Bombay High Court
Rohit Vijay Onkar And 7 Others vs The State Of Mah, Thr P.So. P.S. Yavatmal ... on 13 October, 2025
2025:BHC-NAG:10825-DB
1 CRI.APPEAL.381-2019.JUDGMENT.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 381 OF 2019
1. Rohit S/o Vijay Onkar,
Aged about 22 years,
Occupation:- Education,
R/o. Dalit Society, Patipura, Yavatmal.
2. Adesh @ Adya S/o Anil Khairkar,
Aged about 21 years,
Occupation:- Education,
R/o. Ashok Nagar, Patipura, Yavatmal.
3. Suhas S/o Anil Khairkar,
Aged about 22 years,
Occupation :- Education,
R/o. Ashok Nagar, Patipura, Yavatmal.
4. Ashwin @ Gondya Deepak Telang,
Aged about 24 years,
Occupation: Labourer,
R/o. Ambedkar Nagar, Patipura,
Yavatmal.
5. Vaibhav S/o Krushnarao Naik, DEAD
6. Roshan @ Kandi S/o Purushottam
Pradhan,
Aged about 20 years,
Occupation:- Education,
R/o. Ambika Nagar, Yavatmal.
2 CRI.APPEAL.381-2019.JUDGMENT.odt
7. Anup @ Dadu S/o Anil Ramteke,
Aged about 22 years,
Occupation:- Education,
R/o. Patipura, Yavatmal.
8. Sachin @ Batya S/o Ashokrao Bhoyar,
Aged about 20 years,
Occupation: Labourer,
R/o. Waghapur, Tekadi, Yavatmal. APPELLANTS
Versus
The State of Maharashtra,
Through Police Station Officer,
Police Station Yavatmal City,
District: Yavatmal. RESPONDENT
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Mr. R.M. Daga, Advocate for the Appellant Nos. 1, 2 & 6 to 8.
Mr. P.W. Mirza, Advocate for the Appellant Nos. 3 & 4.
Mr. N.H. Joshi, APP for the Respondent/State.
-----------------------------------------------
CORAM : URMILA JOSHI PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 26th SEPTEMBER, 2025.
PRONOUNCED ON : 13th OCTOBER 2025.
ORAL JUDGMENT :- (PER : URMILA JOSHI PHALKE, J.)
1. The present appeal is directed against the judgment and order of sentence passed by Additional Sessions Judge, Yavatmal in Sessions Trial No. 32/2018 dated 12.04.2019 3 CRI.APPEAL.381-2019.JUDGMENT.odt convicting the present Appellants/accused of the offence punishable under Section 302 r/w 149, 307 r/w 149, 120-B, 449, 143, 144, 147 and 148 of the Indian Penal Code and sentenced as follows:-
i) to suffer imprisonment for life and to pay a fine of Rs.10,000/- each, in default to undergo further RI for one year each of the offence punishable under Section 302 read with Section 149 of IPC.
ii) to suffer RI for 10 years and to to pay a fine of Rs.5,000/- each, in default to undergo further RI for six months each of the offence punishable under Section 307 read with Section 149 of IPC.
iii) to suffer imprisonment for life and to pay a fine of Rs.5,000/- each, in default to undergo further RI for six months each of the offence punishable under Section 120-B of IPC.
iv) to suffer RI for 10 years and to pay a fine of Rs.5,000/- each, in default to undergo further RI for six months each of the offence punishable under Section 449 of IPC.
4 CRI.APPEAL.381-2019.JUDGMENT.odt
v) to suffer RI for 6 months and to pay a fine of Rs.1,000/- each, in default to undergo further RI for two months each of the offence punishable under Section 143 of IPC.
vi) to suffer RI for 2 years and to pay a fine of Rs.1,000/- each, in default to undergo further RI for three months each of the offence punishable under Section 144 of IPC.
vii) to suffer RI for 2 years and to pay a fine of Rs.1,000/- each, in default to undergo further RI for three months each of the offence punishable under Section 147 of IPC.
viii) to suffer RI for 2 years and to pay a fine of Rs.1,000/- each, in default to undergo further RI for three months each of the offence punishable under Section 148 of IPC.
2. Brief facts of the prosecution case emerges from the Police papers and recorded evidence are as under:
5 CRI.APPEAL.381-2019.JUDGMENT.odt 2(i). Informant Shalini Vijay Thool is the mother of the deceased. The deceased Anil and injured Premraj are friends.
On 31.10.2017, at 8.30 p.m., the deceased Anil went to meet the injured and they were chit chatting in front of the shop of Vijay Shende uncle of injured Premraj, at the relevant time, accused No.1/Rohit Vijay Onkar alongwith accused No.2/Adesh Anil Khairkar, accused No.3/Suhas Anil Khairkar and accused No.4/Ashwin @ Gondya Deepak Telang came to the house of the Informant. They were holding weapons in their hands and enquired with the Informant as to whereabouts of the deceased. She disclosed that, the deceased is not at the house. These accused persons are followed by other accused also. As Informant suspected, therefore she followed them. At some distance, she saw the deceased and injured near the motorcycle of the deceased. She also witnessed that, above said accused No.1/Rohit Onkar, accused No.2/Adesh Khairkar, accused No.3/Suhas Khairkar and accused No.4/Ashwin @ Gondya Telang and other co-accused started assaulting the deceased and injured by weapons in order to kill them. The injured fell down in an injured condition, whereas the deceased in order to save himself entered in the house of one Milind Gedam. The 6 CRI.APPEAL.381-2019.JUDGMENT.odt assailants chased him and entered in the said house and killed the deceased by assaulting him by the weapons in their hands. In the meantime, Police got the information about the incident and they rushed to the spot. They enquired with the Informant. The Informant has lodged the report. On the basis of the said report, the crime was registered.
2(ii). After registration of the crime, the Investigating Officer drawn Spot panchnama, Inquest panchnama and arrested the accused. During investigation, the weapons were seized on the basis of the Memorandum statement made by the accused No.2/Adesh and accused No. 4/Ashwin. The seized weapons were forwarded to the Medical Officer for seeking opinion. The weapons were also forwarded to CA as blood stains are found. The blood stained clothes of the deceased and accused were also seized. After completion of the investigation, the charge-sheet was submitted.
2(iii). As the offence punishable under Sections 302 and 307 of IPC are exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of Sessions. The learned Sessions Judge framed the Charge vide Exh. 31.
7 CRI.APPEAL.381-2019.JUDGMENT.odt The contents of the Charge were read over and explained to the accused persons in vernacular. They pleaded not guilty and claimed to be tried.
2(iv). In support of the prosecution case, the prosecution had examined in all 10 witnesses, which are as follows:
(i) PW-1 Shalini Vijay Thool Exh. 51 Informant and mother of the deceased.
(ii) PW-2 Premraj @ Babbi Tansen Exh.56 Injured
Shende eyewitness.
(iii) PW-3 Vijay Bhaurao Shende Exh.68 Eyewitness.
(iv) PW-4 Vasant Namdevrao Pakhale Exh. 71 Circle Inspector.
(v) PW-5 Milind Tanbaji Gedam Exh. 76 Eyewitness
(vi) PW-6 Dr. Sharad Vasantrao Exh.79 Medical Officer.
Kuchewar
(vii) PW-7 Amol Maroti Chaudhari Exh. 84 Investigating
Officer
(viii) PW-8 Sharad Anandrao Exh. 93 Light Checker
Kshirsagar
(ix) PW-9 Vinod Mungsaji Zalke Exh. 95 Investigating
Officer.
(x) PW-10 Dr. Manisha Sanjay Exh. 149 Medical Officer
Waghmare
2(v). Besides oral evidence prosecution placed reliance on
8 CRI.APPEAL.381-2019.JUDGMENT.odt
Report-Exh.52, FIR-Exh.53, Statement of injured under Section 164 of Cr.P.C.-Exh. 62, Seizure memo of clothes of injured Premraj-Exh. 69, Statement of PW-3/Vijay Shende under Section 164 of Cr.P.C.-Exh. 70, Map-Exh. 72, Requisition for conducting Post Mortem-Exh. 80, PM Report-Exh.81, Requisition to CA-Exh. 82, Examination Report of weapons-
Exhs. 83 to 83/8, Spot panchnama-Exh. 85, Inquest panchnama-Exh.88, Seizure memo as to samples of the deceased-Exh. 91, Report as to availability of electricity at spot- Exh.94, Requisition to Divisional Engineer-Exh. 96, Requisition to Electrical Engineer-Exh. 97, Requisition to Tahsildar-Exh. 98, Arrest memo of accused-Exhs. 99 to 108, Requisition to Chief Officer Zilla Parishad Yavatmal-Exh. 109, Memorandum statement of accused Adesh-Exh. 110, Discovery panchnama- Exh.111, Requisition to Health Department-Exh.112, Memorandum statement of accused Ashwin-Exh. 113, Recovery panchnama-Exh.114, Seizure memo of motorcycle-Exh.115, Requisition to CA Exh. 116 and 117, Requisition to CA forwarding articles seized from spot, sample of deceased, clothes of deceased, weapons, clothes of accused and samples of accused-Exh. 122, Viscera Report-Exh. 124, CA Reports-Exhs.
9 CRI.APPEAL.381-2019.JUDGMENT.odt 125 to 137, Arrest panchnama of accused Aakash and Sumedh Exhs. 138 and 139, Seizure memo-Exhs. 140 and 141, Injury Certificate of injured Premraj-Exh. 150, Medical case papers of injured Premraj-Exh. 151.
2(vi). All the incriminating evidence is put to the accused persons to obtain their explanation regarding evidence appearing against them by recording their statement under Section 313 of Cr.P.C. The defence of the accused persons is of total denial and of a false implication. The learned Trial Court after appreciating the evidence held the present Appellants/accused guilty and convicted them as aforestated. Being aggrieved and dissatisfied with the same, the present Appeal is preferred.
