Bombay High Court
Nitin Tukaram Chavan And Anr vs The State Of Maharashtra on 1 October, 2018
Equivalent citations: AIRONLINE 2018 BOM 1090
Author: S.S. Shinde
Bench: S.S. Shinde, Mridula Bhatkar
Cri.Apeal 1138.11
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1138 OF 2011
1] Nitin Tukaram Chavan
2] Sharad Nana Chavan ...APPELLANTS
VERSUS
The State of Maharashtra ...RESPONDENT
WITH
CRIMINAL APPLICATION NO.249 OF 2018
IN
CRIMINAL APPEAL NO. 1138 OF 2011
Nitin Tukaram Chavan ...APPLICANT
VERSUS
The State of Maharashtra ...RESPONDENT
WITH
CRIMINAL APPEAL NO.181 OF 2012
1] Deepak Sakharam Shinde
2] Bandu Mohan Chavan
3] Dhananjaya Mohan Chavan
4] Dnyaneshwar @ Charlie @ Zipra
Ramchanda Sathe
5] Sagar Hiraman Chavan ...APPELLANTS
VERSUS
The State of Maharashtra ...RESPONDENT
WITH
Cri.Apeal 1138.11
2
CRIMINAL APPLICATION NO.248 OF 2018
IN
CRIMINAL APPEAL NO. 181 OF 2012
Dhananjay Mohan Chavan ...APPLICANT
VERSUS
The State of Maharashtra ...RESPONDENT
WITH
CRIMINAL APPEAL NO.1295 OF 2011
Sagar Prakash Mokar ...APPELLANT
VERSUS
The State of Maharashtra ...RESPONDENT
WITH
CRIMINAL APPEAL NO.1126 OF 2011
1] Navnath Madhu Pawar
2] Mahendra @ Waghya Arun Waghmare
3] Rahul Laxman Padwal ...APPELLANTS
VERSUS
The State of Maharashtra ...RESPONDENT
WITH
CRIMINAL APPEAL NO.1223 OF 2011
Vijay Bhanudas Chavan ...APPELLANT
VERSUS
The State of Maharashtra ...RESPONDENT
Cri.Apeal 1138.11
3
WITH
CRIMINAL APPEAL NO.447 OF 2014
Dnyaneshwar @ Chadi @ Zipra
Ramchandra Sathe
[Filed Separate Appeal as per
order dated 22.04.2014 granting
separation of appeal] ...APPELLANT
VERSUS
The State of Maharashtra ...RESPONDENT
...
Mr.Shirish Gupte, Senior Advocate i/b. Mr.Kedar
J.Patil Advocate for the Appellants - original
accused Nos.1, 3, 4, 5 and 12
Mr.Niteen Pradhan, Advocate a/w Ms. Shubhada
D.Khot a/w. Mr.Aditya Lasaria for Appellant in
Criminal Appeal No.1223/2011, Criminal Appeal
No.1295/2011 and Criminal Appeal No.447/2014.
Mr.Ganesh Bhujbal, Advocate for the Appellant in
Criminal Appeal No.1126/2011.
Ms.Debajyoti Talukdar, Advocate for the Appellant
in Criminal Appeal No.181/2012.
Mr. D.G. Khamkar, Advocate for the Appellants in
Criminal Appeal No.1126/2011 and for Appellant
No.4 in Appeal No. 181/2012.
Mr.H.J.Dedhia, APP for the Respondent - State.
...
CORAM: S.S. SHINDE AND
MRS.MRIDULA BHATKAR, JJ.
Cri.Apeal 1138.11
4
DATE OF RESERVING JUDGMENT : 25TH SEPTEMBER, 2018.
DATE OF PRONOUNCING JUDGMENT: 1ST OCTOBER, 2018.
JUDGMENT [PER S.S. SHINDE, J.]:
1. These Appeals are directed against the
Judgment and order dated 6th August, 2011, passed
by the Additional Sessions Judge-11, Pune in
Sessions Case No.656 of 2009, thereby convicting
the Appellants/Original Accused Nos.1 to 12 for
the offences punishable under Section 143 read
with 149 of the Indian Penal Code [for short
'IPC'] and sentencing them to suffer rigorous
imprisonment for six months with fine of Rs.100/-
each, in default to suffer further rigorous
imprisonment [for short 'R.I.'] for 15 days each.
The trial Court also convicted Appellants /
Original Accused Nos.1 to 12 for the offence
punishable under Sections 147 read with 149 of the
IPC and sentenced them to suffer R.I. for two
Years with fine of Rs.200/- each, in default to
Cri.Apeal 1138.11
5
suffer further R.I. for 30 days each. The trial
Court also convicted Appellants / Original Accused
Nos.1 to 12 for the offence punishable under
Sections 148 read with 149 of the IPC and
sentenced them to suffer R.I. for three Years with
fine of Rs.200/- each, in default to suffer
further R.I. for 1 month each. The trial Court
also convicted Appellants / Original Accused Nos.1
to 12 for the offence punishable under Sections
449 read with 149 of the IPC and sentenced them to
suffer R.I. for 10 Years with fine of Rs.500/-
each, in default to suffer further R.I. for 2
months each. The trial Court also convicted
Appellants / Original Accused Nos.1 to 12 for the
offence punishable under Sections 302 read with
149 of the IPC and sentenced them to suffer R.I.
for life and to pay fine of Rs.1000/- each, in
default to suffer further R.I. for 3 months each.
The trial Court also convicted Appellants /
Original Accused Nos.1 to 12 for the offence
Cri.Apeal 1138.11
6
punishable under Sections 427 read with 149 of the
IPC and sentenced them to suffer R.I. for two
Years with fine of Rs.300/- each, in default to
suffer further R.I. for 1 month each. All the
above sentences were directed to be run
concurrently. Hence these Appeals are filed by the
Appellants challenging the conviction and
sentence.
2. As all these Criminal Appeals are arising
out of one and the same Judgment and Order passed
by the trial Court, all these Appeals are being
decided by this common Judgment. In the Sessions
Case before the trial Court, there were in all 12
accused, who were tried together. The trial Court
has convicted and sentenced all the twelve accused
in the manner as already mentioned herein above in
paragraph 1. Those twelve accused have filed these
different six Criminal Appeals which are being
decided by this common Judgment.
Cri.Apeal 1138.11
7
3. The prosecution case, in brief, is as
under:
A] An informant (PW-16) Sau. Narsu Raju
Jegali is married sister of Yellappa Pujari
(PW-1), Yuvraj Pujari(PW-3) and deceased Hira
Pujari. In the year 2008, when the incident
occurred, the informant had been at the house of
her parents, wherein she herself, her mother,
PW-1, PW-3 and deceased Hira Pujari were residing
jointly in the house situate at Gosavi Vasti,
Karve Road, Pune. Their house consists of two
partitioned rooms.
B] The deceased Hira Pujari was jobless.
Hence on 11th October, 2008, he was at his house in
between 11.00 a.m. to 12.30 noon. Likewise,
informant Narsu was present in the house. The
other family members have been out of the house
for attending their job. Thus, at the time of
Cri.Apeal 1138.11
8
incident informant (PW-16) and her brother Hira
Pujari only were present in the house.
C] It is alleged that on the said date at
about 12.00 to 12.30 noon, accused Nos.1 to 12
along with the deceased accused Balaji Chavan,
armed with deadly weapons viz. swords, scythes and
axe rushed towards the house of informant, caused
damage to the glass window panel of the house and
house of neighbour Chand Shaikh. Therefore, the
informant had made an attempt to close the door,
but she was not allowed to do so by pushing the
door by the said accused. Some of the accused had
entered into the house and some waited in the door
and by means of the above said weapons, had
assaulted to Hira Pujari. Hence, the informant -
Narsu urged them not to assault her brother, but
the accused did not pay any heed. Hence she
raised shouts. Listening to the shouts, her
brother Yellappa Pujari [PW-1], Yuvraj Pujari
Cri.Apeal 1138.11
9
[PW-3] and their mother Nagamma Pujari rushed in
front of their house. However, the accused did not
allow them to enter in the house. Yogesh Nimbare
[PW-2], the friend of deceased, Anita Nimbare [PW-
5], Manda Khawale [PW-6] also rushed on the spot.
Meanwhile, PW-1 and PW-3 and their mother made an
attempt to enter into the house but the some of
the accused, who were in the door of the said
house, did not allow them to enter in the house so
as to rescue Hira Pujari from the assault. On the
contrary, the said witnesses were threatened with
dire consequences on the point of swords and
scythe.
D] It is the prosecution case that in the
said vicinity, there are two Ganesh Mandals, one
of the group of PW-1 to PW-4 and the deceased and,
the other of the group of accused. Thus, they
were having animosity on the ground of said rival
Ganesh Mandals and collecting contribution
Cri.Apeal 1138.11
10
thereto. Therefore, some cases were pending
against the deceased Hira Pujari. Likewise members
of group of Hira had filed cases against the
accused.
E] Further it is alleged that on 10th
October, 2008 and 11th October, 2008 at about 10.45
a.m. to 11.00 a.m. quarrels took place between
Santosh, the brother of accused No.6, his father
Prakash and PW-2 Yogesh Nimbare. Therefore,
Santosh lodged report with Police. On the basis of
said report, Crime No.442 of 2008 under Sections
323, 504 of the IPC was registered against PW-2.
Likewise PW-2 had lodged the report on 12th
October, 2008 against accused No.6, his brother
Santosh and father on the basis of which Crime
No.444 of 2008 under Sections 323 and 504 of the
IPC was registered with the Police Station.
Likewise, about the incident occurred on 10th
October, 2008 at about 10.45 p.m., N.C. (Exhibit-
Cri.Apeal 1138.11
11
169) was lodged by Santosh against PW-2 about he
being abused and assaulted. Thus, there being
animosity between accused and PW-1 to PW-6, on the
said ground the incident of committing murder of
Hira Pujari by using deadly weapons viz. swords,
scythe, sticks and axe alleged to have been
committed by the accused by forming an unlawful
assembly by committing the offence of rioting and
murder of Hira Pujari by causing damage to the
motor bike of Shankar Sakhare and others in
prosecution of their common object of unlawful
assembly of the accused.
F] Thus, on the basis of report lodged by
PW-16 vide Exhibit-177, Crime No.443 of 2008 under
the above said Sections was registered with
Kothrud Police Station.
G] After the report Exhibit-177, the
investigation of the said crime started. The
Cri.Apeal 1138.11
12
Investigating Officer, Rajeshirke [PW-23] had been
to the spot on the basis of information of the
incident received from the PSO - Thane Ammaldar.
Prior to that, the spot panchanama was prepared by
PSI Tejaswani Yadav [PW-19] in presence of two
panchas by seizing one blood stained steel handle
and wood handles of swords, along with blood mixed
earth and plain earth. She deposited the said
property with Muddemal Clerk of the Police
Station.
H] There was law and order situation.
