Bombay High Court
State Of Maha, Thru Pso vs Walmik Undraji Gawande And 4 Ors. on 19 November, 2025
2025:BHC-NAG:12437-DB
1 CRI. APEAL.558-2006.JUDGMENT.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 558 OF 2006
State of Maharashtra,
Thr. Police Station Officer,
Police Station Murtijapur,
District Akola. APPELLANT
Versus
1. Walmik Undraji Gawande,
Aged about 48 Yrs. Occ. Labourer,
2. Mangesh Walmik Gawande,
Aged about 20 Yrs. Occ. Cultivator,
3. Asha Wd/o Uttamrao Khandare,
Aged about 45 Yrs. Occ. Labourer,
4. Vinod Uttamrao Khandare,
Aged about 23 Yrs. Occ. Service,
5. Jitendra Uttamrao Khandare,
Aged about 21 Yrs. Occ. Labourer,
All R/o. Goregao, Tq. Murtijapur,
Distt. Akola. RESPONDENTS
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Ms. Shamsi Haider, APP for the Appellant/State.
Mr. R.B. Gaikwad, Advocate Assist to Prosecution.
Mr. S.V. Sirpurkar, Advocate for the Respondents.
-----------------------------------------------
2 CRI. APEAL.558-2006.JUDGMENT.odt
CORAM : URMILA JOSHI PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 6th NOVEMBER, 2025.
PRONOUNCED ON : 19th NOVEMBER 2025.
ORAL JUDGMENT :- (PER : URMILA JOSHI PHALKE, J.)
1. This Appeal is directed against the judgment and order of acquittal passed by the Additional Sessions Judge, Akola in Sessions Trial No.185/2003 dated 29.06.2006.
2. Brief facts of the prosecution case emerges from the Police papers and recorded evidence are as under:
2(i). The FIR came to be lodged by Sarala Dilip Sardar at Murtizapur Police Station alleging that the house of accused Ashabai Uttam Khandare and deceased Ramesh Shrawan Sardar was in front of each other at Village Goregaon, Taluqa Murtizapur. Said Ashabai has three sons namely Vinod/accused No.4, Jitendra/accused No.5 and Ravindra. Accused No.1/Walmik is brother-in-law of Ashabai who has also three sons namely Mangesh, Vinod and Rahul. Mangesh is accused No.2. There was a public water tap in front of the house of Ashabai, from which all residents in the locality fetch water. On
3 CRI. APEAL.558-2006.JUDGMENT.odt 03.07.2003 at about 08.30 a.m., when accused No.3/Ashabai was fetching water, the daughter of Ramdas Sardar namely Sheetal and Pradnya were also on the water tap and there was quarrel and exchange of hot words between them. The deceased Ramesh intervened in the said quarrel and allegedly abused Ashabai and also threatened her of her life. Thereafter, Ashabai approached to the Police Station Borgaon Manju and lodged the report.
2(ii). In the evening of the same day at about 05.30 p.m., when deceased Ramesh, Ramdas and Harshwardhan were sitting on the platform in front of the house of Ramesh Sardar, accused Ravindra Khandare and Rahul Gawande assaulted them. They were also allegedly assaulted by Walmik. As per the allegation Walmik Gawande gave axe blow on the head of deceased Ramdas, while Ramesh Sardar was assaulted by Vinod Khandare and Mangesh Gawande by Pipe and stick. Harshwardhan was also assaulted by knives by the accused persons, whereas accused Ashabai assaulted them by stick. As a result, Ramdas Sardar fell in the gutter in front of the house of Ashabai, Ramesh Sardar fell near the tap and Harshwardhan fell 4 CRI. APEAL.558-2006.JUDGMENT.odt on the ground near the house of Ramesh Sardar. Deceased Ramesh and Ramdas died on the spot, whereas Harshwardhan died during treatment in the Hospital on 11.07.2003. 2(iii). The Police from Borgaon Manju Police Station received the information about the said incident by wireless message. The P.S.O. Investigating Officer namely P.I. Shri Bhagat rushed to the spot and obtained the report of Sarla Dilip Sardar and registered the crime. After registration of the crime, wheels of the investigation started rotating. Injured Harshwardhan was admitted in the Hospital, whereas dead bodies of Ramesh and Ramdas were forwarded for post mortem examination. In the said incident, accused Walmik, Ashabai and Ravindra had also sustained the injuries and they were admitted in the Hospital at Murtizapur. The Investigating Officer also visited the alleged spot of incident and drawn the Spot panchnama. He also drawn the Inquest panchnama on the dead bodies of Ramesh and Ramdas. The accused persons were arrested. At the instance of the accused, incriminating weapons of the offence were recovered. The clothes of the deceased as well as the clothes of the accused were seized by drawing Seizure memos and after 5 CRI. APEAL.558-2006.JUDGMENT.odt completion of the investigation, the charge-sheet was filed against the accused persons.
