddemal weapon 375
recovered from accused Sumit Meshram
151 Chain of custody of weapon accused Pravin 376
Bhagat
152 Chain of custody of weapon Bhimrao 377
Awathare
153 Chain of custody of mobile seizedfrom 378
accused Pravin Bhagat
154 Chain of custody of mobile seized from 379
accused Bhimrao Awathare Awathare
155 Chain of custody of mobile seized from 380
accused Raj Thakur
156 Chain of custody of mobile seized from 381
accused Bhupendra
157 Chain of custody of mobile seized from 382
accused Vinod Chapariya
158 Chain of custody of muddemal of motorcycle 383
159 Chain of custody of muddemal of mobile of 384
accused Gajanan
160 Chain of custody of chain cover of 385
motorcycle recovered from Raj Thakur
161 Chain of custody of motorcycle seized from 386
accused Sunil
162 Chain of custody of mobile seized from 387
accused Sunil
163 Chain of custody of blood sample of accused 388
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Swapnil
164 Chain of custody of blood samples of 389
accused Nitin
165 Chain of custody of blood samples of child in 390
conflict with law
166 Chain of custody of pant of accused Raj 391
Thakur
167 Chain of custody of clothes of accused 392
Swapnil
168 Chain of custody of clothes of accused Nitin 393
169 Chain of custody of clothes of child in 394
conflict with law
170 Chain of custody of weapon recovered from 395
accused Swapnil
171 Chain of custody of Surra recovered from 396
accused Nitin
172 Chain of custody of DVR Box 397
173 Duty pass 398
174 Requisition to the Deputy Director of FSL 399
175 Duty pass 400
176 Requisition to the Deputy Director of FSL 401
177 Duty pass 402
178 CA Report of viscera of the deceased 404
179 General Diary Entries 476 to
621-A
180 Important General Diary Entries 480,
483,
485,
488,
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489,
494,
498,
499,
500,
501,
503,
and 511
181 General Diary Entry about depositing of 515
muddemal
182 General Diary Entry as to memorandum 528 to
statement by accused Shubham 530
183 General Diary Entry as to memorandum 531 &
statement by accused Vinod Chapariya 532
184 General Diary Entry as to memorandum 538-
statement by accused Munna Thakur 540
185 General Diary Entry as to memorandum 541 to
statement by accused Sumit Meshram 543
186 General Diary Entry as to memorandum 549 &
statement by accused Bhupendra and 550
Munna Thakur
187 General Diary Entry as to memorandum 555 to
statement by accused Raj Thakur 558
188 General Diary Entry as to forwarding 561,
weapons and clothes of the deceased to the 562,
MO and 563
189 General Diary Entry as to memorandum 574 to
statement by accused Swapnil 577
190 General Diary Entry as to memorandum 607 &
statement by accused Nitin 608
191 General Diary Entry as to forwarding of 613
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weapons to the MO
192 Log Book of vehicle extract 622-
636
193 CA Reports 658-
675
11. All the incriminating evidence was put to the accused
persons and defence of the accused persons is of total denial
and of false implication due to political rivalry. Learned Judge
of the trial court, after appreciating the evidence, convicted
the appellants accused as the aforestated.
12. Being aggrieved and dissatisfied with the same, the
present appeals are preferred by the appellants accused.
13. Learned counsel Shri Shashank Manohar for the
accused persons has taken us through the entire evidence and
pointed out that from the evidence of PW1 Nalini, who is the
wife of the deceased, it reveals that she has not intervened
when her husband was assaulted, which is not natural
conduct. He further pointed out that as per evidence of PW1
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Nalini, the deceased has left the house on the pretext of eating
“kharra”. The cross examination of the witnesses shows that
near the spot of the incident, there was no Pan-Stall.
Therefore, the entire genesis of the report lodged by the
informant appears to be false. He further submitted that the
entire prosecution case mainly rests upon eyewitnesses PW1
Nalini who is the wife of the deceased; PW2 Mayur who is the
son of the deceased; PW3 Sharda Narayane who belongs to
the same political party as PW1; PW4 Prashant Shambharkar
who belongs to the same political party as PW1. All these
four eyewitnesses had previous enmity with the accused
persons and they are interested witnesses. Perusal of the
evidence of PW1 Nalini would make it absolutely clear that
she was not at all present at the spot of the incident when the
alleged assault took place. Though the incident is alleged to
have taken place at about 01:00 pm, still the FIR was lodged
belatedly at about 19:56 hours i.e. after about more than six
hours. Perusal of the evidence of PW1 Nalini as well as the
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other so-called witnesses would show that the police reached
the spot of the incident immediately after the incident.
However, there was no disclosure from any of eyewitnesses
regarding involvement of the present accused persons. None
of the eyewitnesses at the first available opportunity has
stated about involvement of the accused persons, which casts
a serious doubt over credibility of eyewitnesses. Similarly,
perusal of the evidence of PW1 Nalini would show that before
she deposed in the court, she has gone through her statement
on 2-3 occasions. This admission goes to show that she has
memorized her statement before deposing in the court, which
is not permissible and, therefore, no credibility can be
attached to such witness. He further submitted that there was
total unnatural conduct on the part of PW1 Nalini, which is
not acceptable. Similarly, presence of PW2 Mayur, who is
child as well as tutored witness too, at the spot of the incident
itself is doubtful and, therefore, his evidence is required to be
discarded. Similarly, presence of PW3 Sharda Narayane and
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PW4 Prashant Shambharkar at the spot of the incident is also
doubtful. He invited our attention towards the cross
examination of PW3 Sharda Narayane and submitted that the
entire story narrated by her is falsified during the cross
examination. As accused No.2 has married with her daughter
against her will, there was enmity between her and accused
No.2. Therefore, she is having motive to implicate the
accused falsely. He further stated that the investigation in the
present matter is absolutely tainted, dishonest, and fabricated.
All the recoveries shown at the instance of the accused are
also doubtful. In fact, station diary entry was that unknown
assailants have assaulted the deceased, which intentionally
was not brought on record. Thus, the prosecution case itself
is shaky and suspicious. For all above those grounds, the
judgment and order of conviction deserves to be quashed and
set aside. He has also placed on record written notes of
argument.
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14. In support of his contentions, learned counsel Shri
Shashank Manohar for the accused persons has placed
reliance on the following decisions:
(1) Criminal Appeal Nos.786 of 2008 and connected
Criminal Appeal No.57 of 2009 (Bharati s/o Kailash
Baheliya and ors vs. The State of Maharashtra),
decided by this court on 18.3.2026;
(2) Syed Amin Syed Nabi vs. The State of
Maharashtra, reported in 2017 ALL MR (Cri) 245;
(3) Jaikam Khan vs. State of Uttar Pradesh, reported in
(2021)13 SCC 716;
(4) Amar s/o Ramesh Lohkare vs. The State of
Maharashtra, reported in 2016 ALL MR (Cri) 4699;
(5) Arun Barikrao Chavan vs. The State of
Maharashtra, reported in 2016 ALL MR (Cri) 4709;
(6) Thulia Kali vs. The State of Tamil Nadu, reported
in AIR 1973 SC 501;
(7) Bacchu Narain Sinh vs. Naresh Yadav and ors,
reported in AIR 2004 SC 3055;
(8) Shri Dinesh s/o Mahadeo Meshram vs. State of
Maharashtra, reported in 2017 ALL MR (Cri) 523;
(9) Alil Mollah and anr vs. State of W.B., reported in
(1996)5 SCC 369;
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(10) Anant Dyaneshwar Jadhav vs. The State of
Maharashtra, reported in 2017 ALL MR (Cri) 4820;
(11) Sonia Bahera vs. State of Orissa, reported in
(1983)2 SCC 327;
(12) Mahendra Madansingh Thakur and anr vs. The
State of Maharashtra, reported in 2011 ALL MR (Cri)
3849;
(13) Raju s/o Durgaprasad Gupta and ors vs. State of
Maharashtra, reported in 2017 ALL MR (Cri) 798;
(14) Mohd.Iqbal @ Munna s/o Abdul Sattar and anr
vs. State of Maharashtra, reported in 2016 ALL MR
(Cri) 4530;
(15) Suresh s/o Purushottam Ashtankar vs. The State
of Maharashtra and anr, reported in 2015 ALL MR
(Cri) 4243;
(16) Rustam s/o Ukarda Jadhav vs. State of
Maharashtra, reported in 2016 ALL MR (Cri) 248; and
(17) Hem Raj and ors vs. State of Haryana, reported in
(2005)10 SCC 614.
15. Per contra, learned Additional Public Prosecutor for the
State vehemently submitted that the prosecution case is based
on direct evidence. PW1 Nalini and PW2 Mayur both are
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natural witnesses as they are wife and son of the deceased.
There is no reason for them to implicate the accused persons
falsely. PW3 Sharda Narayane and PW4 Prashant
Shambharkar both are independent witnesses. Their oral
evidence is corroborated by the medical evidence as 20
injuries are found on the persons of the deceased and,
therefore, there is no contradiction in the oral evidence as
well as the medical evidence. He further submitted that
various weapons were recovered at the instance of the
accused persons and recoveries are proved by the prosecution
by examining pancha witnesses. The investigating officer has
proved the chain of custody of the said weapons and,
therefore, the question of tampering or interpolation of the
blood stains on the said weapons does not arise. There is no
explanation by the accused persons as far as blood stains
found on their clothes are concerned. The evidence of pancha
witnesses is consistent and corroborated by the oral evidence
of PW1 Nalini and PW4 Prashant Shambharkar. He further
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invited our attention towards Chemical Analyzer’s Reports
wherein the blood stains of Blood Group of the deceased were
found on the incriminating articles. Thus, he submitted that
not only the direct evidence but also the circumstantial
evidence which is consistent and corroborative and learned
Judge of the trial court convicted the accused persons on the
basis of this direct as well as the circumstantial evidence. In
view of that, the judgment and order of conviction deserves to
be maintained.
16. The complainant is also represented by counsel who
has placed on record written notes of argument. The sum and
substance of his argument is that PW1 Nalini is the most
natural witness. Merely because the FIR is lodged at about
07:20 pm, that by itself is not sufficient to suspect
genuineness of the FIR. He submitted that on the contrary,
the evidence shows that immediately at 02:00 pm, the police
have received the information about the incident. They
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immediately rushed to the spot of the incident. The police
removed the deceased to the hospital and immediately second
entry was taken. Thereafter, further investigation was carried
out. PW2 Mayur is the son of the deceased who followed the
deceased and witnessed the accused persons assaulting the
deceased. The accused persons were not unknown to PW2
Mayur as they are from the same village. PW1 Nalini as well
as PW2 Mayur has not only identified the accused persons but
also stated their role as well as the weapons they were
holding. The said weapons are recovered at the instance of
the accused persons having blood stains on the same. No
explanation is put forth by the accused persons as to the said
blood stains appearing on the weapons as well as the blood
stains found on the clothes of the accused persons, which also
connect them with the alleged offence. Thus, considering the
entire evidence on record, the judgment and order of
sentence by learned Judge of the trial court deserves to be
maintained.
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17. In support of the contentions, learned Additional
Public Prosecutor for the State placed reliance on the
following decisions:
(1) K. Venkateshwarlu vs. State of A.P., reported in
(2012)8 SC 73, and(2) Paras Ram vs. Himachal Pradesh, reported in 2002
ALL MR (Cri) 421.
18. Learned counsel Shri P.R.Agrawal; learned counsel Shri
Atharva Manohar; learned counsel Shri R.M.Daga; and
learned counsel Shri Ankit Ambatkar appearing for the
respective appellants have adopted the submissions of learned
counsel Shri Shashank Manohar and endorsed the same
contentions.
19. We have heard respective learned counsel appearing
for the respective appellants, who have also taken us through
the entire record. After hearing both sides and perusing the
entire record, first and the fore most question is, whether the
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prosecution has succeeded in establishing that the death of
the deceased is homicidal one.
20. Insofar as the homicidal death is concerned, the
material evidence adduced by the prosecution is the evidence
of PW16 Dr.Nilesh Jadhav, who testified that on 27.3.2018, he
was medical officer at VNGMC and Hospital, Yavatmal. He
received requisition for conducting postmortem of the
deceased, which is at Exh.216 along with CA Form
along with it. On external examination, he found “Yellow
Black Check shirt having multiple cut marks on the shirt,
white banian with label “Lux Cozi” stained with blood having
multiple cut marks, grey jeans stained with blood, and brown
underwear on the person of the deceased. There were
multiple injuries all over the body which he has mentioned in
column No.17 of the postmortem report. There were dried
blood stains on face, neck, and abdomen. He along with
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other medical officer, while conducting the postmortem, noted
following 20 injuries all over the body of the deceased:
“1) Stab wound present over medial Canthus of left
eye, of size 02 cm. x 1 cm. x cavity deep. One angle
acute, one angle of obtuse. Margins are clean cut.
Track-skin- subcutaneous tissue and muscles-cut
nasal bone-anterior cranial fossa.
(2) Stab wound present over left cheek 2 cm below
left eye of size 04 cm x 01 cm x cavity deep, one
angle acute and other angle obtuse. Margins are
clean cut. Track-Skin- subcutaneous tissue-maxillary
bone-maxillary cavity.
(3) Incised wound present over left mandible,
obliquely placed of size 07 cm x 03 cm x muscle
deep. Margins are clean cut and reddish.
(4) Incised wound over left upper lip 04 cm x 01
cm. Margins are clean cut and reddish.
(5) Incised wound over left temporal region of size
02 cm x 01 cm x scalp deep, margins are clean cut
and reddish.
(6) Incised wound over right high parieto-temporal
region, of size 07 cm x 02 cm x muscle deep.
Margins are clean cut and reddish.
(7) Cut throat injury over anterior aspect of neck of
size 11 cm x 04 cm x cavity deep, cutting muscle,
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blood vessels, thyroid cartilage, trachea and
esopahagus, reaching upto anterior aspect of 4th
cervical vertebra. Margins are clean cut and reddish.
(8) Incised wound present 02 cm. below injury No.7
on left side, of size 04 cm x 0.5 cm x muscle deep.
Margins are clean cut and reddish.
(9) Stab wound present over left side of chest,
obliquely placed, 09 cm. medial an above to left
nipple of size 04 cm x 02 cm x cavity deep, one
angle acute and other angle obtuse. Track-skin-
subcutaneous tissue and muscles-cutting the
pericardium.
(10) Stab wound present over external region,
obliquely placed, 03 cm medial to injury No.9, 02
cm. Below manubrium sterni, of size 2.5cm x 01cm
x cavity deep, one angles acute and one angel
obtuse. Track- skin-subcutaneous tissue and 4th
intercostal muscles pericardium-right-atrium.
(11) Stab wound present over right side of chest,
obliquely placed, 04 cm. lateral to injury No.(10),
08 cm. Medial and above to right nipple, of size 4
cm x 02.5 cm x cavity deep, one angle acute and
other angle obtuse. Track-skin-subcutaneous tissue
3rd intercostals muscles-pleura-substance of lateral
surface of right lung.
(12) Incised wound over left clavicle, 07cm from
acromion of size 02 cm x 01 cm x tissue deep.
Margins are clean cut and reddish.
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(13) Inside wound over lower sternal region, 08cm
medial to left nipple of size 02 cm x 01 cm x tissue
deep. Margins are clean cut and reddish.
(14) Stab wound over epigastrium, 27cm above
pubic symphysis and 23cm below manubrium sterni,
of size 05 cm x 01 cm x cavity deep with e/o
intestine protruding out, one angle acute and other
angel obtuse. Margins are clean cut and reddish.
Track-skin-subcutaneous tissue-Abdominal muscles-
peritoneum transverse colon-entering into the
stomach.
(15) Stab wound over left hypochondriac region, 17
cm. medial and above to left anterior superior iliac
spine, 27 cm. below manubrium sterni, 04cm below
injury No.14 of size 05 cm x 01 cm x cavity deep
with e/o intestine protruding out. One angle acute
and other angle obtuse. Margins are clean cut and
reddish. Track-Skin-subcutaneous tissue-abdominal
muscle-peritoneum-descending colon.
(16) Incised wound over right shoulder on anterior
aspect, 02 cm x 0.5 cm x tissue deep. Margins are
clean cut and reddish.
(17) Incised wound over right side of back, over
scapula, 08.5 cm below acromion process, of size 02
cm x 0.5 cm x tissue deep. Margins are clean cut and
reddish.
(18) Linear abrasion of size 05 cm x 01 cm, present
03 cm. below injury No.14 reddish in colour.
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(19) Linear abrasion 03cm below injury No.18 of
size 11 cm x 01 cm, reddish in colour.
(20) Linear abrasion over right side of chest, 04 cm
below right nipple, of size 07 cm x 01 cm, reddish in
colour.
He also noted cut fracture of nazal bone at nazal
corresponding to injury No.1 mentioned in column No.17 of
the postmortem report of opening margins of clean cut and
(2) fracture of maxilary bone corresponding to injury NO.2
mentioned in column NO.17 of the postmortem report of
opening margins of clan cut.
On internal examination, he found under scalp
hematoma over frontal, parietal and occipital region of both
sides was present. Subdural hemorrhages over frontal and
high parietal region of both sides. There was evidence of
subarachnoid hemorrhage over frontal regions of both sides
on opening thorax cavity wall ribs cartilages torn at multiple
places pleural 300 ml in blood in pleura cavity. There was
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evidence of transaction of larynx trachea and esophagus at
level of thyroid corresponding to cut throat injury mentioned
in injury No.7 in column No.17 of the postmortem report.
