Sunil Deotale & Ors. vs The State Of Maharashtra

These appeals are directed against judgment and order dated 20.1.2020 passed by learned Additional Sessions Judge-2, Yavatmal (learned Judge of the trial court) in Special (Atrocity) Case No.18/2018.

By the said judgment impugned, learned Judge of the trial court convicted and sentenced the accused persons as under: Cri. Ap- Name of Ac- Original Conviction Sentence peal No. cused Accused under Sec-No. tions 228/20 Sunil s/o 5 302 r.w. Imprisonment for life Malku 149 r.w. & to pay a fine of Deotale 34 IPC Rs.2000/-. In default of payment of fine shall suffer S.I. for Six months. Hanuman 302 r.w. Imprisonment for life 6 s/o 120-B IPC & to pay a fine of Pandurang Rs.2000/-. In default of payment of fine Pendor shall suffer S.I. for Six months. Shubham 8 143 IPC R.I. for Six months & to pay fine of s/o Suresh Rs.500/-. In default Tekam of payment of fine to suffer S.I. for one month. 147 & 148 R.I. for 2 years & to IPC pay fine of Rs.1000/-In default of pay-ment of fine shall suffer S.I. for 1 month. 238/20 Raj s/o 1 302 r.w. Imprisonment for life Gopal 149 r.w. & to pay a fine of Thakur 34 IPC Rs.2000/-. In default of payment of fine shall suffer S.I. for Six months. 302 r.w. Imprisonment for life

Brief facts necessary for disposal of appeals are as under:

Informant Nalini Mahesh Gawande and all accused persons are resident of village Parwa, district Yavatmal. In the month of April 2015, informant Nalini belonging to “Bouddha Community” was elected as Member of Parwa Gram Panchayat. In the month of January 2016, “No Confidence Motion” had passed against the then Gram Panchayat Sarpanch Smt.Rama Chimurkar and informant Nalini was elected as Sarpanch of village Parwa Gram Panchayat. Accused No.2 Munna Thakur opposed the election of the informant as Sarpanch and raised a dispute. As per the allegation, since the informant was elected as Sarpanch, the accused persons who are from opposite group started raising disputes on various occasions. It is alleged that in December 2017, they abused the husband of the informant on his caste. In January 2018, they raised a dispute on account of allotment of Water Hand Pumps in the village. As per the grievance of the accused persons, the post of Sarpanch was for Open Category and the informant being the Member of “Bouddha Community” became Sarpanch and, therefore, they allegedly were obstructing activities of the Gram Panchayat and were harassing the informant and her husband. There was a dispute between them on account of Election of President of “Tanta Mukti Samiti.” On 27.1.2018, accused No.2 Munna Thakur threatened the informant by telephonic call by saying that “her husband would be killed.” On 28.1.2018, quarrel took place and due to the dispute accused No.2 Munna Thakur, accused No.3 Vinod, accused No.5 Sunil Deotale, accused No.9 Sumit Meshram, accused No.12 Swapnil and accused No.5 Sunil Deotale attacked the house of the informant and in that incident Praful Shambharkar was also assaulted and they have damaged the household articles. Thus, as per allegations, there was political rivalry between the accused persons and the informant.

As per the grievance of the informant, due to the frequent quarrels and disputes between her and the accused persons, she along with her husband and son went to reside at Yavatmal. On 27.3.2018, at about 12:00 pm, the informant along with her husband Mahesh, her son Mayur, and nephew Samyak came to village Parwa. Deceased Mahesh called persons Shaikh Imran and Shaikh Israil to repair his house. At about 1:00 pm, deceased Mahesh along with Shaikh Imran and Shaikh Israil left the house on a pretext of eating ‘kharra.” They reached near Anganwadi and the deceased was talking to Prashant Shambharkar, Nitin Lokhande, Raju Kawale, and Prakash Bhagat who were playing cards there. At that time, all the accused persons by forming unlawful assembly came there with deadly weapons and assaulted deceased Mahesh Gawande. Deceased was followed by her son Mayur and nephew Samyak on her say. They immediately came to her and disclosed to her that deceased Mahesh is attacked by the accused persons by the deadly weapons and, therefore, she rushed to the spot of the incident and witnessed all the accused persons assaulting the deceased. She shouted for help. The people gathered there and the accused persons fled away from the spot of the incident.

On receipt of the information, the police came at the spot and shifted the dead body of the deceased in the Yavatmal District Hospital, Yavatmal. In the evening, she has lodged the report about the incident.

On 27.3.2018, Awadhootwadi Police received information at about 2:05 pm regarding the quarrel in village Parwa and, therefore, they have taken general diary entry and API Chaudhary and PSI Dhawane along with other police staff proceeded towards village Parwa. At about 15:27 (3:27 pm) API Chaudhary returned the police station and has taken entry in general diary to the effect that he shifted the deceased Mahesh to hospital at Yavatmal and called the Government Servants to act as panchas for conducting spot panchanama. . on completion of investigation chargesheet was submitted against the accused persons.

Learned Judge of the trial court framed charge vide Exh.73. The contents of the charge were read over and explained to the the accused persons in their vernacular. They pleaded not guilty and claimed to be tried.

In support of the prosecution case, the prosecution has examined in all 18 witnesses, as follows:

All the incriminating evidence was put to the accused persons and defence of the accused persons is of total denial and of false implication due to political rivalry. Learned Judge of the trial court, after appreciating the evidence, convicted the appellants accused as the aforestated.

Being aggrieved and dissatisfied with the same, the present appeals are preferred by the appellants accused.

Learned counsel Shri Shashank Manohar for the accused persons has taken us through the entire evidence and pointed out that from the evidence of PW1 Nalini, who is the wife of the deceased, it reveals that she has not intervened when her husband was assaulted, which is not natural conduct. He further pointed out that as per evidence of PW1 Nalini, the deceased has left the house on the pretext of eating “kharra”. The cross examination of the witnesses shows that near the spot of the incident, there was no Pan-Stall. Therefore, the entire genesis of the report lodged by the informant appears to be false. He further submitted that the entire prosecution case mainly rests upon eyewitnesses PW1 Nalini who is the wife of the deceased; PW2 Mayur who is the son of the deceased; PW3 Sharda Narayane who belongs to the same political party as PW1; PW4 Prashant Shambharkar who belongs to the same political party as PW1. All these four eyewitnesses had previous enmity with the accused persons and they are interested witnesses. Perusal of the evidence of PW1 Nalini would make it absolutely clear that she was not at all present at the spot of the incident when the alleged assault took place. Though the incident is alleged to have taken place at about 01:00 pm, still the FIR was lodged belatedly at about 19:56 hours i.e. after about more than six hours. Perusal of the evidence of PW1 Nalini as well as the other so-called witnesses would show that the police reached the spot of the incident immediately after the incident. However, there was no disclosure from any of eyewitnesses regarding involvement of the present accused persons. None of the eyewitnesses at the first available opportunity has stated about involvement of the accused persons, which casts a serious doubt over credibility of eyewitnesses. Similarly, perusal of the evidence of PW1 Nalini would show that before she deposed in the court, she has gone through her statement on 2-3 occasions. This admission goes to show that she has memorized her statement before deposing in the court, which is not permissible and, therefore, no credibility can be attached to such witness. He further submitted that there was total unnatural conduct on the part of PW1 Nalini, which is not acceptable. Similarly, presence of PW2 Mayur, who is child as well as tutored witness too, at the spot of the incident itself is doubtful and, therefore, his evidence is required to be discarded. Similarly, presence of PW3 Sharda Narayane and PW4 Prashant Shambharkar at the spot of the incident is also doubtful. He invited our attention towards the cross examination of PW3 Sharda Narayane and submitted that the entire story narrated by her is falsified during the cross examination. As accused No.2 has married with her daughter against her will, there was enmity between her and accused No.2. Therefore, she is having motive to implicate the accused falsely. He further stated that the investigation in the present matter is absolutely tainted, dishonest, and fabricated. All the recoveries shown at the instance of the accused are also doubtful. In fact, station diary entry was that unknown assailants have assaulted the deceased, which intentionally was not brought on record. Thus, the prosecution case itself is shaky and suspicious. For all above those grounds, the judgment and order of conviction deserves to be quashed and set aside. He has also placed on record written notes of argument.

In support of his contentions, learned counsel Shri Shashank Manohar for the accused persons has placed reliance on the following decisions:

Criminal Appeal Nos.786 of 2008 and connected Criminal Appeal No.57 of 2009 (Bharati s/o Kailash Baheliya and ors vs. The State of Maharashtra), decided by this court on 18.3.2026;

Syed Amin Syed Nabi vs. The State of Maharashtra, reported in 2017 ALL MR (Cri) 245;

Jaikam Khan vs. State of Uttar Pradesh, reported in (2021)13 SCC 716;

Amar s/o Ramesh Lohkare vs. The State of Maharashtra, reported in 2016 ALL MR (Cri) 4699;

Arun Barikrao Chavan vs. The State of Maharashtra, reported in 2016 ALL MR (Cri) 4709;

Thulia Kali vs. The State of Tamil Nadu, reported in AIR 1973 SC 501;

Bacchu Narain Sinh vs. Naresh Yadav and ors, reported in AIR 2004 SC 3055;

Shri Dinesh s/o Mahadeo Meshram vs. State of Maharashtra, reported in 2017 ALL MR (Cri) 523;

Alil Mollah and anr vs. State of W.B., reported in (1996)5 SCC 369;

Anant Dyaneshwar Jadhav vs. The State of Maharashtra, reported in 2017 ALL MR (Cri) 4820;

Sonia Bahera vs. State of Orissa, reported in (1983)2 SCC 327;

Mahendra Madansingh Thakur and anr vs. The State of Maharashtra, reported in 2011 ALL MR (Cri) 3849;

Raju s/o Durgaprasad Gupta and ors vs. State of Maharashtra, reported in 2017 ALL MR (Cri) 798;

Mohd.Iqbal @ Munna s/o Abdul Sattar and anr vs. State of Maharashtra, reported in 2016 ALL MR (Cri) 4530;

Suresh s/o Purushottam Ashtankar vs. The State of Maharashtra and anr, reported in 2015 ALL MR (Cri) 4243;

Rustam s/o Ukarda Jadhav vs. State of Maharashtra, reported in 2016 ALL MR (Cri) 248; and

Hem Raj and ors vs. State of Haryana, reported in (2005)10 SCC 614.

Per contra, learned Additional Public Prosecutor for the State vehemently submitted that the prosecution case is based on direct evidence. PW1 Nalini and PW2 Mayur both are natural witnesses as they are wife and son of the deceased. There is no reason for them to implicate the accused persons falsely. PW3 Sharda Narayane and PW4 Prashant Shambharkar both are independent witnesses. Their oral evidence is corroborated by the medical evidence as 20 injuries are found on the persons of the deceased and, therefore, there is no contradiction in the oral evidence as well as the medical evidence. He further submitted that various weapons were recovered at the instance of the accused persons and recoveries are proved by the prosecution by examining pancha witnesses. The investigating officer has proved the chain of custody of the said weapons and, therefore, the question of tampering or interpolation of the blood stains on the said weapons does not arise. There is no explanation by the accused persons as far as blood stains found on their clothes are concerned. The evidence of pancha witnesses is consistent and corroborated by the oral evidence of PW1 Nalini and PW4 Prashant Shambharkar. He further invited our attention towards Chemical Analyzer’s Reports wherein the blood stains of Blood Group of the deceased were found on the incriminating articles. Thus, he submitted that not only the direct evidence but also the circumstantial evidence which is consistent and corroborative and learned Judge of the trial court convicted the accused persons on the basis of this direct as well as the circumstantial evidence. In view of that, the judgment and order of conviction deserves to be maintained.