2(iv). As the offence registered under Section 302 of the Indian Penal Code, which is exclusively triable by the Court of Sessions, learned Magistrate committed the case to the Court of Sessions. The Charge was framed against the accused vide Exh.39. The contents of the Charge were read over to the accused persons. They pleaded not guilty and claimed to be tried. In support of the prosecution case, the prosecution has examined in all 11 witnesses, as follows:
(i) PW-1 Sarala Dilip Sardar Exh.45 Informant
(ii) PW-2 Sheetal Ramdas Exh.47 Eyewitness Sardar
(iii) PW-3 Mukta Ramesh Sardar Exh.48 Eyewitness
(iv) PW-4 Kanchan Bharat Exh.49 Eyewitness Sardar
(v) PW-5 Prakash Markasrao Exh.51 Panch on inquest Wankhade panchnama of Harshwardan Sardar
(vi) PW-6 Wasudeo Madhukar Exh.53 Panch on seizure Patond memo and spot panchnama
(vii) PW-7 Dr. Vijay Rambhau Exh.56 Medical Officer Kalane
6 CRI. APEAL.558-2006.JUDGMENT.odt
(viii) PW-8 Ramchandra Exh.62 Panch on seizure Sakharam Athawale memos
(ix) PW-9 Pramod Trimbakrao Exh.73 Panch Gawande
(x) PW-10 Govind Dagaduji Exh. 93 Investigating Officer Hirekar
(xi) PW-11 Manohar Gyanbaji Exh. 98 Investigating Officer Bhagat 2(v). Besides the oral evidence, the prosecution placed reliance on Oral Report-Exh.46, Inquest panchnama-Exh.52, Seizure memo-Exh.54, Spot panchnama-Exh.55, PM reports of deceased-Exhs.57 to 59, Inquest panchnama Exhs. 60 & 61, Seizure memos Exhs. 63 to 66, Duty Pass issued to Police Head Constable Shafi-Exh. 67, Invoice Challan-Exh. 68, Memorandum statement of Child in conflict with law-Exh.74, Memorandum statement of accused Vinod-Exh. 75, Recovery panchnama-Exhs. 76 and 77, Seizure memo-Exhs.78 & 79, Memorandum statement of accused Mangesh-Exh.80, Memorandum statement of accused Vinod-Exh.81, Memorandum statement of accused Jitendra-Exh.82, Memorandum statement of Child in conflict in law-Exh.83, Memorandum statement of accused Asha-Exh.84, Memorandum statement of accused Walmik-Exh. 85, Station Diary 7 CRI. APEAL.558-2006.JUDGMENT.odt Extract-Exhs.94 and 95, F.I.R.-Exh.96, Recovery Panchnama of Article-Exh.99, Recovery Panchnama of Article at the instance of Child in conflict in law-Exh.100, Recovery Panchnama of Article-Exh. 101, Recovery Panchnama at the instance of accused Asha-Exh.102, Recovery Panchnama at the instance of accused Walmik-Exh. 103, Seizure memo-Exh.104, Letter to Deputy Director Forensic Science Lab-Exh. 105 and CA Reports-Exhs. 106 to 111.
2(vi). After recording the evidence, the incriminating evidence is put to the accused for seeking their explanation by recording their statements under Section 313 of the Code of Criminal Procedure. The defence of the accused is of right of private defence. In support of the defence accused have examined DW-1/Ravindra Uttamrao Khandare vide Exh.135, DW-2/Rahul Walmikrao Gawande vide Exh.136, DW-3/ Dr. Vinayak Laxman Zaparde vide Exh. 139 and also relied upon the Medical certificates Exhs. 140 to 142.
2(vii). After recording the evidence and appreciating the same, the Trial Court come to the conclusion that the entire genesis of the incident is suppressed by the prosecution. The 8 CRI. APEAL.558-2006.JUDGMENT.odt injuries on the person of the accused are not explained. The evidence of the eyewitnesses is suffering from inconsistencies and improvements and also considered the right of private defence of the accused and acquitted them.
2(viii). Being aggrieved and dissatisfied by the same, the present Appeal is preferred by the State on the ground that in the alleged incident three persons had lost their lives. The Trial Court has not considered the evidence of the eyewitnesses and wrongly and erroneously acquitted the accused. In view of that, the Appeal deserves to be allowed and judgment and order of acquittal be quashed and set aside and the accused be convicted.
3. Heard Ms. Haider, learned APP for the Appellant/State and Mr. Gaikwad, learned Counsel for the original Informant.
4. Learned APP vehemently submitted that, the prosecution has proved the homicidal death of three persons namely Ramesh, Ramdas and Harshwardhan. The evidence of Medical Officer PW-7/Dr.Vijay Kalane establishes the injuries 9 CRI. APEAL.558-2006.JUDGMENT.odt sustained by the deceased and the death is homicidal one. Evidence of PW-1/Sarala, PW-2/Sheetal and PW-3/Mukta who are the eyewitnesses consistently stated that it was the accused Walmik who gave axe blow to Ramdas and accused Vinod gave axe blow to Ramesh. The deceased Harshwardhan has also sustained the injuries in the alleged incident and died during the treatment.
5. She further invited our attention towards the evidence of Panch witness PW-9/Pramod Gawande who stated regarding the Memorandum statement of the accused and discovery of weapons at their hands. The evidence of PW-10/Govind Hirekar and PW-11/Manohar Bhagat also corroborates the story of the prosecution. The weapons are also recovered at the instance of accused Mangesh, Vinod, Asha and Walmik. The two child in conflict with law were also prosecuted and the weapons were recovered at their instance also. The evidence of these witnesses further corroborated by scientific evidence i.e. CA Report Exh. 106 shows that the blood stains are found of Blood Group of the deceased Ramesh, Ramdas and Harshwardhan on incriminating weapons recovered at the 10 CRI. APEAL.558-2006.JUDGMENT.odt instance of the accused. Thus, the entire evidence on record sufficiently shows the involvement of the present accused persons. In view of that, the Appeal deserves to be allowed.
6. Learned Counsel for the Informant placed on record his written submissions and endorsed the same contention of learned APP.
