Shivaji S/O Chudaman Patil vs Rajhans @ Nana Suklal Surywanashi And ... on 14 March, 2024

[Cites 16, Cited by 0]

Bombay High Court

Shivaji S/O Chudaman Patil vs Rajhans @ Nana Suklal Surywanashi And ... on 14 March, 2024

Bench: R. G. Avachat

2024:BHC-AUG:5766-DB

1 APEAL942.2015.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.

CRIMINAL APPEAL NO. 942 OF 2015

1] Rajhans @ Nana Suklal Suryawanshi,
Age : 50 years, Occu:
R/o. Jalgaon, Taluka and District Jalgaon.

2] Pawan s/o Rajhans Suryawanshi,
Age : 23 years, Occu:
R/o. Jalgaon, Taluka and District Jalgaon.

3] Amar s/o Ashok Sonawane,
Age : 22 years, Occu:
R/o. Jalgaon, Taluka and District Jalgaon. ...Appellants

VERSUS

The State Of Maharashtra ...Respondent
...
Appearance :
Mr. Sanjeev B. Deshpande, Sr. Advocate a/w Mr. Chetan B. Chaudhari
i/b Mr. Ankush N. Nagargoje - Advocate for the Appellants
Mrs. V. S. Chaudhari - APP for respondent/State
...

WITH
CRIMINAL REVISION APPLICATION NO. 53 OF 2023

Shivaji s/o Chudaman Patil,
Age : 56 years, Occu. Agril.,
R/o. Shiv Colony, Gat No. 53,
Plot No. 88, Jalgaon, Dist. Jalgaon. ...Applicant

Versus

1] Rajhans alias Nana Suklal Suryawanshi,
Age : 50 years, Occu. Nil,
R/o. Shiv Colony, Gat No. 54,
Plot No. E/1-B, Jalgaon, Dist. Jalgaon.

2] Pawan Rajhans Suryawanshi,
Age : 24 years, Occu. Nil,
R/o. Shiv Colony, Gat No. 54,
Plot No. E/1-B, Jalgaon, Dist. Jalgaon.
2 APEAL942.2015.odt

3] Amar Ashok Sonawane,
Age : 23 years, Occu. Nil,
R/o. Shiv Colony, Gat No. 54,
Plot No. E/1-B, Jalgaon,
Dist. Jalgaon.

4] The State of Maharashtra ...Respondents

...
Appearance :
Mrs. Rashmi S. Kulkarni - Advocate for the Applicant
Mr. Sanjeev B. Deshpande, Sr. Advocate a/w Mr. Chetan B. Chaudhari
i/b Mr. Ankush N. Nagargoje - Advocate for the respondent nos.1 to 3
Mrs. V. S. Chaudhari - APP for respondent no.4/State
...

CORAM : R. G. AVACHAT
AND
NEERAJ P. DHOTE, JJ.

DATE OF RESERVING THE JUDGMENT : 29.01.2024
DATE OF PRONOUNCING THE JUDGMENT : 14.03.2024

JUDGMENT [Per : Neeraj P. Dhote, J.] : -

1. This Criminal Appeal is filed under Section 374(2) of the

Code of Criminal Procedure against the Judgment and Order dated

05.12.2015 passed by the learned Sessions Judge, Jalgaon in Sessions

Case No. 96 of 2013, convicting Appellant Nos. 1 and 2 for the offence

punishable under Section 302 r/w 34, 120B of the Indian Penal Code

[for short 'IPC'] and Appellant No. 3 for the offence punishable under

Section 302 r/w 114, Section 302 r/w 109 of the IPC and sentencing

them as detailed in the operative order of the impugned Judgment.
3 APEAL942.2015.odt
2. Criminal Revision Application No. 53 of 2023 is filed by the

Informant under Section 401 r/w 397 of the Code of Criminal Procedure

for enhancement of punishment to the Appellants from life

imprisonment to death penalty.

3. The prosecution's case as revealed from the police report is

as under : -

3.1. Informant - PW2 - Shivaji Chudaman Patil was looking after

the official / social affairs of deceased Vinayak Sonawane, who was the

Corporator at the relevant time i.e. 18.12.2012 (on the date of incident).

On 18.12.2012, the informant went to the house of the deceased.

Deceased received phone call from one Mr. Gangurde from District

Industrial Centre informing him to send someone for collecting the

voters list from him. Deceased asked the informant to collect the voters

list. Accordingly, the informant accompanied by one Prashant Patil,

proceeded on motorcycle to collect the voters list. They collected the

voters list and while proceeding towards the Municipal Corporation,

Mayur Patil stopped them and informed that Vinayak Sonawane was

assaulted on the I.M.R. College road. They all proceeded towards the

said spot. They saw the motorcycle of Vinayak Sonawane had fallen

down in the middle of the road and Vinayak Sonawane lying in an

injured condition by the side of the road. There were severe injuries on
4 APEAL942.2015.odt
the head and waist of Vinayak Sonawane and he was lying inert.

Informant asked PW1 - Nilesh Garbad Bhole, Bhikan Hiwarale, Mayur

Patil, Pravin Palve and Shrikant Patil to take Vinayak Sonawane to the

hospital of Dr. Bhangale. They took Vinayak Sonawane to the hospital

in auto rickshaw and the informant proceeded to Zilla Peth Police

Station along with Pravin Palve. The informant informed the Police

Station Officer that Vinayak Sonawane was assaulted. Thereafter, the

informant proceeded towards the hospital. Dr. Bhangale advised them

to take Vinayak Sonawane to the Civil Hospital, Jalgaon. Accordingly,

Vinayak Sonawane was taken to the Civil Hospital where Doctor

declared him dead. PW1 - Nilesh Garbad Bhole, who witnessed the

incident, told the informant that the Appellant Nos. 1 and 2 assaulted

Vinayak Sonawane by sickle and knife. The informant lodged the report

with the Police. The Motive behind the assault was an incident six to

seven months prior, in which Harshal, the son of Appellant No. 1, was

assaulted by Vinayak Sonawane and his associates.

4. On the report lodged by the informant PW2 - Shivaji

Chudaman Patil at Exh. 54, Crime No. 339 of 2012 came to be

registered against Appellant Nos. 1 and 2 for the offence punishable

under Sections 302 r/w 34 of the IPC and 4/25 of the Arms Act. In the

meanwhile, the Appellant Nos. 1 and 2 surrendered to the police with

the weapons of assault. It was revealed that after assaulting deceased
5 APEAL942.2015.odt
Vinayak, Appellant No. 3 carried Appellant Nos. 1 and 2 on his

motorcycle to Zilla Peth Police Station. The spot panchanama, inquest

and post mortem were done. The statement of witnesses were recorded.

The Appellant No. 3 came to be arrested. The clothes of the deceased

and the accused were seized. Muddemal articles were sent to the

Chemical Analyser for examination and analysis. On completion of the

investigation, the Appellants came to be charge-sheeted.

5. The learned trial Court framed the Charge against the

Appellants at Exh. 41, to which the Appellants pleaded not guilty and

claimed to be tried.

6. To prove the Charge, the prosecution examined in all thirty

(30) witnesses and brought on record certain documents. After the

prosecution closed its evidence, the learned trial Court recorded the

statement of the Appellants under Section 313(1)(b) of the Cr.P.C. The

Appellants denied the case and evidence of the prosecution. The

Appellant No.1 submitted his written statement at Exh. 176. The

additional defence of Appellant Nos. 1 and 2 was that when Appellant

No. 1 was going in his auto rickshaw towards Railway Station, he saw

Vinayak Sonawane lying on the ground with serious injuries. He stopped

the Auto and called his son i.e. Appellant No. 2. They thought that

shifting the deceased to the hospital would be risky as he had suffered
6 APEAL942.2015.odt
serious injuries. The Appellant Nos. 1 and 2, therefore, went to the

Police Station and informed the Police. However, the police restrained

Appellant Nos. 1 and 2 from leaving the Police Station and detained

them and the police held discussions with the relatives and persons

acquainted with Vinayak Sonawane and registered false report against

them. False evidence was created under political pressure by citing the

witnesses, who were residing in the vicinity of the house of the

deceased. On appreciating the evidence and after hearing both the

sides, the learned trial Court passed the impugned Judgment.

