Bombay High Court
Kamlibai Ramu Waghe vs The State Of Maharashtra on 24 April, 2026
Author: Bharati Dangre
Bench: Bharati Dangre
2026:BHC-AS:21758-DB CR.APEAL 714 OF 2018 COMMON, J.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 714 OF 2018
WITH
INTERIM APPLICATION NO. 3037 OF 2025
Kamlibai Ramu Waghe,
Occu.- ----
Residing at Mahapoli, Bandinipada,
Taluka-Bhiwandi,
At present residing at Hillock,
Fatta Mo. Nagar, Bhivandi.
At present undergoing the sentence
imposed upon her at ...Appellant/
Kalamb Central Prison, Kolhapur Applicant
Versus
The State of Maharashtra
(At the instance of
Senior Inspector of Police,
Shanti Nagar Police Station ...Respondent
Vide C.R. NO. I-311 of 2010.
WITH
CRIMINAL APPEAL NO. 362 OF 2017
WITH
INTERIM APPLICATION NO. 4222 OF 2023
Faruk Mushtak Khan
Occu. : Nil,
Residing in Room of Mahapoli Jama,
Masjid Trust, Taluka-Bhiwandi, ...Appellant
District-Thane.
Versus
The State of Maharashtra
(Through Shantinagar Police Station,
Bhiwandi, District-Thane. ...Respondent
Digitally
signed by
RAJESHRI
Ms. Ankita Naik, Advocate for the Appellant in Appeal 714 of
RAJESHRI PRAKASH
PRAKASH AHER 2018.
AHER Date:
2026.05.07
12:47:34
+0530
Page 1 of 34
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CR.APEAL 714 OF 2018 COMMON, J.DOC
Mr. Swapnil Ovalekar, Advocate for the Appellant in Appeal
362 of 2017.
Mr. Tanveer Khan, A.P.P. for the Respondent - State.
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
RESERVED ON : 25th FEBRUARY, 2026.
PRONOUNCED ON : 24th APRIL, 2026.
JUDGMENT (Per : Manjusha Deshpande, J.):-
1. Both the appeals are arising out of the judgment of conviction passed in Sessions Case No. 78 of 2011, recorded vide judgment dated 28 February 2017, passed by the learned Additional Sessions Judge, whereby Accused Nos. 2 and 3 have been convicted of the offences punishable under Section 302 and 201 read with Section 34 of the Indian Penal Code, sentencing them to suffer life imprisonment, with a fine of Rs. 500 each, in default to suffer RI of two months each and suffer RI for one year with a fine of Rs. 200 each in default to suffer RI of one month.
Feeling aggrieved by the sentence of life imprisonment, Accused Nos. 2 and 3 have filed independent appeals, which are being heard together. Since the Appellants in both Appeals are the convicts, in the same offence, the evidence as Page 2 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC well as judgment being one and the same, both the Appeals are heard analogously. There are four accused involved in the offence, one of them is absconding after commission of offence. Three of them faced the trial in which Accused No. 1 has been acquitted, while Accused Nos.2 and 3 are convicted.
2. The case of the prosecution, shorn of unnecessary details, is that Vijay Pawar (Accused No. 1) was a friend of Shivaji Jadhav (deceased). Kamlibai (Accused No. 2) is the paramour of Vijay Pawar. Vijay Pawar suspected that Accused No. 2 was having an affair with Shivaji. On 2.10.2010, after having dinner with Nitin Gaikar (P.W. 3) at about 8:00 to 8:30 p.m., Shivaji left on his bike and reached the room of Accused No. 2, at Gayatrinagar Pahadi. They had liquor in the room of Accused No. 2, who also called Dara Paswan alias Lambu Bhaiyya (absconding accused). Faruk (Accused No. 3) and Accused No. 2 caught hold of Shivaji, and along with Dara Paswan alias Lambu Bhaiyya (absconding accused), and killed Shivaji, at the instance of Vijay Pawar (Accused No.1)
3. This incident occurred in a tin shed, which was in a joint tenement with Fatma Khatun. It is claimed that Fatma Khatun had taken pills and was sleeping at the time of the Page 3 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC incident. However, her daughter Laxmi had witnessed this incident through the gap in the tin sheets between the two rooms.
The accused kept the body of Shivaji in the rear side of the room, and according to prosecution, Accused No.1, Vijay Pawar came the next day, and thereafter the body was cut into pieces. The head, left hand and both legs of Shivaji was cut from the rest of his body, after that his body was packed in a gunny bag and was thrown behind the house of one Fatte Mohammad Shah at Dongarpada.