7. Per contra, Mr. Sirpurkar, learned Counsel for the accused, submitted that the law is well settled as far as the Appeal against acquittal is concerned. He submitted that, it is a settled legal position that, the interference with the finding of the acquittal recorded by the learned Trial Judge would be warranted by this Court if the judgment of acquittal suffers from patent perversity and the same is based on omission to consider material evidence on record. The acquittal cannot be set aside merely because different view is taken by the Trial Court.
8. He invited our attention towards the fact that, the injuries on the person of the accused are not explained. He submitted that, the entire genesis of the incident itself is suppressed by the prosecution. The blood stains are found near 11 CRI. APEAL.558-2006.JUDGMENT.odt the door of the house of the accused Asha, whereas the prosecution has come with the case that the alleged incident has taken place in front of the house of deceased Ramesh. The Investigating Officer has admitted during the cross-examination that, it was the deceased persons who were aggressors, who assaulted Asha and also attempted to outrage her modesty, and therefore, to protect Asha the accused have exercised the right of private defence. Considering the injuries sustained by the accused persons which were vital in nature, the prosecution ought to have explained the same, on failure to do so, the benefit of right of private defence is rightly given to the accused and no interference is called for.
9. After hearing both the sides and on perusal of evidence it is undisputed that, three persons namely Ramesh, Ramdas and Harshwardhan have lost their lives in the alleged incident. As far as their death whether homicidal or not is concerned, is not seriously challenged by the defence. To prove the homicidal death of deceased Ramesh, Ramdas and Harshwardhan the evidence of PW-7/Dr. Vijay Kalane is material, who deposed vide Exh. 56 that, the dead body of 12 CRI. APEAL.558-2006.JUDGMENT.odt Ramesh Shrawan Sardar was forwarded to him, on examining he found following injuries as external injuries on his person:
"(1) CLW 2 ½ x ½ " x bone deep over right frontal bone, obliquely placed.
(2) C.L.W. 4 ½ x 1 " x bone deep, over right parital bone, of skull, with effused clotted blood.
(3) C.L.W. on left occipito parital region, of size 5 x 1 ½ " x bone deep, with fracture of 'L' shape of size 6 x 3 cms, with effused clotted blood.
(4) Linear incised wound, over right frontal vertically placed, of size 3 x ½ x ¼ cm.
(5) Contused swelling over right forearm, upper one third portion."
9(i). His further evidence shows that, all these injuries were caused due to hard and blunt object and anti mortem in nature. Upon internal examination, he found following internal injuries:
"(1) On eversion of scalp, I found haematoma, all over the scalp, spreading all parital, with 'L' shape fracture, of size 6 x 3 cms, over occipito posterior region of the skull.
(2) Fracture of skull left parital, extending radiating to right parital, the length was 8 inches, just above,
13 CRI. APEAL.558-2006.JUDGMENT.odt 1" of right ear with effused clotted blood with laceration of veins."
9(ii). He deposed that, the cause of death was due to fracture of skull bone with laceration of brain substance with head injuries sustained. Post mortem notes are at Exh. 57. His evidence further shows that, the external injury No.3 corresponds to the first internal injury. The second internal injury also corresponds to the same external injury. The external injury Nos. 1 to 4 are on vital parts of the body and sufficient to cause death. The injuries are possible by weapons like sticks, pipes and the reverse side of the blade of axe. 9(iii). He also conducted post mortem on the dead body of deceased Ramdas Sardar and noticed following external injuries:
"(1) One contused swelling with blackish discolouration I am unable to tell the part of the body over which this injury was found.
(2) Incised wound, of size 2 ½ x ½ inches x bone deep with fractured bone over right fronto temporal region, vertically placed.
14 CRI. APEAL.558-2006.JUDGMENT.odt (3) Incised wound of size 2 ½ x 1 inch x bone deep, over right occipito posterior region of the skull, obliquely placed with effused clotted blood seen."
9(iv). As per his evidence all injuries were fresh and ante mortem in nature. Injury Nos. 2 and 3 were caused by blow of sharp and cutting object while injury No.1 was caused by hard and blunt object.
9(v). During internal examination, he found following injury:
"(1) On eversion of scalp I found haematoma over right parito region with depressed fracture over right parital extending to right occipito posterior region, vertically placed, the length was 10 inches with laceration of brain substance with effused clotted blood."
9(vi). His further evidence shows that, the cause of death was result of fracture of skull bone with laceration of brain substance with head injuries sustained. The injury Nos. 2 and 3 noted externally corresponds to the internal injury mentioned by him. The injury Nos. 2 and 3 are on vital part of the body 15 CRI. APEAL.558-2006.JUDGMENT.odt and sufficient to cause death. The injury Nos. 2 and 3 can be caused by axe. Injury No.1 is possible by use of stick. The PM Report is at Exh. 58.
9(vii). On 11.07.2003, he conducted post mortem examination on the dead body of deceased Harshwardhan Sardar, who was treated in private Hospital from 03.07.2003 to 11.07.2003 and he found following external injuries on his person:
"(1) Surgical stitched wound, 7 stitches over right side of abdomen, at lower side, on removal of stitches, I found a piece of bone of skull of size 6 x 2 cms., kept over rectus sheath.
(2) Surgical stitch wound over left fronto parital, temporal region, of 'U' shaped. 28 stitches were found. On removal of stitches, piece of bone of size 6 x 7 cm, missing margins, clean cut, suggestive of surgical intervention i.e. creniotomy.