Therefore, till 4.00 p.m. dead body was not
allowed to be removed by the relatives of the
deceased to Sasoon Hospital until the culprits are
apprehended. Somehow the dead body was removed to
the Sasoon Hospital for autopsy.
I] Dr.Vishal Survase [PW-17] has conducted
the autopsy on the dead body and issued P.M. notes
Cri.Apeal 1138.11
13
(Exhibit-155) and issued death certificate
(Exhibit-156). P.I. Rajeshirke [PW-23] had
recorded statements of star witnesses on 12th
October, 2008, and later on of other witnesses as
per their say. All the accused evaded their
arrest. Therefore, PW-23 had deputed special squad
for the said purpose. Hence, accused Nos.1 to 6
were arrested on 13th October, 2008. Thereafter,
accused Nos.7 and 8 were arrested on 16th October,
2008, accused No.10 was arrested on 13th April,
2009, accused No.12 was arrested on 7th January,
2009, likewise accused No.9 was also arrested.
J] Further it is the case of the prosecution
that on 14th October, 2008, the clothes of the
accused Nos.1 to 6, which were on their person on
the date of incident, were seized under panchanama
Exhibit-178. Likewise, the clothes of accused
Nos.7 and 8 were seized under panchanama Exhibit-
190, clothes of accused No.11 with sword were
Cri.Apeal 1138.11
14
seized in consonance with memorandum statement
Exhibit-212 and discovery panchanama Exhibit-213,
drawn by P.I. Narnavar [PW-22] on 24th August,
2009.
K] Further it is the case of the prosecution
that on 16th October, 2008, accused no.6 gave
memorandum statement at Exhibit-179, in presence
of panch witness Subhash Sharma and other panchas
and pursuant to said statement sword was
discovered from the standing grass situate by the
side of Rajaram Bridge, Pune and it was seized
under panchanama Exhibit-180.
L] On 16th October, 2008 when accused No.3
was in police custody, he made statement in
presence of panch witness Prabhakar Kasab [PW-10]
and other panch witness Sanjay Dalvi in
discovering tempo No.MH-12-QA-7075, along with
sword concealed in the tarpaulin/there under.
Cri.Apeal 1138.11
15
Hence in pursuance to the above memorandum,
accused No.3 has discovered the above said tempo
and two blood stained swords under panchanama
Exhibit-181.
M] On 16th October, 2008, at the instance of
accused No.1 Deepak Sakharam, two swords, one
without handle were discovered from the place
those were concealed, under panchanama Exhibit-
184. On 16th October, 2008, itself when accused
no.2 was in police custody, he made statement in
presence of panch witness Ganesh Bhagat [PW-12]
and other panch witness Shankar Kamble and
discovered tempo No.MH-12-AQ-6908 and one axe,
from the grass situate at Tukai Nagar, Sinhagad
Road, Pune and those were seized under panchanama
Exhibit-186.
N] On 17th October, 2008, when accused No.7
Dnyaneshwar was in police custody, made statement
Cri.Apeal 1138.11
16
Exhibit-187 in presence of panch witness Subhash
Sharma and Aniket Mokar in discovering scythe from
the place where it was concealed and in pursuance
thereto led the police party near the compound
wall of Kirloskar Company and from the grass had
discovered blood stained scythe. The same was
seized under panchanama Exhibit-188.
O] On 17th October, 2008, accused No.8 Vijay
Chavan made statement Exhibit-189 to discover
scythe from the place where it was concealed and
accordingly at his instance blood stained scythe
was discovered from the ditch, backside of Pruthvi
Hotel, under panchnama Exhibit-190. At the
instance of accused No.9, bamboo stick stained
with blood was seized under panchnama. On 14th
April, 2009 at the instance of accused No.10 Rahul
Padwal, at per seizure panchnama Exhibit-210, one
blood stained stick was seized.
Cri.Apeal 1138.11
17
P] In connection with the said crime,
motorcycle NO.MH-12-EL-331 and scooter No.MH-12-
KA-3336 were produced by the father of accused
No.6 viz. Prakash Mokar and father of accused No.3
Mohan Chavan. Hence the same were seized under
Panchnama Exhibit-116. Likewise, on 18th October,
2008 father of accused No.5 Tukaram Chavan and
brother of accused No.8 Gokul Chavan had produced
motorcycle Nos. MH-12-EX-9033 and MH-12-C-157,
which were seized under panchnama Exhibit 117.
Q] All the properties seized from the spot
by PW-19, all the clothes of the accused and
deceased, the muddemal articles discovered by the
accused in consonance to Section 27 of the
Evidence Act, were sent to the Chemical Analyzer
by PW-23 Rajeshirke on 24th October, 2008 with
special messenger and had collected in all 11 C.A.
reports as per Exhibit-193 to 203. PW-24 P.I.
Vilas Narnawar had sent the clothes of the accused
Cri.Apeal 1138.11
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No.11 along with sword to the C.A. and collected
the report of C.A. vide Exhibit-217. Supplementary
charge-sheet was instituted against accused
Nos.10, 11 and 12 respectively. After completion
of the investigation, the investigating officer
filed charge sheet against the accused persons in
the Court.
R] As the offence punishable under Section
302 of the IPC is exclusively triable by the Court
of Sessions, the learned Judicial Magistrate First
Class, Pune committed the case to the Court of
Sessions. The charge vide Exhibit-59 came to be
framed against the accused persons. Its contents
were read over and explained to the accused in
vernacular to which they pleaded not guilty and
claimed to be tried. The defence of the accused is
of total denial. Inter-alia the accused came with
the specific defence that they have been falsely
implicated in the case due to ill advise of PW-2
Cri.Apeal 1138.11
19
Yogesh Nimbare, who was having animosity with the
accused on the ground of previous quarrel.
4. Heard learned counsel appearing for the
respective Appellants and learned APP appearing
for the Respondent - State, at length. With their
able assistance, we have carefully perused the
entire notes of evidence so as to find out whether
the findings recorded by the trial Court are in
consonance with the evidence brought on record or
otherwise.
5. First, we will examine the evidence of
Medical Officer, who has conducted postmortem on
the body of Hira. PW-17 Dr.Vishal Rajgopal Survase
is the Medical Officer, who conducted postmortem
on the dead body of Hira. He deposed that
following antemortem injuries were found on the
body of Hira:-
Cri.Apeal 1138.11
20
1) Vertically oblique chopped wound of 5 cm
above middle end of right eyebrow extending
upwards for 13 x 1.5 cm. With clear cut fracture
of underline bone. Angles and margins were clean
cut.
2) Vertical chopped wound, 1.5 cm. Right
lateral to injury no.1, starting from 5 cm above
right mid eyebrow, 11.5 cm bone deep. Angles and
margins were clean cut.
3) Oblique chopped wound, 5 cm above right ear
extending posteriorly downwards 15 x 1.5 cm.
Underline bone shows clean cut fracture. Angles
and margins clean cut.
4) Vertical chopped wound, 4 cm below
occipital protuberance, 8 x 1 cm. Angles and
margins clean cut. Underline wound shows clean
cut fracture.
5) Horizontal and tangential incised wound.
Incised wound 6 x 4 cm. Muscle deep with skin
flap hanging partly separately. Angles and
Margins clean cut. Under line matacarple shows
clean cut fractures on right side.
6) Horizontal chopped wound, middle aspect of
right wrist, 3 x 1.5 cm underline ulna shows
clean cut fracture. Angles and margins clean
cut.
Cri.Apeal 1138.11
21
7) Incised wound posterior aspect of right
shoulder 3 x 1 cm muscle deep. Angles and
margins clean cut.
. PW-17 further deposed that all the above
said injuries were fresh.
6. PW-17 Dr. Vishal further deposed that on
internal examination following injuries were
found:-
1) Scalp-haematoma all over. Skull Clean cut
fracture of right side of frontal and parietal
measuring 10 cm long, corresponding to external
injury no.1.
2) Clean cut fracture, right parietal and
occipital bone, measuring 11 cm lone,
corresponding to external injury no.3.
3) Clean cut fracture occipital bone 6 cm
long, only outer table involved, corresponding
to external injury no.4.
7. PW-17 Dr. Vishal further deposed that on
the brain of Hira he noticed subdural and
Cri.Apeal 1138.11
22
subarchnoid haemorrhage all over of brain surface
and on the brain he also noticed the following
injuries:-
1) Chopped wound right frontal 3 x 5 x 1 cm.
2) Chopped wound right parietal lobe 4 x 5 x
1 cm.
3) Right parietal lobe 6 x 5 x 5.
4) Right occipital lobe 3 x 5 x 1.5 cm.
8. PW-17 (Dr. Vishal) further deposed that
in his opinion the death has been caused due to
"traumatic and hemorrhagic shock as a result of
chopped injuries". Accordingly, autopsy report
[Ex.155] was issued by him on the same day.
9. All the Advocates appearing for
respective accused before the Trial Court, have
declined to cross examine (PW-17) Medical Officer.
Therefore, it appears that defense did not contest
Cri.Apeal 1138.11
23
that death of Hira was 'homicidal' Upon careful
perusal of the evidence of Medical Officer and the
injuries noticed by him on the dead body of Hira,
it clearly appears that death of Hira was
homicidal. But, the core question is that, who is
the author of the said injuries caused to Hira.
10. Now, we will examine the evidence of
other prosecution witnesses. The prosecution has
examined PW-1 Yallappa Jairam Pujari. He deposed
that since his childhood he is living with his
family at Kothrud, Pune. His family consists of
his parents, brother Yuvraj and Hira. At the time
of incident his sister Narsu was also present at
his house. He further deposed that his brother
Hira was doing the work of A.C. repairs. He knows
all the accused as they are residing in the same
area where he resides. He further deposed that as
his brother Hira belongs to one group [Mandal] and
accused belongs to other group, their relations
Cri.Apeal 1138.11
24
were strained. His brother Hira belongs to
Shrikrushna Mandal and accused belongs to
Bholenath Mandal. One Yogesh Nimbare (PW-2) was
the friend of his brother Hira. A day prior to the
incident, in the evening quarrel took place
between Yogesh Nimbare and accused. The said
matter came to be reported to the Police.
11. PW-1 Yallappa further deposed that on 11th
October, 2008, at about 11.00 to 11.30 hours in
the morning his brother Hira and sister Narsu were
only present at the house. At that time he was
present in the nearby flour Mill. He further
deposed that at the relevant time he had seen
Dhananjay Chavan, Bandu Chavan, Vijay Chavan,
Sagar Chavan, Dnyaneshwar Sathe, Navnath Pawar,
Rahul Padwal, Sagar Mokar, Deepak Chavan with
weapons in their hands and while marching towards
his house, therefore, he went towards his house.