The complainant is also represented by counsel who has placed on record written notes of argument. The sum and substance of his argument is that PW1 Nalini is the most natural witness. Merely because the FIR is lodged at about 07:20 pm, that by itself is not sufficient to suspect genuineness of the FIR. He submitted that on the contrary, the evidence shows that immediately at 02:00 pm, the police have received the information about the incident. They immediately rushed to the spot of the incident. The police removed the deceased to the hospital and immediately second entry was taken. Thereafter, further investigation was carried out. PW2 Mayur is the son of the deceased who followed the deceased and witnessed the accused persons assaulting the deceased. The accused persons were not unknown to PW2 Mayur as they are from the same village. PW1 Nalini as well as PW2 Mayur has not only identified the accused persons but also stated their role as well as the weapons they were holding. The said weapons are recovered at the instance of the accused persons having blood stains on the same. No explanation is put forth by the accused persons as to the said blood stains appearing on the weapons as well as the blood stains found on the clothes of the accused persons, which also connect them with the alleged offence. Thus, considering the entire evidence on record, the judgment and order of sentence by learned Judge of the trial court deserves to be maintained.

In support of the contentions, learned Additional Public Prosecutor for the State placed reliance on the following decisions:

K. Venkateshwarlu vs. State of A.P., reported in (2012)8 SC 73, and

Paras Ram vs. Himachal Pradesh, reported in 2002 ALL MR (Cri) 421.

Learned counsel Shri P.R.Agrawal; learned counsel Shri Atharva Manohar; learned counsel Shri R.M.Daga; and learned counsel Shri Ankit Ambatkar appearing for the respective appellants have adopted the submissions of learned counsel Shri Shashank Manohar and endorsed the same contentions.

We have heard respective learned counsel appearing for the respective appellants, who have also taken us through the entire record. After hearing both sides and perusing the entire record, first and the fore most question is, whether the prosecution has succeeded in establishing that the death of the deceased is homicidal one.

Insofar as the homicidal death is concerned, the material evidence adduced by the prosecution is the evidence of PW16 Dr.Nilesh Jadhav, who testified that on 27.3.2018, he was medical officer at VNGMC and Hospital, Yavatmal. He received requisition for conducting postmortem of the deceased, which is at Exh.216 along with CA Form along with it. On external examination, he found “Yellow Black Check shirt having multiple cut marks on the shirt, white banian with label “Lux Cozi” stained with blood having multiple cut marks, grey jeans stained with blood, and brown underwear on the person of the deceased. There were multiple injuries all over the body which he has mentioned in column No.17 of the postmortem report. There were dried blood stains on face, neck, and abdomen. He along with other medical officer, while conducting the postmortem, noted following 20 injuries all over the body of the deceased:

He also noted cut fracture of nazal bone at nazal corresponding to injury No.1 mentioned in column No.17 of the postmortem report of opening margins of clean cut and (2) fracture of maxilary bone corresponding to injury NO.2 mentioned in column NO.17 of the postmortem report of opening margins of clan cut.

On internal examination, he found under scalp hematoma over frontal, parietal and occipital region of both sides was present. Subdural hemorrhages over frontal and high parietal region of both sides. There was evidence of subarachnoid hemorrhage over frontal regions of both sides on opening thorax cavity wall ribs cartilages torn at multiple places pleural 300 ml in blood in pleura cavity. There was evidence of transaction of larynx trachea and esophagus at level of thyroid corresponding to cut throat injury mentioned in injury No.7 in column No.17 of the postmortem report. The stab injuries were present over lateral aspects of upper lobe of right lung corresponding to injury No.11 mentioned in column No.17 of the postmortem report. He also noted the evidence of stab injury over pericardiun corresponding to injury Nos.9 and 10 mentioned in column No.17 in the postmortem report. Stab injury over anterior aspect of right atrium. There was evidence of cut of blood vessels of neck corresponding to injury No.7 mentioned in column No.17 of the postmortem report. There was stab injury to abdominal wall and peritoneum corresponding to injury Nos.14 and 15 mentioned in column No.17 of the postmortem report. There was cut of esophagus corresponding to injury No.7 mentioned in column NO.17. The evidence of stab injury over anterior aspect of stomach corresponding to injury No.14 mentioned in column No.17. He noted penetrating injury to to transverse and descending colon corresponding to injury No.14 and 15 mentioned in column No.17 of the postmortem report. He preserved viscera samples for chemical analysis. He has also collected blood gauge piece for Blood Group “A” and nail clippings for detection of foreign tissue, if any, scalp hair for foreign tissue, if any.

He further deposed that the evidence of fracture of body of fourth cervical vertebra. On dissection, he noted fracture margins are irregular and blood infiltrated. Injury Nos.7, 9, 10, 11, 14, and 15 mentioned in column NO.17 of the postmortem report with corresponding internal injuries mentioned in column Nos.20, 21, and 22 with all other injuries mentioned in column No.17 collectively with its complications are sufficient in ordinary course of nature to cause death.

He further stated that injury Nos.7, 9, 10, 11, 14, and 15 mentioned in column No.17 with corresponding injury mentioned in column Nos.20 to 22 are possible by sharp and pointed weapons and injury No.7 is caused heavy cutting weapon like knife, chopper, sword, and sickle. The cause of death of the said person is due to “shock and hemorrhage following multiple stab injuries with evidence of cut throat injury.” Accordingly, he issued the postmortem report, which is at Exh.218. The viscera and other biological samples were handed over to PC B.No.1526 who was on duty along with CA Forms. He also issued death information report of the deceased, which is at Exh.220. The provisional death certificate is at Exh.221.

His further evidence shows that he also received queries from the investigating agency, which are at Exhs.222 and 223. Accordingly, he replied the said letters. On examination of weapons, he has given his opinion along with diagrams of the weapons.

During the cross examination, it came on record that in forwarding letter of the police, it was mentioned that unknown persons killed the deceased. It further came in cross examination that they have issued query report on 19.4.2018 and the weapons were lying with them, till 26.4.2018. The weapons were forwarded to them on 16.4.2018. It further came in the cross examination that the deceased died within 2-4 hours after taking his last meal. Injury Nos.18 to 20 are not caused over head and legs, but he denied that injury Nos.18 to 20 are possible due to fall on hard surface. He further admitted that contusions and linear abrasions are possible by the weapon like like iron pipe.

Thus, as far as the cause of death is concerned, which is not seriously challenged by the defence. The contention of the defence is that as per the prosecution case, while causing injuries, the accused have allegedly used weapons like swords, guptis, suras, and knives. The said weapons were blunt by one side and sharp by other side and, therefore, there cannot be clean cut margins. Therefore, the medical evidence has not supported the prosecution case.

The evidence of PW16 Dr.Nilesh Jadhav is not only an opinion evidence but also his evidence is in the nature of direct evidence as he has an opportunity to see the injuries on person of the deceased.

A medical witness, who performs a postmortem examination, is a witness of 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 another,

The evidentiary value of the medical evidence is also considered by the Hon’ble Apex Court in the case of Anuj Singh @ Ramanuj Singh @ Seth Singh vs. State of Bihar, reported in (2022) LiveLaw SC 402 and it has been observed

Thus, the evidence on record sufficiently shows that the death of the deceased is homicidal one.

The entire case of the prosecution is based on the direct evidence of PW1 Nalini, PW2 Mayur, PW3 Sharda Narayane, and PW4 Prashant Shambharkar. The evidence of PW1 Nalini discloses that she along with her husband and son as well as her in-laws were initially residing at village Parwa. She was elected as Sarpanch of village Parwa in the year 2016. Since she was elected as Sarpanch, disputes started between her, her husband, and the accused persons. As per evidence, the accused were got annoyed as the post of Sarpanch was for Open Category whereas, she is from Scheduled Caste Category and was elected as Sarpanch. She narrated various incidents as to threatening by the accused persons. Regarding the incident took place in the year 2017, she stated that the report was lodged at Awadhootwadi Police Station. Thereafter, she has stated the incident took place in November – December 2017. Thereafter, she has narrated the incident of January 2018 took place on account digging two bore-wells in the village as bore-well was not dug in the ward where accused Raj Thakur is residing. Another incident narrated by her is of 27.1.2018 when her husband had been to the house of Sunanda Wadgure wherein accused Munna Thakur and Raj Thakur reached there along with weapons, but her husband along with Raju Bhoyar fled away and, thereafter, she was abused by Munna Thakur by telephonic call. Thereafter, she narrated the incident of 28.1.2018, wherein the dispute occurred between her and Raj Thakur and Raj Thakur has lodged report against her husband. On the same night, her house as well as the house of Praful Shambharkar was damaged by the accused persons and complaint was lodged. Her evidence shows that considering continuous incidents, she was having apprehension and, therefore, she along with her son and husband started residing at Yavatmal.

The evidence of PW1 Nalini shows that on 27.3.2018, at about 11:30 am, she had been to village Parwa along with her husband and son. Her nephew Samyak was also along with her. Her husband at about 01:00 pm left the house along with Shaikh Imran and Shaikh Israil on the pretext of eating “kharra”. She sent her son Mayur and nephew Samyak behind her husband. After some time, her son Mayur and nephew Samyak rushed to the house and informed her that her husband is assaulted by Raj Thakur, Munna Thakur, Vinod Chapariya, and other 9-10 persons. Therefore, she immediately rushed to the Anganwadi and saw that accused Munna Thakur, Raj Thakur, Vinod Chapariya, Sanjay Chapariya, Bhupendra Shibalkar, Sumedh Meshram, Sunil Pali @ Kumbhekar, Sunil Devtale, Hanuman Pendor, Shubham Tekam, Bhimrao Awathare, Pravin Bhagat, and other 2-3 persons were assaulting her husband by means of swords, iron rods, knifes, koyta, and sattur. Her husband was lying on the ground. She raised shouts and, therefore, people gathered there and, thereafter, the accused persons fled away from the spot. She has lodged the report about the said incident, which is at Exh.118 and the FIR is at Exh.119.

The evidence of PW1 Nalini further discloses that she has identified accused Raj Thakur, Munna Thakur, Vinod Chapariya, Pravin Bhagat, Bhimrao Awathare, Sunil Pali @ Kumbhekar, Sunil Meshram, Hanuman Pendor, Sunil Devtale, and Shubham Tekam. She has correctly identified the persons before the court who were possessing the swords. She has also identified the weapons and deposed that sword Article-A was in the hands of accused Raj Thakur, sword Article-B was in the hand of Munna Thakur, iron rod Article-C was in the hands of Pravin Bhagat, iron rod Article-D was in the hands of Sumedh Meshram, iron rod Article-E was in the hands of Bhimrao Awathare, and iron rod Article-F was in the hands of Sunil Pali @ Kumbhekar. She has also identified Sunil Devtale and Hanuman Pendor who were possessing “Koyate”. She further identified that iron rod Article-G which was in the hands of Sunil Devtale and “Koyta” Article-H which was in the hands of Hanuman Pendor and knife Article-I which was in the hands of Shubham Tekam.

The cross examination of PW1 Nalini was on the point of election regarding Members of the Gram Panchayat wherein she has admitted that PW3 Sharda Narayane and PW4 Prashant Shambharkar were also elected as Gram Panchayat Members. She admitted that PW3 Sharda Narayane and Praful Shambharkar are of her party and they were assisting her. She further admitted that in the year 2015, Smt.Rama Chimurkar and Suman Chapariya had also filled forms for the post of Sarpanch and Up-Sarpanch respectively. However, she was elected as Sarpanch. It further came in her cross examination that she was opposing to Vinod Chapariya for becoming President of “Tanta Mukti”. A suggestion that, a complaint was lodged against her husband and Praful Shambharkar for disrespecting statue of Dr.Babasaheb Ambedkar, was denied by her. She admitted that there was no dispute occurred on 27.1.2018 between her husband and Raj Thakur, but she voluntarily stated that on that day accused Raj Thakur made her a phone call and abused her in a filthy language. She further admitted that when her house was damaged at village Parwa, she or her husband was not present in the house. Her cross examination further shows that when she reached the spot of the incident, her husband was lying in a bleeding condition, but she voluntarily stated that at the relevant time the accused persons were present there and beating her husband. She admitted that on the spot she did not make the complaint before the police against assailants. However, she denied that she was enquired by the police on the spot itself. Her cross examination further shows that the houses of PW3 Sharda Narayane and PW4 Prashant Shambharkar are not adjacent to the place of incident. Her cross examination further reveals that after 8-9 days, her statement was recorded thrice by the police. Some omissions are also brought on record during the cross examination. It further came in the cross examination that her son as well as her nephew both are school going children and school timing of her son was from 11:00 am to 5:00 pm and timing of school of her nephew is from 8:00 am to 12:00 noon.