3. Heard Mr. Daga, learned Counsel for the Appellant Nos. 1, 2 and 6 to 8 and Mr. Mirza, learned Counsel for the Appellant Nos. 3 and 4.
4. Mr. Daga, learned Counsel, submitted that total 12 accused faced the trial and out of 12, 8 accused are convicted and 4 are acquitted alongwith two child in conflict with law.
10 CRI.APPEAL.381-2019.JUDGMENT.odt During pendency of Appeal accused No. 5/Vaibhav S/o Krushnarao Naik reported to be dead, hence Appeal is abated against him. He submitted that, the entire case is rested upon the evidence of PW-1/Shalini the mother of the deceased, PW-2/ Premraj alleged eyewitness, PW-3/Vijay Shende and PW-5/Milind Gedam. Out of which, Milind Gedam in whose house the subsequent incidence of assaulting the deceased occurred had not supported the prosecution case. PW-1/Shalini shown the involvement of only four accused i.e. accused No.1/Rohit Onkar, accused No.2/Adesh Khairkar, accused No.3/ Suhas Khairkar and accused No.4/Ashwin Telang. She discloses three unknown persons but no identification of those three persons. The evidence of PW-1/Shalini nowhere shows that, she has witnessed the incident which took place inside the house of Milind Gedam. The statement of injured eyewitness and PW-3/Vijay Shende recorded belatedly and no explanation is put forth, therefore their evidence are not trustworthy. PW-5/Milind Gedam has not supported the prosecution case. The recovery evidence at the instance of accused Nos. 3 and 4, is also doubtful as no independent witness is examined. The presence of PW-2/Premraj itself is doubtful. Though according 11 CRI.APPEAL.381-2019.JUDGMENT.odt to the prosecution 12 accused are charged and only 6 weapons are seized. The recovery of incriminating articles is from an open place. Thus, the entire evidence of the prosecution casts doubt on the prosecution case.
5. In support of his contention, he placed reliance on Jaising & Ors. Vs. State of Karnataka, 2007 ALL MR (Cri) 1415 (S.C.); K.M. Ravi and Ors. Vs. State of Karnataka, (2009) 16 SCC 337; Mohd. Iqbal @ Munna s/o Abdul Sattar & Anr. Vs. State of Maharashtra, 2016 ALL MR (Cri) 4530;
6. Mr. Mirza, learned Counsel also submitted that, the evidence of PW-1/Shalini itself is doubtful, as initially she implicates some accused and some unknown persons. PW-2/Premraj implicates 9 accused. Inconsistent versions of eyewitnesses inter se. In first incident, neither the injured nor the deceased were assaulted. The evidence of PW-2/Premraj injured eyewitness whose statement was recorded belatedly, is doubtful. No history is narrated to the Medical Officer disclosing the names of the assailants. No recovery at the instance of the accused. The aspect of recovery itself is not proved. Moreover, the said recovery is from the open place when the accused were 12 CRI.APPEAL.381-2019.JUDGMENT.odt handcuffed. There is inconsistency between the oral and medical evidence. Thus, the entire prosecution fails. There was no opportunity for the eyewitnesses to witness the incident as it occurred inside the house of PW-5/Milind Gedam who has not supported the prosecution case. There is delay in sending the FIR to the Court. Thus, there is non-compliance of Section 157 of Cr.P.C.
7. In support of his contention he placed reliance on Jafarudheen Vs. State of Kerala, (2022) 6 SCALE 727; Mohinder Singh & Anr. Vs. State of Punjab & Ors, 2003 CRI.L.J. 5002; Motilal Vs. State of Rajasthan, AIR 2009 SC 2790; Rattiram & Ors. Vs. State of M.P., 2013 CRI.L.J. 2353; Chhotu & Anr. Vs. State of Haryana, 1996 CRI LJ 4164 (SC); Mahesh Jayavantrao Aher Vs. State of Maharashtra, 2009 (6) ABR (NOC) 1116 (BOM); Indira Devi Vs. State of Himachal Pradesh, AIR 2016 SC 2721; Mohmedrafiz Husenmiya Thakor & Ors. Vs. State of Gujrat, AIR 1997 SC 1520; Govindaraju alias Govinda Vs. State by Sriramapuram P.S. & Anr., AIR 2012 SC 1292; Kasturi Lal Vs. State of Haryana, (1976) 3 SCC 570; Budhwa alias Ramcharan & Ors. Vs. State of M.P., 1990 CRI.L.J. 2597;
13 CRI.APPEAL.381-2019.JUDGMENT.odt State of M.P. Vs. Ghudan, (2003) 12 SCC 485; Musheer Khan @ Badshah Khan & Anr. Vs. State of M.P., AIR 2010 SC 762 and Mohd. Iqbal and Anr. Vs. State of Maharashtra, 2016 (3) ABR (CRI) 596.
8. Per contra, learned APP vehemently submitted that, to prove the prosecution case, prosecution has examined PW-1/ Shalini Thool, PW-2/Premraj Shende and PW-3/Vijay Shende who are the eyewitnesses. Though PW-5/Milind Gedam turned hostile but his evidence is consistent as to the incident happened in his house. He left the loyalty towards the prosecution only to the extent of stating the names of the accused. Their evidence is corroborated by the medical evidence and discovery of the place where the alleged weapons of the offence were concealed and scientific evidence which connects the present accused persons with the alleged offence. Thus, there is direct as well as circumstantial evidence to connect the accused with the alleged offence. Considering the nature of the offence, it is not expected from the witnesses to tell the role of each and every accused. Being they are the members of unlawful assembly, the liability attracts against them, and 14 CRI.APPEAL.381-2019.JUDGMENT.odt therefore, the Appeal being devoid of merits liable to be dismissed. In support of his contention he placed reliance on State of Maharashtra Vs. Ramlal Devappa Rathod, 2015 AIR SCW 6774.
9. After hearing both the sides and on perusal of the entire record, the first and foremost question is whether the death of the deceased is homicidal one. Insofar as the homicidal death of the deceased is concerned, the material evidence adduced by the prosecution is the evidence of PW-6/Dr. Sharad Kuchewar examined vide Exh. 79. He deposed that, the dead body of Anil Vijay Thool alongwith Inquest panchnama and Requisition letter Exh.80 was received by him. He conducted the post mortem alongwith Dr. V.D. Alone and Dr. P.V. Gajai on 01.11.2017. During post mortem, they found 15 external injuries in the form of multiple chop wounds, multiple stab wounds, multiple incised wounds and few abrasions on the dead body of the deceased. The chop wounds were on the head and neck, stab wounds were on abdomen and inguinal region and one stab was present over nape below back of neck. He further deposed that, so far as the internal injuries are 15 CRI.APPEAL.381-2019.JUDGMENT.odt concerned, they found scalp heamatoma over occipital and high parietal region corresponding to injuries 1 and 4 mentioning in column No. 17 of postmortem report. Evidence of communited fractured present over occipital region corresponding to injury No. 1 in column No. 17 of PM report. Linear un-displaced fracture of high parietal region of skull of size 14 cm corresponding to injury No. 4 mentioned in column No. 17 of PM report. Meninges cut corresponding to injury No. 1 mentioned in column No. 17 of PM report. Laceration of right side of occipital lobe and right lobe of cerebellum corresponding to injury No. 1 mentioned in column No.17 of PM report.
10. He further observed stab injury over abdomen corresponding to injury Nos.8 and 9 mentioned in column No. 17 of PM report. Abdominal cavity contains 750 ml of blood. Incised wound present over right lobe of liver corresponding to injury No.8 mentioned in column No. 17 of PM Report. Similarly, there was sub-capsular hemorrhage present over left upper pole of kidney. All injuries were ante-mortem and fresh. The injury Nos, 1, 2, 4, 8 and 11 mentioned in column No.17 in PM report with their corresponding internal injuries in column 16 CRI.APPEAL.381-2019.JUDGMENT.odt Nos.18, 19 and 21 are sufficient in ordinary course of nature to cause death. He opined that, the exact cause of death was hemorrhagic shock due to multiple stab and chop wounds. Accordingly, he prepared the PM notes vide Exh. 81. Though he is cross-examined by the learned defence Counsel, nothing incriminating has brought on record. He admitted during the cross-examination the injury Nos.6, 7 and 14 may be possible due to fall on hard and rough surface but he stated that without looking the particular tile, he cannot say that it is a rough surface and those injuries are not possible due to fall on those tiles. As far as the cause of death is concerned, the evidence of PW-6/Dr. Sharad Kuchewar is not shattered during the cross-examination.
11. Besides the PM report, evidence of PW-7/Amol Chaudhari shows that, while drawing the inquest panchnama he has noted the injuries on the person of the deceased which are mentioned in the Inquest panchnama which is at Exh. 88. Thus, the medical evidence of PW-6/Dr. Sharad Kuchewar shows that the deceased had sustained the multiple injuries which were sufficient to cause death in the ordinary course of nature. The 17 CRI.APPEAL.381-2019.JUDGMENT.odt internal injuries are corresponding to the external injuries.
12. Now, it is well settled that, the evidence of PW-6/Dr. Sharad Kuchewar, is not only the opinion evidence but also his evidence is in the nature of direct evidence as he has an opportunity to see the injuries on the person of the deceased.
13. A medical witness, who performs the postmortem examination, is a witness of a fact though he also gives an opinion on certain aspects of the case. This proposition of law has been stated by the Hon'ble Apex Court in the case of Smt. Nagindra Bala Mitraand Vs. Sunil Chandra Roy and Anr., 1960 SCR (3) 1, wherein the Hon'ble Apex Court observed that:
"the value of a medical witness is not merely a check upon the testimony of eyewitnesses; it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. If a person is shot, at close range, the marks of tatooing found by the medical witness would show that the range was small, quite apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds would show the nature of the weapon used. It is wrong to say that it is only opinion evidence; it is often direct evidence of the facts found upon the victim's person."