(3) Surgical stitch wound over scalp mid upper side, slight back i.e. occipito region. 6 stitches found, on removal of stitches, I found C.L.W. 2 ½ x 1/2 inches x bone deep.
(4) C.L.W. over right parital eminance, of size ½ x ½ inch x bone deep.
16 CRI. APEAL.558-2006.JUDGMENT.odt (5) Abraded contusion, over left shoulder of size of 2 x 2 cm. blackish discolouration.
(6) Abraded contusion, over left fore-arm, of size 2 x 2 cm. blackish discolouration.
(7) Abraded contusion, over back, of size 5 x 1 inch."
9(viii). Upon internal examination he found:
"Haematoma over right parital and occipito posterior region with fracture of right parital, extending to occipito posterior region, of size 5 cms. in length, 2 cms, above right ear, with effused clotted blood underneath the fractured side. There was laceration of brain. Both lungs were congested. Blood sample was collected. The cause of death was comma as a result of fracture of skull bones with laceration of brain substance, with head injuries sustained."
9(ix). Accordingly, he prepared the post mortem notes which is at Exh. 59. His further evidence shows that, the external injury No.2 corresponds to the internal injury over scalp and is on the vital part of the body.
10. Despite the exhaustive cross-examination nothing is 17 CRI. APEAL.558-2006.JUDGMENT.odt brought on record to show that there was any other reason to cause such injuries on the person of the deceased persons. Thus, as far as the evidence of PW-7/Dr. Vijay Kalane is concerned, which establishes the death of deceased Ramesh, Ramdas and Harshwardhan are homicidal one. The Inquest panchnama Exhs. 60, 61 and 52 also corroborates the same. Thus, undisputedly the prosecution has proved the death of the deceased persons as homicidal one.
11. It reveals from the prosecution evidence that, the entire incident occurred due to the dispute between PW-2/Sheetal and accused Asha when they both were on the water tap for fetching the water. The initial incident took place in the morning on 03.07.2003. There was a quarrel between accused Asha and PW-2/Sheetal and one Pradnya when they were filling water in the pot on water tap allegedly accused Asha abused her, and therefore, deceased Ramesh intervened and abused Asha and threatened her. Second incident occurred in the evening, which according to the prosecution occurred in front of the house of Ramesh, whereas as per the defence the said incident occurred in front of the house of Asha.
18 CRI. APEAL.558-2006.JUDGMENT.odt
12. Entire prosecution evidence is relied upon four eyewitnesses. PW-1/Sarala Dilip Sardar examined vide Exh. 45 categorically narrated about morning incident took place at water tap between accused Asha, PW-2/Sheetal and one Pradnya. As per her evidence, PW-2/Sheetal asked Ashabai to allow her to take water in her pot but accused Ashabai abused her and restrained her from taking water. As far as second incident is concerned, her evidence shows that in the evening when she was sitting in front of her house in courtyard, the deceased Ramesh, Ramdas, and Harshwardhan were sitting on the varanda of the house of deceased Ramesh. The distance between her courtyard and the varanda was 10 to 20 feet. At the relevant time, accused Walmik, Vinod, Ravindra, Mangesh and Ashabai alongwith two child in conflict with law came there holding weapons like knives, pipes, sticks and axe in their hands, they came where Ramesh, Ramdas and Harshwardhan were sitting. The accused Walmik gave axe blow to Ramdas, whereas accused Vinod gave axe blow to Ramesh. Accused Mangesh, Ravindra and two child in conflict with law as well as accused Vinod assaulted Harshwardhan with knives. They gave repeated blows with knives to Harshwardhan. Due to which, 19 CRI. APEAL.558-2006.JUDGMENT.odt they have sustained the injuries all over the body. She rushed to help them and used her petticoat to control the bleeding from the head of the Ramdas. Thereafter, the accused fled away from the spot. She lodged the report regarding the incident.
13. During her cross-examination, some material omissions were brought on record to show that she has improved her version as far as the act of assault is concerned. She further admits during the cross-examination that, there is no courtyard to the house of Ramesh. The door of the house of Asha is opposite to the door of Ramesh. She further admits that, the FIR is registered against her husband Dilip, Pratap, Bharat and others for assaulting Walmik and Ravindra which is also pending in the Court. She further admits that, when Asha abused Sheetal and Pradnya, deceased Ramesh intervened in the dispute and there was exchange of words between Ashabai and Ramesh. But she denied that, Ramesh threatened Ashabai. She further admits that, Ashabai filed the report at Borgaon Manju Police Station in respect of the morning incident as to threatening by Ramesh, Ramdas and Pratap. She further admits that, Ashabai is the only person belonging to Khandare family 20 CRI. APEAL.558-2006.JUDGMENT.odt residing in the said lane. It also came in her evidence that, Police have taken the measurement as to the distance from the spot of incident. There was hue and cry at the time of incident.
14. The evidence of PW-2/Sheetal and PW-3/Mukta is similar as far as morning incident is concerned. The second incident took place in the evening, regarding the same they also stated that when deceased persons were sitting on the varanda of the house of deceased Ramesh, they were assaulted by the accused persons. As per the evidence of PW-2/Sheetal, Walmik gave axe blow to her father. Vinod pulled deceased Ramesh from the platform and Walmik gave axe blow to Ramesh. Asha gave stick blow to Harshwardhan, whereas Vinod assaulted by axe to Harshwardhan. When Ramdas, Ramesh and Harshwardhan were lying injured, all accused persons assaulted them by sticks, pipes and knives. She also stated that, accused Rahul and Ravindra also participated in the said assault.