On the basis of this cross examination, learned counsel for the appellants submitted there was no holiday to the schools and, therefore, presence of PW2 Mayur at the spot of the incident is doubtful. An attempt was made to show that various cases about drugs were filed against the husband of PW1 Nalini, but she has shown unawareness about the same. She specifically stated that she has not lodged the complaint against the accused initially to maintain peace in the village. She further stated that as she was scared of the accused persons also, the report was not lodged regarding illegal activities of manufacturing of illicit liquor by accused Raj Thakur and Munna Thakur. Some omissions regarding role of accused Sunil Devtale, Hanuman Pendor, Shubham Tekam regarding statement under Section 164 of the CrPC are also brought on record. She specifically stated that the fact of possessing knife by accused Shubham Tekam was stated by her before the Magistrate while recording her statement under Section 164 of the CrPC. She denied that she met PW3 Sharda Narayane and PW4 Prashant Shambharkar on 5.4.2018 when her statement as well as statements of those were recorded. Regarding presence of accused Bhimrao Awathare, it was suggested that at the relevant time, he met with an accident and was bedridden. Similarly, accused Pravin Bhagat was also not in the village and he had been to Yavatmal and accused Sunil Pali @ Kumbhekar was present in the marriage ceremony at Kinhi, but she shown unawareness about the same.

Thus, on the basis of this cross examination, an attempt was made to show that the FIR was not lodged promptly. The names of assailants are not disclosed by her though the police were present for drawing spot and inquest panchanamas. The presence of PW2 Mayur who is school going boy is also suspicious. It was further suggested that before her evidence is recorded, she read statement on 3-4 occasions. On this basis of this cross examination, an attempt was made to show that she has refreshed her memory prior to the evidence adduced before the court. Her conduct is not natural and, therefore, she is not trustworthy witness.

To corroborate the version of PW1 Nalini, the prosecution further relied upon the evidence of PW2 Mayur who is another eyewitness and son of the deceased.

The evidence of PW2 Mayur shows that at the relevant time he was studying in 9^th Std. and was residing at ward No.1, Parwa and, thereafter, since January 2018 he was residing at Ambedkar Chowk, Yavatmal along with his parents. His mother PW1 Nalini was Gram Panchayat Sarpanch of village Parwa and his father was fruit vendor. The incident occurred on 27.3.2018 at Parwa. On that day, his father along with his two friends went towards Samaj Mandir on a pretext of eating “Kharra”. At that time, on the say of his mother, he along with his cousin Samyak followed his father. His father went towards Samaj Mandir and he witnessed a motorcycle of the persons who were along with his father near Samaj Mandir. Therefore, they proceeded towards Samaj Mandir. He saw his father as well as Pravin Bhagat and Bhimrao Awathare holding iron pipes. His father was assaulted by Pravin Bhagat and Bhimrao Awathare by means of iron rods due to which his father fell on the ground. Other accused Raj Thakur, Munna Thakur, Sanjay Chapariya, and Vinod Chapariya were also present there holding swords in their hands. Accused Raj Thakur has given a blow of sword on the neck of his father and other three accused were also assaulting his father by means of swords. Another accused who is child in conflict with law, Hanuman Pendor, Shubham Tekam, Sunil Pali @ Kumbhekar, Sunil Devtale, Sumedh, and other 3-4 persons were standing with iron rods and knives. They all have assaulted his father by giving repeated blows on his chest, stomach, and caused injury to him. As soon as he witnessed the incident, that those persons were causing injuries to his father, he along with his cousin ran towards his house to inform his mother. They narrated the incident to his mother and immediately rushed towards the spot. His mother followed them. His evidence shows that those persons assaulted his father and, thereafter, fled away from the spot. His mother started crying and dead body of his father was lying there. Thereafter, the police came after some time at the spot and took the dead body of his father. He has identified the accused persons as well as the weapons which were in their hands. As per his evidence, Article-A sword was in the hands of accused Raj Thakur, Article-F iron rod was in the hands of Sunil Pali @ Kumbhekar, Article-D iron rod was in the hands of Bhimrao Awathare, Article-C iron pipe was in the hands of accused Pravin Bhagat, Article-B sword was in the hands of Munna Thakur, and Article-I knife was in the hands of Shubham Tekam.

His cross examination shows that his school timing was from 11:00 am to 5:00 pm. But, the witness voluntarily stated that there was no school and it was Tuesday. His further cross examination shows that he was having knowledge that his father went towards Samaj Mandir for eating “kharra”. Some omissions are also brought on record during his cross examination. He specifically stated that the clothes of his mother were not stained with blood as well as his clothes were also not stained with blood. It further came in his evidence that since from the date of the incident till recording his statement, he was at his house at Patipura. Thus, from the cross examination, an attempt was made to show that the statement of this witness was recorded belatedly on 5.4.2018. It further tried to bring on record that he was school going boy. There was no holiday on the day of the incident and, therefore, there was no reason for him to remain present at the spot and, therefore, he is not eyewitness of the incident.

Independent eyewitness, as per the prosecution case, is PW3 Sharda Narayane. As per her evidence, on the day of the incident, accused Bhimrao Awathare, who resides in front of her house, from backdoor of the house, Shubham Tekam, Hanuman Pendor, Gopi, and Sumedh Meshram came out of the house and they ran towards new Anganwadi from her courtyard. At the relevant time, Hanuman Pendor and Gopi were holding “Koyta” in their hands, whereas Shubham Tekam was holding knife in his hands, and Shubham Meshram was holding iron rod. While running towards Anganwadi, Shubham shouted that he is proceeding towards new Anganwadi and let’s go there. She realized that son of her sister namely Prashant Shambharkar has gone towards Anganwadi for playing cards and, therefore, she immediately followed them. At some distance, near the temple, she witnessed that villagers Raj Thakur, Munna Thakur, Vinod Chapariya, Sanjay Chapariya, Shubham Tekam, Hanuman Pendor, Gopi, Sumedh Meshram, Sunil Devtale, Pravin Bhagat, and Bhimrao Awathare Sunil Kumbhekar and other 2-3 boys holding swords, knives, koyta, and iron rods were assaulting the deceased. The deceased fell on the ground and was shouting loudly. Accused Raj Thakur by taking swords from accused Munna Thakur by holding hair of the deceased dealt a blow of sword on the neck of the deceased. The deceased was in a pool of blood. Thereafter, Shubham Tekam has given a blow of knife on the stomach of the deceased. She got scared and was shouting. At the relevant time, PW1 Nalini, the wife of the deceased, also reached there. She also started shouting and the people gathered there. At that time, the assailants fled away from the spot. She went to the house and called Praful Shambharkar. Again, she returned to Anganwadi. At that time, PW1 Nalinin was crying loudly. She noticed injuries on the neck, chest, and stomach of the deceased. After some time, Praful Shambharkar came along with police at the place of occurrence.

The evidence of PW3 Sharda Narayane further shows that there was political rivalry between Raj Thakur and Munna Thakur and the informant and her husband. Her evidence further shows that Thakur community were continuously raising quarrel with Sarpanch PW1 Nalini, her husband and Praful Shambharkar. The accused persons were also creating castism in the village. During her evidence, she also identified the accused persons namely Shubham Tekam, Hanuman Pendor, Sumedh Meshram, Munna Thakur, Raj Thakur, Vinod Chapariya, Sunil Devtale, Pravin Bhagat, and Bhimrao Awathare. She has also identified Articles-H “Koyta” in the hands of Hanuman Pendor, Article-G “Koyta” in the hands of Gopi, Article-C iron rod in the hands of Pravin Bhagat, Article-F rod in the hands of Bhimrao Awathare, Article-D iron rod in the hands of Sumedh Meshram, Article-E rod in the hands of Kumbhekar, Article-A sword in the hands of Raju Thakur, and Article-B sword in the hands of Munna Thakur.

Her cross examination further depicts that though she witnessed the incident, she has not disclosed it to police though police visited village for investigation purpose. On 5.4.2018, she went to the police and gave her statement. She at her own went to the police station and gave her statement. Her further cross examination shows that her daughter got married with Munna Thakur against her will and today also her daughter is cohabiting with. However, she has denied that she has not accepted their marriage. Thus, on the basis of omissions brought on record, it is contended by learned defence counsel that the evidence of this witness is not believable and she is interested witness as her daughter got married with accused Munna Thakur against her will. As far as the incident is concerned, regarding the assault by the accused, admittedly, there is no cross examination on that point.

The evidence of another eyewitness is PW4 Prashant Shambharkar shows that on 27.3.2018, he was having night duty and, therefore, he was present in the house. At about 12:00 noon, he along with Nitin Lokhande, Raju Kawade, and Prakash Bhagat were playing cards near Anganwadi school behind the house of Sunita Ghaiwan. At about 1:10 to 1:30 pm, the husband of PW1 Nalini came along with two boys. Out of them, one boy was known to him namely Imran. The deceased came to him asked Rs.50/- for eating “kharra”. At the relevant time, Sunita Ghaiwan from the slab of her house shouted and warned the deceased to run away as 8-9 persons holding swords are running towards him. Before they understand anything, accused Munna Thakur, Raj Thakur, Vinod Chapariya, Swapnil Kumbhekar, Sunil Devtale, Bhupendra Shibalkar, Bhimrao Awathare, Shubham Tekam, Sanjay Chapariya, Sumit Meshram, Pravin Bhagat, Hanuman Pendor, and other 2-3 persons by holding swords, knives, iron rods, and koyate started assaulted the deceased by giving repeated blows by force. The deceased shouted loudly and fell on the ground. After witnessing the same, persons Nitin Lokhande, Raju Kawade, Prakash Bhagat got scared and fled away from the spot. He also went at some distance and witnessing the said incident. Imran who came along with the deceased was also standing near to him. Raj Thakur by taking sword from the hands of accused Munna Thakur by holding the head of the deceased cut his throat. Whereas, Vinod Chapariya and Sanjay Chapariya were holding swords in their hands and Hanuman Pendor and Sunil Devtale were holding koyte in their hands wherein the deceased fell on the ground. Bhupendra Shibalkar and Shubham Tekam were inflicting the blows of knives on his stomach. At that time, accused” Raj Thakur shouted, “fouksn o lkys ‘kaHkjdj dks idM”. On his shout, Vinod Chapariya ran fastly towards him. He got scared and fled away towards the field of Shukla and from the field he came on the main road. After some time, he received a phone call of his brother and, thereafter, he returned to the village. When he returned to the village, the police already came there and removed the body of the deceased.

During his evidence, he has identified accused Munna Thakur, Raj Thakur, Vinod Chapariya, Nitin Awari, Sunil Devtale, Bhimrao Awathare, Shubham Tekam, Sumit Meshram, Pravin Bhagat, and Hanuman Pendor. He also identified the weapon Article-A in the hands of Raj Thakur, Article-B in the hands of Munna Thakur, Article-H koyta in the hands of Sunil Devtale, Article-G koyta in the hands of Hanuman Pendor, Article-I in the hands of Shubham Tekam, Article-G iron rod in the hands of Pravin Bhagan, Article-H iron rod in the hands of Bhimrao Awathare, and Article-D iron rod in the hands of Sumit Meshram.