At the relevant time Yogesh Nimbare and Sakhare
Cri.Apeal 1138.11
25
were also seen on motorcycle while proceeding
towards his home but after seeing the above
accused persons, Yogesh and Sakhare have left the
motorcycle and escaped. At the relevant time the
above persons entered into his house, they then
assaulted his brother Hira. On seeing those
persons, he himself took shelter at adjacent
house. He further deposed that after assaulting
his brother Hira, the above persons then went
away. He then came at his home and seen his
brother Hira with several injuries from which
blood was oozing. Then he himself, Sanjay Gokhale
and one another person took his brother Hira at
Shaswat Hospital. The Doctor treated him but in
vain and his brother Hira died. Then dead body was
shifted to Sasoon Hospital. He further deposed
that he knows all the accused by their names as
they are residing in his locality and he can
identify them.
Cri.Apeal 1138.11
26
12. During the course of cross examination,
PW-1 Yallappa stated that his duty hours commences
from 10 hours in the morning and ends at 5 hours
in the evening. His brother Yuvraj is driver by
profession, who used to proceed on work usually
about 10 hours in the morning and return home
about 7 p.m. His father also used to do the work
and used to leave home at 9.00 hours in the
morning and return home about 6.00 p.m. He further
stated that their financial condition is not
sound. Police recorded his statement on the day of
incident at about 6.00 to 7.00 p.m. He was unable
to recollect the exact time of recording statement
of his sister and mother. He further stated that
on the date of incident at about 10 hours in the
morning, he went on duty. On that day, the quarrel
did not take place between his brother Hira and
others. He further stated that on the day of
incident about 9 hours in the morning, he learnt
about the likelihood of assault over his brother
Cri.Apeal 1138.11
27
Hira. The distance between his house and Alankar
Police Chowki is about 15 minutes by foot. On that
day he did not feel it necessary to inform the
police about likelihood of assault over brother
Hira. He is not aware as to whether his brother
Hira anyway related with the dispute took place on
the prior day or on the day of incident. He
further stated that on that day about 11.30 hours
in the noon when he came, he noticed that the
glasses of windows of the house of Chand Shaikh, a
neighbourer, were broken and house was locked.
Similar was the condition of the glasses of
windows of his house. He further stated that he
was not accompanied with Hira in the Hospital. At
that time his mother had been in the Hospital and
he himself and his sister were at home. He further
stated that he himself, not tried to lift his
brother Hira, however, his sister and mother
attempted to lift Hira. At the relevant time the
clothes of his mother and sister were stained with
Cri.Apeal 1138.11
28
blood. He further stated that his clothes had not
stained with blood. He further stated that when
police visited his house, he has not narrated
about the incident to the police at the relevant
time. He further stated that the cases were
registered against the group of Yogesh Nimbare. He
further admits that in some cases name of his
brother Hira was also involved. He further admits
that all those cases were instituted on the
complaint by some of the accused. He further
stated that his house is situate in thickly
populated locality. He further stated that in his
lane about twenty houses are there. He further
stated that he has not gone through the contents
of his statement recorded by police. While
recording the statement he did not narrate to the
police about the two groups i.e. Shrikrushna
Mandal and Bholenath Mandal. He further stated
that he had not narrated the police while
recording the statement that one day prior to the
Cri.Apeal 1138.11
29
incident quarrel took place in between accused and
Yogesh Nimbare. Yogesh Nimbare was the friend of
Hira since his childhood. The house of Yogesh
situate about half kilo meter away from his house.
Hira was on visiting terms at the house of Yogesh.
He is not aware whether the cases were registered
against Yogesh by police. He is not aware whether
Yogesh was in jail for some days. He further
stated that their locality is hutment area, known
as Gosavi Vasti. He admits that large number of
persons by name Chavan are residing in their
locality. The distance between his house and
Kothrud police station is about ten minutes by
walk.
13. During the course of further cross
examination PW-1 Yallappa stated that after the
incident for about 15 minutes he was at home. At
the time of incident, large number of persons
gathered there. At Shaswat Hospital, Police
Cri.Apeal 1138.11
30
Officials had reached. At the relevant time
simultaneously his mother and sister went to lodge
the complaint. He further stated that at Shaswat
Hospital, police did not interrogate him and he
did not talk to them at that time. Prior to
leaving for Sasoon Hospital, Police did talk to
him, however, he did not disclose the entire
incident to the police. He further stated that,
they were in Shaswat Hospital for about two hours
and police were there all the while at the
Hospital. Then other persons went to Sasoon
Hospital along with dead body and he went to
Police Station. He told the entire incident to the
Police and the police recorded the same in
writing. He was unable to recollect whether police
obtained his signature on that day. He further
stated that while recording the statement, he has
not narrated to the police that, in the incident
took place at about 9.00 p.m. on 10 th October, 2008
Santosh Mokar was involved. He further stated that
Cri.Apeal 1138.11
31
the portion marked 'A' in his statement read over
to him is incorrect. He was unable to state as to
why it was so recorded. He is not aware whether on
next day quarrel took place between Santosh Mokar
and Yogesh Nimbare. While recording the
statement, he had not stated to the police that on
11th October, 2008 at about 9.00 a.m. at Gosavi
Vasti quarrel took place in between Yogesh Nimbare
and Santosh Mokar and then both the sides went at
Alankar Police Chowki to lodge the report. He
further stated that portion marked 'B' from his
statement, read over to him, is incorrect. He was
unable to assign any reason as to why it was so
recorded. He further stated that there was no any
dispute between deceased Hira and Rahul Padwal
prior to the incident.
14. Thus upon careful perusal of the entire
evidence of PW-1 Yallappa it appears that he was
not present at the spot when the incident took
Cri.Apeal 1138.11
32
place. Various contradictions and improvements in
his evidence are brought on record during the
course of his cross examination. In his cross
examination, he stated that his duty hours are
from 10 a.m. till 5.00 p.m. He specifically
admitted that on the day of incident, he went to
attend his duty. Though he has stated that at
about 11.30 a.m. he came to house and noticed that
the glasses of windows of his house were broken,
but as per the prosecution, the incident took
place at about 12.00 to 12.30 noon and thus it
appears that this witness is not deposing true
facts. PW-1 Yallappa has deposed that due to fear
of accused persons he took shelter in the adjacent
house. This conduct of the witness does not
appears to be natural conduct as when his real
brother was being assaulted, in such situation his
natural conduct would have been to enter in the
house and try to rescue his brother from the
assault. His evidence further discloses that after
Cri.Apeal 1138.11
33
the incident, he has not tried to lift his brother
Hira to reach him to Hospital. It is pertinent to
note that this witness is real brother of deceased
Hira and his conduct in not lifting his brother
Hira for reaching Hospital does not appears to be
natural. Though it is the case of the prosecution
that from the injuries sustained to Hira, blood
was oozing and this witness claims that soon after
the incident of assault, he reached at the spot of
incident but still he specifically admits that
his clothes were not stained with blood. It is
unbelievable that, this witness has even not
touched to the body or clothes of his real brother
deceased Hira or not tried to help him, at least
by offering drinking water if really he was
present at the spot. Thus it appears that PW-1
Yallappa is a got-up witness, and he was neither
present at the spot when the incident took place
nor he visited the spot soon after the incident.
This witness claims that at the time of incident
Cri.Apeal 1138.11
34
he was at the spot and witnessed the incident but
when police visited the spot after the incident,
he has not narrated the incident to the police,
and when his statement was recorded on next day of
the incident, then only he narrated the incident
to the police. This is unbelievable. Therefore,
upon perusal of the entire evidence of this
witness, it does not inspire confidence.
15. The prosecution has examined PW-2 Yogesh
Ajit Nimbare. He deposed that he is residing at
Gosavi Vasti, Kothrud Pune since last 24 years. He
knows all the accused as they are residing in the
vicinity where he resides. He further deposed that
he himself and his companions are members of the
Shrikrushna Mitra Mandal whereas all the accused
and their companions are the members of Jai
Bholenath Mitra Mandal. Since last 5-6 years
quarrels were going on amongst the members of the
said two Mitra Mandals. Regarding incident, he
Cri.Apeal 1138.11
35
deposed that the incident of the present case had
taken place on 11th October, 2008, in the noon at
about 12.00 to 12.30 p.m. On the said date, at
about 9.30 a.m. quarrel took place between him and
Santosh Mokar, Sagar Mokar and father of accused
No.6 Prakash Mokar, on the ground of earlier
quarrel which took place at about 10.45 p.m. on
10th October, 2008. He further deposed that on 11th
October, 2008 at 9.00 to 9.30 a.m. when he was
proceeding from the side of house of Ganpat
Sharma, accused No.6 and his father Sagar Mokar
met him and abused him on the ground of incident
occurred in the previous night. At that time
Santosh Mokar had given blows of bamboo sticks
over his head and therefore he had been to Alankar
Police Chowki to lodge the report. After medical
treatment, when he was proceeding towards above
said Outpost by Pinac Society Road along with
Shankar Sakhare, at that time some persons
informed him that some boys had gathered in front
Cri.Apeal 1138.11
36
of his house. Then by canal road they moved their
motorcycle to the said Police Outpost. On the said
spot, on the way accused No.11, accused No.8 Vijay
Chavan, accused No.2 Bandu Chavan, accused No.3
Dhananjay Chavan, accused No.7 Dnyaneshwar Sathe,
accused No.1 Deepak Shinde, accused No.5 Nitin
Chavan, accused No.10 Rahul Padwal, accused No.4
Navnath Pawar, accused No.6 Sagar Mokar, accused
No.12 Sharad Nana Chavan, deceased accused Balaji
Chavan were found gathered. All the said accused
were armed with swords, sticks and scythe. Accused
came towards the witness and Shankar Sakhare when
they were in riding condition on the motorbike but
they could not turn the bike on that spot as the
road situate thereon was under repair. Then they
parked motorcycle on the said spot and came to
back side of the house of Jayram Pujari where
house of Gokul Khavale is also situate. He further
deposed that they have closed themselves in the
said house of Gokul Khavale for security. There
Cri.Apeal 1138.11
37
they listened the shouts from the side of house of
Hira (deceased).
16. PW-2 Yogesh further deposed that Hira
Jayram Pujari was member of their Mitra Mandal and
hence was known to him. He further deposed that
thereafter he himself and Shankar Sakhare came to
their motor bike, at that time they noticed all
the accused running armed with swords, scythes and
sticks. Thus the said persons have given blows by
means of the above said weapons and the sticks on
their motorbike and caused damage to the same. He
further deposed that then he along with Shankar
Sakhare came in front of the house of Hira Pujari.
By that time injured Hira was moved by brother of
the witness namely Mangesh and Sanjay Gokhale to
the Hospital. He further deposed that thereafter
they learnt about Hira Pujari being declared dead
by the Doctor.