14. Thus, the testimony of medical witness is very important and it can be safely accepted. The evidence adduced by the Medical Officer corroborated by the inquest panchanama 18 CRI.APPEAL.381-2019.JUDGMENT.odt shows that the deceased died homicidal death.
15. In the recent judgment also, the Hon'ble Apex Court in the case of Anuj Singh @ Ramanuj Singh @ Seth Singh Vs. The State of Bihar, 2022 Live Law (SC) 402 , dealt with the evidentiary value of the medical evidence and observed that the evidentiary value of a medical witness is very crucial to corroborate the case of prosecution and it is not merely a check upon testimony of eyewitnesses, it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. It has been reiterated by this court that the medical evidence adduced by the prosecution has great corroborative value as it proves that the injuries could have been caused in the manner alleged.
16. In the case at hand, the evidence of PW-6/Dr. Sharad Kuchewar Medical Officer has clearly stated that, the death of the deceased is due to the multiple injuries sustained by him. Thus, the evidence on record sufficiently shows that the death of the deceased is homicidal one.
17. The entire case of the prosecution is based on the 19 CRI.APPEAL.381-2019.JUDGMENT.odt direct evidence of PW-1/Shalini Thool, PW-2/Premraj Shende injured eyewitness, PW-3/Vijay Shende who had witnessed the first incident and PW-5/Milind Gedam in whose house the second incident of assault has occurred. The evidence of PW-1/Shailini Thool discloses that, on 31.10.2017 at about 08.30 p.m., when she was present in the house and deceased had gone to the house of PW-2/Premraj @ Babbi, accused Rohit Onkar had come to her house and enquired about whereabouts of Anil. At the relevant time, he was accompanied with accused Nos. 2 to 4. Her evidence further shows that, she followed them as she saw weapons like knife and sword in their hands. She further witnessed that, near the shop of Vijay Shende deceased Anil and Premraj @ Babbi were communicating with each other. At the relevant time, the accused Rohit Onkar, Adesh Khairkar, Suhas Khairkar, Gondya, Anup Ramteke, Javed Khan and some others initially assaulted Babbi. From them the Deceased rushed to the house of Amit @ Bandu Gedam to save himself but all the accused persons followed him opened the door of the house of said Gedam and killed her son by weapons. She has also identified all the accused before the Court and also identified the weapons which were used in assaulting the deceased. She 20 CRI.APPEAL.381-2019.JUDGMENT.odt identified Art. P-1 and P-2 as swords and Art. P-3 to P-6 as knives.
18. Her cross-examination shows that, she has not disclosed while giving statement that accused Rohit was having sword but she has stated as a Koyta. She also admitted that, she did not specifically states that while giving statement initially Babbi was assaulted. She denied the suggestion that, accused Rohit and other accused never came to her house. During the cross-examination of Counsel of accused Nos. 2 to 5, 7 and 12, the son of Maya Meshram did not came there during the assault. She stated that when she reached the house of Gedam people and Police were gathered there. She further admits that she did not disclose the names of the accused that they killed Anil on the spot but she denied that after the incident she went home and stayed in the house till 12.00 a.m. She specifically stated that from the house of Gedam she directly went to the Police Station. Her cross-examination further shows that, while lodging the report she disclosed the name of Anup Ramteke. She further admits that the name of Anup Ramteke is not mentioned in the report.
21 CRI.APPEAL.381-2019.JUDGMENT.odt
19. To corroborate her version the prosecution further relied on PW-2/Premraj who also sustained the injuries in the said incident. He specifically stated that, on 31.10.2017 at about 08.15 to 08.30 p.m., he and deceased Anil were talking near the shop of his uncle Vijay Shende. At that time, the accused persons Adesh Khairkar, Rohit Onkar, Akshay Khobragade, Anup Ramteke, Ashwin Telang, Akash Telang, Vaibhav Naik, Roshan Pradhan, Suhas Khairkar attacked on them by sword, knives and iron rod. Accused No. 2-Adesh Khairkar gave a blow on him by sword and Rohit Onkar and Akshay Khobragde by knives and caused injuries to him. His both hands and ear were injured. He also sustained the injuries on his left knee. The deceased Anil was sitting on the motorcycle and the accused Suhas Khairkar, Avinash Telang, Anup Ramteke, Akash Telang, Vaibhav Naik, Roshan Pradhan, Javed Kaha, Sachin Bhoyar attacked on him by knives and sword. But Anil pushed the motorcycle and to save himself ran towards Samrat Ashok Chowk. The accused persons chased him, therefore deceased entered in the house of Milind Gedam and all accused followed him and killed him. As he sustained injuries he went to the Police Station. Police sent him to the Hospital. After initial treatment he was referred to the 22 CRI.APPEAL.381-2019.JUDGMENT.odt Hospital at Nagpur. He was admitted in the Hospital at Nagpur till 06.11.2017. His statement was recorded on 08.11.2017. He identified his clothes Art. P-7 and P-8. He also identified the weapons Art. P-1, P-2 as swords and P-3 to P-6 as knives. He has identified the accused Adesh Khairkar, Rohit Onkar, Ashwin Telang, Vaibhav Naik, Suhas Khairkar and Roshan Pradhan who were present in the Court and stated that he know them by their faces and names. He specifically stated that Akshay Khobragade, Anup Ramteke, Akash Telang and Javed Khan are not present in the Court. (the note is taken by the Trial Court that the accused Akshay Khobragade and Akash Telang are absconding and accused Javed Khan is child in conflict in law, whereas Anup Ramteke is not produced by the Jail Authority). The Accused Anup Ramteke was produced through Video Conferencing and identified by this witness. He specifically stated that he witnessed the incident in the light of electric bulbs of the street light which was installed near the spot of incident.
20. The cross-examination of this witness shows that, he denied that he read the police statement before the deposition. The further cross-examination as to the accused No.1 is 23 CRI.APPEAL.381-2019.JUDGMENT.odt concerned, it brought on record that the name of the accused No.1 is mentioned differently but he clarified that his name and surname are written separately. In further cross-examination on behalf of accused Nos. 2, 3, 5, 7 and 12, it came on record that the deceased Anil was prosecuted for the offence of murder of one Vatta. He further admits that, after receiving the injury he was under pain and blood was oozing from those injuries. His clothes were stained with blood and the blood was spilled on the ground also.
20(i). He further admits that, after falling on the ground nobody has assaulted him. He did not follow Anil and assailants but he stated that, with his injuries he had gone to the house of Gedam prior to the lodging of the report. He further stated that, his injuries were tied by cloth by his mother. He further admits that, he has not narrated the history as to the assault by the accused to the Medical Officer. After treatment in Hospital at Yavatmal he was discharged but he voluntary stated that he was referred to Hospital at Nagpur. It further came in the evidence that, he narrated the history to the Doctor about the injury. He was discharged from Hospital at Nagpur on 06.11.2017 and his 24 CRI.APPEAL.381-2019.JUDGMENT.odt statement was recorded on 08.11.2017. He specifically stated that, after incident till 08.11.2017 he did not disclose the incident to the Police.
20(ii). His further cross-examination shows that, the incident occurred during winter season during night time, but he denied that there was complete dark. He further stated that, he know the spot of incident. There is one North-South road towards the Eastern side of the house of Gedam and the house of Sahare is situated towards the West of the house of Gedam. Thus, the attempt was made to show that the alleged incident occurred during the night hours and there was no opportunity to witness the incident.
20(iii). He further admits that, he has changed the clothes prior proceeding to the Hospital at Nagpur and kept his blood stained clothes at his house. The omission as to the name of the accused Ashwin Telang was brought on record. He also admits that, he has not disclosed while giving the statement that, the blood was oozing from his injuries and disclosed that the assailants were shouting that they have taken the revenge of murder, which is not mentioned in his statement. The omission 25 CRI.APPEAL.381-2019.JUDGMENT.odt that he has disclosed the name of accused Sachin Bhoyar which is not in his statement.
20(iv). It specifically came in his cross-examination that the assailants came from behind and they were 12-13 people. He further admits that, prior he came to know anything the assailants assaulted them. He denied that, he is not aware about the names of the assailants, and therefore, he did not disclose their names. He further admits that, when he was admitted to the Hospital he was conscious. Thus, the cross-examination shows that, the material facts are not narrated by him and attempt is made to bring on record that he was not aware about the names of assailants as the assailants came from the backside.
21. PW-3/Vijay Shende examined vide Exh. 68 is the another eyewitness who witnessed the incident of assault which took place in front of his shop. His evidence discloses that, on 30.10.2017 when he was present in his shop one Subhash Khobragade while passing in front of his shop with Tirdi (ladder to carry dead body for funeral) and disclosing to his companion that on the same Tirdi, Anil Thool and Ankush Ramteke will be 26 CRI.APPEAL.381-2019.JUDGMENT.odt carried.
22(i). On 31.10.2017 at about 08.30 p.m., when he was present in his shop and Anil Thool was sitting on his motorcycle in front of his shop and was communicating with his nephew Premraj Shende, at the relevant time the accused Adesh Khairkar, Ashwin @ Gondya Telange, Mangi @ Rohit, Akshaya Khobragade, Suhas Khairkar, Roshan @ Kandi Pradhan, Vaibhav Naik, Akash Vijay Telang, Anup Anil Ramteke, Sachin Bhoyar and other 4 to 5 persons holding weapons like sword, knife and rods in their hands from the side of house of Dilip Gaikwad and assaulted to Anil Thool and Premraj by sword. He came out from the shop and witnessed Adesh Khairkar, Magi @ Rohit Onkar and Akshay Khobragade assaulted Premraj by sword and knife. Hence, Premraj sustained the injuries on his hand and Anil ran to save himself by pushing his motorcycle towards the house of Milind Gedam towards Samrat Ashok Chowk. The accused chased him with weapons. Accused Ashwin Telang and Sachin Bhoyar damaged the motorcycle of Anil Thool by sword and knife. Ashwin Telang, Rohit Onkar, Anup Ramteke, Rajesh Khairkar, Suhas Khairkar, Vaibhav Naik, Javed Khan, Roshan 27 CRI.APPEAL.381-2019.JUDGMENT.odt Pradhan and Sachin Bhoyar and other 2-3 persons with weapons entered in the house of Milind Gedam behind Anil Thool and committed the murder of Anil Thool and thereafter fled away with the weapons in front of his shop by walk. In the said incident accused Vaibhav Naik and Ashwin Telang also sustained injuries on their hands. He had witnessed the incident in the light of street light and also in the light of the bulb of his shop.