7. Heard learned advocate for the Appellants, learned APP for

the State and the learned advocate for the Informant/Revisionist.

8. It is submitted by the learned advocate for the Appellants

that though the incident took place in the afternoon, the report was

lodged at 05:00 p.m. There is delay in recording the statements of the

eye-witnesses which creates doubt whether they were the eye-witnesses.

There are omissions and contradictions in the evidence of the

eye-witnesses. Though according to the prosecution Appellant Nos. 1

and 2 surrendered to the police, they were not arrested. There is no

evidence against Appellant No. 3. From the evidence of Medical Officer,

who conducted the post mortem, the prosecution's case about the time

of death does not get corroboration. The evidence on record does not
7 APEAL942.2015.odt
establish the Charge. The Appellants are liable to be acquitted. He cited

judgments in support of his submissions, which would be considered in

later part of the judgment.

9. It is submitted by learned APP that the case is based on

testimony of eye-witnesses and they have deposed about the incident

and their testimony remained unaffected in the cross-examination. The

delay in recording the statement of eye-witnesses has been properly

explained. After the incident, Appellant Nos. 1 and 2 surrendered to

the police with weapons and there is station diary entry to that effect.

This conduct fortifies the case of prosecution. The evidence available on

record established the Charge and learned trial Court has properly

appreciated the evidence on record and passed the impugned Judgment.

The impugned Judgment does not call for any interference and hence

Appeal be dismissed.

10. It is submitted by learned advocate for the informant /

revisionist that considering the nature of injuries on the person of the

deceased which have been inflicted by the Appellant Nos. 1 and 2 and

the previous enmity, makes this case rarest of rare. It is submitted that

the learned trial Court ought to have considered these aspects and

awarded maximum punishment provided for the offences which are

proved against the Appellants. The learned advocate for the informant
8 APEAL942.2015.odt
relied on several judgments in support of her submissions, which shall

be considered in the later part of the Judgment.

HOMICIDAL DEATH : -

11. One of the Charges and Conviction against the Appellants is

for the offence of Murder punishable under Section 302 of the IPC. To

prove the homicidal death of Vinayak Sonawane, the evidence of the

informant PW 2 - Shivaji Chudaman Patil, PW4 - Liladhar Pralhad

Vispute, who acted as panch to the inquest, PW29 - Dr. Girish Vasudeo

Patil, Medical Officer who performed the post mortem and PW30 -

Police Inspector - Y. D. Patil, the Investigating Officer is relevant.

12. The evidence of PW2 - Shivaji Chudaman Patil show that

he was the resident of same area where the deceased was residing. In

the morning of 18.12.2012 i.e. the date of incident, he had gone to the

house of deceased at about 08:30 a.m. and on instructions of deceased,

he went to the District Industrial Centre (DIC) between 12:15 and 12:20

p.m. to collect the voters list. He collected the voters list and while on

his way, he was intercepted by one Mayur Patil who informed that

Vinayak Sonawane was assaulted on the I.M.R. College road. He along

with others went to the spot and saw Vinayak Sonawane in an injured

condition lying on the road. They immediately shifted Vinayak

Sonawane to the hospital and he proceeded towards the Zilla Peth Police

Station with one Pravin Palve and informed the incident to the police.
9 APEAL942.2015.odt
His further evidence show that after the Doctor declared Vinayak

Sonawane dead in the hospital, he again went to the Police Station and

his report was taken and FIR [Exh. 54] was lodged. He accompanied

the Police to the spot of incident where the spot panchanama was

carried out.

13. Though PW2 - Shivaji Chudaman Patil is cross-examined,

his evidence of reaching on the spot, shifting Vinayak Sonawane to the

hospital and his informing the police, remained unshaken. The

improvements/omissions as brought on record in the cross-examination

do not affect his above discussed evidence.

14. The evidence of PW4 - Liladhar Pralhad Vispute show that

he was plying auto rickshaw and on 18.12.2012, when he reached

Dikshit Wadi beside the Civil Hospital, Jalgaon for dropping the

passenger, he noticed crowd at the Civil Hospital. He parked the auto

rickshaw and went inside the premises of the Civil Hospital where he

learnt that Vinayak Sonawane was murdered. On inquiry from the

police, he showed willingness to act as panch. He was taken to the post

mortem room where the dead body of Vinayak Sonawane was kept. He

saw five to six injuries on the head, injury on the left forehead, injury

beside nose and right cheek, injury on the right side of the chest, 17 to

18 stab injuries on the left side above the waist, injury below the left
10 APEAL942.2015.odt
elbow, abrasion on the left shoulder, palm and on knees. Inquest at Exh.

61 was prepared upon which he put his signature.

15. The further evidence of PW4 - Liladhar Pralhad Vispute

show that he along with the police went on the spot of incident which

was on the Baheti College North South road where the spot panchanma

was done. During the spot panchanama, the articles i.e. Footwears,

Motorcycle bearing No. MH-19/BB-7707, one bicycle having name

Namrata Cycle Mart, etc. came to be seized under the spot panchanama

Exh. 62.

16. Non-mentioning in the inquest and spot panchanama that

the photographs were taken, will not affect the evidentiary value of the

said document. His not asking the police officer to mention about the

photographs in the panchanama is inconsequential.

17. The evidence of PW29 - Dr. Girish Vasudeo Patil show that

since June-2012, he was the Medical Officer at Civil Hospital at Jalgaon.

On 18.12.2012, the Zilla Peth Police referred the dead body of Vinayak

Sonawane for post mortem with copy of Inquest. He performed the

autopsy from 06:00 p.m. to 07:30 p.m. Condition of body was well

nourished and cold. Rigor mortis was well marked in extremities and

slight in trunk and neck. There were marks of blood on head, face,
11 APEAL942.2015.odt
neck, left upper extremities and abdomen. He noticed the following

external injuries.

I] Plain incised wounds.-

(i) On left frontoparietal area size 8 cm x 2 cm., bone deep,
direction was oblique.
(ii) On right temperoparietal area size 10 cm x 3 cm., bone
deep transverse right temporal bone and palpable fracture
at base of wound. Size of fracture was 2 ½ cm x 1 cm.
Periosteum fracture.
(iii) On right temperoparietal area below injury No. ii) size 8 cm
x 2 cm bone deep and transverse.
(iv) Plain incised wound on right zygometic eminence extending
towards right temperoparietal bone incising upper part of
ear pinna size was 16 cm x 2 cm., bone deep and
transverse.
(v) On occipital area, size 6 cm x 3 cm bone deep and
transverse.
(vi) Upper lip extending towards right cheek, size 6 cm x 2 cm
oral cavity deep, oblique in direction upper teeth were
exposed upper right first and second and left first incisor
were cut at crown level and seen attached to cut lip
segment.
(vii) Right clavicular area extending towards sternum, size 4 cm
x 2 cm muscle deep and oblique in direction.
(viii) 18 plain incised stab wounds on left flank and left para
spinal area. The large measured 5.2 cm, 7 measured 4 cm x
2 cm. 3 measured 4 cm x 3 cm, 7 measured 4 cm x 2½ cm.
Directions of 4 transverse, 5 vertical and 9 oblique. All were
elliptical in shape (i.e. spindle shaped), one is fat deep and
17 peritoned cavity deep. All plain incised wounds
12 APEAL942.2015.odt
mentioned above were bright red in colour.
II] Contused lacerated wounds.-

(i) Right shoulder laterally oblique, size 3 cm x ½ cm, muscle
deep.
(ii) Right shoulder top, oblique size 4 cm x 2 cm, muscle deep.
(iii) Medial to left shoulder anteriorly, size 6 cm x ½ cm, vertical
in direction, skin deep.
(iv) Left forearm dorsum, upper 1/3rd, size 3 cm x 2 cm, muscle
deep. All above CLWs were bright red in colour.