Since Shivaji went missing, his father, Rajaram Jadhav, searched for him, but he could not trace him. One Nitin Gaikar, who had his dinner with Shivaji on the fateful day, also made enquiries with Vijay Pawar, who did not respond. Therefore, the father of the deceased filed a missing complaint at the police station on 4th October, 2010.
One Akram Habibulla Ansari came to Gayatrinagar hillock at about 08:00 a.m. on 4 th October, 2010, where he came to know from his neighbour that, there was a body found in a nylon gunny bag. The head was lying at a distance of Page 4 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC about 200 feet, and the left leg of the body was in bushes nearby. The police on the basis of report dated 4 th October, 2010 registered the FIR and conducted investigation.
4. API R.R. Naikwade from Shantinagar Police Station has drawn the panchanama and opened the gunny bag in the presence of panchas on the spot at about 10:35 a.m. One Sando banian and a brown coloured shirt stained with blood were found on the spot. The parts of the body were sent to Bhiwandi Hospital for medical examination. The body was identified by Rajaram Jadhav, father of the deceased on the basis of the face and clothes of the deceased. Dr. Jayashree Mhaske conducted the postmortem, and gave opinion on cause of death.
Thereafter, Police Inspector (PI) Janardan Babar took over further investigation. He recorded the statements of Laxmi (P.W.-5) and Sharda, i.e., the daughter of the accused Accused No. 2, on 7th October, 2010, P.W.5 and Sharda have shown the room to the Police Inspector where the incident had occurred. Upon search being conducted, a blood-stained bedsheet, green coloured quilt, and broken pieces of bangles were seized. Samples of blood stains on the tin sheets and Page 5 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC floor were taken, and a panchanama to that effect was drawn (Exhibit 106).
5. Accused No. 2 gave a voluntary statement, pursuant to which the weapon, i.e., a sickle (Article 20), and a gown (Article 21) were seized. The seized articles were sent to the forensic laboratory. Similarly, Accused No. 3 Faruk also gave a voluntary statement, culminating in Seizure of his clothes, which were also sent for forensic examination.
6. Upon completion of investigation, sufficient material was found against the accused, hence, chargesheet came to be filed before the JMFC Court, Thane, who in turn committed the case to the Court of Sessions, Thane. On framing of charges, it was read over and explained to the accused in vernacular, which they denied. The defence of the accused was that of total denial, which is tried to be established through their cross-examination and their statements recorded under Section 313 of the Cr.PC, alleging false implication in the offence.
7. The prosecution has examined 14 witnesses to prove the guilt of the accused. Rajaram Kashinath Jadhav (P.W. 3) Page 6 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC is the father of the deceased. Nitin Gaikar (P.W. 4) is the cousin brother of the deceased. Laxmi Thakur (P.W. 5) is the eye witness. Dr. Jayashree Mhaske (P.W. 1) conducted the autopsy. Javed Bashir Shaikh (P.W. 6) is the witness to the seizure of articles, i.e., one plastic gunny bag (Article 3) and yellow coloured rope (Article 4), seized vide panchanama Exhibit 99.
P.W. 7 Mohammad Akram Ansari is the person who lodged the report at Exhibit 45. Manoj Dawle (P.W.10) is the son-in-law of Accused No. 2. Laxman Gaikwad (P.W.11) is a Panch witness to the disclosure statement of Accused No. 2 at Exhibit 126 and discovery of Article 20, i.e., the weapon sickle which is seized vide seizure panchanama at Exhibit
127. P.W. 13 Raghunath Naikwade (A.P.I., Shantinagar Police Station) and P.W. 14 Janardan Babar (P.I.) are the investigating officers.
8. The accused admitted the spot panchanama (Exhibit
43), postmortem report (Exhibit 42), inquest panchanama (Exhibit 44), and the report lodged by P.W. 7 (Exhibit 45). After discovery of the body of deceased Shivaji, in a mutilated condition, the statement of P.W. 5 came to be recorded. While Page 7 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC recording the statement, it transpired that P.W. 5 Laxmi is an eye witness of the incident. Thus, the statement of P.W. 5, assumes significance, as conviction of the accused persons is recorded relying on her testimony along with other corroborating evidence.