His cross examination shows that since the date of incident he was in village at Patipura. After 8-9 days of the incident, for the first time, he stated the incident to the police. He did not suo motu approached the police station for recording his statement. He specifically admitted that if he would not have received notice from the police, he would not have approached the police to record his statement.. He denied all suggestions that he has not witnessed the accused assaulting the deceased. He further admitted that the spot of the incident was not on the way of pan-shop. He saw the police carrying the dead body in the vehicle. On the basis of this cross examination, the defence tried to bring on record he belongs to the political party of the informant and, therefore, he is interested witness. He has not made any attempts to intervene in the incident. Thus, there is no natural conduct on his party. Moreover, his statement was recorded belatedly. Though he is an eyewitness to the incident, there is no explanation for the said belated statement.

Besides the direct evidence, the prosecution placed reliance on the evidence of pancha on spot panchanama PW5 Devidas Sathe and pancha on inquest panchanama PW6 Mukhtar Ali Ahmad Ali. The evidence of PW5 Devidas Sathe shows that he was serving as peon in tahsil office. He was called by the Awadhootwadi Police Station at the place of occurrence at village Parwa near the primary school, they noticed the blood stains spread on the ground. PW1 Nalini shown the spot of the incident. Accordingly, the police have drawn the panchanama, collected the blood stained soil and simple soil also obtained photographs at the spot of the incident. Accordingly, the spot panchanama was drawn, which is at Exh.142. Though the accused persons have cross examined this witness, nothing incriminating came on record. Recital of the spot panchanama also shows that at the relevant time, forensic team and photographer were also present and they have collected the blood stains from the spot of the incident.

PW6 Mukhtar Ali Ahmad Ali, acted as a pancha on inquest panchanama, also deposed that on receiving the call from the police, he went to VNGMC and Hospital, Yavatmal. At the relevant time, the brother of the deceased namely Prashant was present there. The deceased was having white and blue colour check-shirt on his body, ash colour pant, white colour sando banian and brown colour underwear. The police removed those clothes from the dead body and they seized, sealed the same. They have noticed slice injuries on his neck and also injuries on abdomen and chest. There were 3-4 knife injuries. There was a big injury over his head and the injury on his left shoulder. They have noted total 17 injuries on the dead body. Accordingly, the panchanama was drawn, which is at Exh.144. The clothes of the deceased i.e. shirt at Article-J, sando banian at Article-L, and underwear at Article-K. His cross examination also shows that at the time of inquest panchanama, Prashant Gawande, Nalini Gawande, and other persons were present.

It is vehemently argued by learned counsel Shri Shashank Manohar for the accused persons that the spot panchanama drawn by the police on 27.3.2018 at about 4:00 to 5:00 pm shows as Crime No.347/2018. Whereas, the FIR was lodged by the informant on 27.3.2018 at about 07:22 pm. Mentioning of the crime number in the panchanama, when crime was not registered, itself creates a doubt about the incident. However, it is pertinent to note that various general diary entries placed on record by the investigating agency show that on 27.3.2018 at about 2:05, Awadhootwadi Police Station received the information as to quarrel at village Parwa and, therefore, API Chaudhary and PSI Dhawane, Police Constable Madavi, Prashant Gedam, and other police constables proceeded towards the spot of the incident. The said general diary entries are registered at 31 at about 2:05 pm. The second general diary entry dated 27.3.2018 is at 36 at about 03:27 pm which was recorded by API Chaudhary that the injured Tulsidas @ Mahesh Gawande was brought to the Government Hospital at Yavatmal and the spot of the incident was protected and panchas were called. The number of this station diary entry as 36/2018 recorded at 15:27 is also mentioned in the said panchanama. Thus, it shows that though the crime was not registered, the police were already having an information about the cognizable offence and the entry at the general diary was already taken by the police.

Reverting to the aspect of various memorandum statements of the accused persons and discoveries as to the fact and recoveries of the weapons at the instance of the accused persons, the prosecution has placed reliance on the evidence of various panchanamas.

PW7 Sunil Wanjari was examined vide Exh.148 who has acted as pancha on memorandum statement of accused Shubham Tekam. He also acted as a pancha on the house search panchanama of the house of accused Shubham and seizure of two motorcycles from his house. The evidence of PW7 Sunil Wanjari shows that he is working in the District Malaria Office at Yavatmal. He along with another pancha Ashok Dhawane visited the SDPO Office wherein he as well as other pancha was informed that one Shubham Tekam and Vinod Chapariya are intending to make disclosure statements. Thereafter, Shubham Tekam was brought in the cabin of SDPO Piyush Jagtap. In their presence, he made disclosure statement that he is ready to hand over the weapons and his clothes, which were concealed by him in a field near village Dahegaon. He has shown his willingness to hand over the same and also asked to come along with him. Accordingly, the said disclosure statement was prepared,same bears their signature and signature of accused and S.D.P.O., which is at Exh.149. As per the statement, they proceeded in a Government vehicle via Apsara Talkies Road, Nagar Bhavan, Sharda Chowk, Ghatanji and Dahegaon. Before they reached village Dahegaon, at a distance of 50 meters, the accused asked to stop the vehicle and took them in a field towards right side of the bridge, shown them place beneath “patri” and told that he concealed the knives at that place. Accordingly, the said knives were recovered and panchanama was recorded, which is at Exh.150. From his house, his clothes were seized and the clothes seizure panchanama is at Exh.153. His blue colour shirt and black colour jeans pant were seized and, thereafter, they returned to the SDPO Office.

The evidence of PW7 Sunil Wanjari further shows that on the same day, accused Vinod Chapariya in their presence made a statement that he is ready to hand over sword and partly burnt his clothes and clothes of accused Munna Thakur. He further stated that he concealed those articles near his cowshed at village Parwa. He has shown his willingness to hand over the same. Accordingly, his statement was recorded, which is at Exh.154. Thereafter, in the Government vehicle, he along with other pancha, police staff, and the accused proceeded towards village Parwa. The said cowshed situated at right turn from his house, which was shown by him. He alighted from the vehicle and they followed him. He took out the sword from underground and handed over the same to the police. He has also shown partly burnt clothes and handed over to the police. Accordingly, the panchanama was drawn, which is at Exh.155. PW7 Sunil Wanjari identified accused Shubham Tekam and Vinod Chapariya. He also identified the pant of accused Shubham Tekam (Article-38), but could not identify his shirt. The pant which was identified by PW7 Sunil Wanjari was marked at Article-M. He has also identified the knife Article-I which was seized at his instance. He has also identified burnt shirts Articles-8 and 10 which were of accused Vinod Chapariya and Articles-9 and 11 burnt pants of accused Vinod Chapariya. He further identified Article-B sword which was seized at the instance of accused Vinod Chapariya.

The documents on record show that requisition to the District Malaria Officer dated 9.4.2018 Exh.317 requesting to depute two employees as panchas. In response to the said requisition, Exh.318 is the communication by the District Malaria Officer deputing two employees showing names of PW7 Sunil Wanjari, Sunil Wanjari and Ashok Dhawane who acted as panchas on memorandum statements of accused Shubham Tekam and Vinod Chapariya and recovery panchanamas as well as house search panchanama of accused Shubham Tekam. To corroborate the case of the prosecution that Articles were seized from respective places stated by accused Shubham Tekam and Vinod Chapariya. Exh.629 logbook entry of the Government vehicle is also placed on record, which shows entry that on 9.4.2018 from 12:00 noon, till they returned and again proceeded along with accused Vinod Chapariya and again returned to the SDPO Office is shown. Exh.150 shows blood stains on blade of the knife as well as Exh.153 shows stains on shirt of accused Shubham Tekam and Exh.155 shows blood stains on the swords as well as half burnt shirt having stains and half burnt night pant.

PW7 Sunil Wanjari is cross examined by the respective counsel of the accused persons. This witness has admitted that the knife and sword were on open place. The clothes were also on the open place. There was no label with signature of panchas on the said Articles. The sword Article-B wherein also there was no label or signatures of panchas. He further stated that he put his last signature in the office of SDPO on that day at about 9:00 to 9:30 pm. He further admitted that in his presence there was no conversation between the police and accused Shubham Tekam. Thus, from the cross examination, the defence has brought on record that the recoveries of the incriminating Articles are from open place as well as there was no discussion in presence of these pancha witnesses and, therefore, the evidence of pancha witnesses as to recoveries deserves to be discarded. However, relevant photographs obtained on 9.4.2018 show that accused Vinod Chapariya has shown them place wherein the clothes were burnt and the said clothes were seized from the said place. From the said photographs, it reveals that the place is isolated place. Similarly, it reveals that the weapons are recovered from cattle shed which were kept in a sealed condition. Similarly, the photographs regarding recovery of the knives at the instance of accused of which the photographs are obtained show that the weapons were in a concealed condition and the same were produced by the accused by removing bushes at the said place. The memorandum statement of accused Shubham Tekam was recorded on 9.4.2018 at about 12:20 to 12:45 and recovery panchanama was drawn from 2:00 to 2:45 pm. The house search panchanama of accused Shubham was drawn from 15:05 to 15:30. The memorandum statement of accused Vinod Chapariya was recorded from 17:15 to 17:45 and recovery panchanama was drawn from 18:20 to 19:20.

PW8 Sanjay Pawar is another pancha on seizure memo of seizure of mobile of accused Shubham Tekam. His evidence shows that in his presence mobile of accused Shubham Tekam was seized by drawing panchanama vide Exh.157. His evidence further discloses that on the same day, accused Munna Thakur has shown his willingness to give disclosure statement and, therefore, he was brought in the cabin of SDPO wherein he made disclosure statement that he is ready to hand over the gupti and ready to show the place. Accordingly, the said statement was prepared, which bears his signature as well as signatures of another pancha SDPO Piyush Jagtap and the accused, which is at Exh.158. Thereafter, they proceeded in a Government vehicle via Patipura, Kalam chowk, and Sharda Chowk at some distance of Pandharkawada Naka via Kaccha Road, as shown by the accused. The accused asked them to stop the vehicle in front of one cowshed, which was adjacent to village Parwa. Accordingly, they proceeded towards the cowshed and from some distance from cowshed, the accused has shown the place where he concealed the gupti. Accordingly, the accused took out the said gupti and it was seized by the police. Accordingly, the panchanama was drawn, which is at Exh.159. The memorandum statement of accused Munna Thakur was recorded at 12:20 to 12:45 pm and panchanama was drawn from 13:22 to 14:00 pm. Thereafter, they returned to SDPO office.

The evidence of PW8 Sanjay Pawar further shows that after returning back to the SDPO office, accused Sumedh Meshram who was in the police lock-up has also made disclosure statement that he concealed the iron rod and has shown his willingness to hand over the same. Accordingly, his statement was recorded, which bears his signature as well as signatures of other panchas, the accused, and the SDPO, which is at Exh.160. Thereafter, they proceeded by the Government vehicle through Arni Bypass and near village Godhani, the accused asked to stop the vehicle. Thereafter, the accused alighted from the vehicle. They followed him. He has taken them in the field and shown the spot and produced the iron rod, which was concealed under the ground. As there was heavy raining, the said rod was wrapped in a polythene. Accordingly, panchanama Exh.161 was drawn. He identified accused Munna Thakur as well as weapon gupti which was seized at his instance, which is marked as Article-I. He has also identified accused Sumedh Meshram and Article-F iron rod recovered at the instance of said accused Sumedh Meshram. The memorandum statement of accused Sumedh Meshram was recorded from 17:15 to 17:50 and recovery panchanama was drawn from 18:20 to 19:30. This witness was cross examined and he has denied that gupti was seized from the open place. He has also denied that on the relevant day at 12:10 pm he was requested to remain present for acting as pancha and, therefore, he went to the office at 12:10 pm. This witness has also admitted that there was no conversation between the police and Sumedh Meshram in SDPO office and SDPO himself typed the statement and took out the print. As per the evidence of the investigating officer, the photographs, when the statement of the accused was recorded as well as the photographs at the time of recovery of the incriminating Articles, were obtained. The photographs dated 10.4.2018, when statement of accused Munna Thakur was recorded, are also on record. The photographs showing that the accused has shown the place and taken out the weapons which were kept underneath of the bushes are also placed on record. Similarly, the photographs showing in presence of the panchas the statement of accused Sumedh Meshram and the photographs regarding showing the place by the accused and taking out the weapons underneath the ground are placed on record. The documents which are proved by the investigating officer show that Exh.324 is requisition to the District Veterinary Officer to depute two employees to act as panchas. Exh.325 is the letter from the District Veterinary Officer communicating the names of two employees to act as panchas. The logbook entry Exh.630 shows that the vehicle was proceeded by taking the accused.