17. During the course of cross examination,
Cri.Apeal 1138.11
38
PW-2 Yogesh stated that in respect of above stated
incident, Investigating Officer has recorded his
statement on 12th October, 2008. While making
statement, the time of the incident occurred in
the morning on 11th October, 2008 was not stated by
him. While making statement, it was stated by him
that when they reached to the Sasoon Hospital,
they learnt by phone call about the injured being
taken to the Shaswat Hospital. He admits that on
12th October, 2008, at 2.45 p.m. he had lodged the
report against accused No.6, his father and one
Santosh Mokar. On 11th October, 2008, at about
10.00 to 10.30 p.m. he had been to Alankar Police
Outpost to lodge report. He further stated that
the report dated 12th October, 2008, about the
incident was correctly recorded as per his say
hence he has signed it and the contents of the
same are true and correct. He admits that quarrels
were going on in between their Mitra Mandal and
Mitra Mandal of the accused on the point of
Cri.Apeal 1138.11
39
installation of God Ganesh and recovery of
contribution thereto. He further admits that the
Mandal of the accused had lodged police cases
against them wherein he was also arrested. He does
not know whether Mrs. Narsu Jegali is real sister
of the deceased. He was unable to state whether
said Narsu had been to Shaswat Hospital when they
had been there but he states that Yallappa Pujari
was present in the Hospital. On the date of
incident, he had been back to home at about 4.00
to 5.00 p.m. and at the said time the police were
present in their vicinity. At the said time due to
confusion on account of incident, he did not feel
it necessary to narrate the incident to the
police. He further stated that after return from
Shaswat Hospital, he did not visit the house of
the deceased. In Shaswat Hospital, the incident
was narrated by him to the Police Officer
Rajeshirke. At that time only his name and address
was noted down by the said Police Officer without
Cri.Apeal 1138.11
40
recording full-fledged statement. His statement
was completed on 12th October, 2008 in between 2.00
to 3.00 p.m. At that time other witness Rahul
Kanjare, Sachin Thakar, Rajesh Shekhane, Sanjay
Gokhale, Nikhil Thakar, his mother Anita, brother
Mangesh, Shankar Kamble, Shankar Sakhare, Aniket
Makar etc. and others were present but he did not
recollect their names. Narsu, Yallappa and Yuvraj
Pujari were also present along with mother of
deceased Naggappa. During further cross
examination, he stated that their vicinity is hut-
ment area. He further stated that the deceased
might have been facing 2-3 criminal cases
including riot. Deceased was arrested under
preventive detention at the time of Ganpati
festival. He further stated that so far he is
facing criminal trial in 4-5 crimes. He was also
detained during Ganpati festival. He further
stated that after the incident of the present
case, father of accused No.6 had lodged the report
Cri.Apeal 1138.11
41
against him about the damage caused to his auto
rickshaw and his wallet of cash amount being
robbed by him. He further stated that the
immediate neighbour of the deceased is one Shaikh
but he did not recollect the name of other
neighbour. He further stated that he does not know
whether no case between deceased and accused No.11
was pending. He admits that accused No.11 is not
accused in any of the crime registered on the
basis of report lodged by them.
18. Thus, upon careful perusal of the entire
oral testimony of this witness, it is crystal
clear that PW-2 Yogesh has not witnessed the
actual incident. During the course of his
examination in chief itself, he has stated that he
along with Shankar Sakhare closed themselves in
the house of Gokul Khavale for security and thus
they were not present at the spot when the
incident took place. Though this witness claims
Cri.Apeal 1138.11
42
that he was present near the spot of incident when
incident took place, but when he had opportunity
to narrate the incident to the police on the same
day at about 4.00 to 5.00 p.m., he had not
narrated the incident to the police and on the
next day i.e. on 12th October, 2008, when his
statement was recorded by the police at that time
only he disclosed that he was present on the spot
when the incident took place. PW-2 Yogesh admitted
that so far he was facing criminal trial in 4-5
crimes and he was also detained by Police during
Ganpati festival. Thus it is clear that this
witness is deposing falsely that he was present at
the spot when incident took place and it appears
that in fact he was not present on the spot at the
time of incident. The trial Court has also
disbelieved the evidence of this witness PW-2 as
the documents placed before the trial Court
discloses that PW-2 came to know about the
incident from others and he was not present at the
Cri.Apeal 1138.11
43
spot when incident took place. The evidence of
PW-2 shows that on 11th October, 2008 he had been
to Police Station, Sasoon Hospital, and therefore,
he was not anywhere near the place of incident and
he does not know how deceased was assaulted, but
being highly interested and friend of deceased and
having inimical terms with accused, PW-2 has posed
himself as eye witness. This shows that PW-2 is a
got up witness. The trial Court has held that
PW-2 has not witnessed the incident and therefore
rightly observed that his evidence is of no help
to the prosecution as eye witness of actual
incident.
19. The prosecution has examined PW-3 Yuvraj
Jairam Pujari. He deposed that deceased was his
real elder brother. He himself, his two brothers,
one sister and parents reside jointly. He further
deposed that the incident had took place on 11 th
October, 2008, on Saturday at about 11.00 to 11.30
Cri.Apeal 1138.11
44
a.m. At that time he was present in Datta Mandir
Chowk of there vicinity. The said Chowk situate at
40 to 50 feet from his house. He further deposed
that, at that time all the accused armed with
stick, axes, scythes and swords rushed towards his
house. He further deposed that accused No.1
Deepak, accused No.2, accused No.3, accused No.4,
accused No.5, accused No.6, accused No.7, accused
No.8, accused No.9, accused No.10, accused No.11
and accused No.12, are the same persons. He knew
the said accused since his childhood. At that time
PW-2 and Shankar Sakhare were proceeding by the
motorcycle from the spot and after looking to the
accused they have left the motorcycle and fled.
Then the said motorcycle was damaged by all the
accused. Then the accused marched towards his
house. He followed them at that time his sister
Sau.Narsu tried to close the door but the door was
pushed by all the accused. At that time deceased
was sleeping in the house on cot. Then his sister
Cri.Apeal 1138.11
45
raised the shouts, till then accused started
assaulting to his brother Hira. Therefore, he
himself, his brother Yallappa [PW-1] and mother
rushed towards their house. At that time accused
No.2 given blows by means of an axe on the head of
Hira. At the same time accused No.8 and accused
No.7 assaulted his brother by means of scythes. He
further deposed that they tried to enter into the
house but were not allowed by the accused Nos.1, 4
and 6. The said accused were armed with swords and
on the point of the same, they were threatened and
not allowed to enter into the house. He further
deposed that, then he noticed Hira lying in blood
pool. Then they requested all the accused not to
assault his brother Hira but at that time accused
No.4 instigated others to kill Hira. Due to the
said incident, attention of public was also
attracted at the spot. Thereafter also accused
Nos.10 and 12 threatened them not to enter in the
house. Then due to the arrival of the public and
Cri.Apeal 1138.11
46
the crowd accused fled from the spot.
20. PW-3 Yuvraj further deposed that, then
one Sanjay Gokhale, Mangesh Nimbare had lifted
injured Hira and carried him to Shaswat Hospital.
He also accompanied them. In the said Hospital,
Hira was declared dead by the Doctor. Then as per
the instruction of the Doctor, body of Hira was
carried to the Sasoon Hospital. He further deposed
that in respect of the said incident,
Investigating Officer has recorded his statement
on 12th October, 2008. He further deposed that he
can identify above said sticks, axes, swords and
scythes if shown.
21. During the course of cross examination,
he stated that Narsu is his real sister, Yallappa
is his real brother and the deceased was his step
brother. He further stated that Sau.Narsu after
the marriage is residing with them. Deceased was
Cri.Apeal 1138.11
47
jobless. Their vicinity is the thickly populated.
He further stated that Ganesh Mandal of his group
and Ganesh Mandal of group of accused are separate
and therefore on account of collecting
contribution of both the Mandals for installation
of God Ganesh oftenly there used to be quarrels
between the members of the said Mandals. He admits
that the accused have filed criminal cases against
PW-2 and the deceased. He further admits that
accused have filed criminal cases against the
members of his Ganesh Mandal. He further stated
that all the quarrels stated above had taken place
during Ganpati Festival. He further admits that
before the incident in the night, quarrel took
place between Yogesh Nimbare [PW-2] and his
rivals. He admits that Alankar Police Outpost
situate 2-3 minutes distance by walk from his
vicinity. He further stated that his father
possessed splendor plus motorcycle and his friends
residing in their vicinity do possess bikes. The
Cri.Apeal 1138.11
48
distance between Alankar Police Outpost and their
vicinity by walk is 15-20 minutes. He is Car
Driver on the vehicle of one Mrs.Mimli Datta and
attends duties in between 10.00 a.m. to 6.00 p.m.
and used to have weekly offs on each Saturday and
Sunday. The culprits who entered in his house had
departed from there after 15 minutes. During the
said span, all the culprits were continuously
assaulting to his brother Hira by means of
weapons. They have forcefully given blows on the
person of Hira by means of above stated weapons.
He further stated that during the said span of
time, he had no occasion to enter into the house
as he was not allowed to do so. During the period
of said assault, his sister Sau.Narsu was inside
the house. He further stated that he had witnessed
his sister rescuing his brother Hira from assault.
He further stated that he had witnessed each
culprit having given 3-4 blows on the person of
Hira. He further stated that he had no occasion to
Cri.Apeal 1138.11
49
lift his injured brother for carrying him to
Hospital. He did not render assistance to the
persons who had carried injured in the Hospital.
While making statement before the Police, it was
stated by him that he followed Sanjay Gokhale and
Yogesh Nimbare when they had carried injured in
Shaswat Hospital, however, his statement is silent
in that respect. He was unable to assign any
reason for the same. He further stated that at the
relevant time cell phone was possessed by him and
not by PW-1. He further stated that on the said
date it was possible to dial hundred number for
police aid but on account of holiday, on Saturday
and Sunday, he used to switch off his cell phone
completely. He further stated that when he visited
Shaswat Hospital, Police had been to the Hospital,
however, at that time he did not approach the
police, and did not narrate the said incident to
them though he was feeling to narrate the same.
He further stated that, in Sasoon Hospital Police
Cri.Apeal 1138.11
50
Outpost situate near entrance gate. He further
stated that, to the said police also, he did not
narrate the incident, and such incident was not
narrated by him to the police till the time of
recording his statement.
22. During the course of further cross
examination, PW-3 Yuvraj has stated that in the
next day morning, he had dialogue with his sister
Narsu about lodging the report of the incident. He
further stated that, he had dialogue with PW-1 and
sister Narsu in mentioning the names of all the
culprits. No enquiry was made by him with the said
witnesses, whether they have informed about it to
the police. He further stated that on the muddemal
articles identified by him there is no specific
identification mark on each and such property is
easily available in market. He further stated that
to all three sides of their house, there was no
window. He further stated that their house is
Cri.Apeal 1138.11
51
having only one door and one window and at the
time of incident, curtain was applied to the
window only. He further stated that deceased was
facing criminal cases and PW-2 is also facing
criminal cases. He further stated that while
making statement it was stated by him that Deepak
Shinde [accused No.1] did not allow to enter into
the house to save his brother but further admits
that his statement is silent to that effect and he
was unable to assign any reason for the same. He
further admits that PW-2 Yogesh Nimbare and PW-4
Mangesh Nimbare are his fast friends and likewise
they were friends of the deceased. He admits that
one day prior to the incident quarrel took place
between PW-2 and Santosh Mokar. He further admits
that on 11th October, 2008, again quarrel took
place between said persons and father of PW-2. He
further stated that till the date of recording his
evidence, he was not aware whether police had
prepared the panchanama of the spot. He further
Cri.Apeal 1138.11
52
admits that, they were not having any sort of
strained relations with accused No.6, his brother
Santosh and their family members. He further
admits that accused No.10 is not member of any
Ganesh Mandal, and he is not resident of their
vicinity. He further stated that while making
statement before the Police it was stated by him
that accused No.l0 had obstructed him from
entering into the house for saving brother Hira
but his statement is silent to that effect and for
which he was unable to assign any reason. He
further stated that he has no strained relations
with accused No.11 and admits that said accused is
not member of their Ganesh Mandal. A suggestion
was put to this witness that due to pendency of
many criminal cases against deceased, he was
having many more enemies. He denied the suggestion
put to him that unknown persons / enemies have
committed murder of his brother hence he has
falsely named the accused persons.