22(ii). As Premraj is his nephew was taken to the Hospital and after one hour he also went to the Hospital. The Medical Officer advised to take him to Nagpur, therefore he alongwith the other relatives shifted him to Nagpur. He was admitted to Government Medical College, Nagpur and he was alongwith him for four days. They returned to Yavatmal on 06.11.2017 and his statement was recorded on 08.11.2017. He produced blood stained clothes of Premraj to the Police Station and Police seized the same. The seizure memo of clothes of injured are at Exh. 69. He identified the weapons i.e. swords Art.P-1, P-2, and knives Art. P-3 to P-6. He also identified the accused Adesh Khairkar, Suhas Khairkar, Rohit Onkar, Ashwin Telang, Roshan 28 CRI.APPEAL.381-2019.JUDGMENT.odt @ Kandi Pradhan, Vaibhav Naik and Sachin Bhoyar who were present in the Court and also identified Anup Ramteke who was produced through Video Conferencing.
22(iii). His cross-examination shows that, he admitted that he has not lodged the report about the incident. His evidence as to the incident dated 30.10.2017 is an omission which is brought on record. The another omission brought on record that, at the time of incident he came outside the shop and witnessed Adesh Khairkar, Magi @ Rohit Onkar, Akshay Khobragade assaulted Premraj by sword and knife. He stated before the Magistrate that Ashwin and Sachin damaged the vehicle of Anil (the said omission is to the extent of names of Ashwin and Sachin).
22(iv). The further cross-examination shows that, from 8 to 10 years he is acquainted with deceased Anil Thool being he is a friend of his nephew. He admitted that, there is no criminal case against Premraj. He further admits that, he did not follow the assailants or Anil. It has further came in the evidence that, he had seen the house of Milind Gedam. There is North-South road towards his house and East-West road towards North of his 29 CRI.APPEAL.381-2019.JUDGMENT.odt house. The Samrat Ashok Chowk is towards East of that North- South road. He further admits that, there is wall compound to the East of the house of Milind Gedam. Thus, the cross- examination shows that, as far as the incident is concerned he has only witnessed the incident which took place in front of his shop.
23. PW-5/Milind Gedam is the witness in whose house the subsequent incident of assaulting the deceased took place. As far as his evidence is concerned, though he narrated the incident dated 31.10.2017 but left the loyalty towards the prosecution as far as the names of the accused are concerned. He stated that, on 31.10.2017 at about 08.30 to 09.00 p.m., when he alongwith his wife in the house deceased entered in his house and 10 to 12 people by following him entered in his house with swords and knives and asked them to leave the house. Those 10 to 12 persons killed the deceased in the middle room of their house and thereafter they came outside the house.
His cross-examination through APP shows that, at the relevant time there was electricity in his house as well as the lights of the street polls were also on, and therefore, anybody 30 CRI.APPEAL.381-2019.JUDGMENT.odt can easily see the other person. He further admits, that as per his narration Police recorded his statement. His further cross- examination shows that, the name of the deceased is Anil Vijay Thool who tried to close the door from inside after entering but the assailants forcefully pushed the door and entered in the house. He further admits that, after sending the dead body also Police were conducting the panchnama in their house in late night. His cross-examination by the accused shows that, he informed the Police that an unknown person assaulted the another unknown person.
24. Besides the above direct evidence, prosecution has also placed reliance on PW-6/Dr. Sharad Kuchewar. The evidence of PW-6/Dr. Sharad is already discussed as far as the injuries on the person of the deceased are concerned. His evidence shows that, all the injuries sustained by the deceased were antemortem in nature and fresh. The injuries mentioned in column Nos. 18,19, and 21 are corresponding to injury Nos. 1, 2, 4, 8, and 11 mentioned in column No. 17. The exact cause of death was hemorrhagic shock due to multiple stab and chop wounds.
31 CRI.APPEAL.381-2019.JUDGMENT.odt
25. His further evidence shows that on 16.11.2017 he received six sealed and labelled weapons from PSO Yavatmal City Police Station with query and clothes of deceased. By the said letter it was requested them to give opinion in respect of injuries and weapons. The said communication is at Exh. 82. After opening the seal and on examination of the said weapons they witnessed blood stains on the weapons. He alongwith other Medical Officers who accompanied him while conducting the Post Mortem, prepared the diagrams of these weapons alongwith the descriptions. They given an opinion that, injury Nos. 1, 2 & 4 mentioned in column No.17 of PM report are possible by swords i.e. Art. Nos. 5 and 6. The injury Nos. 5, 8, 9, 10, 11, 12, 13 and 15 mentioned in column No.17 of PM report are possible by knife i.e. Art. 1, 2, 3 and 4. The injury No.3 mentioned in column No. 17 of PM report is possible by all six weapons. Injury Nos. 6, 7 and 14 in column No.17 of PM report are possible by hard and rough surface. All these six weapons are dangerous weapons.
26. His further evidence shows that, they also received the clothes and shoe of the deceased in a sealed condition. They 32 CRI.APPEAL.381-2019.JUDGMENT.odt opened the seal and examined those clothes and shoe and found multiple cut marks and blood stains on shirt, T-shirt and jeans pant of the deceased which are mentioned in their query report as well as they found blood stains on shoe and socks of the deceased. They opined that the cut marks present over the clothes of the deceased were possible due to the weapons which were provided to them for examination. They prepared the detail report in respect of the cut marks over the clothes of the deceased and injuries present over his body. They have also drawn the diagrams of all the weapons. The opinion and diagrams are at Exhs. 83 to 83/14. He has also identified the weapons and clothes of the deceased i.e. swords Art. P-1 and P- 2, knives Art. P-3 to P-6, the blue shirt of the deceased Art.P-9, T- shirt Art.P-10, Jeans Pant Art.P-11, pair of socks Art.P-12 and Shoe Art. P-13.
27. From the cross-examination attempt was made to show that they have received the spot panchnama alongwith the requisition. Though he admitted that, injury Nos. 6, 7 and 14 mentioned in column No.17 may be possible due to fall on the hard and rough surface, but clarified that without looking the 33 CRI.APPEAL.381-2019.JUDGMENT.odt particular tile, he cannot say that it is rough surface and those injuries are not possible due to fall on those tiles. It was an attempt to bring on record that weapons were not sent in a sealed condition as letter Exh. 82 nowhere mentions the same but he replied that without seal and label the weapons or any articles are not accepted. He further clarified that, it is not necessary to mention because they never accept weapons and articles without seal.
28. In the said incident, PW-2/Premraj Shende has also sustained the injuries. Therefore, the prosecution placed reliance on the evidence of PW-10/Dr. Manisha Waghmare who testified that, on 31.10.2017 she was on duty as a C.M.O., at around 09.30 p.m., one injured Premraj Shende was brought to the Hospital by N.P.C. Sagar Wankhade. On his examination she found following injuries.
i) On right wrist incised wound 5x4x1 c.m. His tendon was exposed.
ii) Incised wound of 2.5x0.5 c.m. on his dorsam of hand.
iii) Incised wound of 1x0.2 c.m. on his left ear pinna lower lobe.
34 CRI.APPEAL.381-2019.JUDGMENT.odt
iv) Cut wound of 0.5x0.1 c.m. on his left leg.
29. All these injuries were possible by sharp edged weapon. The first injury was grievous and other three injuries were simple in nature. All those injuries were fresh. She referred the patient to Ortho and E.N.T. Department. Accordingly, she prepared the Medical Certificate Exh.150 and Medical Treatment Papers Exh. 151. She stated that, the above injuries to patient Premraj Shende are possible due to swords Art. P-1 and P-2 and knives Art. P-3 to P-6.
30. Her cross-examination shows that, when patient was brought to the Hospital he was conscious oriented. He answers the questions put to him. He was enquired how he sustained the injuries and he narrated the history of assault. She specifically stated during the cross-examination that, usually they do not mention the names of assailants in the history. She denied that, the injuries by knife and sword are different from each other. She further admits that, none of the injuries of the patient Premraj were on vital parts of the body.