9. The respective Advocates, Ms. Ankita Naik, and Mr. Swapnil Ovalekar for the appellants have expressed their reservations about the reliability of the testimony of single child eye witness. It is submitted that the testimony of P.W.5 will have to be accepted with great caution. Except the testimony of P.W.5, there is no incriminatory evidence against the accused. Even her evidence is not reliable, since she was only a 9 years old during the incident. In fact, no prima facie case is made out against the appellants to sustain their conviction and establish their involvement in commission of the offence.
According to them, undue weightage has been given to the testimony of a child witness Laxmi Thakur (P.W. 5) by the trial Judge and it is their allegation that she is a tutored child witness. It is urged that her age at the time of the incident was 9 years, whereas during her testimony in the Page 8 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC Court it was 14 years, and therefore, it is highly improbable that she must have been able to recall the incident with minute details. She herself has admitted that, she is unable to recall the exact date, month, and year of the alleged incident. Therefore, reliance on her sole testimony is not safe to base the conviction of the accused, more so in view of the fact that there is no independent corroboration of the evidence of P.W. 5, since the prosecution has failed to examine Sharda, the daughter of Accused No. 2, who according to P.W.5, was also a witness to the incident. Her narration is not corroborated either by direct or any circumstantial evidence. There is a huge span of five years between the incident and recording the statement of P.W.5, which again creates doubt about the credibility of her testimony. The version of P.W.5 is also doubtful for the reason that, there were almost eight houses surrounding the house where the incident had occurred, yet, the prosecution has not recorded statement of any of the neighbours.
Even the version presented by the P.W. No.5 about cutting of body in the open space outside the house is Page 9 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC totally unbelivable, since such act cannot go unnoticed by the people residing in the nearby houses.
10. It is urged by the learned advocate Ms. Ankita Naik that the learned Judge has also erred in placing reliance on the evidence of P.W.9 Mubassir Hussain Ansari, who was panch witness, to the spot panchanama of the house of Accused No. 2 at Exhibit 106. This witness has admitted during cross-examination that, he is a frequent visitor of the police station, as he is a social worker, hence, his testimony is not reliable and it would not be safe to rely on his testimony.
She further submits that, the prosecution has failed to establish, the complicity of the accused, through the C.A. reports of the articles seized, during the investigation from the room where the incident has occurred and also of the articles seized pursuant to the voluntary statement of the accused. The report from Chemical Analyser were not received till the judgment was pronounced. The seizure of clothes and other articles including the weapon sickle with blood stains on it are of no consequence in absence of C.A. report, which weakens the prosecution case. Page 10 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC
11. It is urged that it is necesssary to prove the allegations by concrete evidence in the form of a forensic report, to establish that the stains of blood on the articles seized were of human origin, and more particularly belonged to the deceased Shivaji. In absence of forensic evidence, to connect the accused as well as the deceased to the blood samples obtained from the stained clothes, floor and the tin sheets, the conviction recorded by the learned Judge is against the settled principles of criminal jurisprudence.
12. It is submitted that, Insofar as the recovery of the weapon at the instance of Accused No. 2 is concerned, the weapon, i.e., the sickle, was not produced before the Court, therefore, it is not established that it is the same weapon used in the offence and this is a missing link in the case of the prosecution.
13. It is further submitted that the learned Judge has also committed an error by making observation on the charge of Section 201 of I.P.C., about absence of articles of domestic use in the room of Accused No.2, by holding that the accused had sufficient time to shift the articles from the room, is also without any supporting evidence.
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14. It is further submitted that, prosecution has failed to establish that Accused No. 2, was residing in the said room. Similarly, the prosecution has failed to examine the mother of P.W. 5, Fatma, who was very much available, and residing in the adjoining room. Doubts are also raised about the testimony of P.W. 10 Manoj Dawle, on the ground that, even though he claims to have purchased beer along with co-accused Faruk for Accused No. 2, similar claim is made, even by P.W. 5 Laxmi Thakur who claims that, she had accompanied Accused No. 2 for purchasing beer and after that they returned to the room, which was followed by the alleged incident. Due to the overlapping claims by P.W.5, P.W.10, their testimony is unreliable.
15. The learned advocate Ms. Ankita Naik, for Accused No. 2 submits that the Trial Court should have exercised caution and restraint before relying on the testimony of child witness P.W. 5 Laxmi Thakur. Before examining her, the Court should have verified whether she was able to comprehend and recall the incident.
16. Section 118 of the Evidence Act, 1872, casts a duty on the trial Court to satisfy itself, through a preliminary Page 12 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC enquiry, about the competence of the child witness to understand the questions and give rational answers. The Trial Court should also have recorded its satisfaction that the child witness was in a position to recollect the incident, and present before the Court, the exact version of the incident, in a unbiased manner. Preliminary questions and answers are necessary to verify the capability of the witness to depose and understand the sanctity of oath.