III] Abrasions.-

(i) Right knee anteriorly, size 2 ½ cm x 1 ½ cm, vertical and
bright red.

(ii) Left knee anteriorly, size 2 cm x 2 cm, bright red.
Age of these injuries was within 8 hours.
Plain incised wounds were possible by hard, sharp and
narrow object like knife, Chaku-Sura. Contused lacerated wound and
abrasions might be due to hard and blunt object.

18. The evidence of PW29 - Dr. Girish Vasudeo Patil show that

the injuries mentioned above were sufficient in the ordinary course of

nature to cause death. The cause of death is deposed as "Hemorrhagic

shock due to stab injuries to left kidney, spleen and bowel with head

injury". The post mortem report is brought on record at Exh. 149.

19. The cross-examination of said Medical Officer is on the
13 APEAL942.2015.odt
aspects of rigor mortis, haemorrhagic shock and nature of injuries. The

said evidence of the Medical Officer establishes that the injuries on the

deceased Vinayak could be caused by the aforesaid articles i.e. Knife

(Article 'A') and Sickle (Article 'B').

20. The evidence of PW30 - Police Inspector Mr. Y. D. Patil

show that after registration of FIR at the instance of the PW2 - Shivaji

Chudaman Patil, he went to the Civil Hospital with PW25 - Jamil Rahim

Shaikh and PW2 - Shivaji Chudaman Patil and carried the inquest in the

presence of panchas. His evidence further show that he went to the spot

of incident which was the road going from Law College to Baheti

College and carried out the spot panchanama. His evidence corroborate

the testimony of PW4 - Liladhar Pralhad Vispute.

21. The above discussed evidence clearly establishes that in the

afternoon of 18.12.2012, Vinayak Sonawane was found in severely

injured condition on the I.M.R. College road, Jalgaon and he was shifted

to the hospital where he was declared dead. It further establishes the

nature of injuries and the cause of his death. The Homicidal death of

Vinayak Sonawane is not in dispute. In any case the Homicidal death of

Vinayak Sonawane is established by the prosecution.
14 APEAL942.2015.odt
EYE WITNESSES : -

22. The prosecution has examined PW1 - Nilesh Garbad Bhole

and PW3 - Nitin Nanasaheb Patil as the eye-witnesses to the incident.

Their evidence show that on 18.12.2012, when they were going by the

Baheti College road, they noticed scuffle between Appellant No. 1 and

the deceased. In the meanwhile, Appellant No. 2 came on the spot. Both

the Appellants assaulted the deceased with the weapons like sickle and

knife due to which the deceased fell down and the Appellants fled from

the spot. Though both these witnesses have given more or less similar

account of the incident, the statement of PW1 - Nilesh Garbad Bhole

was recorded on 22.12.2012 and the statement of PW3 - Nitin

Nanasaheb Patil was recorded on 27.12.2012. Thus, it is clear that the

statement of PW1 - Nilesh Garbad Bhole was recorded on the fourth

(4th) day from the incident and the statement of PW3 - Nitin Nanasaheb

Patil was recorded on the ninth (9th) day from the incident. According to

PW3 - Nitin Nanasaheb Patil, he had gone to Tirupati immediately after

the incident. According to PW1 - Nilesh Garbad Bhole, he was available

in the town for a week after the incident.

23. There is no explanation in the evidence of PW1 - Nilesh

Garbad Bhole about delay in recording his statement when he was

available in the town and had also taken the injured to the hospital.

What is seen from the evidence of PW1 - Nilesh Garbad Bhole is that he
15 APEAL942.2015.odt
himself approached the police on fourth (4 th) day. It is true that the

clothes of Appellant No. 1 - Rajhans were stained with blood and they

were seized under the panchanama at Exh. 71, which is brought on

record in the evidence of PW6 - Ravindra Dilip Nikam, that itself will

not be sufficient to accept his evidence about witnessing the actual

incident for the reason that, his further evidence show that after the

assailants ran away, he went to the Shiv Colony on one motorcycle and

informed the people of that colony and again he came on the spot of the

incident and thereafter they had shifted the deceased to the hospital.

24. Further, the evidence of PW2 - Shivaji Chudaman Patil

show that he did not state before the police about the presence of PW1 -

Nilesh Garbad Bhole and PW3 - Nitin Nanasaheb Patil. In the First

Information Report, though PW2 - Shivaji Chudaman Patil names the

persons who carried injured to a hospital, the names of these two eye-

witnesses are conspicuously absent. Thus, the evidence of PW1 - Nilesh

Garbad Bhole and PW3 - Nitin Nanasaheb Patil in respect of witnessing

the incident is required to be seen with doubt and therefore their said

part of testimony is kept out of consideration.

SURRENDER OF APPELLANT NO. 1 AND APPELLANT NO. 2 TO THE
POLICE WITH WEAPONS AFTER THE INCIDENT : -

25. PW25 - Jamil Rahim Shaikh was attached to the Zilla Peth

Police Station, Jalgaon from 03.08.2012 to 31.05.2014. On 18.12.2012,
16 APEAL942.2015.odt
he was in the Police Station. He was directed to be in the Police Station

since Police Inspector - Yadavrao Damu Patil had gone to the Collector

Office as there was a Morcha. He deposed that at about 13:10 hrs.,

Appellant No. 1 and Appellant No. 2 came to the Police Station with

Sickle (Article 'B') in the hand of Appellant No. 1 and Knife (Article 'A')

in the hand of Appellant No. 2 and they surrendered themselves for the

murder of Vinayak Sonawane. He took the custody of the weapons and

gave the custody of the Appellants to the Sentry-guard Nerkar. He

immediately informed Police Inspector - Mr. Y. D. Patil, who directed

him to make the Station Diary Entry. Accordingly, he made Station

Diary Entry at Sr. No. 29, the copy of which is brought on record at Exh.

127. His evidence show that he had brought with him the original

Station Diary at the time of his evidence.

26. The cross-examination of PW25 - Jamil Rahim Shaikh show

that the Station Diary Entry was in his hand-writing. His cross-

examination show that the Station Diary Entry was made immediately

after the Appellant Nos. 1 and 2 surrendered. Non-mentioning of the

blood stained clothes of the Appellants in the Station Diary Entry will

not affect his evidence nor would it affect the veracity of the said Station

Diary Entry. His cross-examination do not affect his evidence.

27. One of the judgments relied upon by the learned advocate
17 APEAL942.2015.odt
for the Appellants is in the case of Aghnoo Nagesia Versus State of Bihar,

1966 AIR (SC) 119, wherein it is observed that except as provided by

Section 27 of the Indian Evidence Act, a confession by an accused to a

police officer is absolutely protected under Section 25 of the Indian

Evidence Act and if it is made in the course of investigation, it is also

protected by Section 162 of the Code of Criminal Procedure and a

confession to any other person made by him while in custody of police

officer is protected by Section 26, unless it is made in the immediate

presence of a magistrate. It is further observed that if the First

Information Report (FIR) is given by the accused to a police officer and

amounts to a confessional statement, proof of the confession is

prohibited by Section 25. No part of the confessional statement is

receivable in evidence except to the extent that the ban of Section 25 is

lifted by Section 27.