31. Besides the medical evidence, the prosecution also 35 CRI.APPEAL.381-2019.JUDGMENT.odt placed reliance on scientific evidence. As per the evidence of PW-9/Vinod Zalke Investigating Officer that all the Articles i.e. weapons, clothes of deceased, clothes of accused persons, the blood stains collected from the spot with the help of cotton and blood samples of deceased and accused were forwarded to CA. The CA reports are at Exh. 124 to 137. Exh. 124 is the Viscera report. Exh. 125 is report regarding examination of various Articles. Exh. 126 is the blood group analysis report of accused Rohit Onkar which shows that his blood group is 'B'. Exh. 127 shows blood group of injured Premraj is 'AB'. Blood group of accused Suhas Khairkar is 'O' as per Exh. 128. Blood group of Sushil Anandrao Bankar, Nayan Naresh Saudagar, Vaibhav Krushnarao Naik, Sachin Ashok Bhoyar is not determined as per Exhs. 129, 130, 131, 132. As per Exh. 133 blood group of Anup Anil Ramteke is 'O' and as per Exh. 134 blood group of Roshan Purushottam Pradhan is 'O'. Blood group of Aadesh Anil Khairkar as per Exh. 135 is 'AB' and blood group of Ashwin Dipak Telang is not determined, whereas as per Exh. 137 blood group of deceased is 'A'. Ex.A as per the CA report Exh.125 is blood collected from spot with cotton ball, wherein blood group 'AB' of injured was determined. Ex. A1 shoe of the deceased 36 CRI.APPEAL.381-2019.JUDGMENT.odt seized from spot, Ex.B blood samples of deceased, Ex.B1 hair of the deceased, Ex. B2 clothes, shoes, socks of deceased wherein blood group 'A' of deceased was determined. Ex.C is a sword recovered from accused No.2/Adesh, wherein the blood group 'AB' of injured was determined. Ex. C1 and C2 are also the knives recovered from accused No.2/Adesh out of which blood group 'AB' was found on Ex. C2 i.e. knife. Ex.C3 is a sword recovered from accused No.4/Ashwin. Ex.C4 and C5 are the knives recovered from accused Ashwin out of that on Ex.C4 blood group 'A' of deceased was found, whereas on Ex. C5 blood group 'AB' of injured was found. Ex. D and D1 are the clothes of the injured, on which blood group 'AB' was found.
Thus, blood group 'AB' found on blood collected from the spot and one sword recovered at the instance of accused No.2/Adesh, knife recovered at the instance of accused No.2/Adesh and knife recovered from accused No.4/Ashwin which is a blood group of injured, whereas blood group 'A' determined on clothes, shoe of the deceased and knife recovered at the instance of accused No.4/Ashwin. Additionally, human blood was found on the shoe of the deceased collected 37 CRI.APPEAL.381-2019.JUDGMENT.odt from the spot, knives seized from accused No.2/Adesh and swords seized from accused No.4/Ashwin.
32. The other circumstance on which the prosecution placed reliance on is the evidence of PW-7/Amol Chaudhari Police Officer who conducted part investigation. His evidence shows that, on 31.10.2017 he was on duty in Police Station as Night Officer. During his duty hours in the night they received an information that a quarrel is going on in Patipura. Hence after taking entry in station diary he rushed to the spot. There was a mob at Samrat Ashok Chowk at Patipura and they received an information that one person is killed by some persons by sharp edged weapons. Immediately, he alongwith the other Police staff visited the said house and found the dead body in the pool of blood in the middle room of the house. It was disclosed to him that it is the house of Milind Gedam. 33(i). He also disclosed that, how the incident happened. Mother of the deceased was also present there as well as PW-3/Vijay Shende was also present there, who disclosed that his nephew Premraj was also injured. He called the photographer. He also issued the requisition to call the panchas.
38 CRI.APPEAL.381-2019.JUDGMENT.odt In presence of the panchas he drawn the panchnama, collected the blood samples from the spot and seized one shoe having blood stains. He found blood stains on chair, utensils and windows. The mother of the deceased informed him that the motorcycle of the deceased is lying in front of grocery shop, hence he visited alongwith with the panchas at the said place. The distance between the house of Milind Gedam and the place where the motorcycle was parked was about 50 meters. He alongwith panchas inspected the said vehicle and found some blows were given on the vehicle by sharp weapons. They seized the motorcycle. After Spot panchnama Exh.85, he returned to Police Station and obtained the report of PW-1/Shalini. On 01.11.2017, he drawn the Inquest panchnama and noted various injuries on the dead body of the deceased. As per his opinion, the death of the deceased is due to the injuries but to obtain the opinion he referred the dead body for post mortem examination.
33(ii). His cross-examination shows that, he has drawn only one Spot panchnama, wherein he has not shown the house of Premraj Shende or Vijay Shende. He admits that, there is a 39 CRI.APPEAL.381-2019.JUDGMENT.odt compound wall towards the East and North to the house of Milind Gedam but there is no compound wall towards the North of his house. He further stated that, he did not find any blood on the spot where the motorcycle was lying. He specifically admits that Vijay Shende had not disclosed at that time how the incident had happened and he saw the incident. 33(iii). His cross-examination further shows that, one shoe of the deceased was seized from the spot, whereas the another shoe was from the Hospital. He further admits that, there were two incidents on two spots. Thus, the attempt was made to bring on record that only one Spot panchnama was drawn by the Investigating Officer.
34. To establish the fact that, electricity facility was available at the spot, prosecution has examined PW-8/Sharad Kshirsagar who was serving as light checker in Nagar Parishad Yavatmal. As per his evidence on 31.10.2017, the street lights in the area where the incident took place were ON during 07.00 p.m. to 10.00 p.m. He has submitted the report in reply to the communication issued by Jr. Engineer. He has also stated that, the complaints are maintained by them. It specifically came in 40 CRI.APPEAL.381-2019.JUDGMENT.odt the evidence that, there are more than 50 street lights at Patipura and there are number of electricity polls to provide street lights. Thus, his evidence shows that, the electricity facility was available at the relevant time.
35. PW-9/Vinod Zalke is the Investigating Officer who has narrated the investigation carried out by him. He specifically stated as to the aspect of discovery of place where the weapons of the offence were kept. As per his evidence, on 08.11.2017 he called two panchas and in presence of panchas accused Adesh Khairkar gave his voluntary statement and stated that he would show the place where he concealed the weapons sword and knife of the offence. Accordingly, his statement was recorded. He led them as well as panchas as per the statement Exh.110. He took them on Old Nagpur Bypass and thereafter near some bushes he pointed out the place where he concealed the sword and knives. He took out one sword and two knives from the said bushes. Accordingly, the panchnama was drawn. His further evidence shows that, on the same day the other accused Ashwin Telang also gave a voluntary statement in presence of panchas and the said statement was recorded vide 41 CRI.APPEAL.381-2019.JUDGMENT.odt Exh. 113. As per the said statement, he led them towards Old Nagpur Bypass near R.T.O. Office and took them towards the bushes and took out the sword and knives which were seized by them. As to the said recovery the cross-examination is that the said recovery is from open place which is denied by the Investigating Officer. The cross-examination of the Investigating Officer was also taken on the aspect of recording the statement of Vijay Shende and Premraj belatedly on 08.11.2017. The Investigating Officer has explained the said delay that he came to know that Premraj was taking treatment at Nagpur, and therefore, their statements were recorded on 08.11.2017.
36. On the basis of the above said evidence, prosecution claimed that the evidence of PW-1/Shalini, PW-2/Premdas and PW-3/Vijay is consistent and there is no reason to suspect the said evidence, whereas the learned defence Counsel criticized the evidence on the ground that PW-1/Shalini initially has narrated only four names and she is interested witness. Her evidence nowhere shows that, she witnessed the incident which took place in the house of PW-5/Milind Gedam. Evidence of PW-2/Premraj Shende is also not trustworthy as he has not 42 CRI.APPEAL.381-2019.JUDGMENT.odt disclosed the evidence immediately. His statement is recorded belatedly, therefore there is a chance of embellishment. PW-3/Vijay Shende who has also not disclosed the incident immediately, and therefore, the evidence requires to be discarded. It is submitted by the learned defence Counsel that, PW-5/Milind Gedam in whose house the alleged incident has occurred, has not supported the prosecution case, and therefore, his evidence is not helpful to the prosecution.
37. The law as to the appreciation of evidence is settled. The appreciation of the ocular evidence, there is no straight jacket formula. In the case of Balu Sudam Khalde & Anr. Vs. The State of Maharashtra in Criminal Appeal No. 1910/2010 decided by the Hon'ble Apex Court on 29.03.2023 laid down the principles for appreciation of ocular evidence in a criminal case as follows:-
"APPRECIATION OF ORAL EVIDENCE
25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is 43 CRI.APPEAL.381-2019.JUDGMENT.odt undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have 44 CRI.APPEAL.381-2019.JUDGMENT.odt anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."
45 CRI.APPEAL.381-2019.JUDGMENT.odt
38. In the light of the above said principles if the evidence of PW-1/Shalini is appreciated she has specifically narrated that, the four persons i.e. Adesh Khairkar, Suhas Khairkar, Ahswin @ Gondya alongwith Rohit Onkar had been to her house. Thus, her evidence disclosing the names of these four accused to the extent of visiting her house alongwith the weapons. Her evidence specifically shows that, by witnessing the weapons in their hands she suspected and followed them and seen her son and PW-2/Premraj Shende in front of the shop of PW-3/Vijay Shende, all the accused went there and assaulted them by means of weapons in their hands. Thus, she has witnessed all the accused persons assaulting her son as well as PW-2/Premraj Shende in front of the shop of PW-3/Vijay Shende. Her evidence further discloses that, her son rushed to the house of Milind Gedam to save himself and all the accused persons followed him and killed him. As far as this evidence is concerned, which is consistent and there is no inconsistency on this aspect and corroborated by PW-2/Premraj Shende and PW-3/Vijay Shende. PW-5/Milind Gedam though turned hostile to the extent of the names of the accused but the evidence of PW-1 to PW-3 and corroborated by PW-4 and PW-5 shows 46 CRI.APPEAL.381-2019.JUDGMENT.odt incident occurred in the house. The issue was raised by the learned defence Counsel that there was no opportunity to identify the assailants but the evidence of PW-7/Amol Chaudhari and PW-8/Sharad Kshirsagar especially shows that, the electricity facility was available in front of the shop of PW-3/ Vijay Shende as well as in the house of PW-5/Milind Gedam and street lights were also available. PW-3/Vijay Shende specifically stated that, he has seen the incident in the light of the street light and in the light of bulb which is available in his house.