In this context the learned advocate places reliance on the decision of the Hon'ble Supreme Court in Criminal Appeal Nos. 1686-1688 of 2023 in Agniraj & Ors. v. State through Deputy Superintendent of Police, CB-CID dated 23rd May, 2025, to insist upon the importance of exercising due diligence and putting preliminary questions to a child witness, to ascertain whether the witness understands the sanctity of oath.
On failure to undertake the aforementioned excercise by the Trial Court, the conviction of Accused Nos. 2 and 3 based on testimony of P.W. 5 becomes untenable. Page 13 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC
17. The learned advocate Mr. Swapnil Ovalekar for Accused No. 3 submits that insofar as the charge under Section 34 of the I.P.C. is concerned, no specific role is assigned to Accused No.3 and it is not specified, among the various acts such as strangulation, cutting, and disposal of the body, which particular act is attributed to Faruk. All the acts of murder, cutting, and disposal of the body have been brought under one charge, as such there is a lack of clarity regarding the actual role of Accused No. 3.
It is further submitted that though the charge covers the period from 2nd October, 2010 to 4th October, 2010, during which the Incident of murder, cutting of the body, and its disposal had occurred on different dates, the charge does not distinctly assign particular acts to each of the accused.
No specific overt act is attributed to Accused No.3. In the absence of a specific role, liability under Section 34 of the I.P.C. becomes obscure. There is no individual or alternative charge framed against each accused, the charge proceeds only on joint liability, despite the absence of clarity in the prosecution evidence, the learned Judge has proceeded to record conviction against Accused No.3. Page 14 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC
18. It is submitted that although P.W.5 speaks of strangulation and use of chilli powder, the medical evidence states that, death was due to haemorrhagic shock caused by amputation. Thus, there is inconsistency in the ocular version and medical evidence about the cause of death.
19. The sum and substance of arguments of both the Advocate is that the testimony of P.W. 5, who is a sole eye witness is unreliable for recording conviction solely on the basis of her evidence. There is no corroborative evidence, which supports the testimony of P.W. 5. Thus, in view of insufficiency of evidence, in support of the prosecution case, the recording of conviction against them is unjust, arbitrary and perverse, hence, deserves interference by this Court.
20. The learned A.P.P. Mr. Khan appearing for the State submits that, the case is based on ocular evidence, which is fully reliable and proved by the prosecution beyond reasonable doubt, no interference is warranted in the impugned judgment. It is submitted that the testimony of P.W.5 is fully proved by the evidence of other witnesses, such as, P.W. 4 Nitin Gaikar, with whom the deceased had dinner prior to the incident; testimony of P.W. 9 panch witness who Page 15 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC has testified the recovery of green bangles, a quilt stained with blood, a bed-sheet, sample of blood stains on other articles, article no. 13 stone having blood stain and article no. 14 dry leaves stained with blood, which establishes the occurrence of the incident, as seen by P.W.5.
21. He further submits that P.W. 10, Manoj Dawle the son-in-law of accused no.2, has identified the rope Article 4 used in the offence for strangulation of the deceased, which was seized during the spot panchanama at Exhibit 106, which is proved by the Investigating Officer, P.W.14. The testimony of P.W. 10 could not be shattered during his cross-examination, which fully corroborates the complicity of the accused.
Thus, according to the learned A.P.P., the prosecution has proved beyond reasonable doubt, the complicity of both the accused. Hence, no interference is warranted.
22. We have heard the respective advocates for the Accused Nos. 2 and 3, as well as the learned APP for the Respondent-State. We have also perused the record with their assistance.
Page 16 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC The body of the accused, was found in a mutilated condition, in a gunny bag near the house of one Fatte Mohammed Shah at Dongarpada. It was identified by the father of the deceased P.W. 3 Rajaram Kashinath Jadhav. Thus, the identity of the deceased is established. The body was sent for postmortem and the postmortem was conducted by P.W. 1, Dr. Jayashree Sanjay Mhaske, Medical Officer at IGM Hospital Bhiwandi. The postmortem at Exhibit 41 is admitted by all the accused. Since the cause of death is admitted, it was not necessary to prove the same. Hence, homicidal death of deceased stands proved.