28. Another judgment relied upon by the learned advocate for

the Appellants is in the case of Khatri Hemraj Amulakh Versus State of

Gujarat, 1972 (3) SCC 671, wherein it is observed that the confessional

statement which was made by the accused to Sub Inspector Rojia and

which formed the basis of the first information report was not

admissible in evidence as in the case of Aghnoo (supra), this Court held

that no part of the first information report lodged by the accused with

the police could be admitted into evidence if it was in the nature of a
18 APEAL942.2015.odt
confessional statement. The statement could, however, be admitted to

identify the accused as the maker of the report. The part of the

information as related distinctly to the fact discovered in consequence of

the information could also be admitted into evidence under Section 27

of the Indian Evidence Act if the other conditions of that section were

satisfied.

29. Another judgment relied upon by the learned advocate for

the Appellants is in the case of Mohd. Abdul Hafeez Vs. State of Andhra

Pradesh, AIR 1983 SC 367, wherein it is observed that, if evidence

otherwise confessional in character is admissible under Section 27 of the

Indian Evidence Act, it is obligatory upon the investigating officer to

state and record who gave the information; when, he is dealing with

more than one accused, what words were used by him so that a recovery

pursuant to the information received may be connected to the person

giving the information so as to provide incriminating evidence against

that person.

30. Another judgment relied upon by the learned advocate for

the Appellants is in the case of Rajesh and Ors. Vs. The State of Madhya

Pradesh, AIR 2023 SC 4759, wherein it has been observed in paragraph

nos. 29, 30, 37 and 39 as follows : -

"29. Recently, in Ramanand @ Nandlal Bharti vs. State of Uttar
Pradesh13, a 3-Judge Bench of this Court observed that the
19 APEAL942.2015.odt
requirement of law that needs to be fulfilled before accepting the
evidence of discovery is by proving the contents of the panchnama
and the Investigating Officer, in his deposition, is obliged in law to
prove the contents of the panchnama. It was further observed that it
is only if the Investigating Officer has successfully proved the
contents of the discovery panchnama in accordance with law that the
prosecution would be justified in relying upon such evidence and the
Trial Criminal Appeal Nos. 64-65 of 2022, decided on 13.10.2022 =
2022 SCC OnLine SC 1396 Court may also accept the same. It was
held that, in order to enable the Court to safely rely upon the
evidence of the Investigating Officer, it is necessary that the exact
words attributed to the accused, as the statement made by him, be
brought on record and, for this purpose, the Investigating Officer is
obliged to depose in his evidence the exact statement and not merely
say that the discovery panchnama of the weapon of the offence was
drawn up as the accused was willing to take it out from a particular
place.

30. In Khet Singh vs. Union of India 14, this Court held that even if there
is a procedural illegality in conducting the search and seizure, the
evidence collected thereby would not become inadmissible and the
Court would consider all the circumstances to find out whether any
serious prejudice has been caused to the accused. However, this
Court pointed out that if the search and seizure were in complete
defiance of the law and procedure and there was any possibility of
the evidence collected having been tampered with or interpolated
during the course of such search and seizure, then that evidence
could not be admitted. Though these observations were made in the
context of a search and seizure under the Narcotic Drugs and
Psychotropic Substances Act, 1985, they would have relevance
generally.

37. Before parting with the case with our verdict, we may note with deep
and profound concern the disappointing standards of police
investigation that seem to be the invariable norm. As long back as in
the year 2003, the Report of Dr. Justice V.S.Malimath's 'Committee on
Reforms of Criminal Justice System' had recorded thus:
'The manner in which police investigations are conducted is
of critical importance to the functioning of the Criminal
Justice System. Not only serious miscarriage of justice will
result if the collection of evidence is vitiated by error or
malpractice, but successful prosecution of the guilty depends
on a thorough and careful search for truth and collection of
evidence which is both admissible and probative. In
undertaking this search, it is the duty of the police to
investigate fairly and thoroughly and collect all evidence,
whether for or against the suspect. Protection of the society
being the paramount consideration, the laws, procedures and
police practices must be such as to ensure that the guilty are
apprehended and punished with utmost dispatch and in the
process the innocent are not harassed. The aim of the
investigation and, in fact, the entire Criminal Justice System
is to search for truth. ......The standard of police
investigation in India remains poor and there is considerable
20 APEAL942.2015.odt
room for improvement. The Bihar Police Commission (1961)
noted with dismay that "during the course of tours and
examination of witnesses, no complaint has been so
universally made before the Commission as that regarding
the poor quality of police investigation". Besides inefficiency,
the members of public complained of rudeness, intimidation,
suppression of evidence, concoction of evidence and
malicious padding of cases.....'

39. It is indeed perplexing that, despite the innumerable weak links and
loopholes in the prosecution's case, the Trial Court as well as the High
Court were not only inclined to accept the same at face value but went
to the extent of imposing and sustaining capital punishment on Rajesh
Yadav and Raja Yadav. No valid and acceptable reasons were put forth
as to why this case qualified as the 'rarest of rare cases', warranting
such drastic punishment. Per contra, we find that the yawning
infirmities and gaps in the chain of circumstantial evidence in this case
warrant acquittal of the appellants by giving them the benefit of
doubt. The degree of proof required to hold them guilty beyond
reasonable doubt, on the strength of circumstantial evidence, is clearly
not established."

31. There is no quarrel in respect of the ratio of the

aforementioned judgments. In Perumal Raja alias Perumal Versus State,

Rep. By Inspector of Police, 2024 SCC OnLine SC 12, the Hon'ble

Supreme Court of India considered the provisions of Sections 25 to 27 of

the Indian Evidence Act and also considered the aforementioned

Judgment in the case of Aghnoo (supra). The relevant observations are

produced as follows : -

27. Elaborating on this aspect, a three judge Bench of this Court in
Aghnoo Nagesia v. State of Bihar16 has held that if the FIR is
given by the accused to a police officer and amounts to a
confessional statement, proof of the confession is prohibited by
Section 25 of the Evidence Act. The confession includes not only
the admission of the offence but all other admissions of
incriminating facts related to the offence, except to the extent
that the ban is lifted by Section 27 of the Evidence Act. While
dealing with the admission of part of confession report dealing
with motive, subsequent conduct and opportunity, this Court
rejected the severability test adopted by some High Courts. The
statement can, however, be relied upon and admitted to identify
the accused as the maker, and the portion within the purview of
Section 27 of the Evidence Act is admissible. Aghnoo Nagesia
21 APEAL942.2015.odt
(supra) has been applied and followed by this Court in Khatri
Hemraj Amulakh v. State of Gujarat.

28. The words "person accused of an offence" and the words "in the
custody of a police officer" in Section 27 of the Evidence Act are
separated by a comma. Thus, they have to be read distinctively.
The wide and pragmatic interpretation of the term "police
custody" is supported by the fact that if a narrow or technical
view is taken, it will be very easy for the police to delay the time
of filing the FIR and arrest, and thereby evade the contours of
Sections 25 to 27 of the Evidence Act. Thus, in our considered
view the correct interpretation would be that as soon as an
accused or suspected person comes into the hands of a police
officer, he is no longer at liberty and is under a check, and is,
therefore, in "custody" within the meaning of Sections 25 to 27 of
the Evidence Act. It is for this reason that the expression
"custody" has been held, as earlier observed, to include
surveillance, restriction or restraint by the police.