The stab injuries were present over lateral aspects of upper
lobe of right lung corresponding to injury No.11 mentioned in
column No.17 of the postmortem report. He also noted the
evidence of stab injury over pericardiun corresponding to
injury Nos.9 and 10 mentioned in column No.17 in the
postmortem report. Stab injury over anterior aspect of right
atrium. There was evidence of cut of blood vessels of neck
corresponding to injury No.7 mentioned in column No.17 of
the postmortem report. There was stab injury to abdominal
wall and peritoneum corresponding to injury Nos.14 and 15
mentioned in column No.17 of the postmortem report. There
was cut of esophagus corresponding to injury No.7 mentioned
in column NO.17. The evidence of stab injury over anterior
aspect of stomach corresponding to injury No.14 mentioned in
column No.17. He noted penetrating injury to to transverse
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and descending colon corresponding to injury No.14 and 15
mentioned in column No.17 of the postmortem report. He
preserved viscera samples for chemical analysis. He has also
collected blood gauge piece for Blood Group “A” and nail
clippings for detection of foreign tissue, if any, scalp hair for
foreign tissue, if any.
He further deposed that the evidence of fracture of
body of fourth cervical vertebra. On dissection, he noted
fracture margins are irregular and blood infiltrated. Injury
Nos.7, 9, 10, 11, 14, and 15 mentioned in column NO.17 of
the postmortem report with corresponding internal injuries
mentioned in column Nos.20, 21, and 22 with all other
injuries mentioned in column No.17 collectively with its
complications are sufficient in ordinary course of nature to
cause death.
He further stated that injury Nos.7, 9, 10, 11, 14, and
15 mentioned in column No.17 with corresponding injury
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mentioned in column Nos.20 to 22 are possible by sharp and
pointed weapons and injury No.7 is caused heavy cutting
weapon like knife, chopper, sword, and sickle. The cause of
death of the said person is due to “shock and hemorrhage
following multiple stab injuries with evidence of cut throat
injury.” Accordingly, he issued the postmortem report, which
is at Exh.218. The viscera and other biological samples were
handed over to PC B.No.1526 who was on duty along with CA
Forms. He also issued death information report of the
deceased, which is at Exh.220. The provisional death
certificate is at Exh.221.
His further evidence shows that he also received
queries from the investigating agency, which are at Exhs.222
and 223. Accordingly, he replied the said letters. On
examination of weapons, he has given his opinion along with
diagrams of the weapons.
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21. During the cross examination, it came on record that in
forwarding letter of the police, it was mentioned that
unknown persons killed the deceased. It further came in cross
examination that they have issued query report on 19.4.2018
and the weapons were lying with them, till 26.4.2018. The
weapons were forwarded to them on 16.4.2018. It further
came in the cross examination that the deceased died within
2-4 hours after taking his last meal. Injury Nos.18 to 20 are
not caused over head and legs, but he denied that injury
Nos.18 to 20 are possible due to fall on hard surface. He
further admitted that contusions and linear abrasions are
possible by the weapon like like iron pipe.
22. Thus, as far as the cause of death is concerned, which
is not seriously challenged by the defence. The contention of
the defence is that as per the prosecution case, while causing
injuries, the accused have allegedly used weapons like swords,
guptis, suras, and knives. The said weapons were blunt by
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one side and sharp by other side and, therefore, there cannot
be clean cut margins. Therefore, the medical evidence has not
supported the prosecution case.
23. The evidence of PW16 Dr.Nilesh Jadhav is not only an
opinion evidence but also his evidence is in the nature of
direct evidence as he has an opportunity to see the injuries on
person of the deceased.
24. A medical witness, who performs a postmortem
examination, is a witness of fact though he also gives an
opinion on certain aspects of the case. This proposition of law
has been stated by the Hon’ble Apex Court in the case of Smt.
Nagindra Bala Mitraand vs. Sunil Chandra Roy and another,
reported in 1960 SCR (3) 1 wherein it is observed that “the
value of a medical witness is not merely a check upon the
testimony of eyewitnesses; it is also independent testimony,
because it may establish certain facts, quite apart from the
other oral evidence. If a person is shot, at close range, the
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marks of tatooing found by the medical witness would show
that the range was small, quite apart from any other opinion
of his. Similarly, fractures of bones, depth and size of the
wounds would show the nature of the weapon used. It is
wrong to say that it is only opinion evidence; it is often direct
evidence of the facts found upon the victim’s person.” Thus,
the testimony of medical witness is very important and it can
be safely accepted. The evidence adduced by the Medical
Officer corroborated by the inquest panchanama shows that
the deceased died homicidal death”.
25. The evidentiary value of the medical evidence is also
considered by the Hon’ble Apex Court in the case of Anuj
Singh @ Ramanuj Singh @ Seth Singh vs. State of Bihar,
reported in (2022) LiveLaw SC 402 and it has been observed
that, “the evidentiary value of a medical witness is very
crucial to corroborate the case of the prosecution and it is not
merely a check upon testimony of eyewitnesses, it is also
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independent testimony because it may establish certain facts
quite apart from the other oral evidence. It has been
reiterated by this court that the medical evidence adduced by
the prosecution has a great probative value as it proves that
injuries would have been caused in the manner alleged”.
26. Thus, the evidence on record sufficiently shows that
the death of the deceased is homicidal one.
27. The entire case of the prosecution is based on the
direct evidence of PW1 Nalini, PW2 Mayur, PW3 Sharda
Narayane, and PW4 Prashant Shambharkar. The evidence of
PW1 Nalini discloses that she along with her husband and son
as well as her in-laws were initially residing at village Parwa.
She was elected as Sarpanch of village Parwa in the year
2016. Since she was elected as Sarpanch, disputes started
between her, her husband, and the accused persons. As per
evidence, the accused were got annoyed as the post of
Sarpanch was for Open Category whereas, she is from
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Scheduled Caste Category and was elected as Sarpanch. She
narrated various incidents as to threatening by the accused
persons. Regarding the incident took place in the year 2017,
she stated that the report was lodged at Awadhootwadi Police
Station. Thereafter, she has stated the incident took place in
November – December 2017. Thereafter, she has narrated the
incident of January 2018 took place on account digging two
bore-wells in the village as bore-well was not dug in the ward
where accused Raj Thakur is residing. Another incident
narrated by her is of 27.1.2018 when her husband had been
to the house of Sunanda Wadgure wherein accused Munna
Thakur and Raj Thakur reached there along with weapons,
but her husband along with Raju Bhoyar fled away and,
thereafter, she was abused by Munna Thakur by telephonic
call. Thereafter, she narrated the incident of 28.1.2018,
wherein the dispute occurred between her and Raj Thakur
and Raj Thakur has lodged report against her husband. On
the same night, her house as well as the house of Praful
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Shambharkar was damaged by the accused persons and
complaint was lodged. Her evidence shows that considering
continuous incidents, she was having apprehension and,
therefore, she along with her son and husband started
residing at Yavatmal.
28. The evidence of PW1 Nalini shows that on 27.3.2018,
at about 11:30 am, she had been to village Parwa along with
her husband and son. Her nephew Samyak was also along
with her. Her husband at about 01:00 pm left the house along
with Shaikh Imran and Shaikh Israil on the pretext of eating
“kharra”. She sent her son Mayur and nephew Samyak
behind her husband. After some time, her son Mayur and
nephew Samyak rushed to the house and informed her that
her husband is assaulted by Raj Thakur, Munna Thakur, Vinod
Chapariya, and other 9-10 persons. Therefore, she
immediately rushed to the Anganwadi and saw that accused
Munna Thakur, Raj Thakur, Vinod Chapariya, Sanjay
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Chapariya, Bhupendra Shibalkar, Sumedh Meshram, Sunil Pali
@ Kumbhekar, Sunil Devtale, Hanuman Pendor, Shubham
Tekam, Bhimrao Awathare, Pravin Bhagat, and other 2-3
persons were assaulting her husband by means of swords, iron
rods, knifes, koyta, and sattur. Her husband was lying on the
ground. She raised shouts and, therefore, people gathered
there and, thereafter, the accused persons fled away from the
spot. She has lodged the report about the said incident,
which is at Exh.118 and the FIR is at Exh.119.
29. The evidence of PW1 Nalini further discloses that she
has identified accused Raj Thakur, Munna Thakur, Vinod
Chapariya, Pravin Bhagat, Bhimrao Awathare, Sunil Pali @
Kumbhekar, Sunil Meshram, Hanuman Pendor, Sunil Devtale,
and Shubham Tekam. She has correctly identified the persons
before the court who were possessing the swords. She has
also identified the weapons and deposed that sword Article-A
was in the hands of accused Raj Thakur, sword Article-B was
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in the hand of Munna Thakur, iron rod Article-C was in the
hands of Pravin Bhagat, iron rod Article-D was in the hands of
Sumedh Meshram, iron rod Article-E was in the hands of
Bhimrao Awathare, and iron rod Article-F was in the hands of
Sunil Pali @ Kumbhekar. She has also identified Sunil Devtale
and Hanuman Pendor who were possessing “Koyate”. She
further identified that iron rod Article-G which was in the
hands of Sunil Devtale and “Koyta” Article-H which was in
the hands of Hanuman Pendor and knife Article-I which was
in the hands of Shubham Tekam.
30. The cross examination of PW1 Nalini was on the point
of election regarding Members of the Gram Panchayat
wherein she has admitted that PW3 Sharda Narayane and
PW4 Prashant Shambharkar were also elected as Gram
Panchayat Members. She admitted that PW3 Sharda
Narayane and Praful Shambharkar are of her party and they
were assisting her. She further admitted that in the year
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2015, Smt.Rama Chimurkar and Suman Chapariya had also
filled forms for the post of Sarpanch and Up-Sarpanch
respectively. However, she was elected as Sarpanch. It
further came in her cross examination that she was opposing
to Vinod Chapariya for becoming President of “Tanta Mukti”.
A suggestion that, a complaint was lodged against her
husband and Praful Shambharkar for disrespecting statue of
Dr.Babasaheb Ambedkar, was denied by her. She admitted
that there was no dispute occurred on 27.1.2018 between her
husband and Raj Thakur, but she voluntarily stated that on
that day accused Raj Thakur made her a phone call and
abused her in a filthy language. She further admitted that
when her house was damaged at village Parwa, she or her
husband was not present in the house. Her cross examination
further shows that when she reached the spot of the incident,
her husband was lying in a bleeding condition, but she
voluntarily stated that at the relevant time the accused
persons were present there and beating her husband. She
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admitted that on the spot she did not make the complaint
before the police against assailants. However, she denied that
she was enquired by the police on the spot itself. Her cross
examination further shows that the houses of PW3 Sharda
Narayane and PW4 Prashant Shambharkar are not adjacent
to the place of incident. Her cross examination further reveals
that after 8-9 days, her statement was recorded thrice by the
police. Some omissions are also brought on record during the
cross examination. It further came in the cross examination
that her son as well as her nephew both are school going
children and school timing of her son was from 11:00 am to
5:00 pm and timing of school of her nephew is from 8:00 am
to 12:00 noon.
31. On the basis of this cross examination, learned counsel
for the appellants submitted there was no holiday to the
schools and, therefore, presence of PW2 Mayur at the spot of
the incident is doubtful. An attempt was made to show that
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various cases about drugs were filed against the husband of
PW1 Nalini, but she has shown unawareness about the same.
She specifically stated that she has not lodged the complaint
against the accused initially to maintain peace in the village.
She further stated that as she was scared of the accused
persons also, the report was not lodged regarding illegal
activities of manufacturing of illicit liquor by accused Raj
Thakur and Munna Thakur. Some omissions regarding role of
accused Sunil Devtale, Hanuman Pendor, Shubham Tekam
regarding statement under Section 164 of the CrPC are also
brought on record. She specifically stated that the fact of
possessing knife by accused Shubham Tekam was stated by
her before the Magistrate while recording her statement under
Section 164 of the CrPC. She denied that she met PW3
Sharda Narayane and PW4 Prashant Shambharkar on
5.4.2018 when her statement as well as statements of those
were recorded. Regarding presence of accused Bhimrao
Awathare, it was suggested that at the relevant time, he met
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with an accident and was bedridden. Similarly, accused
Pravin Bhagat was also not in the village and he had been to
Yavatmal and accused Sunil Pali @ Kumbhekar was present
in the marriage ceremony at Kinhi, but she shown
unawareness about the same.
32. Thus, on the basis of this cross examination, an
attempt was made to show that the FIR was not lodged
promptly. The names of assailants are not disclosed by her
though the police were present for drawing spot and inquest
panchanamas. The presence of PW2 Mayur who is school
going boy is also suspicious. It was further suggested that
before her evidence is recorded, she read statement on 3-4
occasions. On this basis of this cross examination, an attempt
was made to show that she has refreshed her memory prior to
the evidence adduced before the court. Her conduct is not
natural and, therefore, she is not trustworthy witness.
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33. To corroborate the version of PW1 Nalini, the
prosecution further relied upon the evidence of PW2 Mayur
who is another eyewitness and son of the deceased.
34. The evidence of PW2 Mayur shows that at the relevant
time he was studying in 9th Std. and was residing at ward
No.1, Parwa and, thereafter, since January 2018 he was
residing at Ambedkar Chowk, Yavatmal along with his
parents. His mother PW1 Nalini was Gram Panchayat
Sarpanch of village Parwa and his father was fruit vendor. The
incident occurred on 27.3.2018 at Parwa. On that day, his
father along with his two friends went towards Samaj Mandir
on a pretext of eating “Kharra”. At that time, on the say of his
mother, he along with his cousin Samyak followed his father.
His father went towards Samaj Mandir and he witnessed a
motorcycle of the persons who were along with his father
near Samaj Mandir. Therefore, they proceeded towards Samaj
Mandir. He saw his father as well as Pravin Bhagat and
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Bhimrao Awathare holding iron pipes. His father was
assaulted by Pravin Bhagat and Bhimrao Awathare by means
of iron rods due to which his father fell on the ground. Other
accused Raj Thakur, Munna Thakur, Sanjay Chapariya, and
Vinod Chapariya were also present there holding swords in
their hands. Accused Raj Thakur has given a blow of sword
on the neck of his father and other three accused were also
assaulting his father by means of swords. Another accused
who is child in conflict with law, Hanuman Pendor, Shubham
Tekam, Sunil Pali @ Kumbhekar, Sunil Devtale, Sumedh, and
other 3-4 persons were standing with iron rods and knives.
They all have assaulted his father by giving repeated blows on
his chest, stomach, and caused injury to him. As soon as he
witnessed the incident, that those persons were causing
injuries to his father, he along with his cousin ran towards his
house to inform his mother. They narrated the incident to his
mother and immediately rushed towards the spot. His mother
followed them. His evidence shows that those persons
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assaulted his father and, thereafter, fled away from the spot.
His mother started crying and dead body of his father was
lying there. Thereafter, the police came after some time at the
spot and took the dead body of his father. He has identified
the accused persons as well as the weapons which were in
their hands. As per his evidence, Article-A sword was in the
hands of accused Raj Thakur, Article-F iron rod was in the
hands of Sunil Pali @ Kumbhekar, Article-D iron rod was in
the hands of Bhimrao Awathare, Article-C iron pipe was in the
hands of accused Pravin Bhagat, Article-B sword was in the
hands of Munna Thakur, and Article-I knife was in the hands
of Shubham Tekam.
35. His cross examination shows that his school timing was
from 11:00 am to 5:00 pm. But, the witness voluntarily
stated that there was no school and it was Tuesday. His
further cross examination shows that he was having
knowledge that his father went towards Samaj Mandir for
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eating “kharra”. Some omissions are also brought on record
during his cross examination. He specifically stated that the
clothes of his mother were not stained with blood as well as
his clothes were also not stained with blood. It further came
in his evidence that since from the date of the incident till
recording his statement, he was at his house at Patipura.
Thus, from the cross examination, an attempt was made to
show that the statement of this witness was recorded
belatedly on 5.4.2018. It further tried to bring on record that
he was school going boy. There was no holiday on the day of
the incident and, therefore, there was no reason for him to
remain present at the spot and, therefore, he is not eyewitness
of the incident.
36. Independent eyewitness, as per the prosecution case, is
PW3 Sharda Narayane. As per her evidence, on the day of the
incident, accused Bhimrao Awathare, who resides in front of
her house, from backdoor of the house, Shubham Tekam,
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Hanuman Pendor, Gopi, and Sumedh Meshram came out of
the house and they ran towards new Anganwadi from her
courtyard. At the relevant time, Hanuman Pendor and Gopi
were holding “Koyta” in their hands, whereas Shubham
Tekam was holding knife in his hands, and Shubham
Meshram was holding iron rod. While running towards
Anganwadi, Shubham shouted that he is proceeding towards
new Anganwadi and let’s go there. She realized that son of
her sister namely Prashant Shambharkar has gone towards
Anganwadi for playing cards and, therefore, she immediately
followed them. At some distance, near the temple, she
witnessed that villagers Raj Thakur, Munna Thakur, Vinod
Chapariya, Sanjay Chapariya, Shubham Tekam, Hanuman
Pendor, Gopi, Sumedh Meshram, Sunil Devtale, Pravin
Bhagat, and Bhimrao Awathare Sunil Kumbhekar and other 2-
3 boys holding swords, knives, koyta, and iron rods were
assaulting the deceased. The deceased fell on the ground and
was shouting loudly. Accused Raj Thakur by taking swords
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from accused Munna Thakur by holding hair of the deceased
dealt a blow of sword on the neck of the deceased. The
deceased was in a pool of blood. Thereafter, Shubham Tekam
has given a blow of knife on the stomach of the deceased.