PW9 Sawan Nerle also acted as a pancha on statement of accused Bhimrao Awathare recorded on 31.3.2018 whose evidence also shows that he was called to act as pancha. In his presence as well as in presence of other panchas, accused Bhimrao Awathare has shown his willingness to show the place where he concealed the rod. Accordingly, his statement was reduced into writing, which bears his signature and signatures of another panchas and the accused, which is at Exh.166. Thereafter, in a police vehicle, they proceeded from SDPO office via Nagar Parishad and Pandharkawada Road. They proceeded ahead village Bhari. The accused asked to stop the vehicle near the field. Accordingly, they alighted from vehicle and the accused has shown the place in the bushes and taken out the rod from it and handed over the same to the police. Accordingly, the weapon was seized and the panchanama was drawn, which is at Exh.167. He has identified accused Bhimrao Awathare as well as iron rod Article-E. His evidence further shows that blood samples of the two accused were seized in his presence. He acted as a pancha on seizure of blood samples of accused Sunil Devtale and Hanuman Pendor.

This PW9 Sawan Nerle was cross examined. He has admitted that the place from which the weapon was seized from the barren land which was open. The evidence of the investigating officer regarding the seizure of the said weapon shows that before memorandum statement, requisition to Chief Officer of Nagar Parishad, Yavatmal was forwarded requesting to depute two employees to act panchas, which is at Exh.280 and the logbook entry of the vehicle is at Exh.626.

PW10 Akash Gohokar is one more pancha who stated that accused Sunil Devtale made a disclosure statement in his presence and another pancha Sangita Nagapure was also present along with him. The statement of Sunil Devtale discloses that he has concealed the weapon in the cowshed in the field of Kisan Ghurnade situated at village Bodhbodhan and he has also shown his willingness to show the said place. Accordingly, his statement was reduced into writing. It bears the signatures of both panchas, accused, and SDPO. The said statement is at Exh.170. Thereafter, they proceeded in a Government vehicle with the panchas, photographer, and other staff. The accused led them towards Arni Road and village Bodhbodhan. Prior to they reached to the said village, the accused asked them to stop the vehicle. They have alighted from the said vehicle and the accused took them towards the cowshed, he has shown the place where he concealed the weapons. He took out the weapons which were kept underneath the ground. The weapons were sattur and sickle. Accordingly, the said weapons were seized and the panchanama was drawn, which is at Exh.171. He has identified the weapons sattur Article-H and sickle Article-S. As per the memorandum statement, it was recorded at about 14:00 to 14:45 and panchanama was drawn from 16:15 to 17:00. The photographs on record show that in presence of panchas, statement of the accused was recorded. The photographs further reveal that the accused took them in one field and has shown the place and taken out both the Articles.

The cross examination of PW10 Akash Gohokar shows he denied both the panchanamas are prepared in S.D.P.O. office. He has denied suggestions that Article-H is not “koyta”, but it is “sattur”. He has also denied that both the weapons are seen by him in the office of the SDPO. He specifically stated that before signing the panchanama, he confirmed that it is mentioned in the panchanama that by digging earth the weapons were taken out. The evidence of the investigating officer shows that before the memorandum statement was recorded, requisition to the Range Forest Officer was given to depute two employees to act panchas, which is at Exh.293. The logbook entry Exh.627 shows that the Government vehicle was used to take the accused for the investigation purpose.

PW11 Geeta Botre also acted as a pancha on memorandum statements of accused Pravin Bhagat and accused Bhimrao Awathare. As per evidence, she along with another pancha and the police went to the house of Pravin Bhagat. The house search of the house of Pravin Bhagat was carried out and during the house search, the clothes of accused Pravin Bhagat and one mobile phone were seized. Similarly, the house search panchanama of the house of accused Bhimrao Awathare was also carried out and from his house also the clothes and mobile phone were seized. Accordingly, panchanama Exh.173 & 174 was prepared. The house tax receipts were also collected, which are also placed on record. The house search panchanama of the house of accused Pravin Bhagat is at Exh.173. Whereas, the house search panchanama of the house of accused Bhimrao Awathare is at Exh.174. The property seizure memo is at Exh.175 & 176. The house tax receipts of accused Pravin Bhagat are at Exh.177. Whereas, the house tax receipts of the house of accused Bhimrao Awathare are at Exh.178. Her further evidence shows that on the same day, accused Pravin Bhagat has given disclosure statement that he has concealed one rod in field and shown his willingness to show the same. Thereafter, as per the accused, they proceeded towards village Parwa. The accused took them in a field, which was at a distance of 400-500 meters towards right side in the village. Thereafter, he took out one rod from the said field near the “Neem Tree.” The said weapon iron rod was seized in their presence. Accordingly, panchanama Exh.180 was drawn. She has identified accused Pravin Bhagat as well as Bhimrao Awathare. She has also identified the rod Article-F seized at the instance of accused Pravin Bhagat.

The cross examination of PW11 Geeta Botre shows that the documents on which she has signed were prepared in the police station. She has further admitted that the field was adjacent to the road having no crop and anybody can enter in that field. She has further admitted that the clothes of the deceased were open and spread on the table, which were seized in her presence. On perusing various photographs reveals when statement of accused Pravin Bhagat was recorded in the office of SDPO, while showing the place, the photographs are also obtained. The evidence of the investigating officer on this aspect discloses that Exh.274 is the requisition given by him to the Divisional Controller and logbook entry Exh.625 is taken showing that the accused was taken out for the investigation purpose.

PW12 Mukund Karanjkar has acted as pancha on the memorandum statement of accused Raj Thakur, whose evidence shows that in the office of the SDPO, accused Raj Thakur was brought. He made a disclosure statement that he has concealed the sword and he is ready to show the place where it was kept. He has also disclosed that the sword is tied with shirt and motorcycle chain cover and he is ready to show the place. Accordingly, his statement was recorded having their signatures as well as signature of the accused and the SDPO, which is at Exh.186. Thereafter, the accused took them via Kalamb chowk, Pandharkawada Road to Parwa. The accused has shown his house and asked to stop his vehicle. Thereafter, the accused alighted from the vehicle and they followed him. In front of his house, there was a drainage and there was one tile over it. The said drainage was covered by one tin-sheet. Beneath the said tin-sheet, he took out the sword and shirt and handed over the same. The said Articles were seized in their presence. Thereafter, he took them to the place where he has thrown the chain cover. The chain cover was also seized. Accordingly, the panchanama Exh.187 was drawn. He could not identify the accused, however he has identified Article-A sword and Article-T chain cover. He could not identify the shirt of the accused. He denied that the person shown to him disclosed his name as Bhupendra Shibalkar. He admitted that when they reached there with the help of police personnel, small metal and sand were removed from the tins-shed. Thereafter, the sword was taken out. There were one or two houses adjacent to the said drainage and well. However, he denied that the sword was not taken out from the said drainage. He has also stated that there was no mud over the sword .He has also denied that the police have taken out the sword from the said drainage. The memorandum statement of accused Raj Thakur was recorded on 12.4.2018 at 14:10 to 15:15 and recovery panchanama was drawn on 16:00 to 17:20. Besides his evidence, Exh.328 proved through the investigating officer shows that it was the requisition to the Water Conservator Officer for deputing two employees to act panchas. The logbook entry Exh.632 shows that the accused was taken out for investigation purpose.

Coming to the evidence of PW13 Devidas Dalavi who acted as pancha on the memorandum statement of accused Swapnil Raghunath Kumbhekar, which shows that in his presence and in presence of another pancha Prakash Bhagat, the said accused Swapnil Kumbhekar has made disclosure statement that he is ready to show the place where he kept the iron rod and the clothes. Accordingly, his statement was recorded, which is at Exh.189 which bears his signature and signatures of another panchas, the accused, and Police Officer Bhoyar. Thereafter, the accused took them to village Parwa. At a distance of 2 kilometers from village Parwa, the accused asked them to stop the vehicle and he took them near the bushes and near the “Palas Tree” and has shown the place where he kept the iron rod. The accused took out the iron rod and handed over to the police. Accordingly, it was seized and panchanama Exh.190 was drawn. The photographs on record also show that accused Swapnil Kumbhekar has made a statement in presence of panchas and also show the spot where the articles were concealed and the same were recovered. The photographs show that the articles were recovered underneath from the bushes.

The cross examination of this PW13 Devidas Dalavi shows he was not having any acquaintance with accused Swapnil Kumbhekar. On that day, he signed on two documents. He admitted that the place from where the rod was seized was open place. He voluntarily stated that bushes were there. The logbook entry regarding taking the accused for the investigation purpose is at Exh.633.

The evidence of PW16 Dr.Nilesh Jadhav which is to the extent of examination of postmortem, is already discussed. He is also on the aspect that the investigating officer has forwarded the weapons to him along with forwarding letters Exhs.222 and 223. Those letters were in regard to the weapons and clothes examination. Accordingly, the reply was given to the investigating officer which is signed by Dr.K.S.Patil, which is at Exh.224. The weapons’ diagrams are part and parcel of Exh.224. Again on 30.5.2018, he received a letter from the police which is at Exh.225. The said letter was addressed to him for examination of metal rod, one chopper, and one knife. He replied those letters which are at Exhs.226, 227 and 228. The weapon’s diagrams are part and parcel of Exhs.226 and 228. All seized weapons are shown to him and he identified the same. This opinion as to the weapons is not challenged by the defence. Exh.224 shows that he examined hollow metal rod recovered at the instance of accused Bhimrao Awathare and opines that the injuries mentioned in column No.17 of postmortem report are the least likely possible with article provided for examination. However, injury Nos.18, 19, and 20 are possible with end of rod in rare situation. The similar opinion is given by him respect of red colour metal hollow rod which was recovered at the instance of accused Pravin Bhagat. Regarding metal gupti with wooden handle recovered at the instance of accused Munna Thakur, he opined that both edges of the blade are sharp and pointed as 0.9 cm from tip and having mud stains and blood present all over the blade and cover. He opined that injury Nos.1 to 20, except injury No.7 mentioned in column No.17 of the postmortem report, are possible with kind of article provided for examination.