15. The cross-examination of PW-2/Sheetal shows that, there are various houses of Sardar family adjacent to the house of Asha Khandare. There is only one compound wall to the courtyard of the house of PW-1/Sarla. During her 21 CRI. APEAL.558-2006.JUDGMENT.odt cross-examination, the material evidence is also brought on record that she has also not stated that deceased Ramesh, Ramdas and Harshwardhan were lying injured on the ground and accused persons assaulted them with sticks, pipes and knives. She has also not stated before the Police that, Vinod Gawande pulled Ramesh from the platform and the accused Rahul and Vinod Gawande were possessing knife. She stated that, there was no injury caused to Asha on that day, however, she admits that accused Walmik has sustained the injuries on his head. She further admits that, Villagers and the persons residing adjacent to their houses have gathered on the spot of incident.
16. As per the evidence of PW-3/Mukta, especially regarding the incident of evening she stated that, accused Walmik was possessing axe, Vinod was possessing axe, Jitendra was possessing iron pipe, Ravindra, Mangesh and Ashabai possessing sticks, whereas Vinod was possessing knife. Ramdas was pulled from the platform by Walmik and Vinod Khandare gave axe blows on his head. Ramdas sustained bleeding injuries. Asha Khandare assaulted Ramdas by stick. The accused dragged Ramesh up to the tap and assaulted him. Accused No.1/Walmik 22 CRI. APEAL.558-2006.JUDGMENT.odt and accused No.4/Vinod assaulted him by giving axe blows. Harshwardhan was assaulted by Jitendra, Ravindra and Rahul by Iron pipes and sticks. Accused Walmik Gawande and Vinod gave axe blows to Harshwardhan.
17. Para No.6 of her cross-examination is entirely the omissions as far as the roles of the accused persons are concerned. She denied that, her father gave axe blows to Walmik on his head. Her cross-examination further shows that, she has not stated before the Police that Ashabai was possessing thick and bent stick. The stick possessed by Mangesh was having slits and edge of the axe in possession of Vinod was slightly damaged. Thus, the material portion of her evidence appears to be an improvement. Her evidence further shows that, at the time of incident her father and Harshwardhan were sitting on the platform, Ramdas was assaulted in front of her house and Harshwardhan was assaulted near the tap.
18. PW-4/Kanchan is the another eyewitness who testified that, on 03.07.2003 in the evening when she was at her house she heard the noise of quarrel and she came out of her house and saw that in front of the house of Ramesh Sardar, 23 CRI. APEAL.558-2006.JUDGMENT.odt Ramdas was lying on the ground and sustained bleeding injury on his head. His wife Padmabai wrapped saree to the head of Ramdas. The accused persons were assaulting Harshwardhan and Ramesh with sticks, pipes, axes and knives.
19. Her cross-examination shows that, the prosecution was lodged against Dilip, Pratap and Bharat for assaulting Walmik and Asha on 03.07.2003 in the evening at 06.00 p.m. in front of the house of Asha. Thus, her cross-examination shows that, in the alleged incident which took place in front of the house of Asha, Walmik and Asha had also sustained the injuries. Admittedly, PW-2/Sheetal and PW-3/Mukta both have admitted that, various persons gathered after hearing the shouts but none of the independent witness examined by the prosecution.
20. Another material evidence on which the prosecution placed reliance on is the evidence of PW-6/Wasudeo, who acted as a panch on the Spot panchnama as well as Seizure memos. As per his evidence, the accused, deceased and the Informant are from his Village. 80% population at Village Goregaon is from Sardar family. The street lights were available at the spot of incident. From the spot one yellow colour petticoat, one 24 CRI. APEAL.558-2006.JUDGMENT.odt yellow colour saree, white shirt and shirt of brown colour were seized. Police have also seized the blood stained soil from the place in front of the house of Sarlabai and in front of the house of Ashabai. His cross-examination also shows that, Harshwardhan and Ramesh were found lying near the northern wall of the house of Asha. The blood stains were also found in front of the door of the house of Asha. He further admits, that from the door of the house of Ramdas the door of the house of Ashabai is not visible. He further admits that, there was one stone in front of the door of Ashabai where there were blood stains. The yellow colour saree was lying near the said stone.
21. PW-9/Pramod is the another panch, who acted as a panch on Memorandum statements of the accused. As per his evidence he was called in the Police Station. Accused Rahul Walmik (Child in conflict in law) made a Memorandum statement which was recorded in his presence. Accused Vinod also gave a Memorandum statement in his presence. Thereafter, accused took them at Goregaon at their house. Accused Vinod climbed over the roof of the house and took out the knife which was stained with blood. Said knife was seized by the Police.
25 CRI. APEAL.558-2006.JUDGMENT.odt Accused Vinod again took them in the bathroom of the house and took out another knife which was stained with blood. The Memorandum statements are at Exh.75, whereas the recovery panchnama at Exh. 77. The clothes of accused Rahul and Vinod were also seized in his presence. As he has not entirely supported, he was declared hostile. During cross-examination of APP he admitted that, he was asked by P.I. Bhagat to hear the statement of accused. Accused Mangesh made a statement for production of sticks from his house. Accused Vinod Khandare made a statement for production of axe and accused Jitendra made a statement for production of pipe and accused Ravindra made a statement for production of stick. But he denied that they went to Goregaon and accused Ravindra, Vinod, Ashabai, Jitendra and Mangesh produced the weapons like sticks, pipes and axe. His cross-examination states that, all the papers were written by the Police and he simply signed on the said papers.