She got scared and was shouting. At the relevant time, PW1
Nalini, the wife of the deceased, also reached there. She also
started shouting and the people gathered there. At that time,
the assailants fled away from the spot. She went to the house
and called Praful Shambharkar. Again, she returned to
Anganwadi. At that time, PW1 Nalinin was crying loudly. She
noticed injuries on the neck, chest, and stomach of the
deceased. After some time, Praful Shambharkar came along
with police at the place of occurrence.
37. The evidence of PW3 Sharda Narayane further shows
that there was political rivalry between Raj Thakur and
Munna Thakur and the informant and her husband. Her
evidence further shows that Thakur community were
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continuously raising quarrel with Sarpanch PW1 Nalini, her
husband and Praful Shambharkar. The accused persons were
also creating castism in the village. During her evidence, she
also identified the accused persons namely Shubham Tekam,
Hanuman Pendor, Sumedh Meshram, Munna Thakur, Raj
Thakur, Vinod Chapariya, Sunil Devtale, Pravin Bhagat, and
Bhimrao Awathare. She has also identified Articles-H “Koyta”
in the hands of Hanuman Pendor, Article-G “Koyta” in the
hands of Gopi, Article-C iron rod in the hands of Pravin
Bhagat, Article-F rod in the hands of Bhimrao Awathare,
Article-D iron rod in the hands of Sumedh Meshram, Article-E
rod in the hands of Kumbhekar, Article-A sword in the hands
of Raju Thakur, and Article-B sword in the hands of Munna
Thakur.
38. Her cross examination further depicts that though she
witnessed the incident, she has not disclosed it to police
though police visited village for investigation purpose. On
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5.4.2018, she went to the police and gave her statement. She
at her own went to the police station and gave her statement.
Her further cross examination shows that her daughter got
married with Munna Thakur against her will and today also
her daughter is cohabiting with. However, she has denied
that she has not accepted their marriage. Thus, on the basis
of omissions brought on record, it is contended by learned
defence counsel that the evidence of this witness is not
believable and she is interested witness as her daughter got
married with accused Munna Thakur against her will. As far
as the incident is concerned, regarding the assault by the
accused, admittedly, there is no cross examination on that
point.
39. The evidence of another eyewitness is PW4 Prashant
Shambharkar shows that on 27.3.2018, he was having night
duty and, therefore, he was present in the house. At about
12:00 noon, he along with Nitin Lokhande, Raju Kawade, and
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Prakash Bhagat were playing cards near Anganwadi school
behind the house of Sunita Ghaiwan. At about 1:10 to 1:30
pm, the husband of PW1 Nalini came along with two boys.
Out of them, one boy was known to him namely Imran. The
deceased came to him asked Rs.50/- for eating “kharra”. At
the relevant time, Sunita Ghaiwan from the slab of her house
shouted and warned the deceased to run away as 8-9 persons
holding swords are running towards him. Before they
understand anything, accused Munna Thakur, Raj Thakur,
Vinod Chapariya, Swapnil Kumbhekar, Sunil Devtale,
Bhupendra Shibalkar, Bhimrao Awathare, Shubham Tekam,
Sanjay Chapariya, Sumit Meshram, Pravin Bhagat, Hanuman
Pendor, and other 2-3 persons by holding swords, knives, iron
rods, and koyate started assaulted the deceased by giving
repeated blows by force. The deceased shouted loudly and
fell on the ground. After witnessing the same, persons Nitin
Lokhande, Raju Kawade, Prakash Bhagat got scared and fled
away from the spot. He also went at some distance and
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witnessing the said incident. Imran who came along with the
deceased was also standing near to him. Raj Thakur by taking
sword from the hands of accused Munna Thakur by holding
the head of the deceased cut his throat. Whereas, Vinod
Chapariya and Sanjay Chapariya were holding swords in their
hands and Hanuman Pendor and Sunil Devtale were holding
koyte in their hands wherein the deceased fell on the ground.
Bhupendra Shibalkar and Shubham Tekam were inflicting the
blows of knives on his stomach. At that time, accused” Raj
Thakur shouted, “fouksn o lkys ‘kaHkjdj dks idM”. On his shout,
Vinod Chapariya ran fastly towards him. He got scared and
fled away towards the field of Shukla and from the field he
came on the main road. After some time, he received a
phone call of his brother and, thereafter, he returned to the
village. When he returned to the village, the police already
came there and removed the body of the deceased.
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40. During his evidence, he has identified accused Munna
Thakur, Raj Thakur, Vinod Chapariya, Nitin Awari, Sunil
Devtale, Bhimrao Awathare, Shubham Tekam, Sumit
Meshram, Pravin Bhagat, and Hanuman Pendor. He also
identified the weapon Article-A in the hands of Raj Thakur,
Article-B in the hands of Munna Thakur, Article-H koyta in the
hands of Sunil Devtale, Article-G koyta in the hands of
Hanuman Pendor, Article-I in the hands of Shubham Tekam,
Article-G iron rod in the hands of Pravin Bhagan, Article-H
iron rod in the hands of Bhimrao Awathare, and Article-D iron
rod in the hands of Sumit Meshram.
41. His cross examination shows that since the date of
incident he was in village at Patipura. After 8-9 days of the
incident, for the first time, he stated the incident to the police.
He did not suo motu approached the police station for
recording his statement. He specifically admitted that if he
would not have received notice from the police, he would not
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have approached the police to record his statement.. He
denied all suggestions that he has not witnessed the accused
assaulting the deceased. He further admitted that the spot
of the incident was not on the way of pan-shop. He saw the
police carrying the dead body in the vehicle. On the basis of
this cross examination, the defence tried to bring on record he
belongs to the political party of the informant and, therefore,
he is interested witness. He has not made any attempts to
intervene in the incident. Thus, there is no natural conduct
on his party. Moreover, his statement was recorded belatedly.
Though he is an eyewitness to the incident, there is no
explanation for the said belated statement.
42. Besides the direct evidence, the prosecution placed
reliance on the evidence of pancha on spot panchanama PW5
Devidas Sathe and pancha on inquest panchanama PW6
Mukhtar Ali Ahmad Ali. The evidence of PW5 Devidas Sathe
shows that he was serving as peon in tahsil office. He was
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called by the Awadhootwadi Police Station at the place of
occurrence at village Parwa near the primary school, they
noticed the blood stains spread on the ground. PW1 Nalini
shown the spot of the incident. Accordingly, the police have
drawn the panchanama, collected the blood stained soil and
simple soil also obtained photographs at the spot of the
incident. Accordingly, the spot panchanama was drawn,
which is at Exh.142. Though the accused persons have cross
examined this witness, nothing incriminating came on record.
Recital of the spot panchanama also shows that at the relevant
time, forensic team and photographer were also present and
they have collected the blood stains from the spot of the
incident.
43. PW6 Mukhtar Ali Ahmad Ali, acted as a pancha on
inquest panchanama, also deposed that on receiving the call
from the police, he went to VNGMC and Hospital, Yavatmal.
At the relevant time, the brother of the deceased namely
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Prashant was present there. The deceased was having white
and blue colour check-shirt on his body, ash colour pant,
white colour sando banian and brown colour underwear. The
police removed those clothes from the dead body and they
seized, sealed the same. They have noticed slice injuries on
his neck and also injuries on abdomen and chest. There were
3-4 knife injuries. There was a big injury over his head and
the injury on his left shoulder. They have noted total 17
injuries on the dead body. Accordingly, the panchanama was
drawn, which is at Exh.144. The clothes of the deceased i.e.
shirt at Article-J, sando banian at Article-L, and underwear at
Article-K. His cross examination also shows that at the time of
inquest panchanama, Prashant Gawande, Nalini Gawande,
and other persons were present.
44. It is vehemently argued by learned counsel Shri
Shashank Manohar for the accused persons that the spot
panchanama drawn by the police on 27.3.2018 at about 4:00
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to 5:00 pm shows as Crime No.347/2018. Whereas, the FIR
was lodged by the informant on 27.3.2018 at about 07:22 pm.
Mentioning of the crime number in the panchanama, when
crime was not registered, itself creates a doubt about the
incident. However, it is pertinent to note that various general
diary entries placed on record by the investigating agency
show that on 27.3.2018 at about 2:05, Awadhootwadi Police
Station received the information as to quarrel at village Parwa
and, therefore, API Chaudhary and PSI Dhawane, Police
Constable Madavi, Prashant Gedam, and other police
constables proceeded towards the spot of the incident. The
said general diary entries are registered at 31 at about 2:05
pm. The second general diary entry dated 27.3.2018 is at 36
at about 03:27 pm which was recorded by API Chaudhary that
the injured Tulsidas @ Mahesh Gawande was brought to the
Government Hospital at Yavatmal and the spot of the incident
was protected and panchas were called. The number of this
station diary entry as 36/2018 recorded at 15:27 is also
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mentioned in the said panchanama. Thus, it shows that
though the crime was not registered, the police were already
having an information about the cognizable offence and the
entry at the general diary was already taken by the police.
45. Reverting to the aspect of various memorandum
statements of the accused persons and discoveries as to the
fact and recoveries of the weapons at the instance of the
accused persons, the prosecution has placed reliance on the
evidence of various panchanamas.
46. PW7 Sunil Wanjari was examined vide Exh.148 who
has acted as pancha on memorandum statement of accused
Shubham Tekam. He also acted as a pancha on the house
search panchanama of the house of accused Shubham and
seizure of two motorcycles from his house. The evidence of
PW7 Sunil Wanjari shows that he is working in the District
Malaria Office at Yavatmal. He along with another pancha
Ashok Dhawane visited the SDPO Office wherein he as well as
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other pancha was informed that one Shubham Tekam and
Vinod Chapariya are intending to make disclosure statements.
Thereafter, Shubham Tekam was brought in the cabin of
SDPO Piyush Jagtap. In their presence, he made disclosure
statement that he is ready to hand over the weapons and his
clothes, which were concealed by him in a field near village
Dahegaon. He has shown his willingness to hand over the
same and also asked to come along with him. Accordingly,
the said disclosure statement was prepared,same bears their
signature and signature of accused and S.D.P.O., which is at
Exh.149. As per the statement, they proceeded in a
Government vehicle via Apsara Talkies Road, Nagar Bhavan,
Sharda Chowk, Ghatanji and Dahegaon. Before they reached
village Dahegaon, at a distance of 50 meters, the accused
asked to stop the vehicle and took them in a field towards
right side of the bridge, shown them place beneath “patri” and
told that he concealed the knives at that place. Accordingly,
the said knives were recovered and panchanama was
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recorded, which is at Exh.150. From his house, his clothes
were seized and the clothes seizure panchanama is at
Exh.153. His blue colour shirt and black colour jeans pant
were seized and, thereafter, they returned to the SDPO Office.
47. The evidence of PW7 Sunil Wanjari further shows that
on the same day, accused Vinod Chapariya in their presence
made a statement that he is ready to hand over sword and
partly burnt his clothes and clothes of accused Munna Thakur.
He further stated that he concealed those articles near his
cowshed at village Parwa. He has shown his willingness to
hand over the same. Accordingly, his statement was recorded,
which is at Exh.154. Thereafter, in the Government vehicle,
he along with other pancha, police staff, and the accused
proceeded towards village Parwa. The said cowshed situated
at right turn from his house, which was shown by him. He
alighted from the vehicle and they followed him. He took out
the sword from underground and handed over the same to
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the police. He has also shown partly burnt clothes and
handed over to the police. Accordingly, the panchanama was
drawn, which is at Exh.155. PW7 Sunil Wanjari identified
accused Shubham Tekam and Vinod Chapariya. He also
identified the pant of accused Shubham Tekam (Article-38),
but could not identify his shirt. The pant which was identified
by PW7 Sunil Wanjari was marked at Article-M. He has also
identified the knife Article-I which was seized at his instance.
He has also identified burnt shirts Articles-8 and 10 which
were of accused Vinod Chapariya and Articles-9 and 11 burnt
pants of accused Vinod Chapariya. He further identified
Article-B sword which was seized at the instance of accused
Vinod Chapariya.
48. The documents on record show that requisition to the
District Malaria Officer dated 9.4.2018 Exh.317 requesting to
depute two employees as panchas. In response to the said
requisition, Exh.318 is the communication by the District
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Malaria Officer deputing two employees showing names of
PW7 Sunil Wanjari, Sunil Wanjari and Ashok Dhawane who
acted as panchas on memorandum statements of accused
Shubham Tekam and Vinod Chapariya and recovery
panchanamas as well as house search panchanama of accused
Shubham Tekam. To corroborate the case of the prosecution
that Articles were seized from respective places stated by
accused Shubham Tekam and Vinod Chapariya. Exh.629
logbook entry of the Government vehicle is also placed on
record, which shows entry that on 9.4.2018 from 12:00 noon,
till they returned and again proceeded along with accused
Vinod Chapariya and again returned to the SDPO Office is
shown. Exh.150 shows blood stains on blade of the knife as
well as Exh.153 shows stains on shirt of accused Shubham
Tekam and Exh.155 shows blood stains on the swords as well
as half burnt shirt having stains and half burnt night pant.
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49. PW7 Sunil Wanjari is cross examined by the respective
counsel of the accused persons. This witness has admitted
that the knife and sword were on open place. The clothes
were also on the open place. There was no label with
signature of panchas on the said Articles. The sword Article-B
wherein also there was no label or signatures of panchas. He
further stated that he put his last signature in the office of
SDPO on that day at about 9:00 to 9:30 pm. He further
admitted that in his presence there was no conversation
between the police and accused Shubham Tekam. Thus, from
the cross examination, the defence has brought on record that
the recoveries of the incriminating Articles are from open
place as well as there was no discussion in presence of these
pancha witnesses and, therefore, the evidence of pancha
witnesses as to recoveries deserves to be discarded. However,
relevant photographs obtained on 9.4.2018 show that accused
Vinod Chapariya has shown them place wherein the clothes
were burnt and the said clothes were seized from the said
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place. From the said photographs, it reveals that the place is
isolated place. Similarly, it reveals that the weapons are
recovered from cattle shed which were kept in a sealed
condition. Similarly, the photographs regarding recovery of
the knives at the instance of accused of which the
photographs are obtained show that the weapons were in a
concealed condition and the same were produced by the
accused by removing bushes at the said place. The
memorandum statement of accused Shubham Tekam was
recorded on 9.4.2018 at about 12:20 to 12:45 and recovery
panchanama was drawn from 2:00 to 2:45 pm. The house
search panchanama of accused Shubham was drawn from
15:05 to 15:30. The memorandum statement of accused
Vinod Chapariya was recorded from 17:15 to 17:45 and
recovery panchanama was drawn from 18:20 to 19:20.
50. PW8 Sanjay Pawar is another pancha on seizure memo
of seizure of mobile of accused Shubham Tekam. His
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evidence shows that in his presence mobile of accused
Shubham Tekam was seized by drawing panchanama vide
Exh.157. His evidence further discloses that on the same day,
accused Munna Thakur has shown his willingness to give
disclosure statement and, therefore, he was brought in the
cabin of SDPO wherein he made disclosure statement that he
is ready to hand over the gupti and ready to show the place.
Accordingly, the said statement was prepared, which bears his
signature as well as signatures of another pancha SDPO
Piyush Jagtap and the accused, which is at Exh.158.
Thereafter, they proceeded in a Government vehicle via
Patipura, Kalam chowk, and Sharda Chowk at some distance
of Pandharkawada Naka via Kaccha Road, as shown by the
accused. The accused asked them to stop the vehicle in front
of one cowshed, which was adjacent to village Parwa.
Accordingly, they proceeded towards the cowshed and from
some distance from cowshed, the accused has shown the place
where he concealed the gupti. Accordingly, the accused took
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out the said gupti and it was seized by the police.
Accordingly, the panchanama was drawn, which is at Exh.159.
The memorandum statement of accused Munna Thakur was
recorded at 12:20 to 12:45 pm and panchanama was drawn
from 13:22 to 14:00 pm. Thereafter, they returned to SDPO
office.
51. The evidence of PW8 Sanjay Pawar further shows that
after returning back to the SDPO office, accused Sumedh
Meshram who was in the police lock-up has also made
disclosure statement that he concealed the iron rod and has
shown his willingness to hand over the same. Accordingly, his
statement was recorded, which bears his signature as well as
signatures of other panchas, the accused, and the SDPO,
which is at Exh.160. Thereafter, they proceeded by the
Government vehicle through Arni Bypass and near village
Godhani, the accused asked to stop the vehicle. Thereafter,
the accused alighted from the vehicle. They followed him.
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He has taken them in the field and shown the spot and
produced the iron rod, which was concealed under the
ground. As there was heavy raining, the said rod was
wrapped in a polythene. Accordingly, panchanama Exh.161
was drawn. He identified accused Munna Thakur as well as
weapon gupti which was seized at his instance, which is
marked as Article-I. He has also identified accused Sumedh
Meshram and Article-F iron rod recovered at the instance of
said accused Sumedh Meshram. The memorandum statement
of accused Sumedh Meshram was recorded from 17:15 to
17:50 and recovery panchanama was drawn from 18:20 to
19:30. This witness was cross examined and he has denied
that gupti was seized from the open place. He has also denied
that on the relevant day at 12:10 pm he was requested to
remain present for acting as pancha and, therefore, he went to
the office at 12:10 pm. This witness has also admitted that
there was no conversation between the police and Sumedh
Meshram in SDPO office and SDPO himself typed the
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statement and took out the print. As per the evidence of the
investigating officer, the photographs, when the statement of
the accused was recorded as well as the photographs at the
time of recovery of the incriminating Articles, were obtained.