29. This Court in Deoman Upadhyay (supra), while rejecting the
argument that the distinction between persons in custody and
persons not in custody violates Article 14 of the Constitution of
India, observed that the distinction is a mere theoretical
possibility. Sections 25 and 26 were enacted not because the law
presumed the statements to be untrue, but having regard to the
tainted nature of the source of the evidence, prohibited them
from being received in evidence. A person giving word of mouth
information to police, which may be used as evidence against
him, may be deemed to have submitted himself to the "custody"
of the police officer. Reference can also be made to decision of
this Court in Vikram Singh and Ors. v. State of Punjab, which
discusses and applies Deoman Upadhyay (supra), to hold that
formal arrest is not a necessity for operation of Section 27 of the
Evidence Act. This Court in Dharam Deo Yadav v. State of Uttar
Pradesh, has held that the expression "custody" in Section 27 of
the Evidence Act does not mean formal custody, but includes any
kind of surveillance, restriction or restraint by the police. Even if
the accused was not formally arrested at the time of giving
information, the accused is, for all practical purposes, in the
custody of the police and the bar vide Sections 25 and 26 of the
Evidence Act, and accordingly exception under Section 27 of the
Evidence Act, apply. Reliance was placed on the decisions in State
of A.P. v. Gangul Satya Murthy and A.N.Vekatesh and Anr. v. State
of Karnataka.

30. However, evidentiary value to be attached on evidence produced
before the court in terms of Section 27 of the Evidence Act cannot
be codified or put in a straightjacket formula. It depends upon the
facts and circumstances of the case. A holistic and inferential
appreciation of evidence is required to be adopted in a case of
circumstantial evidence.

32. Coming to the case in hand, though the defence of the
22 APEAL942.2015.odt
Appellant Nos. 1 and 2 is that of denial, the Appellant No. 1 submitted

his written statement that Exh. 176 wherein he has stated that the

deceased Vinayak was the Corporator and since he was in the politics

from last so many years, he was having many enemies. On 04.02.2012,

the incident of assault had taken place in Shiv Colony. The son of

Appellant No. 1, by name, Harshal lodged report in the Police Station

against the deceased Vinayak Sonawane and others and the Criminal

Case in that regard for the offence punishable under Section 325, 504,

506 r/w 34 of the IPC was pending in the court of learned Magistrate.

Therefore, he had no reason to take revenge. It is further stated in the

said statement that on the date of incident he i.e. Appellant No. 1 was

travelling in the Rickshaw towards the station. He noticed that Vinayak

Sonawane was lying seriously injured near Satyavallabh hall. As

Vinayak Sonawane was the Corporator of their area and also belonging

to his caste, he stopped and called his son i.e. Appellant No. 2. Vinayak

Sonawane was injured to such an extent that he thought that it would

be dangerous for his health if he was shifted. They suspected that it was

the case of assault and so while going to the station, Appellant Nos. 1

and 2 went to the Zilla Parishad Police Station and informed the

policemen present over there that Vinayak Sonawane was assaulted and

he was lying in an injured condition near the Law College. When the

Appellant Nos. 1 and 2 were about to leave the Police Station, police

asked them to stop on the pretext that their report was to be taken and
23 APEAL942.2015.odt
they were apprehended. At that time there were no weapons in their

hand nor their clothes were stained with blood. They both were made

to sit in the Police Station till 04:30 p.m. and thereafter discussion took

place between the relatives of Vinayak Sonawane and the persons of his

acquaintance and false report was lodged against them. Since the

deceased was the sitting Corporator, the police had to arrest someone

for the said incident. On the date of incident, programme was going on

in Satyawan Hall, which was near the spot of incident and there were

number of people present over there. However, no witness from the said

spot was available to the police.

32.1. Admittedly the FIR is not based on the statements/

information given by Appellants No. 1 and 2. Here, immediately after

the Appellant Nos. 1 and 2 surrendered to the police with the weapons,

the Station Diary Entry was made to that effect. Admittedly, the time of

the said Station Diary Entry is 13:10 hrs., which is after the incident as

is clear from the evidence of PW2 - informant wherein he deposed that

he learnt about the incident in the noon at about 12:15 to 12:20 p.m.

and he went on the spot of incident where Vinayak Sonawane was lying

in an injured condition. The said Station Diary Entry becomes relevant

pursuant to the provisions of Section 35 of the Indian Evidence Act,

which reads as under : -

S.35 - Relevancy of entry in public 34[record or an electronic record] made
in performance of duty. - An entry in any public or other official
24 APEAL942.2015.odt
book, register or 34[record or an electronic record], stating a fact in
issue or relevant fact, and made by a public servant in the
discharge of his official duty, or by any other person in performance
of a duty specially enjoined by the law of the country in which such
book, register or 34[record or an electronic record] is kept, is itself a
relevant fact.

33. From the evidence of PW25 - Jamil Rahim Shaikh

corroborated by the Station Diary Entry, it is clearly established that the

Appellant Nos. 1 and 2 surrendered to the Police on 18.12.2012 with the

weapons after the incident and Station Diary Entry in that regard was

made. The said evidence is corroborated by the evidence of PW30 -

Police Inspector Mr. Y. D. Patil of the Zilla Peth Police Station, Jalgaon.

The said defence put forth by Appellant No. 1 is clearly an afterthought

defence and not possible to accept. The said story put forth by the

defence that they did not think it fit to move deceased Vinayak

Sonawane is improbable. The natural conduct would have been to seek

help of the public as he was lying on the public road and shift the

injured to the hospital. Thus, the said contention of Appellant No. 1 is

unworthy of acceptance. By the said defence, the presence of Appellants

No. 1 and 2 on the spot of incident is established.

34. Considering the legal position as observed in the

aforementioned judgment in the case of Perumal (supra), the act of

Appellant Nos. 1 and 2 surrendering to the police with the weapons
25 APEAL942.2015.odt
voluntarily and disclosing the spot of incident would fall within the

ambit of Section 27 of the Indian Evidence Act. The said evidence on

record clearly establishes the discovery of weapons Article 'A' - Knife and

Article 'B' - Sickle and the spot of incident at the instance of Appellant

Nos. 1 and 2. The further evidence of PW25 - Jamil Rahim Shaikh show

that after making the said station diary entry, he visited the spot of

incident and thereafter to the Hospital where deceased was taken. This

confirms the discovery at the instance of Appellant Nos. 1 and 2. Thus,

it becomes relevant by virtue of Section 27 of the Indian Evidence Act.

INJURIES ON APPELLANT NOS. 1 AND 2 : -

35. The evidence of PW25 - Jamil Rahim Shaikh, who was

present in the Police Station when Appellant Nos. 1 and 2 surrendered

with weapons, show that there was injury on the face of Appellant No. 1

and injury on right hand of Appellant No. 2.

36. The evidence of PW30 - Police Inspector Mr. Y. D. Patil

show that after lodging of the FIR at the instance of PW2 - Shivaji

Chudaman Patil, he started the investigation. His evidence show that he

arrested Appellant Nos. 1 and 2 and seized the weapons produced by

them and their clothes before the panch. The arrest panchanamas were

at Exhs. 65 and 66. The said panchanamas are brought on record in the

evidence of PW5 - Prashant Shantaram Patil, who was one of the panch
26 APEAL942.2015.odt
for their arrest. In his evidence, PW5 - Prashant deposed about the

injuries on the person of Appellant Nos. 1 and 2.

37. The evidence of PW30 - Police Inspector Mr. Y. D. Patil

show that he referred Appellant Nos. 1 and 2 for medical examination

vide letter at Exh. 111. His evidence show that, to avoid the law and

order problem, the Doctor was called at the Police Station instead of

sending the Appellants to the hospital.

38. The evidence of PW20 - Dr. Pravin Ramchandra Patil show

that he was the Medical Officer in the Civil Hospital at Jalgaon on

18.12.2012. He received request letter from the Zilla Peth Police Station

for examination of the accused persons in the Police Station. He

examined Appellant Nos. 1 and 2.

38.1. His evidence show that, he found the following injuries on

the person of Appellant No. 1 :-

[i] Scratch abrasion on the right side of occipital parietal
region of 0.1 x 0.2 cms.
[ii] Abrasion over right upper lip approximately 0.3 x 0.2 cms.