22. Exh.74 Memorandum statement of accused Rahul shows that, he has shown his willingness to show the knife concealed in the bathroom. Accordingly, the said statement was recorded, whereas accused Vinod vide Exh.75 made a statement 26 CRI. APEAL.558-2006.JUDGMENT.odt disclosing the concealment of the place of the weapon knife. At the instance of accused Vinod, the knife was seized from the heap of fodder, which according to panchnama having blood stains on it, whereas knife at the instance of accused Rahul was seized from the bathroom of the house of Ashabai Khandare.
23. The Memorandum statement of accused Mangesh shows that he stated to show the place where he concealed the stick. The statement of accused Vinod Khandarre Exh. 86 shows that he made a statement of showing the place where he concealed the axe. Exh. 82 is the statement of accused Jitendra, who stated that he will show the place where he concealed the stick. The statement of accused Ravindra Exh. 83 shows that, he disclosed that he will show the place where he concealed the stick. Accused Asha made a statement vide Exh. 84 that she will show the place where she concealed the stick. Exh.85 is the Memorandum statement of accused Walmik by which he has disclosed the place where he concealed the weapon axe. Besides PW-9 prosecution has examined PW-11/Investigating Officer Manohar Bhagat who testified that during investigation, accused Rahul and Vinod made a Memorandum statement and 27 CRI. APEAL.558-2006.JUDGMENT.odt led them towards the place of concealment. Accused Rahul produced the knife concealed in the bathroom, whereas accused Vinod produced the knife kept under the tin of the roof of the house. Accused Mangesh and Ravindra produced sticks from their home. The panchnama are at Exhs. 98 and 99. Accused Jitendra took them in the house of Walmik Gawande and produced the pipe which is at Exh.100. Accused Vinod also took them at the house of Walmik and produced axe from the house, the blade of the axe was blood stained. Accused Walmik also produced the axe which was kept behind the shutter of the door which was stained with blood. Regarding the recovery of said weapons, suggestions were put but were denied by PW-11/Manohar. This witness also admitted that, accused Mangesh Gawande produced the stick from the heap of dry cotton plants. He specifically admits that, all weapons produced by accused persons from the house of Walmik Gawande were from the heap of fuel. Thus, this admission shows that all the weapons though seized on various dates, but from the same place.
24. The evidence of PW-11/Manohar as far as the spot 28 CRI. APEAL.558-2006.JUDGMENT.odt panchnamas are concerned, shows that alongwith the panchas he visited the alleged spot of incident and drawn the panchnama. He has seen the blood stained soil and clothes soaked with blood by separate Seizure memo.
25. He specifically admitted that, the deceased were lying near the house of Ashabai. His further admission shows that, during the course of investigation it revealed that, the deceased persons and Pratap, Bharat and Dilip have formed the unlawful assembly, abused Asha and others and threatened of their life. It was also disclosed that, they have assaulted Asha, Walmik and Ravindra with axe, sticks and pipes. The injury certificate of Walmik, Ashabai and Ravindra were also produced in the charge-sheet in cross F.I.R. Thus, the evidence of this witness shows that, the place of the incident though claimed by the prosecution in front of the house of Ramesh but blood stains were found in front of the house of accused Asha.
26. PW-10/Govind Hirekar is the another Investigating Officer whose role is only to the extent of registration of the F.I.R. and taking entry as to the registration of the F.I.R. in the Station Diary.
29 CRI. APEAL.558-2006.JUDGMENT.odt
27. The omissions and contradictions came in the evidence of PW-1 to PW-3 are proved by the prosecution through the evidence of PW-11/Manohar.
28. Thus, from the evidence it reveals that, the first incident has taken place in the morning at about 08.00 a.m., and the second incident is the repercussion of the first incident which took place at 06.00 p.m. As per the prosecution case, deceased persons were sitting in front of the house of deceased Ramesh and accused Nos. 1 to 5 formed an unlawful assembly and came at that spot and in furtherance of their common object assaulted them by means of weapons. However, the Spot panchnama and the admissions given by PW-2/Sheetal, PW-3/Mukta and PW-4/Kanchan says that, their family members Dilip, Pratap and Bharat were also prosecuted for assaulting Walmik and Asha on 03.07.2003. The cross complaint regarding the incident as to the assault on Asha was also registered and Session Trial No.88/2004 was tried alongwith the Session Trial No. 185/2003. The finding given by the Sessions Court in both the trials shows that the panchnama of scene of offence if taken into consideration reveals that, the 30 CRI. APEAL.558-2006.JUDGMENT.odt blood stains were lying in front of the house of Ashabai.
29. The evidence of panch PW-6/Wasudeo and the Investigating Officer also shows that the blood stains were found in front of the house of Ashabai and also on one stone which is in front of Ashabai as well as blood stained yellow colour petticoat, yellow colour saree and blood stained shirts were found on the said stone in front of the house of Ashabai. Admittedly, there is no explanation from the prosecution that, if the alleged incident has taken place in front of the house of Ramesh than how the incriminating articles are found in front of the house of Ashabai. Admittedly, neither the prosecution witnesses nor the Investigating Officer explained the injuries which were found on the person of the accused. Therefore, in support of the defence of the right of private defence, the defence has examined defence witnesses DW-1/Ravindra, who testified that on the day of incident between 07.30 to 07.45 hours, his mother Ashabai had gone to fetch the water from the public tap. He was present in the house. PW-2/Sheetal and one Pradnya started abusing his mother, therefore he came out of his house and at that time deceased Ramesh threatened her 31 CRI. APEAL.558-2006.JUDGMENT.odt mother of her life. Therefore, her mother and Walmik approached to the Police Station and lodged the report.