The photographs dated 10.4.2018, when statement of accused
Munna Thakur was recorded, are also on record. The
photographs showing that the accused has shown the place
and taken out the weapons which were kept underneath of
the bushes are also placed on record. Similarly, the
photographs showing in presence of the panchas the
statement of accused Sumedh Meshram and the photographs
regarding showing the place by the accused and taking out
the weapons underneath the ground are placed on record.
The documents which are proved by the investigating officer
show that Exh.324 is requisition to the District Veterinary
Officer to depute two employees to act as panchas. Exh.325 is
the letter from the District Veterinary Officer communicating
the names of two employees to act as panchas. The logbook
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entry Exh.630 shows that the vehicle was proceeded by taking
the accused.
52. PW9 Sawan Nerle also acted as a pancha on statement
of accused Bhimrao Awathare recorded on 31.3.2018 whose
evidence also shows that he was called to act as pancha. In
his presence as well as in presence of other panchas, accused
Bhimrao Awathare has shown his willingness to show the
place where he concealed the rod. Accordingly, his statement
was reduced into writing, which bears his signature and
signatures of another panchas and the accused, which is at
Exh.166. Thereafter, in a police vehicle, they proceeded from
SDPO office via Nagar Parishad and Pandharkawada Road.
They proceeded ahead village Bhari. The accused asked to
stop the vehicle near the field. Accordingly, they alighted
from vehicle and the accused has shown the place in the
bushes and taken out the rod from it and handed over the
same to the police. Accordingly, the weapon was seized and
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the panchanama was drawn, which is at Exh.167. He has
identified accused Bhimrao Awathare as well as iron rod
Article-E. His evidence further shows that blood samples of
the two accused were seized in his presence. He acted as a
pancha on seizure of blood samples of accused Sunil Devtale
and Hanuman Pendor.
53. This PW9 Sawan Nerle was cross examined. He has
admitted that the place from which the weapon was seized
from the barren land which was open. The evidence of the
investigating officer regarding the seizure of the said weapon
shows that before memorandum statement, requisition to
Chief Officer of Nagar Parishad, Yavatmal was forwarded
requesting to depute two employees to act panchas, which is
at Exh.280 and the logbook entry of the vehicle is at Exh.626.
54. PW10 Akash Gohokar is one more pancha who stated
that accused Sunil Devtale made a disclosure statement in his
presence and another pancha Sangita Nagapure was also
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present along with him. The statement of Sunil Devtale
discloses that he has concealed the weapon in the cowshed in
the field of Kisan Ghurnade situated at village Bodhbodhan
and he has also shown his willingness to show the said place.
Accordingly, his statement was reduced into writing. It bears
the signatures of both panchas, accused, and SDPO. The said
statement is at Exh.170. Thereafter, they proceeded in a
Government vehicle with the panchas, photographer, and
other staff. The accused led them towards Arni Road and
village Bodhbodhan. Prior to they reached to the said village,
the accused asked them to stop the vehicle. They have
alighted from the said vehicle and the accused took them
towards the cowshed, he has shown the place where he
concealed the weapons. He took out the weapons which were
kept underneath the ground. The weapons were sattur and
sickle. Accordingly, the said weapons were seized and the
panchanama was drawn, which is at Exh.171. He has
identified the weapons sattur Article-H and sickle Article-S.
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As per the memorandum statement, it was recorded at about
14:00 to 14:45 and panchanama was drawn from 16:15 to
17:00. The photographs on record show that in presence of
panchas, statement of the accused was recorded. The
photographs further reveal that the accused took them in one
field and has shown the place and taken out both the Articles.
55. The cross examination of PW10 Akash Gohokar shows
he denied both the panchanamas are prepared in S.D.P.O.
office. He has denied suggestions that Article-H is not “koyta”,
but it is “sattur”. He has also denied that both the weapons
are seen by him in the office of the SDPO. He specifically
stated that before signing the panchanama, he confirmed that
it is mentioned in the panchanama that by digging earth the
weapons were taken out. The evidence of the investigating
officer shows that before the memorandum statement was
recorded, requisition to the Range Forest Officer was given to
depute two employees to act panchas, which is at Exh.293.
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The logbook entry Exh.627 shows that the Government
vehicle was used to take the accused for the investigation
purpose.
56. PW11 Geeta Botre also acted as a pancha on
memorandum statements of accused Pravin Bhagat and
accused Bhimrao Awathare. As per evidence, she along with
another pancha and the police went to the house of Pravin
Bhagat. The house search of the house of Pravin Bhagat was
carried out and during the house search, the clothes of
accused Pravin Bhagat and one mobile phone were seized.
Similarly, the house search panchanama of the house of
accused Bhimrao Awathare was also carried out and from his
house also the clothes and mobile phone were seized.
Accordingly, panchanama Exh.173 & 174 was prepared. The
house tax receipts were also collected, which are also placed
on record. The house search panchanama of the house of
accused Pravin Bhagat is at Exh.173. Whereas, the house
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search panchanama of the house of accused Bhimrao
Awathare is at Exh.174. The property seizure memo is at
Exh.175 & 176. The house tax receipts of accused Pravin
Bhagat are at Exh.177. Whereas, the house tax receipts of the
house of accused Bhimrao Awathare are at Exh.178. Her
further evidence shows that on the same day, accused Pravin
Bhagat has given disclosure statement that he has concealed
one rod in field and shown his willingness to show the same.
Thereafter, as per the accused, they proceeded towards village
Parwa. The accused took them in a field, which was at a
distance of 400-500 meters towards right side in the village.
Thereafter, he took out one rod from the said field near the
“Neem Tree.” The said weapon iron rod was seized in their
presence. Accordingly, panchanama Exh.180 was drawn. She
has identified accused Pravin Bhagat as well as Bhimrao
Awathare. She has also identified the rod Article-F seized at
the instance of accused Pravin Bhagat.
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57. The cross examination of PW11 Geeta Botre shows
that the documents on which she has signed were prepared in
the police station. She has further admitted that the field was
adjacent to the road having no crop and anybody can enter in
that field. She has further admitted that the clothes of the
deceased were open and spread on the table, which were
seized in her presence. On perusing various photographs
reveals when statement of accused Pravin Bhagat was
recorded in the office of SDPO, while showing the place, the
photographs are also obtained. The evidence of the
investigating officer on this aspect discloses that Exh.274 is
the requisition given by him to the Divisional Controller and
logbook entry Exh.625 is taken showing that the accused was
taken out for the investigation purpose.
58. PW12 Mukund Karanjkar has acted as pancha on the
memorandum statement of accused Raj Thakur, whose
evidence shows that in the office of the SDPO, accused Raj
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Thakur was brought. He made a disclosure statement that he
has concealed the sword and he is ready to show the place
where it was kept. He has also disclosed that the sword is tied
with shirt and motorcycle chain cover and he is ready to show
the place. Accordingly, his statement was recorded having
their signatures as well as signature of the accused and the
SDPO, which is at Exh.186. Thereafter, the accused took them
via Kalamb chowk, Pandharkawada Road to Parwa. The
accused has shown his house and asked to stop his vehicle.
Thereafter, the accused alighted from the vehicle and they
followed him. In front of his house, there was a drainage and
there was one tile over it. The said drainage was covered by
one tin-sheet. Beneath the said tin-sheet, he took out the
sword and shirt and handed over the same. The said Articles
were seized in their presence. Thereafter, he took them to the
place where he has thrown the chain cover. The chain cover
was also seized. Accordingly, the panchanama Exh.187 was
drawn. He could not identify the accused, however he has
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identified Article-A sword and Article-T chain cover. He could
not identify the shirt of the accused. He denied that the
person shown to him disclosed his name as Bhupendra
Shibalkar. He admitted that when they reached there with the
help of police personnel, small metal and sand were removed
from the tins-shed. Thereafter, the sword was taken out.
There were one or two houses adjacent to the said drainage
and well. However, he denied that the sword was not taken
out from the said drainage. He has also stated that there was
no mud over the sword .He has also denied that the police
have taken out the sword from the said drainage. The
memorandum statement of accused Raj Thakur was recorded
on 12.4.2018 at 14:10 to 15:15 and recovery panchanama
was drawn on 16:00 to 17:20. Besides his evidence, Exh.328
proved through the investigating officer shows that it was the
requisition to the Water Conservator Officer for deputing two
employees to act panchas. The logbook entry Exh.632 shows
that the accused was taken out for investigation purpose.
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59. Coming to the evidence of PW13 Devidas Dalavi who
acted as pancha on the memorandum statement of accused
Swapnil Raghunath Kumbhekar, which shows that in his
presence and in presence of another pancha Prakash Bhagat,
the said accused Swapnil Kumbhekar has made disclosure
statement that he is ready to show the place where he kept
the iron rod and the clothes. Accordingly, his statement was
recorded, which is at Exh.189 which bears his signature and
signatures of another panchas, the accused, and Police Officer
Bhoyar. Thereafter, the accused took them to village Parwa.
At a distance of 2 kilometers from village Parwa, the accused
asked them to stop the vehicle and he took them near the
bushes and near the “Palas Tree” and has shown the place
where he kept the iron rod. The accused took out the iron rod
and handed over to the police. Accordingly, it was seized and
panchanama Exh.190 was drawn. The photographs on record
also show that accused Swapnil Kumbhekar has made a
statement in presence of panchas and also show the spot
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where the articles were concealed and the same were
recovered. The photographs show that the articles were
recovered underneath from the bushes.
60. The cross examination of this PW13 Devidas Dalavi
shows he was not having any acquaintance with accused
Swapnil Kumbhekar. On that day, he signed on two
documents. He admitted that the place from where the rod
was seized was open place. He voluntarily stated that bushes
were there. The logbook entry regarding taking the accused
for the investigation purpose is at Exh.633.
61. The evidence of PW16 Dr.Nilesh Jadhav which is to the
extent of examination of postmortem, is already discussed. He
is also on the aspect that the investigating officer has
forwarded the weapons to him along with forwarding letters
Exhs.222 and 223. Those letters were in regard to the
weapons and clothes examination. Accordingly, the reply was
given to the investigating officer which is signed by
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Dr.K.S.Patil, which is at Exh.224. The weapons’ diagrams are
part and parcel of Exh.224. Again on 30.5.2018, he received
a letter from the police which is at Exh.225. The said letter
was addressed to him for examination of metal rod, one
chopper, and one knife. He replied those letters which are at
Exhs.226, 227 and 228. The weapon’s diagrams are part and
parcel of Exhs.226 and 228. All seized weapons are shown to
him and he identified the same. This opinion as to the
weapons is not challenged by the defence. Exh.224 shows
that he examined hollow metal rod recovered at the instance
of accused Bhimrao Awathare and opines that the injuries
mentioned in column No.17 of postmortem report are the
least likely possible with article provided for examination.
However, injury Nos.18, 19, and 20 are possible with end of
rod in rare situation. The similar opinion is given by him
respect of red colour metal hollow rod which was recovered at
the instance of accused Pravin Bhagat. Regarding metal gupti
with wooden handle recovered at the instance of accused
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Munna Thakur, he opined that both edges of the blade are
sharp and pointed as 0.9 cm from tip and having mud stains
and blood present all over the blade and cover. He opined
that injury Nos.1 to 20, except injury No.7 mentioned in
column No.17 of the postmortem report, are possible with
kind of article provided for examination.
The weapon sickle recovered at the instance of child in
conflict with law was pointed “J” Shape Blade having one edge
sharp and one edge blunt stained with blood and mud stains
present all over the blade. He opined that injury Nos.1, 2, 9,
10, 11, 14, and 15 mentioned in column No.17 of the
postmortem report are possible with such kind of article
provided for examination. The weapon knife recovered at the
instance of Sunil Devtale shows that blade is pointed with
both edges sharp and one edge is having 3 serrations, 9.5 cms
from tip and length of 5.5 cms and other edge is regular. The
blood stains are present all over the blade. Injury Nos.2, 3, 4,
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5, 6, 8, 9, and 11 to 20 mentioned in column No.17 of the
postmortem report are possible with such kind of article
provided for examination. His opinion further shows that
foldable metal knife rod with designed metalic handle
recovered at the instance of accused Shubham Tekam having
blood stains all over the blade, blade is pointed with one edge
sharp and serrated, having 7 serrations, 19 cms from tip and
length 0.6 cms. The other edge is blunt and having 7
serrations. Injury Nos.2 to 9 and 11 to 20 mentioned in
column No.17 of the postmortem report are possible with
such kind of article provided for examination. He examined
the sword with guiding metal handle sharp and pointed. The
blade is pointed with one edge sharp and other edge is blunt
having blood stains and rust stains present all over the blade.
He opined that injury Nos.2 to 9 and 11 to 17 mentioned in
column No.17 of the postmortem report are possible with
such kind of article provided for examination. He also opined
that cut marks over the clothes as mentioned in column No.8
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of the postmortem report are possible with Articles-4, 5, 6, 7,
9, 10, and 11 provided for examination. He has also
examined the iron rod seized at the instance of accused
Swapnil Kumbhekar which was hollow metal rod and opined
that injury Nos.18, 19, and 20 are possible with end of the rod
in rare situation. He has classified the metal knife with metal
handle as dangerous weapon which was having rust stains
and opined that injury Nos.2 to 6 and 8 to 20 mentioned in
column No.17 of the postmortem report are possible with
such kind of article provided for examination. He also
examined the chopper and stated that it was having red
tarnish rust like stains present all over the chopper and opined
that injury Nos.3 to 8 and 12, 13, 16, and 17 mentioned in
column No.17 of the postmortem report are possible with
such kind of article. These opinions are at Exhs.224 to 228
along with the diagrams of the weapons.
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62. The prosecution has examined PW17 Mangesh Bhoyar
and PW18 Piyush Jagtap vide Exhs.230 and 269 who acted as
investigating officers.
63. The evidence of PW17 Mangesh Bhoyar shows that on
28.3.2018 he received the order from the Superintendent of
Police to work in the investigation squad of Crime
No.347/2018 registered with the Awadhootwadi Police
Station, Yavatmal, which is at Exh.231. Accordingly, he joined
the investigating squad as SDPO Jagtap was on leave on
4.5.2018 and the Incharge SDPO Darwha directed him to
interrogate accused Swapnil Kumbhekar. A written
communication was issued to him (Exh.232). Accordingly, he
interrogated the accused Swapnil Kumbhekar who was in
police lock-up. Accused Swapnil Kumbhekar has shown his
willingness for giving disclosure statement and, therefore, he
issued a letter to District Irrigation Officer for supplying two
panchas, vide Exh.233. Thereafter, vide Exh.234, names of
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two panchas are communicated to him. In presence of the
panchas, accused Swapnil Kumbhekar has given
memorandum statement and led them towards the spot and
at his instance, hollow iron pipe was recovered having mud
stains. He seized the said iron pipe by drawing seizure
panchanama Exh.190. He has also disclosed to him regarding
the clothes which were on his person and, thereafter, house
search of his sister at Pardhi Tanda was carried out and the
clothes were seized vide Exh.195. He has handed over the
said clothes to the muddemal clerk and muddemal receipts
are at Exhs.235 and 236. His evidence further shows that on
8.5.2018, on the direction of SDPO at Darwha, he had been to
Khopoli in search of the accused. During the investigation, it
revealed to him that the accused persons were working at
Khopoli and, therefore, he searched for them and carried out
search of their rooms which were provided to them by their
employer Exhs.239 and 240. . He has identified accused
Swapnil Kumbhekar. He has also identified the clothes i.e.
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Articles-V and U pant and shirt of accused Swapnil
Kumbhekar which was seized by him. Despite the ardous
cross examination of investigating officer PW17 Mangesh
Bhoyar, nothing incriminating is brought on record to falsify
the fact regarding recovery of iron rods at the hands of
accused Swapnil Kumbhekar.
64. Another investigating officer PW18 Piyush Jagtap has
narrated about the investigation carried out by him. The sum
and substance of his evidence is that, preliminary
investigation was conducted by PSI Dhawale and API Ahire.
After receipt of the investigation, the accused persons were
arrested. He narrated about memorandum statements made
by various accused persons and recoveries at their instance.
His evidence specifically shows that during house search
panchanamas, the clothes of accused Shubham were
recovered. Whereas, clothes of accused Vinod Chapariya and
accused Munna Thakur were recovered at the instance of
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accused Vinod Chapariya, which were in half burnt condition.