Cri.Apeal 1138.11
53
23. Upon perusal of evidence of PW-3 though
he states that for 15 minutes the accused were
continuously assaulting his brother Hira and
further he has seen that, each accused has given
3-4 blows to Hira, but in next breath he stated
that he was not allowed to enter in the house by
the accused persons. The prosecution has brought
on record that entire incident took place in the
house itself. When this witness was not allowed to
enter in the house, then, it is not possible to
believe that he has witnessed the actual incident
of assault. PW-3 further stated that for about 15
minutes continuously all the assailants were
assaulting his brother Hira. However, if the
medical evidence is perused, it shows that
deceased Hira received in all 7 external injuries.
If the evidence of PW-3 is accepted that 12
accused persons were continuously assaulting Hira
for about 15 minutes with deadly weapons which he
Cri.Apeal 1138.11
54
has described, in such situation Hira would have
received multiple and many more injuries, and
therefore it appears that evidence of PW-3 has not
witnessed the incident. PW-3 Yuvraj further admits
that at the said time of incident cell phone was
possessed by him and on the said date it was
possible to dial hundred number for police aid.
But he further stated that, on account of holiday
on Saturday and Sunday, he used to switch off his
cell phone completely. It is difficult to believe
that, when such serious incident of assault on his
real brother Hira was taking place, and he was
very well present there, having cell phone with
him, but he has not switched on his cell phone to
call the police for reporting the incident and
saving his brother from the assault. Further he
has stated that, he himself and his brother
Yellappa (PW-1) have not tried to lift Hira and
take him to the hospital after the incident. This
conduct of the witness appears to be unnatural.
Cri.Apeal 1138.11
55
PW-3 further admits that for the first time, he
has stated that Sanjay Ghokhale and Mangesh
Nimbare carried Hira to Shashwat Hospital. This
material improvement shows that PW-3 has tried to
fill in the gap by making this additional
statement. PW-3 further admits that, till his
statement was recorded by the Police on 12 th
October, 2008, he did not disclose or narrate the
incident to anybody. Thus it is difficult to
believe that, this witness was present on the spot
when the incident was going on. The conduct of PW-
3 is not natural as he has not tried to rescue his
brother Hira from the assault. PW-3 Yuvraj has
specifically admitted that on the next day morning
of incident, he had dialogue with his sister Narsu
about lodging the report of the incident and he
had dialogue with PW-1 Yallappa and sister Narsu
in mentioning the names of all the culprits. Thus
it is clear that after due deliberation with his
sister Narsu and his brother Yallappa (PW-1), this
Cri.Apeal 1138.11
56
witness decided to lodge the report and to name
all the accused persons.
24. The prosecution has examined PW-4 Mangesh
s/o Ajit Nimbhare. He deposed that he born and
brought up at Gosavi Vasti, Happy Colony, Kothrud.
He was knowing the deceased. The incident had
taken place on 11th October, 2008 at about 12.00 to
12.30 noon. At that time he was in lane No.1 near
Ganesh Temple. At that time, accused Nos.3, 2, 8,
11, 7, 5, 6, 9, 4, 10 and accused No.12 armed with
weapons noticed proceeding towards the house of
deceased. He followed them. At that time PW-2 and
Shankar Sakre were proceeding by their bike by
canal road, however, they dropped their bike on
that spot due to arrival of accused armed with
weapons, and fled towards the house of Somnath
Khavale. Then the accused persons had caused
damage to the bike of PW-2 and Shankar Sakare.
Then, they all proceeded towards the house of the
Cri.Apeal 1138.11
57
deceased and entered into the house, therefore,
there was commotion. Then they assaulted to Hira
Pujari. Thereafter shouts were raised by the
family members of Hira Pujari. After assault the
accused left the house of Hira Pujari. Thereafter,
he heard noise of weeping from the house of Hira
Pujari, hence he had been there, and entered in
the house. Then he noticed Hira Pujari lying in
injured state in pool of blood in his house.
Therefore this witness himself, Sanjay Gokhale,
lifted injured in their arms and carried him in
Shaswat hospital through auto rickshaw. Then
within 2-3 minutes police had been to the said
hospital. Thereafter, doctor declared Hira Pujari
dead. He further deposed that, when the police
inquired with PW-1, PW-2 and he himself, as to who
had assaulted Hira, then he informed the names of
all the accused to police about being author of
the incident. Police have recorded his statement.
Cri.Apeal 1138.11
58
25. During the course of cross-examination,
PW-4 Mangesh Nimbare stated that, his statement
has been recorded by the Investigating Officer in
Shaswat Hospital itself. When he himself and
Sanjay Gokhale lifted injured, their clothes were
stained with his blood, however nothing was
informed to the police in that respect. His shirt
and shirt of Sanjay Gokhale were stained with
blood. When police inquired him about the
incident, no inquiry thereto was made by the
police with Sanjay Gokhale. There was no
impediment to inform the police that their clothes
were stained with blood of the injured. After the
statement recorded at Shaswat hospital,
Investigating Officer has not made any inquiry
with him nor has recorded statement. On 12 th
October, 2008 no statement was made by him before
the Investigating Officer. PW-2 Yogesh is his real
brother. At the time of inception of incident,
PW-3 Yuvraj was not with him at Ganesh Temple as
Cri.Apeal 1138.11
59
he was alone there. When the body was moved to
Sasoon Hospital, he did not accompany it. He
admits that PW-2 Yogesh was facing criminal
trials. He further admits that from the spot where
he was stand up at the time of incident, the
incident going on in the house of Hira was not
visible. When he lifted injured, he noticed
injuries sustained on the body of Hira on
particular part. There were no injuries on calfs
of legs, thighs. No injuries were found on
stomach, back, hand and shoulder of Hira. While
making statement, it was stated by him that from
some distance, injured was carried to Shaswat
Hospital, but he admits that his statement is
silent to that effect and for which he was unable
to assign any reason.
26. During the course of further cross
examination, PW-4 Mangesh stated that he does not
know whether on 10th October, 2018, there was
Cri.Apeal 1138.11
60
quarrel between PW-2 Yogesh and Santosh Mokar. He
does not know whether on next day also, quarrels
took place between the said person and father of
Sagar Mokar. His statement was not read over by
the Investigating Officer to him. The portion mark
'A' appearing in his statement is correct. On
next day also, quarrel took place. He does not
know whether PW-2 Yogesh and Santosh Mokar have
lodged report against each other with Police.
While making statement to the Police, name of
accused No.6 was stated by him to the
Investigating Officer, but he admits that his
statement is silent to that effect and he was
unable to assign any reason for the same. While
making statement, he has stated that accused Nos.9
and 10 armed with weapons were witnessed by him,
but he admits that his statement is silent to that
effect and he was unable to assign any reason for
the same. He further stated that the population
of their vicinity is of about 5000. It is hutment
Cri.Apeal 1138.11
61
area and thickly populated. All the house situate
in the said area are attached to each other.
He further stated that he is facing one criminal
case of physical assault.
27. The perusal of evidence of PW-4 Mangesh
shows that, he was not present on the spot at the
time of incident. If entire evidence of PW-4 is
perused, he is silent about the presence of PW-1
(Yallappa), PW-2 (Yogesh), PW-3 (Yuvraj) and PW-16
(Narsu) at the spot of incident. This is quite
contradictory and conflicting evidence to that of
the other witnesses. It appears that the statement
of this witness and other prosecution witnesses
were recorded on 12th October, 2008 i.e. on the
next day of the incident. The defence has brought
on record material contradictions and omissions in
the evidence of this witness in respect of
involvement of accused Nos.6, 9 and 10. This
witness is also highly interested and real brother
Cri.Apeal 1138.11
62
of PW-2 and also friend of deceased and PW-1 and
PW-3. The prosecution has failed to examine Sanjay
Gokhale, who is material and important witness.
The prosecution has also failed to examine mother
of the deceased. The case of the prosecution that
PW-4 along with Sanjay Gokhale took the deceased
to the hospital does not appear to be true.
28. The prosecution has examined PW-5 Anita
Ajit Nimbare. In her examination-in-chief she
stated that, she is residing at Happy Colony, Lane
No.2, Kothrud-Pune, since last 25 years. She was
knowing the deceased being resident of same
vicinity. The incident had taken place on 11th
October, 2008 at about 12 to 12.30 noon when she
was present in the entrance door of her house. At
that time from lane No.1 towards lane No.2 some
boys came, those were accused No.8, deceased
Balaji Chavan and accused No.2. She further
deposed that accused No.7 is shown as accused
Cri.Apeal 1138.11
63
No.11 and she was unable to name other persons,
but she deposed that in all there were 12-13 boys.
They were armed with swords, sticks and axes. Out
of the said boys somebody uttered words, catch up
the mother of Yogesh. Thus, due to fear of the
said boys, she hide herself in the house of one
Bhangarwala. As her son PW-4 Mangesh was in the
same vicinity, after 10-15 minutes, she had been
in search of Mangesh. At that time, she noticed
commotion from the house of deceased. Then she
entered in the house of deceased and noticed him
lying in pool of blood. Then, PW-4 Mangesh and
Sanjay Gokhale had carried injured Hira to Shaswat
Hospital.
29. During her cross examination, PW-5 Anita
stated that, Investigating Officer had recorded
her statement on the date of incident. Statement
of mother of deceased, and PW-2 Yogesh was also
recorded by the police. Before statement of PW-1
Cri.Apeal 1138.11
64
was recorded by the Investigating Officer, she had
dialogue with them. She further stated that, at
that time informant and her mother informed her
about Hira being assaulted by unknown persons.
Accordingly, statement was made by her to the
Investigating Officer. She admits, police had
informed her to depose that, she had witnessed
some persons armed with sticks, axes and swords
and accordingly she deposed.
30. Upon careful perusal of the evidence of
PW-5 Amita, it is crystal clear that she has not
seen the incident nor she was present at the spot.