23. Since the factum of death of the deceased and the condition in which the body was found are not disputed by the defence, it is not necessary to delve further into the cause of death. The issue therefore, narrows down as to whether Accused Nos. 2 and 3 are responsible for the commission of the offence and the specific role attributable to each of them, which is established by the prosecution through the testimony of P.W.5.
24. During the investigation, a search of the house of Accused No. 2 was taken and statement of P.W. 5 was Page 17 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC recorded on 7th October, 2010. While recording her statement, it transpired that P.W. 5 was the sole eye witness of the offence. Hence, her testimony assumes great importance. Her testimony was recorded after five years of the incident, when she was 14 years old. According to P.W.5 she was residing in the adjoining house of Accused No.2. On 2nd October, 2010, she heard sound of quarrel between the deceased and Accused No. 2, therefore, she peeped through the hole of the joint between the two tin sheets dividing their house. She also heard the quarrel where the deceased was demanding Accused No.2 to sleep with him, while Accused No. 2 was refusing. After some time, Accused No.2 called P.W. 5 to accompany her to her house at the market, in a rickshaw driven by Accused No. 3, where they purchased two beer bottles, which were brought by Accused No.3 and handed over to her. They returned in the same rickshaw, after which she went to her own house, while Accused Nos.2 and 3 proceeded to the house of Accused No.2 with the beer bottles.
After returning, she again peeped through the gap in the tin sheets and saw Accused Nos.2 and 3 were consuming beer with the deceased. Thereafter, Accused No.2 asked Page 18 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC deceased, Shiva, to leave the house. However, he refused and insisted that he wanted to sleep with her. After few exchange of words, Accused No.2 got annoyed and called neighbouring person Lambu Bhaiyya (absconding accused). Shiva stated that he had even slept with the wife of Vijay Pawar (Accused No. 1) and referred to her as his keep. This led to a quarrel between Lambu Bhaiyya and Shiva, after which Lambu Bhaiyya threw chilli powder into eyes of Shiva and started beating him. After which Accused Nos. 2 and 3 caught hold of Shiva and Lambu Bhaiyya put rope around his neck. Lambu Bhaiyya with Accused No.3 throttled Shiva, who collapsed, later Accused No. 2 hit Shiva with a sickle at his throat. After watching this P.W. 5 got scared and went to the house of Sharda, daughter of Accused No.2, who lived at a short distance from her house. After returning with Sharda, she has shown her the quarrel going on in the house of Accused No.2. After some time, Accused Nos.2 and 3 along with Lambu Bhaiyya kept the body of deceased in the backside of the room.
On the next day, Accused No.1 Vijay Pawar came to the house of Accused No.2. She heard Accused No.2 telling Page 19 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC Accused No.1 that, she has done the task of killing Shiva, as directed by him. On the same day, when Sharda visited house of P.W. 5, they heard sound of cutting, therefore, her mother inquired with Accused No.2 about the sound, to which she replied that she was cutting firewood for the next day.
When P.W. 5 and Sharda went out, what they saw from the front side of their house, was Accused Nos. 2 and 3 were cutting the dead body of deceased with a sickle. Sharda asked her mother, Accused No.2 as to what she was doing, to which Accused No.2 responded by threatening both of them; that if they disclose this to anybody, they will also meet the same fate. The next day, pieces of body were found scattered in their area and the police had started inquiring about it. She on her own did not disclose it to the police, however, when her statement was recorded, she has disclosed that, she has seen the whole incident.
. P.W.5 has identified the weapon used in the offence, which is marked as Article 20, to be the same sickle, with which the offence is committed. She also identified both the accused present in the Court.
Page 20 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC When we examine the testimony of P.W. 5, her claim that she has seen the incident through the gap in the tin sheets dividing her house with Accused No.2 stands corroborated by the panchanama of the house of Accused No.2 conducted in the presence of P.W. 9, who has stated about the articles seized from the room including the blood stained quilt, stains of blood on floor, walls, bed sheets and dry leaves seized from the bushes behind the room, where the body was concealed after the incident.
Thus, the testimony of P.W. 5 about the occurrence of the offence in the adjoining house is corroborated by seizure of Articles in presence of the panch witness P.W.9, and supported by the Investigating Officer, P.W. 14.