As to disclosure statement and seizure of weapons, he
specifically stated that the accused persons made
memorandum statements that they will show the place where
articles were concealed and in presence of panchas, the said
articles were seized. As to sealing of Articles also, he
specifically narrated . He has further placed on record
through his evidence the logbook entries which are proved as
well as various requisitions issued to call employees from
various officers. It reveals from his evidence that for various
panchanamas he has called the employees from different
Government office. After seizure of the weapons, he has also
narrated about the chain of custody of the weapons. His cross
examination discloses that the entry at about 3:27 pm was
taken, but he has shown his unawareness whether the police
officers, who rushed to the occurrence of the place, came to
know about the names of assailants, till taking the entry in the
station diary. He further admitted that the police station
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received the information as to fighting between two groups at
about 1:45 pm. He has also produced the other general diary
entries on record to show the progress of the investigation. As
to delay in recording the statements, his evidence shows that
he recorded the statements of eyewitnesses on 5.4.2018. His
evidence further discloses that he has issued the Notice to
Prashant Shambharkar and Sharda Narayane for recording
their statements and they have not approached at their own to
record the statements. He has also explained about the delay
that the delay for recording the statements of witnesses is,
considering the mental condition of the witnesses, seriousness
of the offence, and the arrest of the accused persons. He has
further explained that he tried to record the statements of the
witnesses as early as possible. He fairly admitted on
28.3.2018, 29.3.2018, and 30.3.2018, he has not issued the
Notices to those witnesses. An attempt was made by the
defence counsel to show that though during the investigation
names of Sunita Sunita Ghaiwan came forward who has
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witnessed the incident and Praful Shambharkar who has given
information about the incident, they are not examined by the
prosecution. The material omission that PW1 Nalini has not
stated specifically that at the time of the incident, accused
Munna Thakur was holding sword in his hands. While
recording the deposition, it is specifically mentioned by
learned Judge of the trial court that she collectively stated
about 2-3 accused.
Thus, from his cross examination, an attempt was made
to show that though two eyewitnesses Shaikh Imran and
Shaikh Israil have witnessed the incident, who were along with
the deceased, they are not examined and no reason came
forward. The memorandum statements of the accused persons
are not voluntary and nothing was recovered from them.
65. As far as the evidence of PW3 Sharda Narayane is
concerned, the investigating officer stated that he does not
remember exactly whether there was backside door to the
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house of PW3 Sharda. He has not prepared the separate
panchanama about the backside door of the house of Bhimrao
Awathare.
66. The evidence of PW18 Piyush Jagtap shows on
29.3.2018 accused persons Pravin Bhagat and Bhimrao
Awathare were arrested on 30.3.2018 and their house search
panchanama was drawn. On 30.3.2018, accused Sunil
Devtale and Hanuman Pendor were arrested. The
memorandum statement of Bhimrao Awathare was recorded
on 31.3.2018 and at his instance rod was seized in presence of
the panchas. On 1.4.2016, the house search of accused
persons Sunil Devtale and Hanuman Pendor was carried out
and their clothes were seized. On 2.4.2018, the
memorandum statement of accused Sunil Devtale was
recorded and two weapons sickle and sattur were recovered.
He has identified Article-F iron pipe seized from accused
Pravin Bhagat, Article-E iron pipe seized from accused
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Bhimrao Awathare, Articles-B1 and B2 pant and shirt of
accused Bhimrao Awathare, Articles-B3 and B4 shirt and pant
of accused Pravin Bhagat, Articles-B6 and B8 the pant and
shirt of accused Hanuman Pendor, Articles-B7 and B-9 the
pant and shirt of accused Sunil Devtale, Article-C1 sickle and
sattur recovered at the instance of accused Sunil Devtale,
Article-G sattur seized at the instance of accused Sunil
Devtale, Articlesd-C3 and C4 shirt and pant of accused
Sumedh Meshram, Articles-C5 and C6 knives recovered at the
instance of accused Shubham Tekam, Articles-C7 and X2 the
shirt and pant of accused Shubham Tekam respectively,
Article-B sword recovered at the instance of accused Vinod
Chapariya, Articles-J and Q the shirt and pant of accused
Vinod Chapariya, Articles-N and P the shirt and pant of
accused Munna Thakur which were in a half burnt condition,
Articles-R gupti seized at the instance of accused Munna
Thakur, Article-D iron pipe seized at the instance of accused
Sumedh Meshram, Article-A sword seized at the instance of
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accused Raj Thakur, and Article-T motorcycle chain cover
seized at the instance of accused Raj Thakur. He further
stated regarding the fact that he has issued the letter to get
the information about the criminal background of the accused
persons and he received summary of crime. The letters are at
Exhs.469 to 472. Certified extract of the station diaries are at
Exhs.476 to 621A and logbook entries are at Exhs.622 to 635.
He has also prepared the chart showing the chain of custody
of various Articles seized at the instance of accused persons.
67. After scrutinizing the entire evidence, admittedly, the
prosecution has placed reliance on the evidence of PW1 Nalini
and PW2 Mayur, the wife and son of the deceased, who are
eyewitnesses of the incident.The evidence of PW1 Nalini
disclosed about political rivalary and occurrence where as
P.W.2 Mayur stated about manner in which incident occurred.
It is categorically stated by PW1 and P2 in their evidence
about the role of each accused.
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68. Learned counsel for the accused persons canvassed
about conduct of PW1 Nalini and PW2 Mayur. Admittedly,
PW1 Nalini is wife and PW2 Mayur is son of the deceased. As
per their evidence, the deceased was assaulted mercilessly.
PW1 Nalini after incident reacted by shouting and crying.
Learned counsel for the accused persons vehemently stated
that there was no natural conduct of PW1 Nalini as she has
not intervened in the quarrel.
69. It can be noted that different persons may react in
different ways in same situation. Merely because PW1 Nalini
was not reacted in a particular way, that by itself is not
sufficient to show her evidence is totally unreliable. Even, if it
is accepted that there are some improvements, the said
improvements if disturbs the core of the entire prosecution
case, the same can be treated as material omissions. It is
pertinent to note that though PW1 Nalini was Sarpanch, she is
a rustic witness. The evidence of the said witness requires to
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be scrutinized and appreciated in the light that 15 persons
assaulted the deceased. She witnessed number of assailants
armed with deadly weapons assaulting the deceased. In such
a situation, whether he/she would be in a position to give a
very accurate and photogenic version as a whole thing
happened in a few minute and, therefore, while appreciating
such testimony, due regard to their background and the whole
scenario in which the alleged incident has happened requires
to be taken into consideration. Insofar as testimony of this
witness is concerned, it stands corroborated by the aspects
that recoveries of the weapons at the instance of the accused
persons and blood stains of the blood group of the deceased
were found on the said Articles especially the clothes of the
accused persons corroborate the case of the prosecution.
70. The evidence of PW1 Nalini requires to be appreciated
in the light of the facts that there were inimical terms between
her and the accused persons and the deceased was attacked
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by the accused persons which is witnessed by her and the said
evidence is corroborated by other circumstantial evidence.
Though it is argued that other independent witnesses are not
examined, while appreciating the evidence of witnesses, it is
not number of witnesses but quality of their evidence which is
important, as there is no requirement in the law of evidence
stating that a particular number of witnesses must be
examined in order to prove/disprove the fact. The time-
honored principle is that evidence has to be weighed and not
counted. The test is whether the evidence has a ring of truth,
is cogent, credible and trustworthy, or otherwise. The legal
system has laid emphasis on value, weight and quality of
evidence rather than on quantity, multiplicity or plurality of
witnesses. It is quality and not quantity which determines the
adequacy of the evidence as has been provided by Section 134
of the Indian Evidence Act.
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71. The evidence of PW1 Nalini is further criticized by
learned counsel for the accused persons on the aspect that
before adducing her evidence, she read the statements on
various occasions and relied upon the decision in the case of
Rustam s/o Udarda Jadhav (supra) wherein it is held that,
the evidence of witness who have deposed particular incident
not by recollecting evidence of that incident, but what has
been read out by him from the police statement, short time
before he deposed become inadmissible.
72. Refreshing the memory by a witness before his
deposition was considered by the Full Bench of the Gujarat
High Court in the case of Nathu Manchhu vs. State of Gujarat,
reported in MANU/GJ/0061/1978. Before the Full Bench,
following questions have been referred by the Division Bench:
“(1) Is the evidence of a witness whom statement
recorded in the course of investigation under Chapter
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witness steps into witness box becomes inadmissible or
such as would be of no value whatsoever?
(2) Does such contravention of Section 152(1) affect
admissibility or probative value of the evidence of such
a witness?
(3) Does reading over of such statement to a witness
before he enters witness box amount to use of such
statement contrary to S. 162(1)?”
After considering provisions i.e. Sections 155 and 157
of the Evidence Act and various judgments on this issue, the
Gujarat High Court laid down as follows :
“(1) The evidence of such witness does not become
inadmissible; its probative value has to be judged in
the, circumstances of each case. No hard and fast rule
can be laid down that in all such eases the evidence of
such witness will be of no value whatsoever.
(2) Reading over of the police statement to the witness
before he enters the box does not amount to
contravention of the prohibition contained in
S.162(1). But the fact of reading over of the statement
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may affect the probative value of the evidence of the
witness.
(3) Reading over of such a statement to the witness
before he enters the box does not amount to use of
such contrary to S.162(1).”
73. In view of the judgment of the Full Bench of the
Gujarat High Court, merely because PW1 Nalini read the
statement before her evidence that by itself is not sufficient to
discard her evidence.
74. To corroborate the version of PW1 Nalini, another
eyewitness PW2 Mayur, the son of the deceased, is examined.
It is canvassed that the presence of this witness at the spot of
the incident itself is doubtful. Admittedly, PW2 Mayur is
school going child. He in his evidence itself has stated that he
came to village Parwa along with his parents as there was no
school. He further clarified that it was Tuesday. His presence
in the village along with his parents was not unnatural. PW2
Mayur categorically narrated about the incident and
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corroborates PW1 Nalini on material particulars. He has not
only stated about the incident but also attributes specific
roles of accused Raj Thakur, Munna Thakur, and Vinod
Chapariya. Thus, as to the roles of the accused persons, he
corroborates the evidence of PW1 Nalini who has also
narrated about the roles of all the accused persons and
identified them before the court. He further deposed about
the role of accused Hanuman Pendor, Shubham Tekam, Sunil
Pali @ Kumbhekar, Sunil Devtale, and Sumedh Meshram. The
manner in which the deceased was assaulted is also narrated
by him. The said evidence not only discloses the act of the
accused persons, but also he identified the accused persons as
well as the weapons in their hands. Except some omissions,
nothing incriminating came during his cross examination.
75. The evidence of PW2 Mayur is criticized on two
aspects, (i) his presence at the spot is doubtful, and (ii) being
child witness he can be influenced and tutored.
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76. As observed earlier, though PW1 and PW2 were
residing at Yavatmal, the alleged incident occurred at village
Parwa is established by the prosecution not only on the basis
of direct evidence but also by circumstantial evidence. The
defence has also not challenged the spot of the incident. As
already observed, his presence at the spot is not unnatural.
Moreover, his evidence along with the evidence of PW1 Nalini
is consistent that on the day of the incident, he along with his
cousin Samyak followed his father on the say of his mother
PW1 Nalini. The above evidence is not shattered during the
cross examination. Therefore, there is no reason to disbelieve
his presence at the spot of the incident.
77. Another aspect argued is that, PW2 Mayur is a child
witness. Admittedly, PW2 was school going child at the
relevant time and, therefore, it is required to be looked into
whether his evidence is tainted by tutoring or his evidence is
unnatural. His cross examination nowhere reflects that any
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suggestion was given to him that he is deposing as he is either
taught by his mother or he is a tutored witness.
78. The law is settled as far as evidence of child witness is
concerned. The Indian Evidence Act does not prescribe any
particular age as determinative factor to treat a witness to be
a competent one. Section 118 of the Evidence Act envisages
that all persons shall be competent to testify, unless the Court
considers that they are prevented from understanding the
questions put to them or from giving rational answers to these
questions, because of tender years, extreme old age, disease-
whether of mind, or any other cause of the same kind. A child
of tender age can be allowed to testify if he has intellectual
capacity to understand questions and give rational answers
thereto.
79. In the case of Dattu Ramrao Sakhare vs. State of
Maharashtra, reported in 1997(5) SCC 341, the Hon’ble Apex
Court held that as long as the child witness is found to be
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competent to depose that is capable of understanding the
questions put to him and able to give rational answers, the
testimony of such witness can be considered as evidence. In
terms of Section 118 of the Evidence Act, irrespective of their
tender age or absence of any oath. The only additional facts
to be considered is that the witness must be found to be
reliable and there was no likelihood of having been tutored.
There is no pre-condition that the evidence of child witness
must be corroborated before it can be considered and rather
insistence of any corroboration is only a rule of prudence that
would depend upon the peculiar facts and circumstances of
each case.
80. In State of M.P. vs. Ramesh and anr, reported in
(2011)4 SCC 786 also, the Hon’ble Apex Court has
considered this issue and observed in paragraph Nos.11 and
12 as under:
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“11. The evidence of a child must reveal that he was
able to discern between right and wrong and the court
may find out from the cross-examination whether the
defence lawyer could bring anything to indicate that
the child could not differentiate between right and
wrong. The court may ascertain his suitability as a
witness by putting questions to him and even if no
such questions had been put, it may be gathered from
his evidence as to whether he fully understood the
implications of what he was saying and whether he
stood discredited in facing a stiff cross-examination. A
child witness must be able to understand the sanctity
of giving evidence on a oath and the import of the
questions that were being put to him. (Vide: Himmat
Sukhadeo Wahurwagh and anr vs. State of
Maharashtra, AIR 2009 SC 2292).
12. In State of U.P. vs. Krishna Master and ors,
reported in AIR 2010 SC 3071 this Court held that
there is no principle of law that it is inconceivable that
a child of tender age would not be able to recapitulate
the facts in his memory. A child is always receptive to
abnormal events which take place in his life and would
never forget those events for the rest of his life. The
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child may be able to recapitulate carefully and exactly
when asked about the same in the future. In case the
child explains the relevant events of the crime without
improvements or embellishments, and the same
inspire confidence of the Court, his deposition does
not require any corroboration whatsoever. The child at
a tender age is incapable of having any malice or ill
will against any person. Therefore, there must be
something on record to satisfy the Court that
something had gone wrong between the date of
incident and recording evidence of the child witness
due to which the witness wanted to implicate the
accused falsely in a case of a serious nature.”
81. PW3 Sharda Narayane and PW4 Prashant
Shambharkar who are independent witnesses also corroborate
the prosecution version. It is not in dispute that accused
Bhimrao Awathare resides in front of the house of PW3
Sharda. Her evidence discloses how the incident occurred.
She has also narrated the reason why she followed the
accused persons. She stated that PW4 Prashant Shambharkar,
who was her nephew, was playing cards with some villagers.
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She followed them and witnessed the incident. Admittedly,
some material omissions were brought on record as far as her
statement under Section 164 of the CrPC is concerned, which
show improvement. However, those improvements nowhere
affect the entire core of the prosecution case.
82. It is a well settled that “falsus in uno, falsus in
omnibus” (false in one thing, false in everything) is neither a
sound rule of law nor a sound rule of practice. It is not
applicable in criminal cases in India, as witnesses may be
partly truthful and partly false in their evidence. The
experience shows that the evidence of many witnesses
contains a grain of untruth of some exaggeration or
embellishment. This many a times happens perhaps due to
fear in the mind of the witnesses that their testimony may not
be rejected. The court should not disbelieve the evidence if
such witnesses or together if they are otherwise trustworthy.
Discrepancies caused due to normal error of observation,
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normal error of memory due to lapse of time, due to mental
disposition, impairmental faculty due to impact or shock
caused due to incident needs to be ignored. The prosecution
case would fall only where inconsistencies in it go to the root
of the case. Otherwise, it becomes duty of the court to sift
truth from falsehood by culling out negates of truth from the
evidence of witnesses examined by the prosecution. If such
exercise is possible, their evidence cannot be discarded wholly.
83. Another aspect is, though she was present when the
police came in the village for investigation and spot
panchanama, she has not disclosed that she has witnessed the
incident, till 5.4.2018.
84. PW4 Prashant Shambharkar who has also witnessed
the incidents has corroborates to PW1 Nalini, PW2 Mayur, and
PW3 Sharda Narayane. He has not only identified the
accused persons but also stated which accused was holding
which weapon. His statement was also recorded on 5.4.2018.
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As per his evidence, if notice would not have been issued to
him, he would not have approached the police to record his
statement. The delay in recording the statement is explained
by investigating officer PW18 Piyush Jagtap. He specifically
admitted that the delay for recording the statements of
witnesses was, considering the mental condition of witnesses,
seriousness of the offence, and arrest of the accused persons.
Under such circumstances, he tried to record the statements of
witnesses as early as possible.
85. As far as the delay in recording statement is concerned,
it is well settled that the case of the prosecution cannot be
rejected solely on the ground that there is delay in
examination particular witness.
86. In State of U.P. vs. Satish, reported in (2005)3 SCC 114
which was referred in decision in Criminal Appeal No.1669 of
2006 (Balwinder Singh v. State of Punjab) decided on
24.4.2025 wherein the Hon’ble Apex Court observed as under:
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“It is to be noted that the explanation when offered by
I.O. on being questioned on the aspect of delayed
examination, by the accused has to be tested by the
Court on the touchstone of credibility. If the
explanation is plausible then no adverse inference can
be drawn. On the other hand, if the explanation is
found to be implausible, certainly the Court can
consider it to be one of the factors to affect credibility
of the witnesses who were examined belatedly. It may
not have any effect on the credibility of prosecution’s
evidence tendered by the other witnesses.”
87. Thus, primarily it was for the accused persons to
question the investigating officer to explain the delay in
recording the statements of witnesses. The explanation given
by the investigating officer appears to be probable and
satisfactory.