30. As to the second incident his evidence shows that, on that day in the evening at about 05.30 p.m., deceased Ramesh, Harshwardhan, Ramdas, Dilip Sardar, Bharat Sardar and Pratap Sardar were sitting in front of the house of Ramesh on varanda. They were possessing sticks and axe in their hands. He alongwith his mother and Jitendra were in the house. Accused Vinod had gone to Murtizapur. Deceased Ramesh and others started abusing them. His mother came out of the house. Deceased Ramdas Sardar then attacked on his mother and tried to stretch out saree from her person. Therefore, he alongwith Jitendra came out from the house. Jitendra went to call Walmik and he assaulted Ramdas Sardar with stick. The stick was hit on his head and Ramdas fell down, then Ramesh Sardar and Harshwardhan Sardar assaulted Walmik with axe and sticks. The axe hit Walmik on his head and blow of stick on his person. Walmik fell on the ground as he sustained bleeding injury on his head. In the meantime, sons of Walmik namely Vinod and Rahul reached there. Ramesh and five other persons continued 32 CRI. APEAL.558-2006.JUDGMENT.odt assaulting them, then Rahul and Vinod assaulted Ramesh and Harshwardhan with pipes and sticks. He alongwith Rahul and Vinod assaulted Ramesh and others to save their lives and also the lives of Walmik, their mother Asha and Jitendra. The evidence of DW-2/Rahul Gawande is also on the similar line. Though they are cross-examined but as far as their evidence as to the right of private defence is considered is not shattered.
31. To corroborate their version that Ravindra, Walmik and Ashabai received the injuries in the said incident, DW-3/Dr. Vinayak Zaparde was examined, who deposed that on 03.07.2003 he examined Ravindra and found following injuries on his person:
"1) Lacerated wound on vertex, anterio posterior region, of size 2 x ½ x bone deep. It was caused by hard and blunt object. Probable healing time was 7-
10 days in absence of any complications. The injury may caused due to the weapons such as pipe, sticks, axe, etc."
31(i). On examination of Ashabai, he found following injuries on her person:
"1) Lacerated wound surrounded by abrasion, on 33 CRI. APEAL.558-2006.JUDGMENT.odt right fore-arm, mid posterior. The size of injury was 1 ½ x ½ inch upto muscle deep. The abrasion was measuring about 4 x 4 inch. The injury was caused due to hard and blunt object. The healing time was 7-10 days in absence of complications.
2) Lacerated wound on right fore-finger, middle phalynx, of size 2" x ½ " x bone deep, caused by hard and blunt object. For this injury I advised x-
ray."
31(ii). On examining Walmik, he found grievous head injuries. He referred Walmik District Hospital, Akola. Accordingly, he issued Medical Certificate. Medical Certificates are at Exhs. 140, 141 and 142.
32. After going through the evidence it came on record that, accused Walmik and Asha also sustained the injuries in the said incident which are not explained by the prosecution. We will first consider the issue with regard to non-explanation of injuries sustained by accused Walmik. Undisputedly, the injuries sustained by the accused which was minor and superficial is not required to explain, however if the injuries sustained by the accused and where the evidence is clear and cogent, independent and disinterested the omission on the part of the prosecution to explain the injuries is fatal to the prosecution.
34 CRI. APEAL.558-2006.JUDGMENT.odt Here the evidence of PW-3/Mukta, PW-4/Kanchan and PW-11/Investigating Officer shows that in the alleged incident accused Walmik and Asha have also sustained the injuries. The evidence of Investigating Officer also shows that, the blood stains are found in front of the house of accused Asha, which is contrary to the evidence of the prosecution. Therefore, the contention of the learned Counsel for the accused persons that the genesis of the incident itself is suppressed by the prosecution has substance.
33. In the case of Lakshmi Singh & Ors. Vs. State of Bihar, (1976) 4 SCC 394, it is observed by the Hon'ble Apex Court that:
"it seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."
34. Thus, the omission on the part of the prosecution to 35 CRI. APEAL.558-2006.JUDGMENT.odt explain the injuries on the person of the accused assumes much greater importance where the evidence consist of interested or inimical witnesses or where the defence gives a version which competes improbability with that of the prosecution case. In the instant case, accused Walmik received grievous injuries which have not been explained by the prosecution.
35. This aspect is further considered by the Hon'ble Apex Court in the case of Nand Lal & Ors. Vs. State of Chhattisgarh, (2023) 10 SCC 470 , by considering its earlier decisions and held that, the injuries sustained by the accused remained unexplained and the genesis of incident also found to be suppressed and the benefit would go to the accused.
36. Here in the present case, the prosecution has examined only the family members. Though their evidence shows that various persons from locality were present at the time of incident, undisputedly mere relation is not sufficient to discard the evidence as interested evidence but the evidence is to be appreciated in the light of the facts and circumstances of the case. The facts and circumstances of the case shows that, the quarrel took place in the morning which resulted into the 36 CRI. APEAL.558-2006.JUDGMENT.odt incident occurred in evening. The prosecution story is that the deceased persons were assaulted by the accused persons when they were sitting in front of the house of the deceased, is falsified by the circumstantial evidence as blood stains were found in front of the house of the accused. The blood stained clothes of the deceased and blood stained petticoat and saree used for tying the injuries of deceased Ramdas was also found in front of the house of Ashabai.