The weapon sickle recovered at the instance of child in conflict with law was pointed “J” Shape Blade having one edge sharp and one edge blunt stained with blood and mud stains present all over the blade. He opined that injury Nos.1, 2, 9, 10, 11, 14, and 15 mentioned in column No.17 of the postmortem report are possible with such kind of article provided for examination. The weapon knife recovered at the instance of Sunil Devtale shows that blade is pointed with both edges sharp and one edge is having 3 serrations, 9.5 cms from tip and length of 5.5 cms and other edge is regular. The blood stains are present all over the blade. Injury Nos.2, 3, 4, 5, 6, 8, 9, and 11 to 20 mentioned in column No.17 of the postmortem report are possible with such kind of article provided for examination. His opinion further shows that foldable metal knife rod with designed metalic handle recovered at the instance of accused Shubham Tekam having blood stains all over the blade, blade is pointed with one edge sharp and serrated, having 7 serrations, 19 cms from tip and length 0.6 cms. The other edge is blunt and having 7 serrations. Injury Nos.2 to 9 and 11 to 20 mentioned in column No.17 of the postmortem report are possible with such kind of article provided for examination. He examined the sword with guiding metal handle sharp and pointed. The blade is pointed with one edge sharp and other edge is blunt having blood stains and rust stains present all over the blade. He opined that injury Nos.2 to 9 and 11 to 17 mentioned in column No.17 of the postmortem report are possible with such kind of article provided for examination. He also opined that cut marks over the clothes as mentioned in column No.8 of the postmortem report are possible with Articles-4, 5, 6, 7, 9, 10, and 11 provided for examination. He has also examined the iron rod seized at the instance of accused Swapnil Kumbhekar which was hollow metal rod and opined that injury Nos.18, 19, and 20 are possible with end of the rod in rare situation. He has classified the metal knife with metal handle as dangerous weapon which was having rust stains and opined that injury Nos.2 to 6 and 8 to 20 mentioned in column No.17 of the postmortem report are possible with such kind of article provided for examination. He also examined the chopper and stated that it was having red tarnish rust like stains present all over the chopper and opined that injury Nos.3 to 8 and 12, 13, 16, and 17 mentioned in column No.17 of the postmortem report are possible with such kind of article. These opinions are at Exhs.224 to 228 along with the diagrams of the weapons.

The prosecution has examined PW17 Mangesh Bhoyar and PW18 Piyush Jagtap vide Exhs.230 and 269 who acted as investigating officers.

The evidence of PW17 Mangesh Bhoyar shows that on 28.3.2018 he received the order from the Superintendent of Police to work in the investigation squad of Crime No.347/2018 registered with the Awadhootwadi Police Station, Yavatmal, which is at Exh.231. Accordingly, he joined the investigating squad as SDPO Jagtap was on leave on 4.5.2018 and the Incharge SDPO Darwha directed him to interrogate accused Swapnil Kumbhekar. A written communication was issued to him (Exh.232). Accordingly, he interrogated the accused Swapnil Kumbhekar who was in police lock-up. Accused Swapnil Kumbhekar has shown his willingness for giving disclosure statement and, therefore, he issued a letter to District Irrigation Officer for supplying two panchas, vide Exh.233. Thereafter, vide Exh.234, names of two panchas are communicated to him. In presence of the panchas, accused Swapnil Kumbhekar has given memorandum statement and led them towards the spot and at his instance, hollow iron pipe was recovered having mud stains. He seized the said iron pipe by drawing seizure panchanama Exh.190. He has also disclosed to him regarding the clothes which were on his person and, thereafter, house search of his sister at Pardhi Tanda was carried out and the clothes were seized vide Exh.195. He has handed over the said clothes to the muddemal clerk and muddemal receipts are at Exhs.235 and 236. His evidence further shows that on 8.5.2018, on the direction of SDPO at Darwha, he had been to Khopoli in search of the accused. During the investigation, it revealed to him that the accused persons were working at Khopoli and, therefore, he searched for them and carried out search of their rooms which were provided to them by their employer Exhs.239 and 240. . He has identified accused Swapnil Kumbhekar. He has also identified the clothes i.e. Articles-V and U pant and shirt of accused Swapnil Kumbhekar which was seized by him. Despite the ardous cross examination of investigating officer PW17 Mangesh Bhoyar, nothing incriminating is brought on record to falsify the fact regarding recovery of iron rods at the hands of accused Swapnil Kumbhekar.

Another investigating officer PW18 Piyush Jagtap has narrated about the investigation carried out by him. The sum and substance of his evidence is that, preliminary investigation was conducted by PSI Dhawale and API Ahire. After receipt of the investigation, the accused persons were arrested. He narrated about memorandum statements made by various accused persons and recoveries at their instance. His evidence specifically shows that during house search panchanamas, the clothes of accused Shubham were recovered. Whereas, clothes of accused Vinod Chapariya and accused Munna Thakur were recovered at the instance of accused Vinod Chapariya, which were in half burnt condition. As to disclosure statement and seizure of weapons, he specifically stated that the accused persons made memorandum statements that they will show the place where articles were concealed and in presence of panchas, the said articles were seized. As to sealing of Articles also, he specifically narrated . He has further placed on record through his evidence the logbook entries which are proved as well as various requisitions issued to call employees from various officers. It reveals from his evidence that for various panchanamas he has called the employees from different Government office. After seizure of the weapons, he has also narrated about the chain of custody of the weapons. His cross examination discloses that the entry at about 3:27 pm was taken, but he has shown his unawareness whether the police officers, who rushed to the occurrence of the place, came to know about the names of assailants, till taking the entry in the station diary. He further admitted that the police station received the information as to fighting between two groups at about 1:45 pm. He has also produced the other general diary entries on record to show the progress of the investigation. As to delay in recording the statements, his evidence shows that he recorded the statements of eyewitnesses on 5.4.2018. His evidence further discloses that he has issued the Notice to Prashant Shambharkar and Sharda Narayane for recording their statements and they have not approached at their own to record the statements. He has also explained about the delay that the delay for recording the statements of witnesses is, considering the mental condition of the witnesses, seriousness of the offence, and the arrest of the accused persons. He has further explained that he tried to record the statements of the witnesses as early as possible. He fairly admitted on 28.3.2018, 29.3.2018, and 30.3.2018, he has not issued the Notices to those witnesses. An attempt was made by the defence counsel to show that though during the investigation names of Sunita Sunita Ghaiwan came forward who has witnessed the incident and Praful Shambharkar who has given information about the incident, they are not examined by the prosecution. The material omission that PW1 Nalini has not stated specifically that at the time of the incident, accused Munna Thakur was holding sword in his hands. While recording the deposition, it is specifically mentioned by learned Judge of the trial court that she collectively stated about 2-3 accused.

Thus, from his cross examination, an attempt was made to show that though two eyewitnesses Shaikh Imran and Shaikh Israil have witnessed the incident, who were along with the deceased, they are not examined and no reason came forward. The memorandum statements of the accused persons are not voluntary and nothing was recovered from them.

As far as the evidence of PW3 Sharda Narayane is concerned, the investigating officer stated that he does not remember exactly whether there was backside door to the house of PW3 Sharda. He has not prepared the separate panchanama about the backside door of the house of Bhimrao Awathare.

The evidence of PW18 Piyush Jagtap shows on 29.3.2018 accused persons Pravin Bhagat and Bhimrao Awathare were arrested on 30.3.2018 and their house search panchanama was drawn. On 30.3.2018, accused Sunil Devtale and Hanuman Pendor were arrested. The memorandum statement of Bhimrao Awathare was recorded on 31.3.2018 and at his instance rod was seized in presence of the panchas. On 1.4.2016, the house search of accused persons Sunil Devtale and Hanuman Pendor was carried out and their clothes were seized. On 2.4.2018, the memorandum statement of accused Sunil Devtale was recorded and two weapons sickle and sattur were recovered. He has identified Article-F iron pipe seized from accused Pravin Bhagat, Article-E iron pipe seized from accused Bhimrao Awathare, Articles-B1 and B2 pant and shirt of accused Bhimrao Awathare, Articles-B3 and B4 shirt and pant of accused Pravin Bhagat, Articles-B6 and B8 the pant and shirt of accused Hanuman Pendor, Articles-B7 and B-9 the pant and shirt of accused Sunil Devtale, Article-C1 sickle and sattur recovered at the instance of accused Sunil Devtale, Article-G sattur seized at the instance of accused Sunil Devtale, Articlesd-C3 and C4 shirt and pant of accused Sumedh Meshram, Articles-C5 and C6 knives recovered at the instance of accused Shubham Tekam, Articles-C7 and X2 the shirt and pant of accused Shubham Tekam respectively, Article-B sword recovered at the instance of accused Vinod Chapariya, Articles-J and Q the shirt and pant of accused Vinod Chapariya, Articles-N and P the shirt and pant of accused Munna Thakur which were in a half burnt condition, Articles-R gupti seized at the instance of accused Munna Thakur, Article-D iron pipe seized at the instance of accused Sumedh Meshram, Article-A sword seized at the instance of accused Raj Thakur, and Article-T motorcycle chain cover seized at the instance of accused Raj Thakur. He further stated regarding the fact that he has issued the letter to get the information about the criminal background of the accused persons and he received summary of crime. The letters are at Exhs.469 to 472. Certified extract of the station diaries are at Exhs.476 to 621A and logbook entries are at Exhs.622 to 635. He has also prepared the chart showing the chain of custody of various Articles seized at the instance of accused persons.

After scrutinizing the entire evidence, admittedly, the prosecution has placed reliance on the evidence of PW1 Nalini and PW2 Mayur, the wife and son of the deceased, who are eyewitnesses of the incident.The evidence of PW1 Nalini disclosed about political rivalary and occurrence where as P.W.2 Mayur stated about manner in which incident occurred. It is categorically stated by PW1 and P2 in their evidence about the role of each accused.

Learned counsel for the accused persons canvassed about conduct of PW1 Nalini and PW2 Mayur. Admittedly, PW1 Nalini is wife and PW2 Mayur is son of the deceased. As per their evidence, the deceased was assaulted mercilessly. PW1 Nalini after incident reacted by shouting and crying. Learned counsel for the accused persons vehemently stated that there was no natural conduct of PW1 Nalini as she has not intervened in the quarrel.

It can be noted that different persons may react in different ways in same situation. Merely because PW1 Nalini was not reacted in a particular way, that by itself is not sufficient to show her evidence is totally unreliable. Even, if it is accepted that there are some improvements, the said improvements if disturbs the core of the entire prosecution case, the same can be treated as material omissions. It is pertinent to note that though PW1 Nalini was Sarpanch, she is a rustic witness. The evidence of the said witness requires to be scrutinized and appreciated in the light that 15 persons assaulted the deceased. She witnessed number of assailants armed with deadly weapons assaulting the deceased. In such a situation, whether he/she would be in a position to give a very accurate and photogenic version as a whole thing happened in a few minute and, therefore, while appreciating such testimony, due regard to their background and the whole scenario in which the alleged incident has happened requires to be taken into consideration. Insofar as testimony of this witness is concerned, it stands corroborated by the aspects that recoveries of the weapons at the instance of the accused persons and blood stains of the blood group of the deceased were found on the said Articles especially the clothes of the accused persons corroborate the case of the prosecution.

The evidence of PW1 Nalini requires to be appreciated in the light of the facts that there were inimical terms between her and the accused persons and the deceased was attacked by the accused persons which is witnessed by her and the said evidence is corroborated by other circumstantial evidence. Though it is argued that other independent witnesses are not examined, while appreciating the evidence of witnesses, it is not number of witnesses but quality of their evidence which is important, as there is no requirement in the law of evidence stating that a particular number of witnesses must be examined in order to prove/disprove the fact. The time-honored principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is quality and not quantity which determines the adequacy of the evidence as has been provided by Section 134 of the Indian Evidence Act.

The evidence of PW1 Nalini is further criticized by learned counsel for the accused persons on the aspect that before adducing her evidence, she read the statements on various occasions and relied upon the decision in the case of Rustam s/o Udarda Jadhav (supra) wherein it is held that, the evidence of witness who have deposed particular incident not by recollecting evidence of that incident, but what has been read out by him from the police statement, short time before he deposed become inadmissible.

Refreshing the memory by a witness before his deposition was considered by the Full Bench of the Gujarat High Court in the case of Nathu Manchhu vs. State of Gujarat, reported in MANU/GJ/0061/1978. Before the Full Bench, following questions have been referred by the Division Bench:

After considering provisions i.e. Sections 155 and 157 of the Evidence Act and various judgments on this issue, the Gujarat High Court laid down as follows :

In view of the judgment of the Full Bench of the Gujarat High Court, merely because PW1 Nalini read the statement before her evidence that by itself is not sufficient to discard her evidence.