88. As far as conduct of PW3 Sharda Narayane and PW4
Prashant Shambharkar pointed by learned counsel for the
accused persons is concerned, that they have not disclosed the
incident at the earliest, though they are having an opportunity
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and explanation given by the investigating officer, the aspect
which requires to be considered is that judicial note can be
taken that though we are staying in a civilized society, people
are still afraid of involving themselves to be witnesses of such
incidents as they are scared of harassment at the hands of the
investigating agency. Therefore, their conduct not
approaching the police cannot be said to be unnatural.
89. The law is well settled that while appreciating the
evidence of witnesses, approach must be whether the
evidence of the witness read as a whole inspires confidence.
Once that impression is formed, then undoubtedly it is
necessary for the court to scrutinize the evidence more
particularly keeping in view the deficiencies, drawbacks and
infirmities pointed out in the evidence as a whole and
evaluate them to find out whether it is against the general
tenor of the evidence given by the witness and whether
earlier evaluation of evidence is shaken as to render it
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unworthy. The material thing which is to be seen whether
those inconsistencies go to the root of the matter. While
appreciating the evidence of relatives, great weightage is to
be given to them on the principle that there is no reason for
them not to speak the truth and shield the real culprit. In
fact, close relative who is very natural witness cannot
regarded as an interested witness. The term “interested”
postulates that the person concerned must have some direct
interest in seeing that the accused person is somehow or the
other convicted either because he had some animus with the
accused or for some other reason. While dealing with
evidence of witnesses, who are relatives, the evidence of
witnesses cannot be discarded merely on the ground that he
is either partisan or interested or close relative to deceased, if
it is otherwise found to be trustworthy. The said evidence
only requires scrutiny with more care and caution.
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90. Testing on the anvil and touchstone the aforesaid
principles laid down, we find that the evidence of PW1
Nalini, PW2 Mayur, PW3 Sharda Narayane and PW4
Prashant Shambharkar who are close relatives as well as the
independent witnesses whose presence at the spot of the
incident was natural and, therefore, it cannot be doubted.
91. PW5 Devidas Sathe, acted as pancha on spot
panchanama, corroborates the case of the prosecution to the
extent that the alleged incident has taken place at village
Parwa near Anganwadi. In presence of panchas, the
investigating officer has collected the simple soil and and
blood stained soil from the said spot. The CA Report Exh.658
shows that soil which was collected from the spot tallies with
the soil collected from Exh.2 i.e. nail clipping of the deceased.
Similarly, PW6 Mukhtar Ali Ahmad Ali who acted as a pancha
on inquest panchanama also narrates that he has witnessed
the injuries on the person of the deceased.
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92. Another material evidence is the medical
evidence.Learned counsel for the accused persons vehemently
submitted that the weapons allegedly recovered are, swords,
knives, sickles, satturs. The swords and knives were sharp at
one side and blunt at other side. However, PW16 Medical
Officer Dr.Nilesh Jadhav observed margins of injury Nos.1 to 8
and 12-15 and 17 mentioned in column No.17 were clean cut,
which are contrary to the oral evidence. However, on scrutiny
of the evidence, it reveals that PW16 Dr.Nilesh Jadhav gave
his opinion as to the examination of gupti recovered from
accused Munna Thakur and knives recovered from accused
Shubham Tekam, shows that the gupti was sharp and pointed
and knife having both edges sharp. He specifically stated that
the injuries above mentioned are possible by the said
weapons. Therefore, the submission of learned counsel for
the accused persons that the medical evidence is contradictory
to the ocular evidence has no substance.
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93. The other material evidence on which the prosecution
has placed reliance on the evidence as to the recoveries is,
PW7 Sunil Wanjari who acted as pancha on memorandum
statement of accused Shubham Tekam and accused Vinod
Chapariya. The knives recovered at the instance of accused
Shubham Tekam shows that there were blood stains on blade.
The knives are recovered on 9.4.2018. The muddemal receipt
as to the knives is at Exh.321 dated 10.4.2018. Similarly, the
clothes of accused Shubham Tekam were recovered at his
instance on 9.4.2018 and similarly on the next date, the same
were deposited with the muddemal clerk and muddemal
receipt is at Exh.320 dated 10.42018. Similarly, recovery of
the sword at the instance of accused Vinod Chapariya was on
9.4.2018. The muddemal receipts to the extent of depositing
sword and half burnt clothes of accused Munna Thakur, half
burnt clothes of accused Vinod Chapariya, and sword having
blood stains were deposited with the muddemal clerk on
10.4.2018 and muddemal receipt is at Exh.323. Though PW7
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Sunil Wanjari during the cross examination admitted that
recoveries are from open place,but investigating officer stated
about concealment. The investigating officer has specifically
stated that the photographs are obtained and the same were
developed and memory cards are placed on record.
94. PW8 Sanjay Pawar acted as pancha on the
memorandum statement of accused Munna Thakur and
recovery of weapons at his instance. During the cross
examination he denied the recovery is from open place.
Though PW8 Sanjay Pawar has not stated about the sealing,
PW18 Piyush Jagtap has specifically stated that the weapons
were sealed at the spot of the incident. The said panchanama
of seizure of gupti and iron rod was carried out on 12.4.2018
and on the same day, the said muddemal was deposited with
the muddemal clerk vide muddemal receipts Exhs.326 and
327.
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95. PW9 Sawan Nerle who has also acted as a pancha on
recover of hollow iron pipe at the instance of accused Bhimrao
Awathare. In his presence, there was seizure of blood
samples. Though he admitted that field was open and
accessible to all, but not suggested that recovery was from
open place. The investigating officer has stated about
concealment and the seal was affixed after the recovery. The
muddemal receipt regarding depositing the iron road is at
Exh.283 dated 31.3.2018. Similarly, the blood samples of
accused Sunil Devtale and Hanuman Pendor were also
deposited vide muddemal receipt Exh.279.
96. PW10 Akash Gohokar has acted as a pancha on
memorandum statement of accused Sunil Devtale at whose
instance weapons sickle and sattur were seized. During his
cross examination, nothing incriminating was brought on
record to falsify version as to the seizure of the weapons. The
…..130/-
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muddemal receipt of depositing the weapon sattur which was
having blood stains Article-H is at Exh.295 dated 2.4.2018.
97. PW11 Geeta Botre has also acted as pancha on house
search panchanama of accused Pravin Bhagat and Bhimrao
Awathare. Though she stated all documents prepared at
S.D.P.O office, but the investigating officer has deposed that
the recovery was made at the spot of the incident. The
logbook entry substantiates the fact that the accused was
taken for investigation purpose. PW11 Geeta Botre also acted
as a pancha on resealing of clothes of the deceased after the
same were soaked.
98. PW12 Mukund Karanjkar has also acted as a pancha
on memorandum statement of accused Raj Thakur in whose
presence accused Raj Thakur has shown the place and
recovery of sword, motorcycle chain cover, and clothes were
detected. Immediately, on the same day, the said Articles
…..131/-
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sword, chain cover, and shirt of accused Raj Thakur were
deposited vide muddemal receipt Exh.330.
99. PW13 Devidas Dalavi has stated about memorandum
statement of accused Swapnil Kumbhekar and seizure of iron
rod and clothes.Though he initially admitted the place of
seizure of iron rod was from open place,but he immediately
clarified that there were bushes and, therefore, contention of
learned counsel for the accused persons that the recovery is
from open place is not sustainable. The muddemal receipt as
to the depositing of the iron rod is at Exh.235 dated 5.5.2018
and muddemal receipt as to depositing of the clothes is at
Exh.236.
100. As to the entire recovery, the evidence of the
investigating officer discloses about seizure and sealing of
weapons, which are seized in presence of the panchas. The
investigating officer has categorically stated about seizures
and sealing of all articles weapons as well as the clothes. It
…..132/-
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is corroborated by various requisitions issued to call panchas
which are at Exhs.316, 324, 280, 293, 274, 328, and 323.
The logbook entries Exhs.629, 630, 626, 627, 628, 632, 633,
and 635 also substantiate the fact.
101. As far as the evidence as to recovery in view of Section
27 of the Indian Evidence Act is concerned, requirement of
Section 27 of the Indian Evidence Act is founded on the
principle that if any fact is discovered, after search is carried
out, on the search of any information obtained form the
prisoner, such discovery is guaranteed that the information
supplied by the prisoner is true. It goes without saying and,
therefore, that recovery of articles at the instance of the
accused has to be proved by independent witness. the
conditions necessary for the applicability of Section 27 of the
Act are broadly discussed as under:
“(i) discovery of fact in consequence of an information
received from accused;
…..133/-
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(ii) discovery of such fact to be deposed to;
(iii) the accused must be in Police custody when he
gave information, and
(iv) so much of information as relates distinctly to the
fact thereby discovered is admissible.”
102. Thus, what is admissible is the information and the
same has to be proved and not the opinion formed on it by
the police officer. In other words, the information given by
the accused while in custody which led to recover of Articles
has to be proved. The basic idea embedded in Section 27 of
the Evidence Act is the doctrine of confirmation by subsequent
events. The doctrine is founded on the principle that if any
fact is discovered as a search made on the strength of any
information obtained from prisoner such a discovery is a
made on the strength of any information obtained from a
prisoner, such discovery is guarantee that the information
supplied by the prisoner is true.
…..134/-
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103. This evidence as to recovery is criticized by learned
counsel for the accused on the ground that the witnesses have
admitted that it was the open place and accessible to all.
However, as already observed, PW7 Sunil Wanjari though
admitted that recovery was from open place, the evidence of
the investigating officer show that there were bushes. The
logbook entris also substantiates the fact that the accused
were taken for investigation purpose. The photographs and
the evidence of the investigating officer show that the
photographs were obtained and memory card is also on
record, which sufficiently shows that the recovery was not
from open place.
104. In State Government of NCT Delhi vs. Sunil and anr,
reported in MANU/SC/0735/2000 wherein the Hon’ble Apex
Court observed that, “the legislative idea in insisting on such
searches to be made in the presence of two independent
inhabitants of the locality is to ensure the safety of all such
…..135/-
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articles meddled with and to protect the rights of the persons
entitled thereto. But recovery of an object pursuant to the
information supplied by an accused in custody is different
from the searching endeavour envisaged in Chapter VII of the
Code, hence it is a fallacious impression that when recovery is
effected pursuant to any statement made by the accused the
document prepared by the Investigating Officer
contemporaneous with such recovery must necessarily be
attested by independent witnesses. Of course, if any such
statement leads to recovery of any article it is open to the
Investigating Officer to take the signature of any person
present at that time, on the document prepared for such
recovery. But if no witness was present or if no person had
agreed to affix his signature on the document, it is difficult to
lay down, as a proposition of law, that the document so
prepared by the police officer must be treated as tainted and
the recovery evidence unreliable.”
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105. In Modan Singh vs. State of Rajasthan, reported in
AIR 1978 SC 1511, the Hon’ble Apex Court observed that, “if
the evidence of the investigating officer who recovered the
material objects is convincing, the evidence as to recovery
need not be rejected on the ground that seizure witnesses do
not support the prosecution version.”
106. The similar view is expressed in Mohd.Aslam vs. State
of Maharashtra, reported in (2001)9 SCC 362 and Anter
Singh vs. State of Rajasthan, reported in 2004 SCC 10 657
that even if pancha witnesses turn hostile, on the evidence of
person who effected recovery would not stand vitiated.
107. Learned counsel for the accused persons have much
stretched upon custody of Articles before the Articles are sent
to FSL. The investigating officer has prepared the chart of
chain of custody. The summary of the said chart is
reproduced as under:
…..137/-
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Sr Article Seized Seized Possess Transferred Purpose of Date
No from on -ion transfer
1 Blood From 27.03.18 API Manoj deposited 27.3.18
Mixed the spot Aayre Kulmethe in to
Soil & of {Muddema Malkhana 09.4.18
Simple incident l Clerk,
Soil Yavatmal
P.S.
Dilip Giri deposited 09.4.18
{Muddema in to
l Clerk, Malkhana 27.4.18
Awadhoot
wadi, P.S. }P.C./2314 handed 27.4.18
Sudhir over for
from
Yavatmal delivering
11.30 to
City P.S. to R.F.S.L
14.30
for CA
hrs
examinatio
nRFSL, Received 27.4.18
Amravati the article
14.30
for CA
examinatio
n
2 Air Dried From 27.3.18 P.C./ PSI Seized for 27.3.18
blood the body 1562 Dhavale, evidence
soaked from
of Medve, P.S.
gage 20.00 to
decease P.S. Awadhoot
piece, 22.00
d after Awadh wadi
nail hrs
clippings post ootwad
& Scalp mortem i Manoj deposited 03.4.18
Hair of examina Kulmethe in to
the tion {Muddema Malkhana 27.4.18
deceased l Clerk,
Yavatmal
P.S. }
Dilip Giri deposited 03.4.18…..138/-
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{Muddema in to
l Clerk, Malkhana 27.4.18
Awadhoot
wadi , P.S. }
P.C./2314 handed 27.4.18
Sudhir over for from
Yavatmal delivering 11.30 to
City P.S. to R.F.S.L 14.30
for CA hrs
examinatio
n
RFSL, Received 27.4.18
Amravati the article
14.30
for CA
hrs
examinatio
n
3. Plain From Raj 07.4.18 NPC/ SDPO Seized for 07.4.18
blood, Thakur, 1457 Piysuh evidence from
Ansar
Citrate Munna Beg, Jagtap purpose 14.45 to
blood & Thakur, SDPO, 17.00
Vinod
nails Yavatmal hrs
Chapariy
a,
Bhupend
ra
Shibalk-
ar
Shubham
tekam &
Sumit
Meshram
Dilip Giri deposited 07.4.18
{Muddema in to
l Clerk, Malkhana 27.4.18
Awadhoot
wadi , P.S. }
…..139/-
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P.C./2314 handed 27.4.18
Sudhir over for from
Yavatmal delivering 11.30 to
City P.S. to R.F.S.L 14.30
for CA hrs
examinatio
n
RFSL, Received 27.4.181
Amravati the article 4.30 hrs
for CA
examinatio
n
4. Plain From 31.3.18 NPC/ SDPO Seized for 31.03.20
blood, Accused 1457 Piysuh evidence 18
Citrate Sunil Ansar Jagtap purpose
Devatale Beg, from
blood &
& SDPO, 15.30 to
nails
Hanuma Yavtmal 17.00
n Pendor hrs
Manoj deposited 31.3.18
Kulmethe in
to
{Muddema Malkhana
l Clerk, 07.4.18
Yavatmal
P.S. }
Dilip Giri deposited 07.4.18
{Muddema in to
l Clerk, Malkhana
27.4.18
Awadhoot
wadi , P.S. }
P.C./2314 handed 27.04.20
Sudhir over for 18 from
Yavatmal delivering 11.30 to
City P.S. to R.F.S.L 14.30
for CA hrs
examinatio
n
RFSL, Received 27.4.181
Amravati the article
…..140/-
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for CA 4.30 hrs
examinatio
n
5. Plain From 29.3.18 PC/ SDPO Seized for 29.3.18
blood, Accused 2314 Piysuh evidence
from
Citrate Pravin Sudhir, Jagtap purpose
18.10 to
blood & Bhagat & P.S.