25. The testimony of P.W. 5 about cutting the body of the deceased stands corroborated by the circumstances in which the body was found in a mutilated condition. The head and limbs were found in the bushes. The gunny bag containing the body of the deceased is proved through P.W. 6, Javed Bashir Shaikh, the panch witness to the seizure panchanama of gunny bag and rope (Articles 3 and 4). P.W. 5 admits in her cross-examination that, she had seen the Accused Nos.2 Page 21 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC and 3 stuffing the body parts of deceased in the gunny bag, which was carried by them for disposing it off. Her admission in the cross-examination, supports the seizure of the body from the gunny bag. Thus, P.W. 5 has given accurate version of the occurrence of the incident, which is corroborated by the surrounding circumstances.
The only omission is about the chilli powder alleged to be thrown in the eyes of Shiva, which was in relation to the acquitted accused Vijay, which is not at all fatal to the case of the prosecution or to the testimony of P.W.5. Thus, the prosecution has proved that P.W.5 had seen the incident with her own eyes.
26. The weapon sickle (Article-20) used in commission of the offence as described by P.W. 5 has been seized vide seizure panchanama (Exhibit 127), pursuant to the memorandum statement given by A-2 under Section 27 of the Evidence Act. The seizure of weapon is proved by the testimony of P.W. 11, Laxman Gaikwad who deposed that, the sickle was concealed in the bushes, situated near a small pathway abutting the compound wall of a farm house. The testimony of this witness remained consistent, without any Page 22 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC contradiction. P.W. 5 also has identified the sickle during the trial. Thus, the recovery and identification of the weapon of crime is also proved.
27. P.W. 5 has categorically testified about the events, that occurred on all the three days, which started with killing of deceased Shiva on 2nd October, 2010, followed by cutting his body into pieces on 3rd October, 2010, and eventually the discovery of body of deceased in the gunny bag, and other parts scattered nearby on 4th October, 2010. All these events occurring one after the other are supported by the corroborative evidence collected during the investigation and proved through witness.
28. P.W.5 in her testimony has distinctly described the role of each accused in the offence. The sequence of events as narrated by P.W. 5 are clear and without faltering; it is specific and vivid. Therefore, there is no substance in the objection raised regarding the reliability of the testimony of P.W. 5.
29. Even though P.W. 5 was a minor of 9 years at the time of occurrence of the incident, but, she was a grown-up girl of Page 23 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC 14 years while recording her evidence. Therefore, she was very much in a position to comprehend the seriousness of making a statement on oath with responsibility attached to it, and its effect. She has described the incident with precision giving minute details. She is found to be competent and reliable witness. She did not falter, while answering any of the questions. In fact she has given rational answers to all the questions, which proves that she was capable to understand and comprehend.
She had no reason to hold grudge or animosity against the accused. No such evidence is brought on record by the defence. Hence, there is no possibility of concoction or tutoring by the prosecution. She being the neighbour of Accused No. 2, with only tin partition separating them is the most natural witness. She has watched the incident, after hearing the sounds of bickering between Accused No. 2 and deceased, which is very much in tune with the behavior of a normal child of 9 years with curiosity.
The ocular version given by the P.W.5 withstood to the test of cross-examination of the Accused Nos. 2 and 3 with- out any contradiction or inconsistency. Nothing could be Page 24 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC elicited during her cross-examination, that could discredit, or doubt her testimony.
30. At this stage, it is apposite to refer to Section 118 of the Indian Evidence Act, 1872, which does not prescribe any minimum age for competency of a witness. The test is whether the witness is capable of understanding the questions and giving rational answers. Mere tender age is not a disqualification. On evaluating the testimony of P.W.5 on this touchstone, we find that she possessed the requisite intellectual capacity and her evidence inspires confidence.
It is natural for a child of the age of 9 years to get frightened, after watching such gruesome incident, she also was naturally frightened. Since she was also threatened by Accused No. 2, she did not disclose the incident to anybody. But the impact of such incident remains etched in the mind of a child, and remains engraved in their memory for a long time. Therefore, even if she was not able to recollect the description of the clothes worn by the accused and deceased during the incident, she has narrated the whole incident with the particulars of role of each of the accused, which could not Page 25 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC be discredited. Thus, her testimony appears to be truthful and reliable.
In this context, We may profitably refer to the observations made by the Hon'ble Supreme Court in case of Dattu Ramrao Sakhare vs. The State of Maharashtra 1, about reliability of child witness which reads thus.
"5. The entire prosecution case rested upon the evidence of Sarubai (PW 2) a child witness aged about 10 years. It is, therefore, necessary to find out as to whether her evidence is corroborated from other evidence on record. A child witness if found competent to depose to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 d of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored. There is no rule or practice that in every case the evidence of such a witness be corroborated before a conviction can be allowed to stand but, however as a rule of prudence the court always finds it desirable to have the corroboration to such evidence from other dependable evidence on record. In the light of this well-settled principle, we may proceed to consider the evidence of Sarubai (PW 2)."