To corroborate the version of PW1 Nalini, another eyewitness PW2 Mayur, the son of the deceased, is examined. It is canvassed that the presence of this witness at the spot of the incident itself is doubtful. Admittedly, PW2 Mayur is school going child. He in his evidence itself has stated that he came to village Parwa along with his parents as there was no school. He further clarified that it was Tuesday. His presence in the village along with his parents was not unnatural. PW2 Mayur categorically narrated about the incident and corroborates PW1 Nalini on material particulars. He has not only stated about the incident but also attributes specific roles of accused Raj Thakur, Munna Thakur, and Vinod Chapariya. Thus, as to the roles of the accused persons, he corroborates the evidence of PW1 Nalini who has also narrated about the roles of all the accused persons and identified them before the court. He further deposed about the role of accused Hanuman Pendor, Shubham Tekam, Sunil Pali @ Kumbhekar, Sunil Devtale, and Sumedh Meshram. The manner in which the deceased was assaulted is also narrated by him. The said evidence not only discloses the act of the accused persons, but also he identified the accused persons as well as the weapons in their hands. Except some omissions, nothing incriminating came during his cross examination.

The evidence of PW2 Mayur is criticized on two aspects, (i) his presence at the spot is doubtful, and (ii) being child witness he can be influenced and tutored.

As observed earlier, though PW1 and PW2 were residing at Yavatmal, the alleged incident occurred at village Parwa is established by the prosecution not only on the basis of direct evidence but also by circumstantial evidence. The defence has also not challenged the spot of the incident. As already observed, his presence at the spot is not unnatural. Moreover, his evidence along with the evidence of PW1 Nalini is consistent that on the day of the incident, he along with his cousin Samyak followed his father on the say of his mother PW1 Nalini. The above evidence is not shattered during the cross examination. Therefore, there is no reason to disbelieve his presence at the spot of the incident.

Another aspect argued is that, PW2 Mayur is a child witness. Admittedly, PW2 was school going child at the relevant time and, therefore, it is required to be looked into whether his evidence is tainted by tutoring or his evidence is unnatural. His cross examination nowhere reflects that any suggestion was given to him that he is deposing as he is either taught by his mother or he is a tutored witness.

The law is settled as far as evidence of child witness is concerned. The Indian Evidence Act does not prescribe any particular age as determinative factor to treat a witness to be a competent one. Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease-whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto.

In the case of Dattu Ramrao Sakhare vs. State of Maharashtra, reported in 1997(5) SCC 341, the Hon’ble Apex Court held that as long as the child witness is found to be competent to depose that is capable of understanding the questions put to him and able to give rational answers, the testimony of such witness can be considered as evidence. In terms of Section 118 of the Evidence Act, irrespective of their tender age or absence of any oath. The only additional facts to be considered is that the witness must be found to be reliable and there was no likelihood of having been tutored. There is no pre-condition that the evidence of child witness must be corroborated before it can be considered and rather insistence of any corroboration is only a rule of prudence that would depend upon the peculiar facts and circumstances of each case.

In State of M.P vs. Ramesh and anr, reported in (2011)4 SCC 786 also, the Hon’ble Apex Court has considered this issue and observed in paragraph Nos.11 and 12 as under:

PW3 Sharda Narayane and PW4 Prashant Shambharkar who are independent witnesses also corroborate the prosecution version. It is not in dispute that accused Bhimrao Awathare resides in front of the house of PW3 Sharda. Her evidence discloses how the incident occurred. She has also narrated the reason why she followed the accused persons. She stated that PW4 Prashant Shambharkar, who was her nephew, was playing cards with some villagers. She followed them and witnessed the incident. Admittedly, some material omissions were brought on record as far as her statement under Section 164 of the CrPC is concerned, which show improvement. However, those improvements nowhere affect the entire core of the prosecution case.

It is a well settled that “falsus in uno, falsus in omnibus” (false in one thing, false in everything) is neither a sound rule of law nor a sound rule of practice. It is not applicable in criminal cases in India, as witnesses may be partly truthful and partly false in their evidence. The experience shows that the evidence of many witnesses contains a grain of untruth of some exaggeration or embellishment. This many a times happens perhaps due to fear in the mind of the witnesses that their testimony may not be rejected. The court should not disbelieve the evidence if such witnesses or together if they are otherwise trustworthy. Discrepancies caused due to normal error of observation, normal error of memory due to lapse of time, due to mental disposition, impairmental faculty due to impact or shock caused due to incident needs to be ignored. The prosecution case would fall only where inconsistencies in it go to the root of the case. Otherwise, it becomes duty of the court to sift truth from falsehood by culling out negates of truth from the evidence of witnesses examined by the prosecution. If such exercise is possible, their evidence cannot be discarded wholly.

Another aspect is, though she was present when the police came in the village for investigation and spot panchanama, she has not disclosed that she has witnessed the incident, till 5.4.2018.

PW4 Prashant Shambharkar who has also witnessed the incidents has corroborates to PW1 Nalini, PW2 Mayur, and PW3 Sharda Narayane. He has not only identified the accused persons but also stated which accused was holding which weapon. His statement was also recorded on 5.4.2018. As per his evidence, if notice would not have been issued to him, he would not have approached the police to record his statement. The delay in recording the statement is explained by investigating officer PW18 Piyush Jagtap. He specifically admitted that the delay for recording the statements of witnesses was, considering the mental condition of witnesses, seriousness of the offence, and arrest of the accused persons. Under such circumstances, he tried to record the statements of witnesses as early as possible.

As far as the delay in recording statement is concerned, it is well settled that the case of the prosecution cannot be rejected solely on the ground that there is delay in examination particular witness.

In State of U.P. vs. Satish, reported in (2005)3 SCC 114 which was referred in decision in Criminal Appeal No.1669 of 2006 (Balwinder Singh v. State of Punjab) decided on 24.4.2025 wherein the Hon’ble Apex Court observed as under:

Thus, primarily it was for the accused persons to question the investigating officer to explain the delay in recording the statements of witnesses. The explanation given by the investigating officer appears to be probable and satisfactory.

As far as conduct of PW3 Sharda Narayane and PW4 Prashant Shambharkar pointed by learned counsel for the accused persons is concerned, that they have not disclosed the incident at the earliest, though they are having an opportunity and explanation given by the investigating officer, the aspect which requires to be considered is that judicial note can be taken that though we are staying in a civilized society, people are still afraid of involving themselves to be witnesses of such incidents as they are scared of harassment at the hands of the investigating agency. Therefore, their conduct not approaching the police cannot be said to be unnatural.

The law is well settled that while appreciating the evidence of witnesses, approach must be whether the evidence of the witness read as a whole inspires confidence. Once that impression is formed, then undoubtedly it is 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 earlier evaluation of evidence is shaken as to render it unworthy. The material thing which is to be seen whether those inconsistencies go to the root of the matter. While appreciating the evidence of relatives, great weightage is to be given to them on the principle that there is no reason for them not to speak the truth and shield the real culprit. In fact, close relative who is very natural witness cannot regarded as an interested witness. The term “interested” postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason. While dealing with evidence of witnesses, who are relatives, the evidence of witnesses cannot be discarded merely on the ground that he is either partisan or interested or close relative to deceased, if it is otherwise found to be trustworthy. The said evidence only requires scrutiny with more care and caution.

Testing on the anvil and touchstone the aforesaid principles laid down, we find that the evidence of PW1 Nalini, PW2 Mayur, PW3 Sharda Narayane and PW4 Prashant Shambharkar who are close relatives as well as the independent witnesses whose presence at the spot of the incident was natural and, therefore, it cannot be doubted.

PW5 Devidas Sathe, acted as pancha on spot panchanama, corroborates the case of the prosecution to the extent that the alleged incident has taken place at village Parwa near Anganwadi. In presence of panchas, the investigating officer has collected the simple soil and and blood stained soil from the said spot. The CA Report Exh.658 shows that soil which was collected from the spot tallies with the soil collected from Exh.2 i.e. nail clipping of the deceased. Similarly, PW6 Mukhtar Ali Ahmad Ali who acted as a pancha on inquest panchanama also narrates that he has witnessed the injuries on the person of the deceased.

Another material evidence is the medical evidence.Learned counsel for the accused persons vehemently submitted that the weapons allegedly recovered are, swords, knives, sickles, satturs. The swords and knives were sharp at one side and blunt at other side. However, PW16 Medical Officer Dr.Nilesh Jadhav observed margins of injury Nos.1 to 8 and 12-15 and 17 mentioned in column No.17 were clean cut, which are contrary to the oral evidence. However, on scrutiny of the evidence, it reveals that PW16 Dr.Nilesh Jadhav gave his opinion as to the examination of gupti recovered from accused Munna Thakur and knives recovered from accused Shubham Tekam, shows that the gupti was sharp and pointed and knife having both edges sharp. He specifically stated that the injuries above mentioned are possible by the said weapons. Therefore, the submission of learned counsel for the accused persons that the medical evidence is contradictory to the ocular evidence has no substance.

The other material evidence on which the prosecution has placed reliance on the evidence as to the recoveries is, PW7 Sunil Wanjari who acted as pancha on memorandum statement of accused Shubham Tekam and accused Vinod Chapariya. The knives recovered at the instance of accused Shubham Tekam shows that there were blood stains on blade. The knives are recovered on 9.4.2018. The muddemal receipt as to the knives is at Exh.321 dated 10.4.2018. Similarly, the clothes of accused Shubham Tekam were recovered at his instance on 9.4.2018 and similarly on the next date, the same were deposited with the muddemal clerk and muddemal receipt is at Exh.320 dated 10.42018. Similarly, recovery of the sword at the instance of accused Vinod Chapariya was on 9.4.2018. The muddemal receipts to the extent of depositing sword and half burnt clothes of accused Munna Thakur, half burnt clothes of accused Vinod Chapariya, and sword having blood stains were deposited with the muddemal clerk on 10.4.2018 and muddemal receipt is at Exh.323. Though PW7 Sunil Wanjari during the cross examination admitted that recoveries are from open place,but investigating officer stated about concealment. The investigating officer has specifically stated that the photographs are obtained and the same were developed and memory cards are placed on record.

PW8 Sanjay Pawar acted as pancha on the memorandum statement of accused Munna Thakur and recovery of weapons at his instance. During the cross examination he denied the recovery is from open place. Though PW8 Sanjay Pawar has not stated about the sealing, PW18 Piyush Jagtap has specifically stated that the weapons were sealed at the spot of the incident. The said panchanama of seizure of gupti and iron rod was carried out on 12.4.2018 and on the same day, the said muddemal was deposited with the muddemal clerk vide muddemal receipts Exhs.326 and 327.

PW9 Sawan Nerle who has also acted as a pancha on recover of hollow iron pipe at the instance of accused Bhimrao Awathare. In his presence, there was seizure of blood samples. Though he admitted that field was open and accessible to all, but not suggested that recovery was from open place. The investigating officer has stated about concealment and the seal was affixed after the recovery. The muddemal receipt regarding depositing the iron road is at Exh.283 dated 31.3.2018. Similarly, the blood samples of accused Sunil Devtale and Hanuman Pendor were also deposited vide muddemal receipt Exh.279.

PW10 Akash Gohokar has acted as a pancha on memorandum statement of accused Sunil Devtale at whose instance weapons sickle and sattur were seized. During his cross examination, nothing incriminating was brought on record to falsify version as to the seizure of the weapons. The muddemal receipt of depositing the weapon sattur which was having blood stains Article-H is at Exh.295 dated 2.4.2018.