Bhimrao 20.00
nails Yavatm
Awathare hrs
al City
Manoj deposited 29.3.18
Kulmethe in to
{Muddema Malkhana 07.4.18
l Clerk,
Yavatmal
P.S. }
Dilip Giri deposited 07.4.18
{Muddema in to
l Clerk, Malkhana
27.4.18
Awadhoot
wadi , P.S. }
P.C./2314 handed 27.4.18
Sudhir over for from
Yavatmal delivering 11.30 to
City P.S. to R.F.S.L 14.30
for CA hrs
examinatio
n
RFSL, Received 27.4.181
Amravati the article 4.30 hrs
for CA
examinatio
n
6. check from the 27.3.18 PC/ PSI Seized for 27.3.18
Shirt of person 1526 Dhavale, evidence from
yellow,
black & of Medve,
P.S. purpose 20.00 to
blue decease Awadhoot 22.00
P.S.
colour d after wadi hrs
having Awadh
his Post
label ootwad
Manoj deposited 27.3.18
…..141/-
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ENRICH, Mortem i Kulmethe in to
White Examina {Muddema Malkhana
Baniyan,G 03.4.18
rey colour tion l Clerk,
jeans pant, Yavatmal
black P.S. }
leather
belt & Dilip Giri deposited 03.4.18
brown
underpant {Muddema in to
l Clerk, Malkhana
17.4.18
Awadhoot
wadi , P.S. }
PC/2314 handed 17.4.18
Sudhir over for from
Pidurkar, query 14.00 to
P.S. 14.20
Yavatmal hrs
City
Medical Query 17.04.20
Officer, Examinati 18 to
Goverment on
26.04.20
Hospital,
18
Yavatmal
PC/2314 article 26.4.18
Sudhir received from
Pidurkar, after query 15.00 to
P.S.Yavatma examinatio 15.30
l City n hrs
Dilip Giri again 26.4.18
{Muddema deposited to
l Clerk, in
27.4.18
Awadhoot Malkhana
wadi , P.S. } after query
P.C./2314 handed 27.4.18
Sudhir over for from
Yavatmal delivering 11.30 to
City P.S. to R.F.S.L 14.30
…..142/-
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for CA hrs
examinatio
n
RFSL, Received 27.4.181
Amravati the article 4.30 hrs
for CA
examinatio
n
7. Yellow Of 12.4.18 SDPO Dilip Giri deposited 12.4.18
colour Accused Piysuh {Muddema in to
half Raj Jagtap l Clerk, Malkhana
27.4.18
sleeves Thakur Awadhoot
shirt which wadi , P.S. }
which he was
was wearing P.C./2314 handed 27.4.18
stained at the Sudhir over for from
with soil time of Yavatmal delivering 11.30 to
& incident City P.S. to R.F.S.L 14.30
having for CA hrs
red examinatio
colour n
blood
like RFSL, Received 27.4.181
stains on Amravati the article 4.30 hrs
both the for CA
sleeves examinatio
n
8. Half Accused 09.4.18 SDPO Dilip Giri deposited 09.4.18
burnt Munna Piysuh {Muddema in to
full Gopal Jagtap l Clerk, Malkhana
27.4.18
sleeves Thakur Awadhoot
blue, was wadi , P.S. }
black & wearing
white it at the P.C./2314 handed 27.4.18
colour time of Sudhir over for from
square incident Yavatmal delivering 11.30 to
shirt & City P.S. to R.F.S.L 14.30
for CA hrs
Half
examinatio
burnt
n
black &
light RFSL, Received 27.4.181
…..143/-
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green Amravati the article 4.30 hrs
lining for CA
night examinatio
pant n
9. Half From 09.4.18 SDPO Dilip Giri deposited 09.4.18
burnt Accused Piysuh {Muddema in to
full Vinod Jagtap l Clerk, Malkhana
27.4.18
sleeves Prakash Awadhoot
shirt & wadi , P.S. }
Chapari
half
ya
burnt P.C./2314 handed 27.4.18
which
balck Sudhir over for from
he was
colour Yavatmal delivering 11.30 to
wearing
pant City P.S. to R.F.S.L 14.30
at the
having for CA hrs
time of
white examinatio
incident
lines n
RFSL, Received 27.4.181
Amravati the article 4.30 hrs
for CA
examinatio
n
10 Yellow Accused 01.4.18 SDPO Manoj deposited 01.4.18
colour Sunil Piysuh Kulmethe in to
full Devtale Jagtap {Muddema Malkhana
sleeves 07.4.18
which l Clerk,
shirt &
he was Yavatmal
yellowish
-brown
weraing P.S. }
colour at the
Full Pant time of
incident Dilip Giri deposited 07.4.18
{Muddema in to
l Clerk, Malkhana
27.4.18
Awadhoot
wadi , P.S. }
P.C./2314 handed 27.4.18
Sudhir over for from
Yavatmal delivering 11.30 to
City P.S. to R.F.S.L 14.30
…..144/-
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for CA hrs
examinatio
n
RFSL, Received 27.4.181
Amravati the article 4.30 hrs
for CA
examinatio
n
11 Red & Accused 01.4.18 SDPO Manoj deposited 01.4.18
black Hanuman Piysuh Kulmethe in
Pendore to
square Jagtap {Muddema Malkhana
full which he l Clerk, 07.4.18
sleeves was
wearing at
Yavatmal
shirt & the time P.S.
yellowish of incident
-brown
colour Dilip Giri deposited 07.4.18
Full Pant {Muddema in to
l Clerk, Malkhana
27.0418
Awadhoot
wadi , P.S. }
P.C./2314 handed 27.4.18
Sudhir over for from
Yavatmal delivering 11.30 to
City P.S. to R.F.S.L 14.30
for CA hrs
examinatio
n
RFSL, Received 27.4.181
Amravati the article 4.30 hrs
for CA
examinatio
n
12 Blue Accused 09.4.18 SDPO Dilip Giri deposited 09.4.18
colour Shubha Piysuh {Muddema in to
half m Jagtap l Clerk, Malkhana 27.4.18
sleeves Tekam Awadhoot
shirt & which wadi , P.S. }
slate he was
…..145/-
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blue wearing P.C./2314 handed 27.4.18
colour at the Sudhir over for from
jeans time of Yavatmal delivering 11.30 to
pant incident City P.S. to R.F.S.L 14.30
for CA hrs
examinatio
n
RFSL, Received 27.4.181
Amravati the article 4.30 hrs
for CA
examinatio
n
13 Checks Accused 08.4.18 SDPO Dilip Giri deposited 08.4.18
colour Sumit @ Piysuh {Muddema in to
shirt Sumedh Jagtap l Clerk, Malkhana
27.4.18
having @ Awadhoot
yellow & Pandya wadi , P.S. }
black Meshra
lines & m P.C./2314 handed 27.4.18
blue Sudhir over for from
colour Yavatmal delivering 11.30 to
night City P.S. to R.F.S.L 14.30
pant for CA hrs
having examinatio
red n
strips
RFSL, Received 27.4.181
Amravati the article 4.30 hrs
for CA
examinatio
n
14 Yellowis Of 30.3.18 SDPO Manoj deposited 30.3.18
h colour Accused Piysuh Kulmethe in to
full Pravin Jagtap {Muddema Malkhana
07.4.18
sleeves Bhagat l Clerk,
shirt & which Yavatmal
black- he was P.S. }
grey wearing
colour at the Dilip Giri deposited 07.4.18
full pant time of {Muddema in
to
l Clerk, Malkhana
…..146/-
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incident Awadhoot 27.4.18
wadi , P.S. }
P.C./2314 handed 27.4.18
Sudhir over for from
Yavatmal delivering 11.30 to
City P.S. to R.F.S.L 14.30
for CA hrs
examinatio
n
RFSL, Received 27.04.20
Amravati the article 18
for CA
14.30
examinatio
hrs
n
15 Ivory Of 30.3.18 SDPO Manoj deposited 30.3.18
Colour Accused Piysuh Kulmethe in to
full Bhimrao Jagtap {Muddema Malkhana
07.4.18
sleeves Awathre l Clerk,
shirt & which Yavatmal
grey he was P.S. }
colour wearing
night at the Dilip Giri deposited 07.4.18
pant time of {Muddema in
incident to
l Clerk, Malkhana
Awadhoot 27.4.18
wadi , P.S. }
P.C./2314 handed 27.4.18
Sudhir over for from
Yavatmal delivering 11.30 to
City P.S. to R.F.S.L 14.30
for CA hrs
examinatio
n
RFSL, Received 27.4.181
Amravati the article 4.30 hrs
for CA
examinatio
…..147/-
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n
16 Sword From 12.4.18 SDPO Dilip Giri Deposited 12.4.18
having Accused Piysuh {Muddema in to
red Raj Jagtap l Clerk, Malkhana
17.4.18
blood Gopal Awadhoot
like Thakur wadi , P.S. }
stains
P.C./2314 handed 17.4.18
Sudhir over for from
Yavatmal sending to 14.00 to
City P.S. query 14.20
hrs
Medical Query 17.4.18
Officer, examinatio to
Goverment n
26.4.18
Hospital,
Yavatmal
P.C./2314 article 26.4.18
Sudhir received from
Yavatmal after query 15.00 to
City P.S. examinatio 15.30
n hrs
Dilip Giri deposited 26.4.18
{Muddema in to
l Clerk, Malkhana 27.4.18
Awadhoot
wadi , P.S. }
P.C./2314 handed 27.4.18
Sudhir over for from
Yavatmal delivering 11.30 to
City P.S. to R.F.S.L 14.30
for CA hrs
examinatio
n
RFSL, Received 27.4.181
Amravati the article 4.30 hrs
for CA
examinatio
…..148/-
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n
17 Iron From 10.4.18 SDPO Dilip Giri Deposited 10.4.18
Gupti accused Piysuh {Muddema in to
Munna Jagtap l Clerk, Malkhana 17.4.18
Gopal Awadhoot
Thakur wadi , P.S. }
P.C./2314 handed 17.4.18
Sudhir over for from
Yavatmal sending 14.00 to
City P.S. query 14.20
hrs
Medical Query 17.4.18
Officer, examinatio to
Goverment n
26.4.18
Hospital,
Yavatmal
P.C./2314 article 26.4.18
Sudhir received from
Yavatmal after query 15.00 to
City P.S. examinatio 15.30
n hrs
Dilip Giri deposited 26.4.18
{Muddema in to
l Clerk, Malkhana
27.4.18
Awadhoot
wadi , P.S. }
P.C./2314 handed 27.4.18
Sudhir over for from
Yavatmal delivering 11.30 to
City P.S. to R.F.S.L 14.30
for CA hrs
examinatio
n
RFSL, Received 27.04.20
Amravati the article 18 14.30
for CA hrs
examinatio
n
…..149/-
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18 Iron From 09.4.18 SDPO Dilip Giri Deposited 09.4.18
Sword accused Piysuh {Muddema in to
Vinod
having Jagtap l Clerk, Malkhana
Prakash 17.4.18
red Chapariya Awadhoot
stains wadi , P.S. }
P.C./2314 handed 17.4.18
Sudhir over for from
Yavatmal sending 14.00 to
City P.S. query 14.20
hrs
Medical Query 17.4.18
Officer, examinatio to
Goverment n 26.4.18
Hospital,
Yavatmal
P.C./2314 article 26.4.18
Sudhir received from
Yavatmal after query 15.00 to
City P.S. examinatio 15.30
n hrs
Dilip Giri deposited 26.4.18
{Muddema in to
l Clerk, Malkhana 27.4.18
Awadhoot
wadi , P.S. }
P.C./2314 handed 27.4.18
Sudhir over for from
Yavatmal delivering 11.30 to
City P.S. to R.F.S.L 14.30
for CA hrs
examinatio
n
RFSL, Received 27.4.18
Amravati the article 14.30
for CA hrs
examinatio
n
…..150/-
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19 1.Iron From 02.4.18 SDPO Manoj deposited 02.4.18
Sattur accused Piysuh Kulmethe in to
having Sunil Jagtap {Muddema Malkhana
07.4.18
red Mukul l Clerk,
blood Devtale Yavatmal
like P.S. }
stains
Dilip Giri deposited 07.4.18
2. Iron
{Muddema in to
Koyta
l Clerk, Malkhana
having 17.4.18
Awadhoot
red
wadi , P.S. }
blood
like P.C./2314 handed 17.4.18
stains Sudhir over for from
Yavatmal sending 14.00 to
City P.S. query 14.20
hrs
Medical Query 17.4.18
Officer, examinatio to
Goverment n
26.4.18
Hospital,
Yavatmal
P.C./2314 handed 27.4.18
Sudhir over for from
Yavatmal delivering 11.30 to
City P.S. to R.F.S.L 14.30
for CA hrs
examinatio
n
Dilip Giri deposited 26.4.18
{Muddema in to
l Clerk, Malkhana
27.4.18
Awadhoot
wadi , P.S. }
P.C./2314 handed 27.4.18
Sudhir over for from
Yavatmal delivering 11.30 to
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City P.S. to R.F.S.L 14.30
for CA hrs
examinatio
n
RFSL, Received 27.4.18
Amravati the article 14.30
for CA hrs
examinatio
n
20 1 folding From 09.4.18 SDPO Dilip Giri deposited 09.4.18
Knife accused Piysuh {Muddema in to
Shubham
Jagtap l Clerk, Malkhana
Suresh 17.4.18
2. knife Tekam Awadhoot
having red wadi , P.S. }
stains
P.C./2314 handed 17.4.18
Sudhir over for from
Yavatmal sending 14.00 to
City P.S. query 14.20
hrs
Medical Query 17.4.18
Officer, examinatio to
Goverment n 26.4.18
Hospital,
Yavatmal
P.C./2314 article 26.4.18
Sudhir received from
Yavatmal after query 15.00 to
City P.S. examinatio 15.30
n hrs
Dilip Giri deposited 26.4.18
{Muddema in to
l Clerk, Malkhana 27.4.18
Awadhoot
wadi , P.S. }
P.C./2314 handed 27.4.18
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Sudhir over for from
Yavatmal delivering 11.30 to
City P.S. to R.F.S.L 14.30
for CA hrs
examinatio
n
RFSL, Received 27.4.18
Amravati the article 14.30
for CA hrs
examinatio
n
21 Knife From 09.4.18 SDPO Dilip Giri deposited 09.4.18
Cover accused Piysuh {Muddema in to
Shubham
Jagtap l Clerk, Malkhana
Suresh 27.4.18
Tekam Awadhoot
wadi , P.S. }
P.C./2314 handed 27.4.18
Sudhir over for from
Yavatmal delivering 11.30 to
City P.S. to R.F.S.L 14.30
for CA hrs
examinatio
n
RFSL, Received 27.4.18
Amravati the article 14.30
for CA hrs
examinatio
n
22 Iron Rod From 10.4.18 SDPO Dilip Giri deposited 10.4.18
having accused Piysuh {Muddema in to
Sumedh
soil & @ Jagtap l Clerk, Malkhana
17.4.18
red Sumit@ Awadhoot
stains Pandya wadi , P.S. }
Mahadev
Meshram
P.C./2314 handed 17.4.18
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Sudhir over for from
Yavatmal sending 14.00 to
City P.S. query 14.20
hrs
Medical Query 17.4.18
Officer, examinatio to
Goverment n 26.4.18
Hospital,
Yavatmal
P.C./2314 article 26.4.18
Sudhir received from
Yavatmal after query 15.00 to
City P.S. examinatio 15.30
n hrs
Dilip Giri deposited 26.4.18
{Muddema in to
l Clerk, Malkhana 27.4.18
Awadhoot
wadi , P.S. }
P.C./2314
handed 27.04.20
Sudhir
over for 18 from
Yavatmal
delivering 11.30 to
City P.S.
to R.F.S.L 14.30
for CA hrs
examinatio
n
RFSL, Received 27.4.18
Amravati the article 14.30
for CA hrs
examinatio
n
23 Iron Rod From 30.3.18 SDPO Manoj deposited 30.4.18
(Pipe) Accused Piysuh Kulmethe in to
Pravin Jagtap {Muddema Malkhana 07.4.18
Tukaram l Clerk,
Bhagat Yavatmal
P.S. }
…..154/-
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Dilip Giri deposited 07.4.18
{Muddema in to
l Clerk, Malkhana
17.4.18
Awadhoot
wadi , P.S. }
P.C./2314 handed 17.4.18
Sudhir over for from
Yavatmal sending 14.00 to
City P.S. query 14.20
hrs
Medical Query 17.4.18
Officer, examinatio to
Goverment n 26.4.18
Hospital,
Yavatmal
P.C./2314 article 26.4.18
Sudhir received from
Yavatmal after query 15.00 to
City P.S. examinatio 15.30
n hrs
Dilip Giri deposited 26.4.18
{Muddema in to
l Clerk, Malkhana
27.4.18
Awadhoot
wadi , P.S. }
P.C./2314 handed 27.04.20
Sudhir over for 18 from
Yavatmal delivering 11.30 to
City P.S. to R.F.S.L 14.30
for CA hrs
examinatio
n
RFSL, Received 27.04.20
Amravati the article 18 14.30
for CA hrs
examinatio
n
…..155/-
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24 Iron Rod From 31.3.18 SDPO Manoj deposited 31.4.18
(Pipe) accused Piysuh Kulmethe in to
Bhimrao
Jagtap {Muddema Malkhana
Maroti 07.4.18
Awathare l Clerk,
Yavatmal
P.S. }
Dilip Giri deposited 07.4.18
{Muddema in to
l Clerk, Malkhana
17.4.18
Awadhoot
wadi , P.S. }
P.C./2314 handed 17.4.18
Sudhir over for from
Yavatmal sending 14.00 to
City P.S. query 14.20
hrs
Medical Query 17.4.18
Officer, examinatio to
Goverment n
26.4.18
Hospital,
Yavatmal
P.C./2314 article 26.4.18
Sudhir received from
Yavatmal after query 15.00 to
City P.S. examinatio 15.30
n hrs
Dilip Giri deposited 26.4.18
{Muddema in to
l Clerk, Malkhana
27.4.18
Awadhoot
wadi , P.S. }
P.C./2314 handed handed
Sudhir over for over for
Yavatmal delivering deliverin
City P.S. to R.F.S.L g to
for CA R.F.S.L
examinatio for CA
n examinat
…..156/-
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ion
RFSL, Received 27.04.20
Amravati the article 18 14.30
for CA hrs
examinatio
n
25 Plain From 03.5.18 SDPO Dilip Giri deposited in 04.5.18 to
blood, accused Piysuh {Muddemal Malkhana
05.6.18
citrate Swapnil Jagtap Clerk,
blood & Raghuna- Awadhootwad
nails th i , P.S. }
Kumbhek-
ar P.C./2314 handed over 05.6.18
Sudhir for delivering from 11.50
Yavatmal City to R.F.S.L for to 14.30
P.S. CA hrs
examination
RFSL, Received the 05.6.1814.