37. The admission of the Investigating Officer and PW-6/Wasudeo that the dead body of Ramesh and Harshwardhan were found near the house of Ashabai, sufficiently shows that it was the prosecution witnesses and the deceased who were aggressors. Their presence in front of the house of the accused sufficiently shows that they were aggressors. The accused have taken the right of private defence. The scope of right of private defence is that the basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which 37 CRI. APEAL.558-2006.JUDGMENT.odt the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.
38. A conjoint reading of the provisions of Sections 96 to 103 and Exception 2 to Section 300 of IPC leaves no manner of doubt that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence, provided that such right is exercised without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. A fortiori in cases where an accused sets up right of private defence, the first and the foremost question that would fall for determination by the court would be whether the accused had the right of private defence in the situation in which death or other harm was caused by him. If the answer to that question is the negative, Exception 2 to Section 300 IPC would be of no assistance.
38 CRI. APEAL.558-2006.JUDGMENT.odt
39. In the case of Kashi Ram and Ors. Vs. State of Rajasthan, (2008) 3 SCC 55, wherein the Hon'ble Apex Court held that:
"45. Private defence can be used only to ward off unlawful force, to prevent unlawful force, to avoid unlawful detention and to escape from such detention as held by this Court in Bishna Vs. State of W.B., (2005) 12 SCC 657. In the said judgment the relevant portion of Kenny's Outlines of Criminal Law and Criminal Law by J.C. Smith and Brian Hogan have been quoted. We deem it appropriate to reproduce the same.
"89 It is natural that a man who is attacked should resist, and his resistance, as such, will not be unlawful. It is not necessary that he should wait to be actually struck, before striking in self-defence. If one party raises up threatening hand, then the other may strike. Nor is the right of defence limited to particular person assailed; it includes all who are under any obligation, even though merely social and not legal, to protect him. The old authorities exemplify this by the cases of a husband defending his wife, a child his parent, a master his servant, or a servant his master (and perhaps the courts would now take a still more general view of this duty of the strong to protect the weak).
90. The learned author further stated that self defence, however, is not extended to unlawful force."
40. In the light of the well settled legal provision in the case at hand the evidence clearly shows that it was the deceased who were aggressors in the incident. The injuries sustained by the prosecution witnesses are not explained by the prosecution. Not only the defence witnesses but the Investigating Officer has also admitted that, the dead body of Ramesh and 39 CRI. APEAL.558-2006.JUDGMENT.odt Harshwardhan was found near the house of accused Asha. The evidence further shows that, the blood stains and blood stained clothes were also found on a stone which was in front of the house of accused Asha. The Trial Court has rightly recorded a finding that, it was the deceased who were aggressors and the prosecution has suppressed the true genesis of the incident. The question whether the Respondents exceeded the right of private defence does not therefore really arises for consideration.
41. The accused have demonstrated from the cross-examination as well as from the evidence of defence witnesses that in exercise of right of private defence they have assaulted the deceased persons and other prosecution witnesses. The evidence particularly shows that, the independent witnesses are not examined though they were available. The circumstantial evidence shows that, the alleged incident has taken place in front of the house of accused Asha, whereas the prosecution attempted to portray that incident took place in front of the house of Ramesh. As already observed that, the evidence of defence witnessess shows that deceased Ramdas and Ramesh assaulted the accused Asha and her son, therefore 40 CRI. APEAL.558-2006.JUDGMENT.odt other accused came to the help of Asha and death of three persons occurred. Thus, the finding of the Trial Court that the prosecution suppressed the genesis of the incident, we are of the view that, the Trial Court has rightly acquitted the Respondents.
42. It is well settled that, while exercising the appellate powers especially while dealing with appeal against acquittal, cardinal principles to be kept in mind that there is a presumption of innocence in favour of the accused, unless the accused proved guilty. The presumption continues and finally culminates into a fact when the case ends in acquittal. The possibility of two views in criminal cases is not an extraordinary phenomenon while considering the appeals against acquittal. A fact cannot lose sight of the same, the Trial Court has appreciated the entire evidence and reversal of the order of acquittal is not to be based on mere existence of different views or mere difference of opinion. Normally, while exercising the appellate jurisdiction, it is the duty of the Appellate Court to see, whether the decision is correct or incorrect on law or facts. While dealing with the appeals against acquittal, the Court cannot examine the impugned judgment only to find out 41 CRI. APEAL.558-2006.JUDGMENT.odt whether the view was taken correct or incorrect. After re-appreciation of the oral and documentary evidence, the Appellate Court must decide whether the Trial Court's view was a plausible view. The Appellate Court cannot overturn acquittal only on the ground that after reappreciating the evidence it is of the view that the guilt of the accused was established beyond reasonable doubt.
43. After appreciating the evidence on record the view taken by the Trial Court is of a plausible view and we do not find any error committed by the learned Judge of the Trial Court. The appreciation of the evidence is on the basis of sifting and weighing the material facts and on that ground the Appeal of the State deserves to be dismissed.
44. Accordingly, the Appeal is dismissed being devoid of merits.
45. Pending application/s, if any, shall stand disposed of accordingly.
(NANDESH S. DESHPANDE, J.) (URMILA JOSHI PHALKE, J.) S.D.Bhimte Signed by: Mr.S.D.Bhimte Designation: PA To Honourable Judge Date: 19/11/2025 19:05:42