1 (1997) 5 SCC 341 Page 26 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC
31. As regards the objection to the reliability of testimony of P.W. 5 on account of the lapse of time between the occurrence of the incident and the recording of her testimony, we may rely on the observations of the Hon'ble Supreme Court in the case of Suryanarayana v. State of Karnataka2, regarding the capacity of a witness of tender age to recall events witnessed by them.
"5. Admittedly, Bhavya (PW 2), who at the time of occurrence was about four years of age, is the only solitary eyewitness who was rightly not given the oath. The time and place of the occurrence and the attending circumstances of the case suggest no possibility of there being any other person as an eyewitness. The evidence of the child witness cannot be rejected per se, but the court, as a rule of prudence, is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability, base conviction by accepting the statement of the child witness. The evidence of PW 2 cannot be discarded only on the ground of her being of tender age. The fact of PW 2 being a child witness would require the court to scrutinise her evidence with care and caution. If she is shown to have stood the test of cross-examination and there is no infirmity in her evidence, the prosecution can rightly claim a conviction based upon her testimony alone. Corroboration of the testimony of a child witness is not a rule but a measure of caution and prudence. Some discrepancies in the statement of a child witness cannot be made the basis for discarding the testimony. Discrepancies in the deposition, if not in material particulars, would lend credence to the testimony of a child witness who, under the normal circumstances, would like to mix-up what the witness saw with what he or she is likely to imagine to have seen. While appreciating the evidence of the child witness, the courts 2 (2001) 9 SCC 129 Page 27 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC are required to rule out the possibility of the child being tutored. In the absence of any allegation regarding tutoring or using the child witness for ulterior purposes of the prosecution, the courts have no option but to rely upon the confidence inspiring testimony of such witness for the purposes of holding the accused guilty or not."
Thus, we find that the testimony of P.W. 5 is supported by surrounding circumstances as well as corroborative evidence. Hence there is no reason to disbelieve her testimony.
32. Since there is an eye witness to the incident resulting into an offence punishable under Section 302 of the I.P.C., it is not necessary to prove the motive. The testimony of eye witness being truthful, reliable and in sync with the surrounding circumstances, motive is not an essential element to prove the commission of an offence.
33. Admittedly there is only one eye witness to the incident; however, it is the quality of the evidence of such witness that matters, which is appropriately appreciated by the learned Additional Sessions Judge, while recording conviction. It is a settled principle of criminal jurisprudence that, it is the quality of the evidence of the sole witness that matters and not the quantity, this view is reiterated by the Page 28 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC Hon'ble Supreme Court in case of Chittar Lal Vs. State of Rajasthan3, which reads thus:
"7. Evidence of the person whose name did not figure in the FIR as witness does not perforce become suspect. There can be no hard-and-fast rule that the names of all witnesses, more particularly eyewitnesses should be indicated in the FIR. As was observed by this Court in Shri Bhagwan v. State of Rajasthan' mere non-mention of the name of an eyewitness does not render the prosecution version fragile. The information was not lodged by an eyewitness. Mental condition of a person whose father has lost his life inevitably gets disturbed. Explanation offered by witnesses for non-mention of PW 3's name is plausible. Additionally, it is to be noted that in the present case the statement of PW 3 was recorded on the same day of incident, immediately after the investigation process was set into motion. Therefore, the plea that PW 3's testimony is doubtful lacks substance. The other plea was that conviction should not have been made on the basis of a single witness, PW 3's testimony. This plea is equally without essence. The legislative recognition of the fact that no particular number of witnesses can be insisted upon is amply reflected in Section 134 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). Administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent, cases where the testimony of a single witness only could be available, in number of crimes the offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is 3 (2003) 6 SCC 397 Page 29 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact.
This position has been settled by a series of decisions. The first decision which has become locus classicus is Mohd. Sugal Esa Mamasan Rer Alalah v. R. 2 The Privy Council focused on the difference between English law where a number of statutes make conviction impermissible for certain categories of offences on the testimony of a single witness and Section 134 of the Evidence Act. The view has been echoed in Vadivelu Thevar v. State of Madras?, Guli Chand v. State of Rajasthan, Vahula Bhushan v. State of T.N.5, Jagdish Prasad v. State of M.P. and Kartik Malhar v. State of Bihar."