Amravati article for CA 30 hrs
examination
26 Black From the 10.5.18 PSI Dilip Giri deposited in 12.5.18 to
colour of house Mangesh {Muddemal Malkhana 05.6.18
night pant wherein Bhoyar,S. Clerk,
accused I.T. Awadhootwad
Raj SDPO, i , P.S. }
Yavatmal
P.C./2314 handed over 05.6.18
Sudhir for delivering 11.30 to
Yavatmal City to R.F.S.L for 14.30 hrs
P.S. CA
examination
RFSL, Received the 05.6.18
Amravati article for CA 14.30 hrs
examination
27 Blue From 05.5.18 PSI Dilip Giri deposited in 05.5.18 to
colour full accused Mangesh {Muddemal Malkhana 05.6.18
sleeves Swapnil Bhoyar,S. Clerk,
shirt & Raghuna- I.T. Awadhootwad
blue clolur th SDPO, i , P.S. }
night pant Kumbhek- Yavatmal
ar P.C./2314 handed over 05.6.18
Sudhir for delivering from 11.30
…..157/-
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Yavatmal City to R.F.S.L for to 14.30
P.S. CA hrs
examination
RFSL, Received the 05.6.18
Amravati article for CA 14.30 hrs
examination
28 Iron Rod From 05.5.18 PSI Dilip Giri deposited in 05.5.18 to
accused Mangesh {Muddemal Malkhana
31.5.18
Swapnil Bhoyar,S. Clerk,
Raghuna- I.T. Awadhootwad
th SDPO, i, P.S. }
Kumbhek- Yavatmal
ar P.C./2314 handed over 31.5.18
Sudhir for sending from 11.00
Yavatmal City query to 12.15
P.S. hrs
Medical Query 31.5.18 to
Officer, Examination 02.6.18
Goverment
Hospital,
Yavatmal
P.C./2314 articles 02.6.18
Sudhir received after from 16.00
Yavatmal City query to 16.30
P.S. examination hrs
Dilip Giri deposited in 02.06.2018
{Muddemal Malkhana to
Clerk, 05.06.2018
Awadhootwa-
di , P.S. }
RFSL, Articles 05.6.18
Amravati received for 14.30 hrs
CA
examination
108. Thus, the chain of custody shows since seizure till
sending to the FSL in whose possession Articles were kept.
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The custody is further proved by various muddemal receipts.
The evidence of PW16 Dr.Nilesh Jadhav also demonstrated
regarding the weapons and clothes of the deceased which
were forwarded to him and he rendered his opinion that the
injuries are possible by the said weapons.
109. The oral evidence of these prosecution witnesses
corroborated by the circumstantial evidence shows that
various weapons are recovered at the instance of the accused
persons. The investigating officer has collected soil from the
spot of the incident, having blood stains, as well as the simple
soil. All these muddemal Articles were forwarded to the
Chemical Analyzer. The CA Report Exh.659 shows that the
blood detected on Exh.1 i.e. soil, Exh.3 i.e. full shirt of the
deceased, Exh.4 sandow banian of the deceased, Exh.5 full
jeans pant of the deceased, Exh.7 half shirt of accused Raj
Thakur, Exh.15 full pant of accused Hanuman Pendor, Exh.16
full shirt of the child in conflict with law, Exh.18 half T-Shirt
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of accused Shubham Tekam, Exh.19 full jeans pant of accused
Shubham Tekam, Exh.28 sword seized at the instance of
accused Raj Thakur, Exh.28 sword seized at the instance of
accused Vinod Chapariya, Sattur seized at the instance of
accused Sunil Devtale, Exh.30 sickle recovered at the instance
of accused Sunil Devtale, Exh.31 sickle seized at the instance
of child in conflict with law, Exhs.32 and 33 knives recovered
at the instance of accused Shubham Tekam, Exh.34 sheath
(cover of knife) seized at the instance of accused Shubham
Tekam, iron pipe seized at the instance of accused Sumedh
Meshram were found stained with blood of “Blood Group AB”.
As per Exh.660, the blood of the deceased was “AB”. As per
Exhs.661 to 674, none of the accused’s blood group is AB.
The incriminating evidence as to the CA was not put to the
accused before the trial court. The same was put by this court
for which they have not given any explanation.
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110. Thus, the entire prosecution case revolves around the
direct as well as the circumstantial evidence. PW1 and Pw2
Mayur are the wife and son of the deceased. Whereas, PW3
Sharda Narayane and PW4 Prashant Shambharkar are the
eyewitnesses who are from the same village.
111. Learned counsel for the accused persons placed
reliance on the decision of this court in the case of Bharat s/o
Kailash Baheliya and ors vs. The State of Maharashtra (supra)
wherein this court on the basis of judgment in Sonia Bahera
vs. State of Orissa (supra); Alil Mollah and anr vs. State of
W.B. (supra) and State of Orissa v. Brahmananda Nanda,
reported in (1976)4 SCC 288 in which it is held that
unexplained silence or delayed disclosure by an alleged
eyewitness seriously affects the credibility of such testimony.
However, in the present, the investigating officer was cross
examined on delay in recording the statement and his
explanation appears to be reasonable and justified one.
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Therefore, the observations in Bharat s/o Kailash Baheliya
and ors (supra) are not helpful to the accused persons in the
present case.
112. Learned counsel for the accused persons has further
placed reliance on the decision in the case of Syed Amin Syed
Nabi vs. The State of Maharashtra (supra) where the case was
rested upon oral dying declaration as well as the “last seen.”
While appreciating the evidence, this court has considered the
prosecution case that the accused inflicted deep cut wounds
on neck of deceased by means of sattur. The oral dying
declaration implicating the accused made by the deceased to
uncle and father is not reliable. The recovery of the weapons
of the offence at the instance of accused from open place is
doubtful. Noticing human blood on the clothes of the
accused, irrelevant, particularly when such circumstance was
not put to the appellant when his statement was recorded and
thereby the accused was acquitted.
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113. Here, in the present case, as far as the recovery
evidence is concerned, which shows that at the instance of the
accused the weapons were recovered. The chain of custody is
also established by the prosecution by producing various
documents on record. Therefore, this observation is also not
helpful to the defence.
114. Learned counsel for the accused persons further placed
reliance on Jaikam Khan vs. State of Uttar Pradesh (supra)
wherein it is held that related eyewitnesses falling in the
category of “neither wholly reliable nor wholly unreliable”. In
such case, reiterated, corroboratory evidence is necessary.
Absence of corroboratory evidence, motive and other material
infirmities in prosecution case.
As already observed in the present case, some
improvements are there, but the same are not touching or
affecting the core of the prosecution case. Moreover, the
evidence of the eyewitnesses is corroborated by the other
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evidence and, therefore, this decision is also not helpful to the
accused.
115. In Anant Dyaneshwar Jadhav vs. The State of
Maharashtra (supra), the benefit of doubt was given to the
accused as the prosecution case was that the accused persons
carrying the deadly weapons attacked complainant party and
the appellant accused assaulted the deceased by sword. The
testimony of eyewitnesses that the assault on deceased took
place at particular spot not corroborated by other evidence on
record.
116. Here, it is not the case. Not only the version of the
eyewitnesses but the circumstantial evidence even the soil
collected from the spot tallies with the soil which was found
in the nail clippings of the deceased. Therefore, this judgment
is also not helpful to the defence.
117. While appreciating the testimony of rustic witness, i.e.
PW1 Nalini, some variations and improvements are to be
…..164/-
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appreciated in the light of the fact that, she is from the rustic
background, and when number of intruders attacked with
deadly weapons, then witnesses cannot be expected to give a
very accurate and photogenic version as both things happened
in few minutes.
118. This aspect is also considered by the Hon’ble Apex
Court in the case of State of Punjab Vs. Hakam Singh,
reported in MANU/SC/0526/2005, wherein Hon’ble Apex
Court observed that, sometimes while appreciating the
testimonies of rustic witnesses, we are liable to commit
mistakes by losing sight of their rural background and try to
appreciate testimony from our rational angle. When a lady is
confronted with number of intruders in her house armed with
deadly weapons and showering bullets she cannot give a very
accurate and photogenic version as whole thing happened in
few minutes. Therefore, while appreciating whole scenario in
which the incident happened. It is not expected that she
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would be in a position to state act of each accused. In view of
the above observations, some omissions ought to have
occurred.
119. The law as to the appreciation of evidence is settled.
The appreciation of the ocular evidence, there is no straight
jacket formula. In the case of Balu Sudam Khalde & Anr. Vs.
The State of Maharashtra in Criminal Appeal No. 1910/2010
decided by the Hon’ble Apex Court on 29.03.2023 laid down
the principles for appreciation of ocular evidence in a criminal
case as follows:-
“APPRECIATION OF ORAL EVIDENCE
25. The appreciation of ocular evidence is a hard task.
There is no fixed or straight-jacket formula for
appreciation of the ocular evidence. The judicially
evolved principles for appreciation of ocular evidence in
a criminal case can be enumerated as under:
“I. While appreciating the evidence of a witness,
the approach must be whether the evidence of the
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witness read as a whole appears to have a ring of
truth. Once that impression is formed, it is
undoubtedly necessary for the Court to scrutinize
the evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out
in the evidence as a whole and evaluate them to
find out whether it is against the general tenor of
the evidence given by the witness and whether the
earlier evaluation of the evidence is shaken as to
render it unworthy of belief.
II. If the Court before whom the witness gives
evidence had the opportunity to form the opinion
about the general tenor of evidence given by the
witness, the appellate court which had not this
benefit will have to attach due weight to the
appreciation of evidence by the trial court and
unless there are reasons weighty and formidable it
would not be proper to reject the evidence on the
ground of minor variations or infirmities in the
matter of trivial details.
III. When eye-witness is examined at length it is
quite possible for him to make some discrepancies.
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But courts should bear in mind that it is only when
discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that
the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not
touching the core of the case, hyper technical
approach by taking sentences torn out of context
here or there from the evidence, attaching
importance to some technical error committed by
the investigating officer not going to the root of the
matter would not ordinarily permit rejection of the
evidence as a whole.
V. Too serious a view to be adopted on mere
variations falling in the narration of an incident
(either as between the evidence of two witnesses
or as between two statements of the same witness)
is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to
possess a photographic memory and to recall the
details of an incident. It is not as if a video tape is
replayed on the mental screen.
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VII. Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence which so often has an
element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the
details.
VIII. The powers of observation differ from person
to person. What one may notice, another may not.
An object or movement might emboss its image on
one person’s mind whereas it might go unnoticed
on the part of another.
IX. By and large people cannot accurately recall a
conversation and reproduce the very words used
by them or heard by them. They can only recall the
main purport of the conversation. It is unrealistic
to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the
time duration of an occurrence, usually, people
make their estimates by guess work on the spur of
the moment at the time of interrogation. And one
cannot expect people to make very precise or
reliable estimates in such matters. Again, it
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depends on the time-sense of individuals which
varies from person to person.
XI. Ordinarily a witness cannot be expected to
recall accurately the sequence of events which take
place in rapid succession or in a short time span. A
witness is liable to get confused, or mixed up when
interrogated later on.
XII. A witness, though wholly truthful, is liable to
be overawed by the court atmosphere and the
piercing cross examination by counsel and out of
nervousness mix up facts, get confused regarding
sequence of events, or fill up details from
imagination on the spur of the moment. The sub-
conscious mind of the witness sometimes so
operates on account of the fear of looking foolish
or being disbelieved though the witness is giving a
truthful and honest account of the occurrence
witnessed by him. XIII. A former statement though
seemingly inconsistent with the evidence need not
necessarily be sufficient to amount to
contradiction. Unless the former statement has the
potency to discredit the later statement, even if the…..170/-
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later statement is at variance with the former to
some extent it would not be helpful to contradict
that witness.”
120. In the light of the above said principles, if the evidence
of PW1 Nalini, PW2 Mayur, PW3 Sharda Narayane and PW4
Prashant Shambharkar is appreciated, same is consistent,
cogent and not suffering from material inconsistencies. The
prosecution evidence may suffer from inconsistencies here
and there, but no criminal case is free from it.The evidence
further corroborated by independent witnesses P.W.3 Sharda
and P.W. 4 Prashant. Their presence at spot is not unnatural.
121. Thus, the law is well settled that while assessing the
value of the evidence of the eyewitnesses, two principal
considerations are whether, in the circumstances of the case, it
is possible to believe their presence at the scene of occurrence
or in such situations as would make it possible for them to
witness the facts deposed to by them and secondly, whether
there is anything inherently improbable or unreliable in their
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evidence.As already observed that, the presence of PW1 Nalini
and PW2 Mayur was natural..
122. The prosecution has claimed that the accused persons
were members of the unlawful assembly and in furtherance of
the common object of that assembly, they attacked the
deceased and caused the death of the deceased. There is no
dispute that there was political rivalry between the accused
persons and the family of the deceased as PW1 Nalini who is
wife of the deceased was elected as Sarpanch though the post
was reserved for Open Category. There is no dispute as to the
legal position that previous enmity is double edged weapon.
However, after appreciating the evidence, involvement of the
accused persons reveals from the evidence.
123. At this juncture, the relevant legal provision 141 of IPC
which defines “unlawful assembly”. It says an assembly of 5 or
more persons as designated as unlawful assembly if the
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common object of the persons composing that assembly is to
commit an illegal act by means of criminal force.
124. As per Section 148 of IPC which deals with rioting
armed with deadly weapons, whoever guilty of rioting, being
armed with a deadly weapon or with anything which used as
weapons of offence is likely to cause death, shall be punished
with imprisonment either description for a term which may
extend to three years or with fine or with both. The offence of
riot is defined in Section 146 of IPC. In view of the said
definition, whenever force or violence is used by the unlawful
assembly, or by any member thereof, in prosecution of the
common object of such assembly, every member of such
assembly is guilty of the offence of rioting.
125. Section 149 of IPC says about every member of an
unlawful assembly shall be guilty of the offence committed in
prosecution of the common object. It says that, if an offence is
committed by any member of an unlawful assembly in
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prosecution of the common object of that assembly, or such as
the members of that assembly knew to be likely to be
committed in prosecution of that object, every person who at
the time of committing of that offence is the member of the
said assembly, is guilty of that offence. Thus, if it is a case of
murder under Section 302 of IPC, each member of the
unlawful assembly would be guilty of committing the offence
under Section 302 of IPC.
126. Recently, in the judgment of Zainul Vs. The State of
Bihar in Criminal Appeal No. 1187/2014 dated 07.10.2025 ,
the Hon’ble Apex Court has held that:
“49. The expression observed that “in prosecution of
the common object” means that the offence committed
must be directly connected with the common object of
the assembly, or that the act, upon appraisal of the
evidence, must appear to have been done with a view
to accomplish that common object. In Charan Singh
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Vs. State of U.P. reported in (2004) 4 SCC 205, this
Court held that the test for determining the “common
object” of an unlawful assembly must be assessed in
light of the conduct of its members, as well as the
surrounding circumstances. It can be deduced from the
nature of the assembly, the weapons carried by its
members, and their conduct before, during, or after
the incident.”
It is further observed that, Section 149 of IPC makes all
the members of an unlawful assembly constructively liable
when an offence is committed by any member of such
assembly with a view to accomplish the common object of
that assembly or the members of the assembly knew that such
an offence was likely to be committed. However, such liability
can be fasten only upon proof that the act was done in perusal
of the common object.
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127. Thus, once the existence of a common object amongst
the members of an unlawful assembly is established, it is not
imperative to prove that each member committed an overt
act. The liability under this provision is attracted once it is
certain that an individual had knowledge that the offence
committed was a probable consequence in furtherance of the
common object, thereby rendering him a “member” of the
unlawful assembly. Utmost it is important to consider whether
the assembly consisted of some members who were merely
viewers and who were there out of curiosity, without the
knowledge, then such persons cannot be said to be members
of the unlawful assembly. Thus, the existence of a common
object is to be inferred from certain circumstances such as:
“a. the time and place at which the assembly was
formed;
b. the conduct and behaviour of its members at or near
the scene of the offence;
c. the collective conduct of the assembly, as distinct
from that of individual members;
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d. the motive underlying the crime;
e. the manner in which the occurrence unfolded;
f. the nature of the weapons carried and used;
g. the nature, extent, and number of injuries inflicted,
and other relevant considerations.”
In the light of above legal proposition prosecution
evidence establishes accused person were members of
unlawful assembly and in furtherance of common object
they committed the offence.
128. The involvement of accused Munna Thakur and Vinod
Chapariya also reveals in screening the evidence.
129. It is well settled that the law does not require that a
fact requires to be proved on absolute terms bereft of all
doubts. What law contemplates is that for a fact to be
considered proven, it must eliminate any reasonable doubt.
Reasonable doubt does not mean any trivial, fanciful or
imaginary doubt, but doubt based on reason and common
sense growing out of the evidence in the case. A fact is
considered proved if the court, after reviewing the evidence,
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either believes it exists or deems its existence probable
enough that a prudent person would act on the assumption
that it exists.
130. It is a cardinal principle of criminal jurisprudence that
guilt of the accused must be proved beyond all reasonable
doubts. However, the burden on the prosecution is only to
establish its case beyond all reasonable doubts and not all the
doubts. The doubts would be called reasonable if they are
free from a zest for abstract speculation. Law cannot afford
any favourite other than the truth. Doubts must be actual
and substantial doubts as to the guilt of the accused persons
arising from the evidence. A reasonable doubt is not an
imaginary, trivial or a merely possible doubt; but a fair doubt
based upon reason and common sense.
131. For the reasons discussed above, on consideration of
the oral evidence, medical evidence, scientific evidence and
other proven facts, in our considered opinion, the
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prosecution has proved the guilt of the accused unmistakenly
to point out that being the members of the unlawful
assembly and in furtherance of their common intention, they
have committed the murder of the deceased out of political
rivalry punishable under Section 302 read with 149 of the
IPC. These proved facts on the basis of proved evidence, the
prosecution has proved the charges against the accused
persons beyond reasonable doubts. Resultantly, appeals
deserve to be dismissed and the same are dismissed.
Appeals stand disposed of.
JUDGE JUDGE
!! BrWankhede !!
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