39. Mr. Mirza, learned Counsel, placed reliance on various decisions as far as the identification of the accused in the light is concerned and placed reliance on State of M.P Vs. Ghudan, (2003) 12 SCC 485. On going through the facts of the case which shows that, there was no mention of any availability of light in the site plan in a cited case, whereas in the present case a specific evidence of witness and supported by Investigating Officer and PW-8/Sharad Kshirsagar shows lights available at the first incidence that took place on the road and second incidence in the house of PW-5/Milind Gedam. The evidence of PW-8/Sharad Kshirsagar specifically shows that, the 47 CRI.APPEAL.381-2019.JUDGMENT.odt electricity was available in the relevant time in the area where the alleged incident has taken place. On the similar point, the decision of Bollavaram Pedda Narsi Reddy & Ors. Vs. State of Andhra Pradesh, (1991) 3 SCC 434, was relied by the learned defence Counsel but as observed earlier as the facts are not identical, and therefore, not helpful to the defence.
40. PW-1/Shalini Thool is the natural witness. Her presence at the spot of incident is also natural. While appreciating her evidence the approach has to be whether the evidence of witness reads as a whole inspires confidence. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as as whole and evaluate them to find out whether it is against the general tenure of the evidence and whether the earlier evaluation of the evidence is shaken. Minor discrepancies which are not touching to the core of the incident are not fatal. The prosecution evidence may suffer from inconsistencies here and there but no criminal case is free from it. The first and foremost thing is to be seen is whether those inconsistencies 48 CRI.APPEAL.381-2019.JUDGMENT.odt goes to the root of the matter. The presence of PW-1/Shalini Thool at the spot is natural. Even the evidence of PW-7/Amol Chaudhari who conducted the part investigation, immediately reached to the spot after receipt of the information and also noted the presence of of PW-1/Shalini Thool there. Therefore there is no reason to disbelieve her version which is corroborated by PW-2/Premraj Shende and PW-3/Vijay Shende and to some extent PW-5/Milind Gedam also.
41. PW-2/Premraj Shende is admittedly the injured eyewitness. He has sustained the injuries in the said incident is not only corroborated by the oral evidence but it is corroborated by the medical evidence of PW-10/Dr. Manisha Waghmare. Though it is canvassed that he is interested witness and her evidence is not trustworthy but the evidence of PW-1/Shalini Thool and PW-3/Vijay Shende shows his presence with the deceased at the time of incident and also proves that he was assaulted by the accused persons. As per the evidence of PW-2/Premraj Shende, accused No.2/Adesh Khairkar assaulted him by sword and he was also assaulted by knives. The evidence of Medical Officer PW-10/Manisha Waghmare shows that the 49 CRI.APPEAL.381-2019.JUDGMENT.odt injury sustained by the injured in the alleged incident are incised wounds and possible by sharp edged weapons. She specifically stated that, those injuries are possible due to swords and knives. Not only this but the scientific evidence also corroborates the facts as the blood group 'AB' was determined on sword seized from accused No.2/Adesh Khairkar, knife recovered from accused No.2/Adesh Khairkar and knife recovered from accused No.4/Ashwin Telang. Blood group 'AB' was also found on his clothes.
42. While appreciating the evidence of injured eyewitness, the legal principles are to be kept in mind are as follows.
"26. When the evidence of an injured eye-witness is to be appreciated, the undernoted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on 50 CRI.APPEAL.381-2019.JUDGMENT.odt account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."
43. Thus, the law is well settled that while assessing the value of the evidence of the eyewitness, two principal considerations are whether, in the circumstances of the case, it is possible to believe his presence at the seen of occurrence or in such situations as would make it possible to them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the evidence of PW-2/ Premraj Shende if appreciated admittedly his presence with the deceased at the time of incident is established by the eyewitnesses. It also corroborated by the fact that he sustained the injuries in the said incident and corroborated by the medical evidence.
44. Learned defence Counsel vehemently submitted that 51 CRI.APPEAL.381-2019.JUDGMENT.odt PW-2/Premraj Shende is an interested witness. It is well settled that interestedness postulates that the witness should have some animosity against the accused otherwise merely because they are relatives or acquainted cannot be thrown away. The person concerned must have some direct interest in seeing that the accused is somehow or otherwise convicted either because he had some animus with the accused or for some other reason.
45. The evidence of PW-2/Premraj Shende and PW-3/Vijay Shende is further criticized on the ground that the alleged eyewitnesses despite opportunity did not inform the Police. This criticism requires to be appreciated in the light of the fact that son of PW-1/Shalini sustained the injuries and succumbed to the death. PW-2/Premraj Shende himself has sustained the injuries and immediately approached to the Police Station and he was referred by the Police for medical examination. He was medically examined on the same day. Thus, when the Police came at the spot of incident, admittedly he was not present at the spot of incident. As far as PW-3/Vijay Shende is concerned, though he was present but there is nothing on record to show that immediately he was enquired by 52 CRI.APPEAL.381-2019.JUDGMENT.odt the Investigating Officer and after enquiry also he has not disclosed the incident to the Investigating Officer. The explanation given by the Investigating Officer specifically shows that, as the injured was taking treatment at Nagpur, and therefore, he could not record his statement immediately. Thus, as far as the delay in recording the statements of these witnesses is rightly explained by the prosecution. As far as the conduct of PW-3/Vijay Shende is concerned, it is well settled that, different persons react differently in similar situations, and therefore, merely because they have not responded in a particular manner, is not sufficient to discard the evidence.
46. Learned defence Counsel placed reliance on the decision of Jafarudheen Vs. State of Kerala (supra) the note (D) of the said judgment also shows that the witnesses who are family members apart from being they are the chance witnesses, their testimonies cannot be rejected and held the evidence of eyewitnesses credible. The Apex Court has specifically observed in para No. 34 of the judgment that, nothing has been elicited from the eyewitnesses insofar as the aforesaid accused are concerned to impeach through their evidence. Here in the 53 CRI.APPEAL.381-2019.JUDGMENT.odt present case also, there is nothing on record to show that there is any other reason for these witnesses to implicate the accused falsely in the alleged incident and no reason came forward to discard the evidence of these witnesses. Merely because their statements are recorded belatedly, the evidence cannot be thrown away when the delay is properly explained by the Investigating Officer. The identification of the accused by these witnesses in the Court is also a substantial evidence.
47. These witnesses are further criticized by the defence on the ground that, they have not attributed the specific role to the accused. General statement is made by the witnesses. Admittedly, the evidence of PW-1, PW-2 and PW-3 are the witnesses who are rustic witnesses. While appreciating the testimony of rustic witnesses and when number of intruders attack with deadly weapons then witness cannot be expected to give a very accurate and photogenic version as whole thing happened in a few minutes. This aspect is also considered by the Hon'ble Apex Court in the case of State of Punjab Vs. Hakam Singh, MANU/SC/0526/2005, wherein Hon'ble Apex Court observed that, sometimes while appreciating the testimonies of 54 CRI.APPEAL.381-2019.JUDGMENT.odt rustic witnesses, we are liable to commit mistakes by losing sight of their rural background and try to appreciate testimony from our rational angle. When a lady is confronted with number of intruders in her house armed with deadly weapons and showering bullets she cannot give a very accurate and photogenic version as whole thing happened in few minutes. Therefore, while appreciating whole scenario in which the incident happened. It is not expected that she would be in a position to state act of each accused. Similar is the fact here, PW-2/Premraj Shende and deceased were attacked by several accused suddenly. PW-1/Shalini and PW-3/Vijay Shende have also witnessed the incident when 10 to 12 persons were assaulting with deadly weapons and it is highly difficult for the witnesses to narrate the act of each accused.
48. Learned Counsel for the accused further submitted that, there is inconsistent evidence of the witnesses contradicting the medical evidence. However, no such inconsistencies are brought on record as far as the oral and medical evidence is concerned. It is also submitted that, there was no motive for the accused to commit such offence. It is well 55 CRI.APPEAL.381-2019.JUDGMENT.odt settled that, when direct evidence is available, the motive takes backseat, and therefore, this submission is also not sustainable.
49. As observed earlier that, PW-5/Milind Gedam who is eyewitness but has left the loyalty towards the prosecution. However, his evidence as to the incident is corroborating to the fact that the death of the deceased is caused due to the assault by 10 to 12 persons, he turned hostile to the extent of the names of the accused persons. The evidence of PW-1/Shalini, PW-2/Premraj Shende and PW-3/Vijay Shende categorically stated that, the deceased was chased by the present accused and deceased entered into the house of PW-5/Milind Gedam and accused followed him and assaulted him. This fact is further corroborated by the scientific evidence as blood stains are found on the weapons of blood group of deceased and injured and recovered at the instance of accused Nos. 2 and 4. The human blood was found on the knives seized from the accused No.4 and swords seized from the accused No.4. The evidence of hostile witness can be relied on if there are some other material, on the basis of which the said evidence can be corroborated. The evidence of PW-1 to PW-3 shows that, the deceased was 56 CRI.APPEAL.381-2019.JUDGMENT.odt chased by the accused and they entered the house of Milind Gedam and the evidence of Milind Gedam that 10 to 12 persons assaulted the deceased corroborates each other.
50. The another circumstance on which the prosecution relied upon is the evidence as to the recovery of weapons at the instance of the accused. Admittedly, the prosecution has not examined the panch witnesses and the aspect of memorandum statement of accused No.2/Adesh and accused No.4/Ashwin at whose instance two swords and four knives are recovered is proved by PW-9/Vinod Zalke. His evidence shows that, as the accused No.2/Adesh shown his willingness to make a voluntary statement, and therefore, he called two panchas and in presence of panchas he made a statement that he will show the place where he concealed the weapons and accordingly after recording his statement Exh.110 he led them towards Old Nagpur Bypass near Bridge. He led them towards the spot and shown the place where he concealed the weapons and at his instance one sword and two knives were recovered from the bushes. Similarly, accused No.4/Ashwin has also made a voluntary statement that he will show the place where he 57 CRI.APPEAL.381-2019.JUDGMENT.odt concealed the weapons of the offence and accordingly led them on Old Nagpur Bypass and one sword and two knives were recovered at his instance. The Investigating Officer has cross-examined on that aspect but he denied the contention that the accused have not made any statement and no recovery was there at their instance. But he admitted that, at the relevant time the accused persons were handcuffed. He has also admitted that, the place where accused took them was open land and anybody can go to the said spot. But he clarified that, there was thorny bushes and the weapons were recovered from the said thorny bushes.