During her cross examination, she has specifically
stated that, during the relevant time informant
and her mother informed her about Hira being
assaulted by unknown persons, and accordingly
statement was made by her to the Investigating
Officer. This admission given by PW-5 (Anita)
washed out the entire prosecution case that
Cri.Apeal 1138.11
65
accused persons assaulted Hira. She further
admitted that police had informed her to depose
that she had witnessed some persons armed with
sticks, axes and swords and accordingly she
deposed. Thus, it is clear that she has not seen
accused persons going towards the house of the
deceased, armed with weapons, prior to the
incident. However, she has deposed about the same
as per the say of the police. It is pertinent to
note that PW-5 (Anita) is mother of PW-2 (Yogesh)
and PW-4 (Mangesh), who are friends of deceased
and his brothers, and therefore, highly interested
witness.
31. The prosecution has examined PW-6 Sou.
Manda Sarjerao Khavale. PW-6 in her examination-
in-chief deposed that the house of the deceased
situate to the back side of her house, hence
deceased and his family members are known to her.
The incident had taken place on 11th October, 2008
Cri.Apeal 1138.11
66
at 12.00 noon, when she was cooking food in her
house. At that time, PW-2 Yogesh and his friend
rushed to her house. They asked her to allow them
to have shelter in her house as some boys of
Chavan were chasing them. Thereafter, she heard
noise of breaking glasses and tin sheets and so
she was frightened. After five to ten minutes she
came towards canal and noticed some boys carrying
blood stained scythes and proceeding towards
'nulha'. Out of the said boys, three were known to
her namely Dhananji Chavan, Bandu Chavan. Accused
Nos.2 and 3 are the same Bandu and Dhananjay.
32. PW-6 Manda further deposed that,
thereafter she had been to the house of Hira
Pujari and noticed him lying in pool of blood in
his house. In this regard, Investigating Officer
has recorded her statement on next day of the
incident.
Cri.Apeal 1138.11
67
33. During the course of cross examination,
PW-6 Manda has stated that she had two sons namely
Gokul and Somnath. She admits that prior to the
incident on the allegations of house breaking of
the house of accused Nos.2 and 3, her two sons
were arrested by the Police. She admits that due
to the said incident, relations between themselves
and the accused were strained. She further admits
that quarrel took place between PW-2 Yogesh and
accused Nos.2 and 3. She further stated that after
the incident, she witnessed police in front of the
house of the deceased. At that time, she being
neighbourer of the deceased, Police made enquiry
with her about the incident. Therefore, statement
was made by her about having no knowledge who was
the author of the incident of killing Hira. She
further admits that on the next day as per the
call of PW-2 Yogesh, she had been to the police
station. She further admits that as the accused
Nos.2 and 3 are resident of their vicinity, she
Cri.Apeal 1138.11
68
had identified them. She further stated that she
did not remember whether she had made statement
before the Police having had witnessed some boys
passing from the side of house of Hira, armed with
blood stained swords, sticks and axes. Her
statement is silent in that respect and she was
unable to assign reason for the same.
34. Thus upon perusal of the evidence of PW-6
it has been stated that, she had noticed some boys
carrying weapons, and named only two accused
persons i.e. accused No.2 Bandu and accused No.3
Dhananjay. She further stated that, statement was
made before the Police that she was not having
knowledge about who was the author of the incident
of killing Hira. Her statement was not recorded
till next day of the incident nor she has
disclosed anything to the Police. Though she has
deposed that she heard the noise of breaking
glasses and tin sheets. However, the prosecution
Cri.Apeal 1138.11
69
has not brought on record any panchanama drawn to
that effect. Thus it appears that at the instance
of PW-1 to PW-5, PW-6 has given false oral
account. Further she has specifically admitted in
her cross examination that, her sons were arrested
by the police at the instance of accused Nos.2 and
3. Therefore, possibility cannot be ruled out that
out of vengeance she has deposed against the
accused persons.
35. The prosecution has examined PW-7 Rahul
Jalindar Khandare. PW-7 Rahul in his examination-
in-chief stated that on 11th October, 2008 at about
12.15 noon, he had been at his home for lunch. At
that time he learnt about death of Hira Pujari,
and he being taken to Shaswat Hospital and
therefrom to Sassoon Hospital. Hence, he had been
in the said Hospitals. In between 4.30 to 5.15
p.m. dead body of Hira was shown to him in Sassoon
Hospital and the same was identified by him. He
Cri.Apeal 1138.11
70
further deposed that on the person of Hira, four
injuries were found on head and injuries on right
hand palm, arm and shoulder. Accordingly, inquest
panchanama of the said body was drawn in presence
of him and other panch Sanjay Gokhale. This
witness further stated that, after perusing the
said panchanama, the same was signed by them. He
identified the said inquest panchanama [Exhibit-
113].
36. During his cross examination, PW-7 Rahul
has stated that he had been to Sasoon Hospital
along with the dead body and that all the while
when he was in Sasoon Hospital, PW-3 Yuvraj and
Sanjay Gokhale were with him. He further stated
that Crime No.121/2008 has been registered against
him with Kothrud Police Station, about damage
caused to private property and accusations were
made against him that he caused damage to the
houses of accused Nos.2 and 3. Thereafter chapter
Cri.Apeal 1138.11
71
case was also instituted against him in which PW-2
Yogesh and others are accused. Thus it appears
that the prosecution has examined this witness to
prove inquest panchanama Exhibit-113.
37. The prosecution has examined PW-8 Bhagwan
Pandurang Lokhande to prove the seizure panchanama
Exhibit-119 regarding seizure of clothes on the
persons of accused Nos.7 and 8 at the time of
incident. However, this witness turned hostile and
did not support the prosecution case. PW-9 Ashok
Devba Waghmare is a panch to the spot panchanama
Exhibit-124. However, this witness turned hostile
and did not support the prosecution case. PW-10
Prabhakar Vishwanath Kasab is a panch to the
memorandum statement Exhibit-126 and discovery
panchanama Exhibit-127 regarding discovery of
three wheeler Tempo wherein swords were kept, at
the instance of accused No.3. However, this
witness also turned hostile and did not suppor the
Cri.Apeal 1138.11
72
prosecution case. PW-11 Anil Jannappa Devkar is a
panch to the memorandum statement and discovery
panchanama regarding swords at the instance of
accused No.1 and discovery of scythe at the
instance of accused No.8. However, this witness
also turned hostile and did not support the
prosecution case. PW-12 Ganesh Vijay Bhagat is a
panch to the memorandum statement and discovery
panchanama regarding discovery of axe at the
instance of accused No.2. However, this witness
also turned hostile and did not support the
prosecution case. PW-13 Prakash Tippanna Manjulkar
is a panch to the seizure panchanama of blood
stained clothes of accused No.7 and accused No.8.
However, this witness turned hostile and did not
support the prosecution case. PW-14 Bhagwan Baban
Chandere is a panch to the discovery panchanama of
wooden stick at the instance of accused No.9 and
discovery of sword at the instance of accused
No.11. However, this witness turned hostile and
Cri.Apeal 1138.11
73
did not support the prosecution case. PW-15
Pandurang Bhikoba Dangat is a panch to the
discovery panchanama of stick at the instance of
accused No.12 and wooden stick at the instance of
accused No.9. However, this witness turned hostile
and did not support the prosecution case.
38. Thus it is clear from the perusal of the
evidence of PW-8 to PW-15 that these are the
witnesses on memorandum statement and seizure
panchanama regarding the alleged weapons used in
the commission of crime by various accused persons
and clothes alleged to have been on the person of
accused at the time of incident. However, all
these witnesses turned hostile and therefore the
prosecution failed to prove the memorandum
statement and discovery panchanamas.
39. PW-16 Narsu Raju Jegali is the informant.
She deposed that she had three brothers and one
Cri.Apeal 1138.11
74
sister. PW-1 (Yallappa) and PW-3 (Yuvraj) are her
brothers. Deceased Hira was her brother. Regarding
the incident, she deposed that the incident took
place on 11th October, 2008 at 12.00 noon. At that
time, she was at her parents house along with her
brother Hira. Her mother had been at neighbours
house at the relevant time. PW-1 and PW-3 were
also out of the house. House of her parents
consists of two rooms, out of it, Hira was
sleeping in the first room and she was in the
second room. At that time, 10-15 persons having
concealed their faces under handkerchief entered
in their house. They were armed with swords,
scythes and axes. She further deposed that she
could not witness their faces as those were
concealed, hence she cannot state who were those
persons. She further deposed that all the above
said persons had assaulted her brother Hira by
means of above said weapons. In the said assault,
Hira had sustained bleeding injury on his head,
Cri.Apeal 1138.11
75
hand and shoulder. Due to the said incident, she
has raised shouts for help. After the assault, all
the assailants had fled from the spot. Thereafter,
she had been in Alankar Police Outpost from where
she was sent to Kothrud Police Station. Thereafter
oral report was lodged by her in the Police
Station, which computarized by the said person.
Thereafter, it was read over to her. Thereafter
the report was signed by her. Likewise her thumb
mark was taken on the report. She identified the
report dated 11th October, 2008, which bears her
signature. She further deposed that she cannot
read and write Marathi. When, the contents of the
report were read over to the witness in Marathi,
she deposed that she cannot state whether the
contents of paras 3 and 4 are correct or not. She
does not know whether accused Nos.1, 2, 3, 4, 7
and 8 are the resident of their vicinity. She
specifically denied that all the persons and
accused had assaulted Hira by above said weapons,
Cri.Apeal 1138.11
76
hence she had named them in the report. At this
point, the APP has sought permission of the Trial
Court to cross examine the witness.
40. During the course of cross examination by
the APP, PW-16 has denied that all the accused
present before the Court were resident of their
vicinity, hence she knew them. She further stated
that, she does not know whether there was quarrel
between the accused and deceased. She further
denied that she had actually witnessed that
accused Nos.1, 2, 3, 4, 7 and 8 had entered in her
house armed with swords, scythes and axes and
assaulted her brother Hira and caused him grievous
injuries. Further, all the suggestions put to her
by the APP were denied by this witness and thus
she has not supported the prosecution case.
41. During the course cross examination by
the Advocate appearing for the accused, PW-16
Cri.Apeal 1138.11
77
admitted that when the assailants entered into her
house, the door curtain was displayed in order.
She further admitted that last assailant while
departing from the spot had pulled the curtain,
hence it was torn and had fallen on the ground.
She further admits that after the incident,
injured Hira was taken to Shaswat hospital,
wherein discussion had taken place in between her,
PW-1 to PW-3 and her mother, accordingly. She
further specifically admitted that after the
incident nobody from her parents side was present
in the house, hence by phone she had called PW-1
and PW-3 on the spot. She further admits that
while lodging report, it was stated by her that
unknown persons had assaulted her brother Hira.