PW11 Geeta Botre has also acted as pancha on house search panchanama of accused Pravin Bhagat and Bhimrao Awathare. Though she stated all documents prepared at S.D.P.O office, but the investigating officer has deposed that the recovery was made at the spot of the incident. The logbook entry substantiates the fact that the accused was taken for investigation purpose. PW11 Geeta Botre also acted as a pancha on resealing of clothes of the deceased after the same were soaked.

PW12 Mukund Karanjkar has also acted as a pancha on memorandum statement of accused Raj Thakur in whose presence accused Raj Thakur has shown the place and recovery of sword, motorcycle chain cover, and clothes were detected. Immediately, on the same day, the said Articles sword, chain cover, and shirt of accused Raj Thakur were deposited vide muddemal receipt Exh.330.

PW13 Devidas Dalavi has stated about memorandum statement of accused Swapnil Kumbhekar and seizure of iron rod and clothes.Though he initially admitted the place of seizure of iron rod was from open place,but he immediately clarified that there were bushes and, therefore, contention of learned counsel for the accused persons that the recovery is from open place is not sustainable. The muddemal receipt as to the depositing of the iron rod is at Exh.235 dated 5.5.2018 and muddemal receipt as to depositing of the clothes is at Exh.236.

As to the entire recovery, the evidence of the investigating officer discloses about seizure and sealing of weapons, which are seized in presence of the panchas. The investigating officer has categorically stated about seizures and sealing of all articles weapons as well as the clothes. It is corroborated by various requisitions issued to call panchas which are at Exhs.316, 324, 280, 293, 274, 328, and 323. The logbook entries Exhs.629, 630, 626, 627, 628, 632, 633, and 635 also substantiate the fact.

As far as the evidence as to recovery in view of Section 27 of the Indian Evidence Act is concerned, 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 form the prisoner, such discovery 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 independent witness. the conditions necessary for the applicability of Section 27 of the Act are broadly discussed as under:

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 recover of Articles has to be proved. The basic idea embedded in Section 27 of the 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 a made on the strength of any information obtained from a prisoner, such discovery is guarantee that the information supplied by the prisoner is true.

This evidence as to recovery is criticized by learned counsel for the accused on the ground that the witnesses have admitted that it was the open place and accessible to all. However, as already observed, PW7 Sunil Wanjari though admitted that recovery was from open place, the evidence of the investigating officer show that there were bushes. The logbook entris also substantiates the fact that the accused were taken for investigation purpose. The photographs and the evidence of the investigating officer show that the photographs were obtained and memory card is also on record, which sufficiently shows that the recovery was not from open place.

In State Government of NCT Delhi vs. Sunil and anr, reported in MANU/SC/0735/2000 wherein the Hon’ble Apex Court observed that, “the legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled 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 a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses. 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 no witness was present or if no person had 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.”

In Modan Singh vs. State of Rajasthan, reported in AIR 1978 SC 1511, the Hon’ble Apex Court observed that, “if the evidence of the 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.”

The similar view is expressed in Mohd.Aslam vs. State of Maharashtra, reported in (2001)9 SCC 362 and Anter Singh vs. State of Rajasthan, reported in 2004 SCC 10 657 that even if pancha witnesses turn hostile, on the evidence of person who effected recovery would not stand vitiated.

Learned counsel for the accused persons have much stretched upon custody of Articles before the Articles are sent to FSL. The investigating officer has prepared the chart of chain of custody. The summary of the said chart is reproduced as under:

Yavatmal City to R.F.S.L for to 14.30 P.S. CA hrs examination RFSL, Received the 05.6.18 Amravati article for CA 14.30 hrs examination 28 Iron Rod From 05.5.18 PSI Dilip Giri deposited in 05.5.18 to accused Mangesh {Muddemal Malkhana Swapnil Bhoyar,S. Clerk, 31.5.18 Raghuna- I.T. Awadhootwad th SDPO, i, P.S. } Kumbhek- Yavatmal ar P.C./2314 handed over 31.5.18 Sudhir for sending from 11.00 Yavatmal City query to 12.15 P.S. hrs Medical Query 31.5.18 to Officer, Examination 02.6.18 Goverment Hospital, Yavatmal P.C./2314 articles 02.6.18 Sudhir received after from 16.00 Yavatmal City query to 16.30 P.S. examination hrs Dilip Giri deposited in 02.06.2018 {Muddemal Malkhana to Clerk, 05.06.2018 Awadhootwa-di , P.S. } RFSL, Articles 05.6.18 Amravati received for 14.30 hrs CA examination

Thus, the chain of custody shows since seizure till sending to the FSL in whose possession Articles were kept. The custody is further proved by various muddemal receipts. The evidence of PW16 Dr.Nilesh Jadhav also demonstrated regarding the weapons and clothes of the deceased which were forwarded to him and he rendered his opinion that the injuries are possible by the said weapons.

The oral evidence of these prosecution witnesses corroborated by the circumstantial evidence shows that various weapons are recovered at the instance of the accused persons. The investigating officer has collected soil from the spot of the incident, having blood stains, as well as the simple soil. All these muddemal Articles were forwarded to the Chemical Analyzer. The CA Report Exh.659 shows that the blood detected on Exh.1 i.e. soil, Exh.3 i.e. full shirt of the deceased, Exh.4 sandow banian of the deceased, Exh.5 full jeans pant of the deceased, Exh.7 half shirt of accused Raj Thakur, Exh.15 full pant of accused Hanuman Pendor, Exh.16 full shirt of the child in conflict with law, Exh.18 half T-Shirt of accused Shubham Tekam, Exh.19 full jeans pant of accused Shubham Tekam, Exh.28 sword seized at the instance of accused Raj Thakur, Exh.28 sword seized at the instance of accused Vinod Chapariya, Sattur seized at the instance of accused Sunil Devtale, Exh.30 sickle recovered at the instance of accused Sunil Devtale, Exh.31 sickle seized at the instance of child in conflict with law, Exhs.32 and 33 knives recovered at the instance of accused Shubham Tekam, Exh.34 sheath (cover of knife) seized at the instance of accused Shubham Tekam, iron pipe seized at the instance of accused Sumedh Meshram were found stained with blood of “Blood Group AB”. As per Exh.660, the blood of the deceased was “AB”. As per Exhs.661 to 674, none of the accused’s blood group is AB. The incriminating evidence as to the CA was not put to the accused before the trial court. The same was put by this court for which they have not given any explanation.

Thus, the entire prosecution case revolves around the direct as well as the circumstantial evidence. PW1 and Pw2 Mayur are the wife and son of the deceased. Whereas, PW3 Sharda Narayane and PW4 Prashant Shambharkar are the eyewitnesses who are from the same village.

Learned counsel for the accused persons placed reliance on the decision of this court in the case of Bharat s/o Kailash Baheliya and ors vs. The State of Maharashtra (supra) wherein this court on the basis of judgment in Sonia Bahera vs. State of Orissa (supra); Alil Mollah and anr vs. State of W.B. (supra) and State of Orissa v. Brahmananda Nanda, reported in (1976)4 SCC 288 in which it is held that unexplained silence or delayed disclosure by an alleged eyewitness seriously affects the credibility of such testimony. However, in the present, the investigating officer was cross examined on delay in recording the statement and his explanation appears to be reasonable and justified one. Therefore, the observations in Bharat s/o Kailash Baheliya and ors (supra) are not helpful to the accused persons in the present case.

Learned counsel for the accused persons has further placed reliance on the decision in the case of Syed Amin Syed Nabi vs. The State of Maharashtra (supra) where the case was rested upon oral dying declaration as well as the “last seen.” While appreciating the evidence, this court has considered the prosecution case that the accused inflicted deep cut wounds on neck of deceased by means of sattur. The oral dying declaration implicating the accused made by the deceased to uncle and father is not reliable. The recovery of the weapons of the offence at the instance of accused from open place is doubtful. Noticing human blood on the clothes of the accused, irrelevant, particularly when such circumstance was not put to the appellant when his statement was recorded and thereby the accused was acquitted.

Here, in the present case, as far as the recovery evidence is concerned, which shows that at the instance of the accused the weapons were recovered. The chain of custody is also established by the prosecution by producing various documents on record. Therefore, this observation is also not helpful to the defence.

Learned counsel for the accused persons further placed reliance on Jaikam Khan vs. State of Uttar Pradesh (supra) wherein it is held that related eyewitnesses falling in the category of “neither wholly reliable nor wholly unreliable”. In such case, reiterated, corroboratory evidence is necessary. Absence of corroboratory evidence, motive and other material infirmities in prosecution case.

As already observed in the present case, some improvements are there, but the same are not touching or affecting the core of the prosecution case. Moreover, the evidence of the eyewitnesses is corroborated by the other evidence and, therefore, this decision is also not helpful to the accused.

In Anant Dyaneshwar Jadhav vs. The State of Maharashtra (supra), the benefit of doubt was given to the accused as the prosecution case was that the accused persons carrying the deadly weapons attacked complainant party and the appellant accused assaulted the deceased by sword. The testimony of eyewitnesses that the assault on deceased took place at particular spot not corroborated by other evidence on record.

Here, it is not the case. Not only the version of the eyewitnesses but the circumstantial evidence even the soil collected from the spot tallies with the soil which was found in the nail clippings of the deceased. Therefore, this judgment is also not helpful to the defence.

While appreciating the testimony of rustic witness, i.e. PW1 Nalini, some variations and improvements are to be appreciated in the light of the fact that, she is from the rustic background, and when number of intruders attacked with deadly weapons, then witnesses cannot be expected to give a very accurate and photogenic version as both things happened in few minutes.

This aspect is also considered by the Hon’ble Apex Court in the case of State of Punjab Vs. Hakam Singh, reported in MANU/SC/0526/2005, wherein Hon’ble Apex Court observed that, sometimes while appreciating the testimonies of 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. In view of the above observations, some omissions ought to have occurred.

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:-

In the light of the above said principles, if the evidence of PW1 Nalini, PW2 Mayur, PW3 Sharda Narayane and PW4 Prashant Shambharkar is appreciated, same is consistent, cogent and not suffering from material inconsistencies. The prosecution evidence may suffer from inconsistencies here and there, but no criminal case is free from it.The evidence further corroborated by independent witnesses P.W.3 Sharda and P.W. 4 Prashant. Their presence at spot is not unnatural.

Thus, the law is well settled that while assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence.As already observed that, the presence of PW1 Nalini and PW2 Mayur was natural..

The prosecution has claimed that the accused persons were members of the unlawful assembly and in furtherance of the common object of that assembly, they attacked the deceased and caused the death of the deceased. There is no dispute that there was political rivalry between the accused persons and the family of the deceased as PW1 Nalini who is wife of the deceased was elected as Sarpanch though the post was reserved for Open Category. There is no dispute as to the legal position that previous enmity is double edged weapon. However, after appreciating the evidence, involvement of the accused persons reveals from the evidence.

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.

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.

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.

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:

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 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.

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:

The involvement of accused Munna Thakur and Vinod Chapariya also reveals in screening the evidence.

It is well settled that the law does not require that a fact requires to be proved on absolute terms bereft of all doubts. What law contemplates is that for a fact to be considered proven, it must eliminate any reasonable doubt. Reasonable doubt does not mean any trivial, fanciful or imaginary doubt, but doubt based on reason and common sense growing out of the evidence in the case. A fact is considered proved 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.

It is a cardinal principle of criminal jurisprudence that guilt of the accused must be proved beyond all reasonable doubts. However, the burden on the prosecution is only to establish its case beyond all reasonable doubts and not all the doubts. The doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than the truth. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense.

For the reasons discussed above, on consideration of the oral evidence, medical evidence, scientific evidence and other proven facts, 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 the deceased out of political rivalry punishable under Section 302 read with 149 of the IPC. These proved facts on the basis of proved evidence, the prosecution has proved the charges against the accused persons beyond reasonable doubts. Resultantly, appeals deserve to be dismissed and the same are dismissed.

Appeals stand disposed of.