38.2. His evidence show that he found following injuries on the

person of Appellant No.2.
27 APEAL942.2015.odt
[i] Abrasion over right palm at the base of thumb
approximately 3 x 0.2 x 1 cms.
[ii] Incised wound over right middle thumb at the base of
finger approximately .5 x .2 x .2 cms.
[iii] Abrasion over right hand at the base of ring finger
approximately .2 x .2 cms.

38.3. His evidence further show that injuries to Appellant No. 1

could be caused due to fall and because of fist blow, and injury no. [ii]

on the person of Appellant No. 2 could be be caused while holding knife

[Article 'A']. Injury nos. [i] and [iii] caused to Appellant No. 2 could be

caused if while an assault by him by knife is given resistance.

39. The evidence of PW20 - Dr. Pravin Ramchandra Patil show

that the age of injuries of Appellant Nos. 1 and 2 were within 12 hours.

The evidence show that the injuries on Appellant No. 1 - Rajhans, and

injuries no. [i] and [iii] on Appellant No. 2 - Pawan could be caused by

hard and blunt weapon and injury no. [ii] on Appellant No. 2 - Pawan

could be caused by a sharp weapon. The medical papers [MLC]

regarding the examination of Appellant Nos. 1 and 2 are brought on

record in the evidence of this witness at Exh. 112/1 and 112/2. His

evidence further show that he provided the first aid and medicines to

both the Appellants.

40. Non-attestation of thumb impression on the Appellants
28 APEAL942.2015.odt
MLCs will not affect the veracity of the said MLCs and the evidence of

this witness that he medically examined Appellant Nos. 1 and 2 and

found the aforesaid injuries on their person. Non-performing of the test

for want of facilities to ascertain histochemical timings and biochemical

timings of the wounds can be no reason to discard the testimony of this

witness. Though there is cross-examination of this witness in respect of

the age of injuries as the colour of injuries was not mentioned in the

MLCs, his evidence is well corroborated with the said MLCs which firmly

establishes that he examined Appellant Nos. 1 and 2 on 18.12.2012 at

18:15 hrs. and found the above injuries on their person.

41. The contention of learned advocate for the Appellants that

such injuries can also be caused either in self-defence during the

incident or due to assault by Appellants when they went to the Police

Station. Learned advocate for the Appellant cited the judgment in the

case of Ramanand vs. State of U.P., MANU/SC/1324/2020 in support of

his arguments that the law is well settled that the prosecution has to

prove the injuries on the body of the accused.

42. In the case in hand, nothing is brought in the evidence of

PW20 - Dr. Pravin Ramchandra Patil that the injuries could be possible

due to beating by Police. There is no suggestion in the evidence of

PW30 - Police Inspector - Mr. Y. D. Patil that Appellant Nos. 1 and 2
29 APEAL942.2015.odt
were subjected to assault in the police Station. The Record and

Proceedings show that when the Appellant Nos. 1 and 2 were produced

before the concerned Magistrate for remand, they did not complain

about any harassment to them by the Police as is clear from the orders

passed on the remand applications. Therefore, the said contention of

learned advocate for the Appellants melts down.

42.1. While discussing the evidence of surrender of Appellant

Nos. 1 and 2 to the police with the weapons after the incident, the

defence taken by the Appellant No. 1 in his written statement at Exh.

176 is considered which established the presence of Appellant Nos. 1

and 2 on the spot of incident. The prosecution has discharged its

burden and proved the injuries on the person of Appellant Nos. 1 and 2.

There is no explanation by the defence / Appellant Nos. 1 and 2 about

the injuries found on their body. Considering the above referred medical

evidence, the injuries on the person of Appellant Nos. 1 and 2 is an

incriminating circumstance.

CYCLE HIRED BY APPELLANT NO. 1 BEFORE THE INCIDENT WAS
FOUND ON THE SPOT OF INCIDENT : -

43. Evidence of Informant PW2 - Shivaji Chudaman Patil show

that during the spot panchanama conducted by the police, a bicycle

having no. 12 of Namrata Cycle Mart with blood on the handle and seat

was found on the spot of the incident. The evidence of PW4 - Liladhar
30 APEAL942.2015.odt
Pralhad Vispute show that the spot panchanama at Exh. 62 was carried

out in his presence and from the spot, bicycle no. 12 of Namrata Cycle

Mart with blood stains on the handle and seat, and other articles was

seized during the spot panchanama. The evidence of PW30 - Police

Inspector Mr. Y. D. Patil corroborate the evidence of the said witnesses

regarding seizure of cycle having no. 12 with blood stains on the right

side handle and seat of bicycle.

44. The evidence of PW11 - Prakash Bhika Dhangar show that

he was the owner of Namrata Cycle Mart, which was near the bus stand

at Jalgaon. He would give the bicycles on rent by maintaining the

record to that effect. He deposed that, on 18.12.2012, it was Tuesday

and the Appellant No. 1 came to his shop for hiring bicycle and he gave

him bicycle no. 12 on rent to Appellant No. 1 by taking entry in the

show that he knew Appellant No. 1 since last ten (10) to twelve (12)

years. His evidence show that Policemen had come to his shop for

inquiry on 19.12.2012. His evidence show that the extract from the

handwriting showing the name of Appellant No. 1 and time was 13:10

p.m. His cross-examination show that there may be many persons by

name Nana. His cross-examination show that he knew Appellant No. 1

by name 'Nanabhau'. He denied the suggestion that the word 'Nana' in
31 APEAL942.2015.odt
the said register does not refer to Appellant No. 1 and the Appellant No.

1 did not hire the bicycle from his shop. The cross-examination by no

means affect the testimony of this PW11 - Prakash Bhika Dhangar.

45. There is evidence of PW12 - Mahendra Devidas Sonawane

in whose presence the Register of Cycle Mart produced by PW11 -

Prakash Bhika Dhangar was produced. The panchanama to that effect

was at Exh. 86. The correction in the time mentioned in the said

46. From the above referred evidence, it is established by the

prosecution that on the date of incident, Appellant No. 1 hired the

bicycle No. 12 from his shop and left with that bicycle which was found

on the spot of incident and was seized by the police.

BLOOD STAINS ON THE ARTICLES SUCH AS CLOTHES OF APPELLANT
NOS. 1 AND 2 AND WEAPONS : -

47. PW5 - Prashant Shantaram Patil is the witness, who was

accompanying the informant. His evidence show that he along with

Hemant Rajput went to Zilla Peth Police Station between 04:30 p.m.

and 04:45 p.m. after they learnt that Appellant Nos. 1 and 2

surrendered to the police. He expressed willingness to act as panch.

Appellant Nos. 1 and 2 were brought before him. Appellant Nos. 1 and 2
32 APEAL942.2015.odt
came to be arrested under Panchanama at Exh. 65 and 66. The clothes

of both the Appellants were stained with blood. Appellant No. 1 was

wearing grayish T-shirt and black trouser and Appellant No. 2 was

wearing full sleeved sky-blue shirt and a black pant. The said clothes

were seized by the police. The Appellant Nos. 1 and 2 were allowed to

wear the clothes brought from their house. The further evidence of PW5

- Prashant Shantaram Patil show that one iron sickle (Article 'B') with

round handle and iron knife (Article 'A') having handle of fish shape

were produced by Assistant Police Inspector - Jamil Rahim Shaikh

[PW25], which were also stained with blood. As discussed earlier while

considering the point of surrender of Appellant Nos. 1 and 2, PW25 -

Jamil Rahim Shaikh had taken the custody of the weapons which were

handed over / produced by the Appellant Nos. 1 and 2. His evidence

show that the seizure panchanama to that effect was prepared at

Exh.67.