42. PW-16 Narsu Raju Jegali is the informant
and star witness of the prosecution. It is the
case of the prosecution that when the incident of
alleged assault took place at that time along with
Cri.Apeal 1138.11
78
deceased Hira, this witness Narsu was only present
in the house and she has opportunity to witness
the entire incident. However, this star witness on
whose oral testimony the entire prosecution case
is based, has turned hostile and did not support
the prosecution case. In her examination in chief
itself, she has specifically deposed that 10 to 15
persons having concealed their faces with
handkerchief, entered the house armed with
scythes, swords and axes. She further deposed
that she could not witness their faces as those
were concealed, hence she could not state who were
those persons. During the course of her cross
examination by APP on behalf of the prosecution,
she has denied the suggestion put to her that she
actually witnessed accused Nos.1, 2, 3, 4, 7 and 8
entering the house armed with swords, scythes and
axes and assaulted Hira and caused grievous
injuries. During the course of her cross
examination by Advocate for accused, she admitted
Cri.Apeal 1138.11
79
that while lodging report it was stated by her
that unknown persons had assaulted her brother
Hira. Thus upon careful perusal of the entire
evidence of this witness, who is informant, she
has specifically stated that 10 to 15 persons
having concealed their faces with handkerchief
entered the house armed with weapons. She has
specifically admitted that while lodging report,
it was stated by her that unknown persons had
assaulted her brother Hira. As the informant
itself turned hostile and did not support the
prosecution case, the prosecution has failed to
prove the contents of First Information Report
itself. Furthermore, PW-16 Narsu was the first
person, who saw the incident in the house and she
herself was present at that time.
. The prosecution has brought on record
that the deceased and his associates including PW-
1 to PW-4 and others were on inimical terms with
Cri.Apeal 1138.11
80
the accused persons. There were cross cases
against both the groups. We find considerable
force in the argument advanced by the learned
counsel appearing for the accused that, in fact if
the incident has taken place in presence of PW-16
and the accused persons had really assaulted the
deceased and done to death, then there is no
reason for her to give different versions in
favour of the accused and resile from her First
Information Report.
43. On careful perusal of the evidence of the
evidence of PW-5 (Anita), it is clear that she
has specifically stated that she learnt from PW-16
and her mother that, some unknown persons have
assaulted Hira.
44. PW-18 Sopan Maruti Nawadkar is a Police
Naik, who visited the spot of incident at about
12.15 noon on 11th October, 2008 and noticed that
Cri.Apeal 1138.11
81
Hira was being taken to Shaswat Hospital. PW-19
Kumari Tejaswani Jaisingh Yadav was the Police Sub
Inspector, Kothrud Police Station, Pune at the
relevant time, who conducted spot panchanama
Exhibit-163. PW-20 Vijay Vasantrao Palsule was
the Police Inspector, Deccan Police Station, Pune
at the relevant time, who arrested accused Nos.1,
2, 3, 4, 5 and 6 and taken entry in the Station
Diary to that effect [Exhibit-166]. PW-21 Arun
Balbhim Kadam was Police Inspector, Kothrud Police
Station, Pune at the relevant time. He drew
arrest panchanama [Exhibit-168] of accused Nos.1
to 6 on 13th October, 2008. He has also arrested
accused Nos.7 and 8. PW-22 Shekhar Vithalrao Koli
was Police Inspector, Kothrud Police Station, Pune
at the relevant time, who arrested accused Nos.10,
11 and 12.
45. PW-23 Anant Yashwantrao Rajeshirke and
PW-24 Vilas Narnawar are the Investigating
Cri.Apeal 1138.11
82
Officers and they have deposed about the manner in
which they have carried out investigation in the
crime.
46. We have carefully gone through the entire
evidence brought on record by the prosecution. The
prosecution has examined only interested
witnesses. PW-1 to PW-6 are from one and the same
group and closely related to deceased Hira. As
observed earlier, even the trial Court has
disbelieved the oral evidence of PW-2 (Yogesh),
who claims that at the time of incident he was
present at the spot and witnessed the entire
incident. The relations between the group of PW-1
to PW-5 and group of accused persons were strained
and several cross complaints were registered
against each others. As observed earlier, as per
the prosecution case, the incident took place at
about 12.00 to 12.30 a.m. at which time PW-1 to
PW-4 were present on the spot. It is pertinent to
Cri.Apeal 1138.11
83
note that none of these prosecution witnesses have
approached the Police Station immediately nor they
had informed Police on phone about the incident
and it is only when on the next day of incident,
when their statements were recorded by the Police,
they have narrated the incident to the Police. The
evidence on record reveals that though Police were
making inquiry by visiting the house of the
deceased and also Shaswat Hospital where PW-1 to
PW-5 and PW-16 were present, none of them had
disclosed the names of the assailants or accused
to the Police. Police panchanama, inquest
panchanama, making inquiry by visiting the place
of incident, contacting the brothers, sisters,
mother in the house and also in hospital, clearly
shows that investigation has already been started
without any official First Information Report. The
non-disclosure of the names of the accused persons
to the Police and doctor by the prosecution
witnesses at the time when first opportunity was
Cri.Apeal 1138.11
84
available to them, clearly shows that nobody knew
who were the real assailants. Though the witnesses
were present immediately after the incident, in
the house and also in the Hospital, there is no
explanation as to why the Investigating Officer
took time to record the statements till next day
of the incident. None of the panch witnesses have
supported the prosecution case and therefore all
the recovery and other panchanamas are of no use
to the prosecution. Therefore, we find
considerable force in the argument advanced by the
learned Counsel appearing for the appellants that
the possibility of false implication of the
accused persons cannot be ruled out.
47. Learned counsel appearing for the
respective Appellants placed reliance upon the
exposition of law in the reported Judgments in
respect of their submissions regarding
appreciation of evidence in a case where
Cri.Apeal 1138.11
85
allegations are of large number of accused
participated in the incident and several persons
have claimed to have seen the incident.
48. Mr. Shirish Gupte, learned Senior
Advocate appearing for the appellants, in support
of his submission about how to appreciate the
evidence of hostile witnesses, placed reliance on
the observations made in paragraph 16, in the case
of Paramjeet Singh alias Pamma Vs. State of
Uttarakhand1. In para 16 of the said judgment, it
is observed thus:
"16. The fact that the witness was declared
hostile at the instance of the Public Prosecutor
and he was allowed to cross-examine the witness
furnishes no justification for rejecting en bloc
the evidence of the witness. However, the court
has to be very careful, as prima facie, a
witness who makes different statements at
different times, has no regard for the truth.
His evidence has to be read and considered as a
whole with a view to find out whether any weight
1 [2010] 10 SCC 439
Cri.Apeal 1138.11
86
should be attached to it. The court should be
slow to act on the testimony of such a witness;
normally, it should look for corroboration to
his testimony. (Vide State of Rajasthan V.
Bhawani2)."
49. Mr.Shirish Gupte, learned Senior Advocate
appearing for the appellants, in support of his
submissions also relied upon the observation made
in paragraph 26 in the case of Lahu Kamalakar
Patil and another Vs. State of Maharashtra 3. In
para 26 of the said judgment, it is observed thus:
"26. From the aforesaid pronouncements, it is
vivid that witnesses to certain crimes may run
away from the scene and may also leave the place
due to fear and if there is any delay in their
examination, the testimony should not be
discarded. That apart, a court has to keep in
mind that different witnesses react differently
under different situations. Some witnesses get a
shock, some become perplexed, some start wailing
and some run away from the scene and yet some
who have the courage and conviction come forward
either to lodge an FIR or get themselves
examined immediately. Thus, it differs from
2 [2003] 7 SCC 291
3 [2013] 6 SCC 417
Cri.Apeal 1138.11
87
individuals to individuals. There cannot be
uniformity in human reaction. While the said
principle has to be kept in mind, it is also to
be borne in mind that if the conduct of the
witness is so unnatural and is not in accord
with acceptable human behaviour allowing
variations, then his testimony becomes
questionable and is likely to be discarded."
50. Mr. D.G. Khamkar, learned counsel
appearing for the appellants, in support of his
submissions, placed reliance upon the exposition
of law in the case of Masalti Vs. The State of
Uttar Pradesh4. In para 16 of the said judgment,
it is observed thus:
"16. ........That, no doubt is true; but where a
criminal court has to deal with evidence
pertaining to the commission of an offence
involving a large number of offenders and a
large number of victims, it is usual to adopt
the test that the conviction could be sustained
only if it is supported by two or three or more
witnesses who give a consistent account of the
incident. In a sense, the test may be described
as mechanical; but it is difficult to see how it
4 AIR 1965 SC 202
Cri.Apeal 1138.11
88
can be treated as irrational or unreasonable.
Therefore, we do not think that any grievance
can be made by the appellants against the
adoption of this test. If at all the prosecution
may be entitled to say that the seven accused
persons were acquitted because their cases did
not satisfy the mechanical test of four
witnesses, and if the said test had not been
applied, they might as well have been convicted.
It is, no doubt, the quality of the evidence
that matters and not the number of witnesses who
give such evidence. But sometimes it is useful
to adopt a test like the one which the High
Court has adopted in dealing with the present
case."
51. Mr. D.G. Khamkar, learned counsel
appearing for the appellants also relied upon the
exposition of law in the case of Chandra Shekhar
Bind and others Vs. State of Bihar 5. In para 9 of
the said judgment, it is observed thus:
"9. However, this is an incident in which a
large number of accused had participated. The
Constitution Bench of this Court has, in the
case of Masalti V. State of U.P. 6 held that
5 [2001] 8 SCC 690
6 AIR 1965 SC 202
Cri.Apeal 1138.11
89
under the Evidence Act, trustworthy evidence
given by a single witness would be enough to
convict the accused persons, whereas evidence
given by half-a-dozen witnesses which is not
trustworthy would not be enough to sustain the
conviction. It was held that where a criminal
court has to deal with evidence pertaining to
the commission of an offence involving a large
number of offenders, it is usual to adopt the
test that the conviction could be sustained only
if it is supported by two or three or more
witnesses who give a consistent account of the
incident. It was held that in a sense, the test
may be described as mechanical, but it cannot be
treated as irrational or unreasonable. It was
held that even though it is the quality of the
evidence that matters and not the number of
witnesses, still it is useful to adopt such a
mechanical test."
52. Relying upon the ratio laid down in the
aforesaid reported Judgments, learned counsel
appearing for the appellants submitted that, where
large number of accused participated in the
incident and several persons have seen the
incident, it would not be unreasonable or
irrational to adopt the test that conviction could
Cri.Apeal 1138.11
90
be sustained only if it is supported by at least
two or more witnesses, who give consistent account
of the incident. In the facts of this case, we
accept aforesaid submissions made by the learned
counsel appearing for the appellants, in view of
the number of accused involved and also seven
witnesses claim either they have seen the accused
proceeding to the house of Hira [deceased] or
accused actually assaulting deceased or accusing
going / returning back from the spot of the
incident. If afore-stated test laid down in the
case of Masalti [supra] and Chandra Shekhar Bind
[supra] is applied, in that case due to
inconsistencies in the evidence of the prosecution
witnesses and since Narsu [PW-16], who is star
witness of prosecution case, turned hostile, it
can safely be concluded that said test not
satisfied.