51. As far as the evidence as to the recovery in view of Section 27 of the Indian Evidence Act is concerned, the requirement of Section 27 of the Indian Evidence Act is founded on the principle that if any fact is discovered, after search is carried out, on the search of any information obtained from the prisoner, such recovery is guaranteed that the information supplied by the prisoner is true. It goes without saying, and therefore, that recovery of articles at the instance of the accused has to be proved by the witnesses.
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52. In the case of Subramanya Vs. State of Karnataka, reported in 2022 LiveLaw (SC) 887 and held that the conditions necessary for the applicability of Section 27 of the Act are broadly discussed as under:
"(1) Discovery of facts in consequence of an information received from accused;
(2) Discovery of such fact to be deposed to; (3) The accused must be in police custody when he gave information; and (4) So much of information as relates distinctively to the fact thereby discovered is admissible."
53. Thus, what is admissible is the information and the same has to be proved and not the opinion formed on it by the Police Officer. In other words, the information given by the accused while in custody which led to recovery of the articles has to be proved. The basic idea embedded in Section 27 of the Indian Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered as a search made on the strength of any information obtained from prisoner such a discovery is made on the strength of any information obtained from a prisoner, such discovery is guarantee that the information supplied by the prisoner is true.
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54. This evidence as to recovery is criticized by the learned Counsel for the accused on the ground that, the independent witnesses are not examined by the prosecution, and therefore, the evidence as to recovery is not trustworthy and liable to be discarded. There is no requirement either under Section 27 of Indian Evidence Act or under Section 161 of Cr.P.C. to obtain signature of independent witnesses on the record in which statement of an accused is written, is the observation of the Hon'ble Apex Court in the case of State, Govt. of NCT of Delhi Vs. Sunil and Ors., MANU/SC/0735/2000 wherein the Hon'ble Apex Court observed that, the legislative idea in insisting on such searches to be made in presence of two independent inhabitants of the locality is to ensure the safety of such all articles middled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code, hence it is fallacious impression that when recovery is affected, pursuant to any statement made by the accused, the document prepared by the Investigating Officer with such recovery, must necessarily be attested by independent witnesses.
60 CRI.APPEAL.381-2019.JUDGMENT.odt Of course, if any such statement leads to recovery of any article, it is open to the Investigating Officer to take the signature of any person present at that time, on the document prepared for such recovery but if the witness was not present or if no person agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the Police Officer must be treated as tainted and the recovery evidence unreliable. The Court has to consider the evidence of the Investigating Officer to depose to the fact of recovery based on the statement elicited from the accused on its own worth.
55. In Modan Singh Vs. State of Rajasthan, AIR 1978 SC 1511, wherein it was observed that, if the evidence of Investigating Officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. Similar view was expressed in Mohd. Aslam Vs. State of Maharashtra, (2001) 9 SCC 362 & Anter Singh Vs. State of Rajasthan, 2004 SCC 10 657 that even if panch witness turns hostile, the evidence of person who affected 61 CRI.APPEAL.381-2019.JUDGMENT.odt the recovery would not stand vitiated.
56. Thus, the evidence of the Investigating Officer can be considered for proving the recovery as official acts are done by him is a wise presumption of law recognized by the legislature as seen from the provisions of Section 114 of the Indian Evidence Act.
57. The evidence as to recovery is further criticized on the ground that, the accused was handcuffed at the relevant time. We are not impressed by this submission, there can be no doubt that when the accused is handcuffed he may not be free from fear of the Police or duress of pressure but that itself cannot be a reason to discard the recovery of weapon if it was otherwise found to be corroborated by other evidence. Handcuffing of a person by itself cannot be a reason to generalize the hypothesis that such a discovery cannot be reliable. The apprehension of the investigating agency that he may flee away or may attack on them may be the one of the reason to keep him in a handcuff position and the possibility cannot be ruled out. We are fortified in taking this view as the same view is taken by this Court in the case of Putlabai 62 CRI.APPEAL.381-2019.JUDGMENT.odt Bhimashankar Pattan Vs. The State of Maharashtra, 2010 ALLMR (CRI) 2084.
58. The learned defence Counsel further contended that, in view of the admission given by the Investigating Officer the place of recovery was the open place. Thus, the recovery from the open place is not admissible. The Investigating Officer PW-9/Vinod Zalke clarified that, though the place was open place but the weapons were recovered from the thorny bushes and kept in a concealed position. The recovery evidence shows that, the weapons were found in a concealed position from the thorny bushes. Thus, it was not a place which was visible to all. Therefore, this contention is also not sustainable.
59. Mr. Mirza, learned Counsel, vehemently submitted that, the FIR in the present case is rather late and it is also dispatched to the Judicial Magistrate belatedly. As far as this contention is concerned, the alleged incident has taken place on 31.10.2017 at about 08.30 to 09.30 p.m., and during that night the FIR was lodged, therefore it is not a delayed FIR. The evidence of PW-1/Shalini shows that, after Police drawn the panchnama she was taken to the Police Station and she has 63 CRI.APPEAL.381-2019.JUDGMENT.odt lodged the report. Even the evidence of PW-7/Amol Chaudhari who recorded the FIR also shows that after drawing the spot panchnama he went to the Police Station, Informant also approached to the Police Station and he recorded the report. The contention that the FIR was dispatched to the Judicial Magistrate First Class belatedly, admittedly no document is on record to show that when the FIR was dispatched to the Magistrate.
60. Learned Counsel for the accused placed reliance on Jafarudheen Vs. State of Kerala (supra), the observation of the Hon'ble Apex Court in the said judgment itself shows that, the first information report in a criminal case starts the process of investigation by letting the criminal law into motion. The Investigating Officer is expected to keep start his investigation immediately after registration of a cognizable offence. It is certainly a vital and valuable aspect of evidence to corroborate the oral evidence. Therefore, it is imperative that such an information is expected to reach the jurisdictional Magistrate at the earliest point of time to avoid any possible ante-dating or ante-timing leading to the insertion of materials meant to 64 CRI.APPEAL.381-2019.JUDGMENT.odt convict the accused contrary to the truth and on account of such a delay may also not only gets bereft of the advantage of spontaneity, there is also a danger creeping in by the introduction of A coloured version, exaggerated account or concocted story as a result of deliberation and consultation. However, a mere delay by itself cannot be a sole factor in rejecting the prosecution's case arrived at after due investigation.
61. He also placed reliance on Motilal Vs. State of Rajasthan (supra), wherein also the Hon'ble Apex Court observed that, the delayed receipt of the report by Elaqa Magistrate would not be fatal to the prosecution.
62. He further relied upon on the judgment of Rattiram & Ors. Vs. State of M.P. (supra) on the similar issue, wherein also the Hon'ble Apex Court dealt with this issue and observed that, the learned trial Judge has adverted to the issue and opined, regard being had to the creditworthiness of the testimony on record it could not be said that the FIR, was antedated or embellished. It is worth noting that such a contention was not raised before the High Court. Considering 65 CRI.APPEAL.381-2019.JUDGMENT.odt the facts and circumstances of the case, we are disposed to think that the finding recorded by the learned trial Judge cannot be found fault with. We may hasten to add that when there is delayed dispatch of the FIR, it is necessary on the part of the prosecution to give an explanation for the delay. We may further state that the purpose behind sending the copy of the FIR to the concerned Magistrate is to avoid any kind of suspicion being attached to the FIR. Such a suspicion may compel the court to record a finding that there was possibility of the FIR being ante- timed or ante-dated. The court may draw adverse inferences against the prosecution. However, if the court is convinced as regards to the truthfulness of the prosecution version and trustworthiness of the witnesses, the same may not be regarded as detrimental to the prosecution case. It would depend on the facts and circumstances of the case.
63. As far as the present case is concerned, admittedly the Investigating Officer is not cross-examined to suggest that the FIR is ante-timed or ante-dated. There is no suggestion to the Investigating Officer that the FIR is dispatched to the Magistrate belatedly. Therefore, the submission of the learned 66 CRI.APPEAL.381-2019.JUDGMENT.odt Counsel in absence of the evidence that FIR is dispatched belatedly is not sustainable.
64. As per the prosecution case, all the accused formed unlawful assembly and in furtherance of the common object of that assembly executed the act to eliminate the deceased. For that purpose, the prosecution placed reliance on the evidence of PW-1/Shalini the mother of the deceased who categorically stated that initially accused Nos. 1 to 4 came at her house and they were holding weapons in their hands. Therefore, she followed them and on the way the other accused joined them and all the accused assaulted the deceased as well as injured. The evidence of PW-1/Shalini is corroborated by injured eyewitnesses PW-2/Premraj and PW-3/Vijay.
65. Thus, as far as the evidence of prosecution that all accused came at the spot holding weapons in their hands is consistent. Their evidence that all the accused in furtherance of their common object assaulted the deceased. Thus, the Appellants herein had been arraigned by virtue of Sections 148 and 149 of IPC on the ground that they were the part of unlawful assembly which had the common object of eliminating 67 CRI.APPEAL.381-2019.JUDGMENT.odt the deceased Anil by means of criminal force, and therefore, being the member of the unlawful assembly, they were also guilty of the offence committed in prosecution of the common object i.e. the offence under Section 302 of IPC.
66. At this juncture, the relevant legal provision 141 of IPC which defines unlawful assembly. It says an assembly of 5 or more persons as designated as unlawful assembly if the common object of the persons composing that assembly is to commit an illegal act by means of criminal force.