48. The evidence of PW5 - Prashant Shantaram Patil show that

the clothes of Appellant Nos. 1 and 2 were packed and sealed under

their signatures and were kept in different packets. In his evidence, he

identified the clothes at Articles 'G', 'H', 'I', J and 'Q'. In his evidence, he

gave the descriptions of the weapons. His evidence show that, both the

weapons were packed in a transparent polythene bag and sealed under

his signature. In his evidence, he was shown the said weapons and he
33 APEAL942.2015.odt
identified the Articles 'A' and 'B' as the same weapons i.e. Knife and

Sickle. He identified the Appellant Nos. 1 and 2 as, the accused persons

who were arrested before him and whose clothes were seized and also

the weapons.

49. Non-giving of his address where he was residing is not

sufficient to discard the testimony of said panch witness. He denies the

suggestion that no clothes and weapons were seized in his presence. His

evidence is corroborated by PW30 - Police Inspector Mr. Y. D. Patil. The

evidence of PW30 - Police Inspector Mr. Y. D. Patil show that the

weapons which were seized were deposited with the Muddemal Clerk

vide receipt at Exh. 159. The evidence of PW16 - Harun Rafioddin

Bagwan and PW18 - Ravindra Kadu Patil, who were the Policemen

attached to the Zilla Peth Police Station, Jalgaon show that they carried

the muddemal to the office of Chemical Analyzer. The evidence of PW18

- Ravindra Kadu Patil went unchallenged, whereas; the cross-

examination of PW16 - Harun Rafioddin Bagwan show that he did not

verify the contents by showing the packets. The said cross-examination

nowhere affects his evidence.

50. The prosecution has brought on record the reports of

Chemical Analyzer from Exh. 151 to 156. It is true that the result of

analysis of the blood group of the Appellants and deceased was
34 APEAL942.2015.odt
inconclusive. The report at Exh. 156 show presence of human blood on

all the articles except Article No. 3 (Earth). From the above discussed

evidence, it is firmly established that human blood was found on the

clothes of Appellant Nos. 1 and 2 which were on their person and the

weapons which were produced by them at the time of their surrender.

MEDICAL EVIDENCE ON THE ASPECT OF INJURIES ON THE
DECEASED BY KNIFE [ARTICLE 'A'] AND SICKLE [ARTICLE 'B'] : -

51. The evidence of PW29 - Dr. Girish Vasudeo Patil, Medical

Officer of Civil Hospital, Jalgaon, who carried out the post mortem on

the dead body of Vinayak Sonawane, show that during the course of

investigation, PW30 - Police Inspector Mr. Y. D. Patil sought his opinion

vide letter dated 20.12.2012 seeking opinion as to whether the injuries

found on deceased Vinayak Sonawane could be caused by Knife [Article

'A'] and Sickle [Article 'B'] and he replied vide letter at Exh. 150 that the

injuries on the deceased can be caused by the said weapons. His

evidence further show that during his evidence, Knife (Article 'A') and

Sickle (Article 'B') were shown to him and he deposed that the injuries

which were shown by him in the post mortem report can be caused by

the said weapons. It has come in his evidence that the injuries

particularly on stomach, liver and spleen can be caused by Knife [Article

'A'] and the injuries on the skull and face can be caused by Sickle [Article

'B'].
35 APEAL942.2015.odt
52. It has come in his cross-examination that the stab injury is

possible only by a peculiar type of weapon and injuries mentioned in

Column No. 17 of the report were not possible by single type of weapon.

As discussed earlier, two (2) types of weapons are seized at the instance

of Appellant Nos. 1 and 2. In cross, it is clarified that while seeking his

opinion the seized weapons were physically shown to him. Though it

has come in his cross-examination that he was unable to tell whether the

weapons were again sealed in his office after showing him, the CA

reports which are at Exh. 151 to 156 show that articles received were in

sealed packets / parcels.

53. The above discussed evidence established that the injuries

on the deceased Vinayak Sonawane were possible by the Articles 'A' and

'B' weapons.

MOTIVE : -

54. The evidence on record i.e. the evidence of PW2 - Shivaji

Chudaman Patil (informant) show that, six to seven months prior to the

incident in question, deceased Vinayak Sonawane and his associates had

a quarrel with Harshal, who was the elder son of Appellant No. 1 and in

that quarrel, Harshal lost his one eye. The evidence of PW5 - Prashant

Shantaram Patil show that, seven to eight months prior to the incident,

dispute had taken place between Harshal, son of Appellant No. 1 and

Rohit Bhombe. The evidence of PW30 - Police Inspector Mr. Y. D. Patil
36 APEAL942.2015.odt
show that during the investigation he collected the papers of Crime No.

42/2012 which was registered against the deceased Vinayak Sonawane

at the behest of Harshal, who was the son of Appellant No. 1. His

evidence further show that during investigation he found that in the said

Crime, Harshal, son of Appellant No. 1 had lost his left eye. Even in the

written statement at Exh. 176, which has been considered above,

Appellant No. 1 referred about the incident in which he has referred

about the criminal case registered against deceased Vinayak Sonawane

and his associates at the instance of his son Harshal and the matter was

sub judiced. From this evidence on record, it is established that the

Appellant Nos. 1 and 2 had the Motive to eliminate Vinayak Sonawane.

55. The another point of argument is that the prosecution

suppressed the evidence of material witnesses. It was open for the

defence to lead evidence, however, they did not do so. It is for the

prosecution to examine the witnesses in support of their Charge.

Therefor, the said contention has no merits.

56. One of the contentions is that, the learned trial Court did

not provide effective hearing on the sentence to the Appellants at the

relevant stage which was their right under Section 235(2) of the Cr.P.C.

The impugned judgment show that the learned trial Court heard the

Appellants and their advocates and learned APP on the point of
37 APEAL942.2015.odt
sentence. The learned trial Court has considered that it was not the

rarest of rare case and awarded the sentence as detailed in the operative

part of Judgment. Thus, there is no merit in the said contention that no

effective hearing was provided before sentencing the Appellants.

57. The learned advocate for the appellant cited the judgment

in the case of Subhan Usman Shaikh Vs. The State of Maharashtra,

MANU/MH/0811/2022, wherein it is observed as follows : -

28. ...... In so far as when medical evidence would prevail over the
ocular evidence is concerned, the learned counsel appearing for the
Appellant relied upon the judgment of the Supreme Court in Abdul
Sayeed's case. She invited our attention to paragraph 39 of the said
judgment wherein the Supreme Court has held as under :-

"39 Thus, the position of law in cases where there is
contradiction between medical evidence and ocular
evidence can be crystallized to the effect that though the
ocular testimony of a witness has greater evidentiary value
vis-a-vis medical evidence, when medical evidence makes
the ocular testimony improbable, that becomes a relevant
factor in the process of the evaluation of evidence.
However, where the medical evidence goes so far that it
completely rules out all possibility of the ocular evidence
being true, the ocular evidence may be disbelieved."

As already observed herein above, in the present case, the autopsy
surgeon ( PW-12) stated that the fatal blow injury suffered by the
deceased was a stab injury which could not have been caused by the axe
and the other contusion lacerated wounds (CLWs) suffered by the
deceased could not have been caused by sharp side of axe but only by
blunt side. It is therefore evident that the injuries suffered by the
deceased were not caused by the sharp side of an axe. Therefore the
medical evidence on record completely rules out all possibility of ocular
evidence being true.

For the same aforesaid proposition i.e. the medical evidence completely
rules out all possibility of the ocular evidence being true and therefore
ocular evidence may be disbelieved, the learned counsel appearing for the
Appellant has also relied upon the other judgments in the case of Mahavir
Singh v. State of Madhya Pradesh, Mahadeo Kundalik Vaidya v. State of
Maharashtra and Ganga Prasad v. State of UP.
38 APEAL942.2015.odt

58. Coming to the case in hand, the testimony of the eye-

witnesses are kept aside, therefore, there is no question of variance or

contradiction between the ocular evidence and the medical evidence.