(Emphasis supplied)
34. The rope, Article 4 used for throttling Shiva and tying the gunny bag have been identified by P.W. 10, the son-in-law of Accused no.2. He could identify it, since it was holding the remains of burst balloons, which were tied to the very rope during the Dahi Handi celebration; the same rope is used in tying the gunny bag, containing body of the deceased.
35. Apart from the recovery of the sickle at the instance of Accused No.2, there is also recovery of clothes of both accused pursuant to their voluntary statements, which have been duly proved through the testimony of the P.W. 14, the Page 30 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC Investigating Officer, thereby lending further reliability to the prosecution case.
36. P.W. 4, Nitin Dattatraya Gaikwad, is a relative of the deceased, with whom the deceased had dinner before proceeding to the place of the incident. According to him, when the deceased went missing, he began searching for him by making calls to his friends. One such inquiry was made with Accused No. 1 Vijay Pawar. When he called Accused No.2, she replied that she did not know anything and avoided answering questions regarding the whereabouts of deceased.
In his cross-examination, nothing contradictory to his testimony could be elicited from this witness to discredit his testimony, which establishes that he was the last person with whom the deceased had dinner.
After appreciating evidence placed on record, we find that the learned Additional Sessions Judge, has rightly held that the Accused Nos. 2 and 3 have committed offence punishable under Section 302 of the I.P.C.
37. Having held that the prosecution has proved the offence punishable under Section 302 of the Indian Penal Page 31 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC Code, against Accused Nos. 2 and 3, it is now necessary to consider whether the offence under Section 201 of the Indian Penal Code is also made out.
38. In so far as the offence under Section 201 of the Indian Penal Code is concerned, the evidence on record, which has already been accepted while proving the homicidal death and involvement of Accused Nos. 2 and 3, further establishes that after the commission of the offence in the night of 2nd October,, 2010 in the room situated at Gayatrinagar Hillock, the accused did not leave the dead body at the place of occurrence. On the contrary, the body was packed in a nylon gunny bag (Article 3) and removed from the spot and was subsequently found on 4th October, 2010, as deposed by P.W.7 Akram Ansari, which is corroborated by the spot panchanama (Exhibit 43) and inquest panchanama (Exhibit
44), both admitted by the accused.
39. The second spot panchanama (Exh.106), proved through panch witness P.W.9 Mubassir Ansari and Investigating Officer P.W.14 Janardan Babar, shows that the room contained blood stains on the tin sheets, bed and floor (coba), and blood-stained articles including bed-sheet Page 32 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC (Article 7), green quilt (Article 6), and broken bangles (Article 5), as well as collected blood samples (Articles 8 and
9). At the same time, it has come on record through the evidence of P.W.9 and P.W.14 that no kitchen utensils, gas, stove or cooking articles were found in the said room, and further no pieces of flesh, no pool of blood, and no trace of alleged chilli powder were found at the time of inspection.
40. The evidence of P.W.14 clearly shows that the said room was inspected on 7th October, 2010, i.e., after a gap of about three days from the date of incident, and therefore there was sufficient opportunity for removal of articles and cleaning of the place of occurrence. The presence of blood stains and seized articles under Exhibit 106, coupled with the absence of expected traces, supports the prosecution case that the scene of the offence has been disturbed and evidence had been removed.
Further, the act of packing the dead body in a gunny bag (Article 3) and disposing it at a different place, along with removal of traces from the room, clearly shows that the accused, after committing the offence, took deliberate steps to cause disappearance of evidence in order to screen Page 33 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 ::: CR.APEAL 714 OF 2018 COMMON, J.DOC themselves from punishment. These acts form part of the same incident which was done in furtherance of their common intention. The said aspect has been rightly appreciated by the Trial Court.
Accordingly, the prosecution has proved that Accused Nos. 2 and 3 committed the offence punishable under Section 201 read with Section 34 of the I.P.C.
41. In view of the evidence produced by the prosecution, it is proved beyond doubt that, Accused Nos. 2 and 3 have committed offence under Sections 302 and 201 read with Section 34 of the I.P.C., thereby causing death of Shivaji. We do not find any glaring illegality or perversity in the findings recorded by the trial Court.
42. As a result, challenge in both the Appeals fail, Appeals are dismissed.
43. Pending Interim Applications also stand disposed of. (MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.) { Page 34 of 34 Rajeshri Aher ::: Uploaded on - 07/05/2026 ::: Downloaded on - 09/05/2026 04:43:59 :::