67. As per Section 148 of IPC which deals with rioting armed with deadly weapons, whoever guilty of rioting, being armed with a deadly weapon or with anything which used as weapons of offence is likely to cause death, shall be punished with imprisonment either description for a term which may extend to three years or with fine or with both. The offence of riot is defined in Section 146 of IPC. In view of the said definition, whenever force or violence is used by the unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.
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68. Section 149 of IPC says about every member of an unlawful assembly shall be guilty of the offence committed in prosecution of the common object. It says that, if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence is the member of the said assembly, is guilty of that offence. Thus, if it is a case of murder under Section 302 of IPC, each member of the unlawful assembly would be guilty of committing the offence under Section 302 of IPC.
69. Mr. Daga, learned Counsel for the accused, submitted that no specific role is attributed to all the accused, initially only names of four accused are mentioned and there is no attribution to the other accused. In view of that, they are not the members of unlawful assembly. In support of his contention he placed reliance on Jaising & Ors., K.M. Ravi and Ors., Mohd. Iqbal @ Munna s/o Abdul Sattar & Anr. (supra) and Shri Dinesh s/o Mahadeo Meshram Vs. State of Maharashtra, 2017 ALL MR 69 CRI.APPEAL.381-2019.JUDGMENT.odt (Cri) 523 and submitted that, mere presence or association with other members alone does not per se be sufficient to hold every one of them criminally liable for the offences committed by others unless there are sufficient evidence on record to show that one such also intended to or knew the likelihood of commission of such an offending act. There seems to be no legally acceptable material to prove that all the accused acted as members of unlawful assembly and except that they were found to be closely related nothing concrete to join them to connect with the murder of the deceased.
70. As already observed that, the evidence of PW-1, PW-2 and PW-3 categorically shows that all accused came at the spot holding weapons in their hands and assaulted the deceased Anil as well as PW-2/Premraj. Section 149 of IPC creates a constructive or vicarious liability of the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. By applying this principle every member of an unlawful assembly to be held guilty of the offence committed by any member of that assembly in prosecution of the common object of that 70 CRI.APPEAL.381-2019.JUDGMENT.odt assembly. The factum of causing injury or not causing injury would not be relevant when an accused is roped in with the aid of Section 149 of IPC. The question which is relevant and which is required to be answered by the Court is whether the accused is the member of an unlawful assembly or not.
71. In the case of Vinubhai Ranchhodbhai Patel Vs. Rajivbhai Dudabhai Patel (2018) 7 SCC 743, wherein the Hon'ble Apex Court held that:
"in a cases where a large number of accused constituting "unlawful assembly" are alleged to have attacked and killed one or more persons, it is not necessary that each of the accused should inflict fatal injuries or any injury at all. Invocation of Section 149 of IPC is essential in such cases for punishing the members of such unlawful assembly on the ground of vicarious liability even though they are not accused of having inflicted fatal injuries in appropriate cases if the evidence on record justifies. The mere presence of an accused in such an unlawful assembly is sufficient to render him vicarious liable under Section 149 of IPC for causing the death of the victim of the attack provided that the accused are told that they have to face a charge rendering them vicarious liable under Section 149 of IPC for the offence punishable under Section 302 of IPC."
72. In Nitya Nand Vs. State of U.P. & Anr. in Criminal Appeal No. 1348/2014 decided on 04.09.2024 , the Hon'ble Apex Court observed by reproducing para No.22 of the judgment of Vinubhai Ranchhodbhai Patel Vs. Rajivbhai Dudabhai Patel.
71 CRI.APPEAL.381-2019.JUDGMENT.odt "22. When a large number of people gather together (assemble) and commit an offence, it is possible that only some of the members of the assembly commit the crucial act which renders the transaction an offence and the remaining members do not take part in that "crucial act" -- for example in a case of murder, the infliction of the fatal injury. It is in those situations, the legislature thought it fit as a matter of legislative policy to press into service the concept of vicarious liability for the crime. Section 149 IPC is one such provision. It is a provision conceived in the larger public interest to maintain the tranquility of the society and prevent wrongdoers (who actively collaborate or assist the commission of offences) claiming impunity on the ground that their activity as members of the unlawful assembly is limited."
73. Recently, in the judgment of Zainul Vs. The State of Bihar in Criminal Appeal No. 1187/2014 dated 07.10.2025 , the Hon'ble Apex Court has held that:
"49. The expression observed that "in prosecution of the common object" means that the offence committed must be directly connected with the common object of the assembly, or that the act, upon appraisal of the evidence, must appear to have been done with a view to accomplish that common object. In Charan Singh Vs. State of U.P. reported in (2004) 4 SCC 205, this Court held that the test for determining the "common object" of an unlawful assembly must be assessed in light of the conduct of its members, as well as the surrounding circumstances. It can be deduced from the nature of the assembly, the weapons carried by its members, and their conduct before, during, or after the incident."
74. It is further observed that, Section 149 of IPC makes all the members of an unlawful assembly constructively liable when an offence is committed by any member of such assembly 72 CRI.APPEAL.381-2019.JUDGMENT.odt with a view to accomplish the common object of that assembly or the members of the assembly knew that such an offence was likely to be committed. However, such liability can be fasten only upon proof that the act was done in perusal of the common object.
75. Thus, once the existence of a common object amongst the members of an unlawful assembly is established, it is not imperative to prove that each member committed an overt act. The liability under this provision is attracted once it is certain that an individual had knowledge that the offence committed was a probable consequence in furtherance of the common object, thereby rendering him a "member" of the unlawful assembly. Utmost it is important to consider whether the assembly consisted of some members who were merely viewers and who were there out of curiosity, without the knowledge, then such persons cannot be said to be members of the unlawful assembly. Thus, the existence of a common object is to be inferred from certain circumstances such as:
a. the time and place at which the assembly was formed;
b. the conduct and behaviour of its members at or near 73 CRI.APPEAL.381-2019.JUDGMENT.odt the scene of the offence;
c. the collective conduct of the assembly, as distinct from that of individual members;
d. the motive underlying the crime;
e. the manner in which the occurrence unfolded; f. the nature of the weapons carried and used; g. the nature, extent, and number of injuries inflicted, and other relevant considerations.
76. By applying these considerations in the present case oral evidence of PW-1, PW-2 and PW-3 shows that all accused came at spot together with deadly weapons like swords and knives in their hands and assaulted the deceased and PW-2/Premraj injured in front of the shop of PW-3/Vijay. The deceased fleed away from the spot to save himself but he was chased by all the accused and they all entered in the house of PW-5/Milind Gedam behind the deceased and caused the injuries to the deceased. Deceased has sustained multiple chop wounds and stab wounds 15 in numbers affecting the internal organs.
77. Thus, the fact that the appearance of all the 74 CRI.APPEAL.381-2019.JUDGMENT.odt Appellants/accused at the spot alongwith the weapons causing injuries to the injured and deceased at first place in front of the shop of PW-3/Vijay Shende and thereafter chasing the deceased at some distance and executing the act of eliminating the deceased, is sufficient to show their common object. Therefore, there is no hesitation to hold that, all the Appellants/accused were members of an unlawful assembly and in prosecution of their common object they have assaulted the deceased. Thus, upon evaluation of a set of proved circumstances i.e. the oral evidence of PW-1, PW-2 and PW-3 and corroborated by PW-5 that the deceased was assaulted by 10 to 12 persons, the assailants were identified by all these witnesses.
78. As far as charge under Section 120-B of IPC is concerned, admittedly there is no evidence to show that there was an agreement or meeting of minds. Admittedly, direct evidence would not be available as far as criminal conspiracy is concerned, however there has to be some evidence in the circumstantial in nature. Therefore, we have no hesitation to held that the offence under Section 120-B of IPC is not proved.
79. The oral evidence is further corroborated by medical 75 CRI.APPEAL.381-2019.JUDGMENT.odt evidence as well as the scientific evidence. The blood stained weapons are recovered at the instance of the accused. The evidence of PW-2/Premraj Shende who is the injured eyewitness and the settled position of law is that, the testimony of the injured witness stands on the highest pedestal as compared with the other witnesses. The fact that, the witness is injured in the incident lends assurance to his presence on the spot. In normal circumstances an injured person is not likely to falsely implicate a person and absolve the guilty. Law does not require a fact that requires to be proved on absolute terms bereft of all doubts. What law contemplates is that for a fact to be considered to be proven, it must eliminate any reasonable doubt. Reasonable doubt does not mean any trivial, fanciful or imaginary doubt, but doubt based on reason and commonsense growing out of the evidence in the case. A fact is considered proof if the Court, after reviewing the evidence, either believes it exists or deems its existence probable enough that a prudent person would act on the assumption that it exists.
80. It is cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable 76 CRI.APPEAL.381-2019.JUDGMENT.odt doubts. However, the burden is on the prosecution is only to establish its case beyond all reasonable doubts and not all the doubts. Doubts would be called reasonable if they are free from a zest for abstract, speculation. Law cannot afford any favouring other than truth. Doubts must be actual and substantial doubts as to the guilt of the accused arising from the evidence. A reasonable doubt is not an imaginary or mere a possible doubt but a fare doubt based upon reason and commonsense.
81. For the reasons discussed above, on consideration of the oral evidence, medical evidence, scientific evidence and other proven fact, in our considered opinion, the prosecution has proved the guilt of the accused unmistakenly to point out that being the members of the unlawful assembly and in furtherance of their common intention they have committed the murder of deceased Anil Thool punishable under Section 302 of IPC and caused the injuries to PW-2/Premraj and thereby committed the offence. These proved facts on the basis of proved evidence the prosecution has proved the charges against the accused beyond reasonable doubts resultantly the Appeal is partly allowed.
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82. The Appeal is partly allowed. The conviction and sentence imposed of the offence punishable under Section 120-B of IPC, is quashed and set aside. Rest of the sentence is maintained.
83. 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: 14/10/2025 15:45:36