The medical evidence has amply established the injuries on the deceased

as deposed by the Medical Officer and corroborated by the post mortem

report. Thus, the reliance on the aforesaid authority is of no assistance

for the Appellants.

59. One of the contentions of learned advocate for the

Appellants is that there is delay in lodging an FIR. The said contention,

in our considered view, has no merits for the reason that the evidence on

record show that after informant/witness learnt about the deceased

Vinayak Sonawane was lying in a serious injured condition on the road,

he reached there, he asked the other witnesses to shift him to the

hospital, thereafter, he went to the concerned Police Station and gave

the information. Thereafter, he went to the hospital where the Doctor

declared Vinayak Sonawane dead. Thereafter, the informant / witness

went to the Police Station and his report came to be written down. As

seen from the printed FIR at Exh. 54A, the date and time of incident is

mentioned as 18.12.2012 at 12:45 p.m., respectively and the column for

receipt of information shows the date 18.12.2012 and the time as 14:30

hrs.
39 APEAL942.2015.odt

60. The evidence discussed above has established : - That

Vinayak Sonawane died a homicidal death. The Appellant Nos. 1 and 2

surrendered with weapons to the concerned Police Station after the

incident. There were injuries on the person of Appellant Nos. 1 and 2.

There were human blood stains on the clothes of Appellants No. 1 and 2

and on the weapons i.e. Knife (Article 'A') and Sickle (Article 'B'), which

they were carrying with them at the time of surrender. The bicycle hired

by Appellant No. 1 before the incident was found on the spot of incident

and Appellant Nos. 1 and 2 had the Motive to commit suicide.

61. The proved circumstances unerringly point towards the

involvement of Appellant Nos. 1 and 2 in causing the homicidal death of

Vinayak Sonawane. The Motive behind the Crime is also established.

The proved circumstances completely rules out the hypothesis of

involvement of any other person in the Crime. The learned trial

Court has, therefore, rightly convicted Appellant Nos. 1 and 2.

EVIDENCE AGAINST APPELLANT NO. 3 : -

62. So far as Appellant No. 3 is concerned, there is evidence of

PW15 - Kalpesh Chandulal Agrawal, who was the panch to the

panchanama at Exh. 94 for seizure of motorcycle bearing no. MH-
40 APEAL942.2015.odt
19/4244 having the number plate inversely fixed from the house of

Sonu Pawar. The other evidence is that of PW19 - Sagar Digambar

Pathak, who was the panch to the arrest panchanama of Appellant No.

3, which was at Exh. 109. The other evidence is that of PW21 - Gajanan

Laxman Hire, who acted as panch for seizure of knife from the drawer of

one house which was locked. His evidence show that the police had

come with Appellant No. 3 to him and the lock was opened by means of

grinder. The other evidence is that of PW22 - Swati Sonu Pawar, who

was the sister of Appellant No. 3, which show that Appellant No. 3 had

come to her house four (4) to five (5) days prior to recording her

statement by police and he told her that he got job at Surat and would

leave his motorcycle at her house and accordingly he left his motorcycle

at her house and left. Her evidence show that since she did not support

the prosecution, she was cross-examined by the learned APP. The other

evidence is that of PW24 - Mayur Madhukar Chavan, who was the

friend of Appellant No. 3, who deposed that on 18.12.2012, he and

Appellant No. 3 were sitting outside their home at 08:00 a.m. and

thereafter they dispersed. His further evidence show that at 11:15 a.m.,

accused no. 3 was in hurry and he asked their friend Kushal to drop him

at some distance and accordingly he was dropped. His further evidence

show that since he did not support the prosecution, learned APP cross-

examined him. The other evidence is that of PW30 - Police Inspector

Mr. Y. D. Patil which show that he collected the CDRs of cell number of
41 APEAL942.2015.odt
Appellant No. 3 and effected his arrest. His evidence show that, on

25.12.2012, the Appellant No. 3 informed him that the bag having sickle

and mobile handset was given by the wife of Appellant No. 1, which is

inadmissible evidence. Lastly, there is no reference of Appellant No. 3 in

the FIR.

63. The evidence of aforesaid witnesses examined by the

prosecution to show the involvement of the Appellant No. 3 does not

take the case of prosecution any further to prove the Charge against

Appellant No. 3. Their evidence by no stretch of imagination prove the

involvement of Appellant no. 3 in the Crime. Mere suspicion is not

sufficient. The prosecution has utterly failed to prove the Charge against

Appellant No. 3.

64. Insofar as the Revision Application filed by the Informant is

concerned, the learned advocate for the Applicant cited the following

judgments in support of her contention for enhancement of punishment

from life imprisonment to death penalty.

[i] Simon and others Versus State of Karnataka,
(2004) 2 SCC 694

[ii] Machhi Singh and others vs State Of Punjab,
AIR 1983 SC 957

[iii] Bachan Singh vs State Of Punjab,
(1982)3SCC24

[iv] State of Rajasthan v Kheja Ram,
(2003) 8 SCC 224
42 APEAL942.2015.odt

[v] State of Madhya Pradesh v. Ghanshyam Singh
AIR 2003 SC 3191

65. The law laid down in the above referred judgment is well

settled. It is needless to state that the minimum punishment for the

offence of murder is imprisonment for life and the maximum

punishment is death penalty. Considering the law laid down in the

aforementioned judgments, the offence in the case in hand does not fall

within the category of rarest of rare case. Appellant Nos. 1 and 2 had

the Motive to commit Crime as the son of Appellant No. 1, who was also

the brother of Appellant No. 2, lost his left eye in the incident in which

deceased Vinayak Sonawane was involved. It is not the case that

Appellant Nos. 1 and 2 were/are the threats to the society at large and

punishment of imprisonment for life imposed by the trial Court was

inadequate punishment. Thus, we do not find any fault with the

sentence awarded by the learned trial Court to the Appellant Nos. 1 and

2. Resultantly, the prayer for enhancement of punishment is liable to be

rejected and is, thus, rejected.

66. Though the learned advocate for the Applicant/Revisionist

has cited fourteen (14) more judgments, we do not find it necessary to

refer them as the evidence available on record establishes the Charge

against the Appellant Nos. 1 and 2 and the evidence available on record

do not establish the Charge against Appellant No. 3.
43 APEAL942.2015.odt

67. In view of the above discussion, the Appeal to the extent of

Appellant Nos. 1 and 2 is liable to dismissed. The Appeal to the extent

of Appellant No. 3 deserves to be allowed. The Revision Application for

enhancement of punishment is liable to be rejected. Hence, we proceed

to pass the following order : -

ORDER

[i] The Appeal to the extent of Appellant Nos. 1 and 2 is dismissed.

[ii] The Appeal to the extent of Appellant No. 3 is allowed.

[iii] The conviction and sentence awarded by the learned trial Court against the Appellant No. 3 for the offence punishable under Section 302 r/w 114, Section 302 r/w 109 of the IPC and sentencing him for life imprisonment and fine of Rs. 1,000/-, in default, to suffer rigorous imprisonment for six months, is quashed and set aside.

[iv] The Appellant No. 3 is acquitted of the offences punishable under Sections 302 r/w 114, Section 302 r/w 109 of the IPC.

[v] The Appellant No. 3 is already released on bail. His bail bonds stand cancelled.

[vi] The fine amount, if paid by the Appellant no. 3, be refunded to him.

[vii] The Criminal Revision Application stands rejected.




                              [NEERAJ P. DHOTE]                                     [R. G. AVACHAT]
                                   JUDGE                                                 JUDGE
                             SG Punde

Signed by: Sandeep Gulabrao Punde Designation: PS To Honourable Judge Date: 15/03/2024 14:19:47

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