53. It is pertinent to note that the articles
Cri.Apeal 1138.11
91
like clothes and weapons were seized soon after
the incident on various dates. The letters
Exhibit-191 and Exhibit-214 shows that some of
the seized articles were sent to the office of the
Chemical Analyzer on 12th
November, 2009 for
Chemical Analysis. Thus, it is clear that for
considerable period the seized material was in the
custody of the investigating officer. The
prosecution has not brought on record whether the
said articles were properly sealed or not and kept
in safe custody. The Rajasthan High Court in the
case of The State V. Motia and other Accused 7, in
para no. 8 held that:
"8. Learned counsel for Motia accused
has raised a number of objections about
this evidence against Motia. In the
first place, he points out that there
is no evidence to show that after the
various articles had been recovered
from the possession of Motia, they were
7 A.I.R. 1955 RAJASTHAN 82 (Vol. 42 C.N. 27)
Cri.Apeal 1138.11
92
kept sealed so that it was not possible
for any one to sprinkle blood stains on
them while they were in the custody of
the police and before they were, sent
for examination by the Chemical
Examiner. We must point out that this
lacuna in the prosecution evidence is
there. Whenever it is desired by the
prosecution that certain articles,
which have been recovered from accused
persons are to be identified, or are to
be sent to the Chemical Examiner for
analysis, it is necessary that the
officer recovering the articles should
immediately take steps to seal them and
evidence should be produced that the
seals were not tampered with till the
identification is over, or till the
articles are sent to the Chemical
Examiner for analysis. In the absence
of such precautions it would always be
open to the accused to say that the
police later put human blood on the
articles in order to implicate the
accused. It is, therefore, necessary
for the prosecution to produce evidence
Cri.Apeal 1138.11
93
that steps were taken at once to seal
the articles, and that from the time
the articles came into possession of
the police to the time they were sent
for identification before a Magistrate
or for examination to the chemical
Examiner the seals remained intact.
This evidence is missing in this case.
It is, of course, not difficult to
sprinkle a few human blood stains on
articles recovered if somebody wants to
do so. We do not say that this was done
in the present case; but as precautions
were not taken, the argument raised on
behalf of the accused that this might
have been done remains unrefuted. Under
these circumstances, we find that we
cannot place the same reliance on the
discovery of blood stains on these
various articles as we would have done
if necessary precautions had been
taken."
54. In the facts of the present case, we find
considerable force in the argument advanced by
Cri.Apeal 1138.11
94
learned counsel for the Appellants that muddemal
articles were in the custody of the investigating
officer for considerable period and during the
said period possibility of tampering with the
muddemal articles cannot be ruled out. Considering
the over all evidence and the circumstances
brought on record, explicit reliance cannot be
placed upon the chemical analysis report.
55. Thus upon taking conspectus of entire
evidence brought on record by the prosecution, it
is clear that the informant herself has not
supported the case of the prosecution that the
accused i.e., appellants, have assaulted Hira.
PW-5 (Anita) has specifically stated that an
informant and her mother informed her about Hira
being assaulted by unknown persons. As observed
earlier, upon careful perusal of the evidence on
record, it appears that PW-1 to PW-5 have not at
all witnessed the actual incident and therefore
Cri.Apeal 1138.11
95
their oral evidence is not reliable. We are of the
considered view that upon such inconsistent and
unreliable evidence, conviction cannot be based.
56. We have carefully perused the impugned
Judgment of the Trial Court. The findings recorded
by the Trial Court are perverse. In para 39 of the
judgment, the Trial Court has observed that at
the time of incident PW-1 to PW-6 were standing
just in front of the house or near the house of
the deceased. Still the Trial Court has recorded
the findings that these witnesses have witnessed
the actual incident which had taken place inside
the house. In this context, it is pertinent to
note that the prosecution witnesses themselves
have stated that at the time of incident, the door
was closed by the accused from inside. If it is
so, then the question of witnessing the actual
incident by PW-1 to PW-6 would not arise. In
further part of the Judgment i.e. in Para-42 the
Cri.Apeal 1138.11
96
trial Court has observed that, it is eloquent
from the evidence of PW-1, 3 and 4 that the spot
was not visible i.e. from the place they did
witness accused marching to the place where the
incident had taken place. The above said findings
recorded by the trial Court in Para 42 are
contrary to the findings recorded in Para 40 of
the Judgment that, one cannot venture to say that
these witnesses have not witnessed the actual
incident. Thus the findings recorded by the trial
Court in Para 40 of the Judgment are perverse.
57. In Para 45 of the Judgment the trial
Court has recorded the findings that PW-1, PW-3
and PW-4 gave evidence about Hira Pujari being
assaulted by 10 to 15 persons. Thus, the trial
Court has recorded the findings contrary to
evidence brought on record. Though the statements
of PW-1 to PW-4 recorded by the Investigating
Officer bear the date as 12th October, 2008, the
Cri.Apeal 1138.11
97
trial Court has recorded the perverse findings
that PW-1 to PW-4 have categorically admitted that
their statements were recorded by PW-23 P.I.
Rajeshirke on the day of incident i.e. 11 th October
2018 itself.
58. In Para 69 of the Judgment the trial
Court has recorded the findings that, from the
evidence of the witnesses it is eloquent that all
the accused in order to accomplish the object of
unlawful assembly had entered in the house of Hira
Pujari so as to commit his murder by possessing
deadly weapons. In this context, it is pertinent
to note that in view of the inconsistent evidence
of PW-1 to PW-6 and medical evidence showing only
seven injuries out of it two fatal, it could not
have been concluded that, all the accused in order
to accomplish the object of unlawful assembly had
entered in the house of Hira Pujari so as to
commit his murder by possessing deadly weapons. In
Cri.Apeal 1138.11
98
fact only PW-16 had witnessed the incident but she
has not supported the prosecution case.
59. The Trial Court has not appreciated the
entire evidence brought on record in its proper
perspective and reached to a wrong conclusion. The
findings recorded by the Trial Court are not in
consonance with the evidence brought on record.
The Trial Court itself has disbelieved the version
of PW-2 Yogesh by observing that he has made
futile attempt to prove himself to be eye witness
of the entire incident. But his evidence stand
falsified on the basis of the report lodged by him
vide Exhibit-97. The Trial Court has further
observed that the said witness (PW-2) cannot be
said to be eye witness of the actual incident.
Thus the Trial Court has disbelieved the evidence
of prosecution witness PW-2, who claims himself to
be eye witness. However, the Trial Court has
believed the version of other prosecution
Cri.Apeal 1138.11
99
witnesses, who claim to be witnessed the actual
incident, though there are various contradictions
and omissions in their evidence and the same is
not trustworthy. Thus it is clear that the
reasoning given by the Trial Court is not proper
and contrary to the evidence on record.
60. We are conscious of the fact that, one
person has lost his life in his young age.
However, in absence of cogent, trustworthy,
reliable and sufficient evidence, we are unable to
subscribe the view taken by the trial Court. We
have to remind ourself of the observations made by
the Supreme Court in the case of Sarwan Singh
Rattan Singh V/s State of Punjab8, which are
reproduced as under :-
"It is no doubt a matter of regret that a foul
cold-blooded and cruel murder like the present
should go unpunished. It may be as Mr. Gopal Singh
strenuously urged before us that there is an
8. AIR 1957 SC 637(1)
Cri.Apeal 1138.11
100
element of truth in the prosecution story against
both the appellants. Mr. Gopal Singh contended
that, considered as a whole the prosecution story
may be true; but between `may be true' and `must
be true' there is inevitably a long distance to
travel and the whole of this distance must be
covered by legal, reliable and unimpeachable
evidence."
61. Thus upon re-appreciation of entire
evidence, we are of the considered opinion that,
the evidence brought on record by the prosecution
is not sufficient and cogent to form basis for
conviction. So also, the evidence on record do
not establish beyond reasonable doubt, that it is
the accused persons, who have committed the act of
murder of the deceased, and involvement of person
other than accused is completely ruled out. There
is no clinching and credible evidence to convict
the accused for the offences levelled against
them. The reasons and findings recorded by the
Trial Court are found to be perverse and based
upon improper appreciation of evidence on record
Cri.Apeal 1138.11
101
and findings are not sustainable in law. We are of
the view that the prosecution has failed to prove
the guilt against the accused beyond reasonable
doubt. Therefore, the accused deserves to be given
benefit of doubt.
62. In the light of discussion in foregoing
paragraphs, an inevitable conclusion is that the
appellants are entitled for the benefit of doubt.
Hence we pass the following order :
O R D E R
(I) All the Criminal Appeals i.e. Criminal Appeal Nos.1138 of 2011, 181 of 2012, 1295 of 2011, 1126 of 2011, 1223 of 2011 and 447 of 2014 are hereby allowed.
(II) The Judgment and order dated 6 th August, 2011, passed by the Additional Cri.Apeal 1138.11 102 Sessions Judge-11, Pune in Sessions Case No.656 of 2009, thereby convicting and sentencing the Appellants - original accused Nos.1 to 12 i.e. accused No.1 - Dipak Sakharam Shinde, accused No.2 - Bandu Mohan Chavan, accused No.3 - Dhananjay Mohan Chavan, accused No.4 - Navnath Madhu Pawar, accused No.5 - Nitin Tukaram Chavan, accused No.6 - Sagar Prakash Mokar, accused No.7 - Dnyaneshwar alias Chadi alias Zipra Ramchandra Sathe, accused No.8 - Vijay Bhanudas Chavan, accused No.9 - Mahendra alias Waghya Arun Waghmare, accused No.10 - Rahul Laxman Padwal, accused No.11 - Sagar Hiraman Chavan and accused No.12 - Sharad Nana Chavan for the offence punishable under Sections 143, 147, 148, 449, 302, 427 read with 149 of the Indian Penal Code, Cri.Apeal 1138.11 103 is quashed and set aside.
(III) All the Appellants - original accused Nos.1 to 12, are acquitted of the offence punishable under Sections 143, 147, 148, 449, 302, 427 read with 149 of the Indian Penal Code. Fine amount, if deposited as per the impugned Judgment and order, be refunded to the Appellants. (IV) The order passed by the trial Court to the extent of acquitting the Appellants-original accused of the offence punishable under Section 25 (1B) (b) read with 4 of the Arms Act, is hereby confirmed.
(V) The Appellants - original accused are in jail, they be set at liberty forthwith, if not required in any other Cri.Apeal 1138.11 104 case.
(VI) All the Appellants shall furnish Personal Bond of Rs.15,000/- each and surety in the like amount each, under Section 437-A of the Code of Criminal Procedure, before the concerned trial Court at Pune.
(VII) In view of the order passed in Criminal Appeals, Criminal Application No.248 of 2018 in Criminal Appeal No.181 of 2012 and Criminal Application No.249 of 2018 in Criminal Appeal No. 1138 of 2011 do not survive and the same stands disposed of, accordingly.
[MRS.MRIDULA BHATKAR, J.] [S.S. SHINDE, J.]
Digitally signed
Jyoti by Jyoti
Prakash Pawar
Prakash Date:
Pawar 2018.10.01
12:22:00 +0530