Partly allowed

Shri Vijay Vishnu Gangurde and Another v. the State of Maharashtra

Bombay HC12 Oct 2004APEAL/470/1987

Case brief

AI extract

What is this about?

In a challenge to murder convictions arising from an assault where an unarmed criminal jury acquitted some co-accused. The court held that consistent evidence regarding the specific roles of the convicted appellants justified their conviction under Section 302 read with Section 34 Indian Penal Code. The appeal by one appellant was allowed and conviction for grievous hurt under Section 324 set asid

What did the court decide?

Conviction of Bhagwan Gangurde under section 324 IPC set aside; conviction of Vijay and Sanjay Gangurde under sections 302 and 326 read with section 34 IPC confirmed.

Shri Vijay Vishnu Gangurde and Another Vs the… — Murder and Culpable Homicide | Bombay HC (2004)

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AJN

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.470 OF 1987

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Vijay Vishnu Gangurde ) 2. Sanjay Vishnu Gangurde ) Both residents of Pimpalgaon) Baswant, Taluka Niphad, ) District Nasik. ) (At present in Central Prison) Nasik Road, District Nasik.)) ... Appellants (Orig. Accused 2 & 11) Versus The State of Maharashtra ) ... Respondents Mr. Shirish Gupte with Mr. Harshad Palwe for the appellants (orig. accused 2 and 11). Mr. B. H. Mehta, A.P.P. for the State.

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ALONG WITH

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CRIMINAL APPEAL NO.490 1987

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Bhagwan Ratan Gangurde, age 28 ) years, R/o. Pimpalgaon, Baswant) Taluka Niphad, District Nasik. ) ... Appellant (Orig. Accused 4) Versus The State of Maharashtra ) ... Respondents Ms. Sharmila Kaushik, advocate appointed as per court’s order dated 9/08/2004 for the appellant (orig. accused 4). Mr. B.H. Mehta, A.P.P. for the State.

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CORAM: SMT. RANJANA DESAI & A.S. OKA, JJ.

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DATED: 12TH OCTOBER, 2004.

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: 2 :

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ORAL JUDGMENT :- ( Per Smt. Ranjana Desai, J. )

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1.	The	present appeals	involve same	facts	and	identical
contentions	and,	hence, it	is advantageous		to	dispose

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them of by a common judgment and, hence, this common

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judgment.

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2. The	appellants i	n	Criminal	Appeal No.470 of 1987	(for
convenience,	"accused	2	and 11	respectively") and	the
appellant	in Criminal		Appeal	No.490 of 1987	(for
convenience,	"accused	4")	along	with nine others	(for
convenience,	"accused 1,	3,	5 to	10 and 12 resp	ectively")
were tried	in Sessions	Case	No.19	of 1986 in the	Sessions
Court at	Nasik.	The	accused	were charged for	the
offences	punishable	under	sections	147, 148, 302	read

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with sections 149, 302, 307, 326 and 324 of the Indian

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Penal Code (for short, "the IPC").

¶19

3.	At	the	trial,	the pro	secution	story was	as		follows.
Accused	1	Vishnu	an	d accused	3	Ratan are	real		brothers.
Accused	2	Vijay,		accused 10	Sah	ebrao and	acc	used	11
Sanjay	are	the	sons	of accu	sed	1 Vishnu,	while	accus	ed 4
Bhagwan	and	accu	sed	5 Sunil	are	the sons of	ac	cused	3
Ratan.	Ac	cused	12	Drupadabai	is	the wife	of acc	used	1
Vishnu.	Nir	mala	is	her d	aughter.	Being	a		juvenile
offender,	a	sep	arate	charge	-sheet	was	filed		against
Nirmala	in	juve	nile	court.	PW-1	Gautam,	PW-8		Vasant,
PW-10	Prakash,	PW-18	S	hirish and	S	ham and	Dinkar	are	real
brothers.		PW-12	S	angita is	thei	r married	sister.		PW-11

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: 3 :

¶21

Indubai	is the	wife	of PW-8 Vasant.	R	amdas was	their
son.	Dinkar	resides	with his	wife	and children	at
Chandwad	while	PW-8	Vasant resides	with	his wife	and
children	at	Pimpalgaon	separate	from	rest of	his
brothers,	who	stay	jointly with	their	parents, wives	and
children.	The	a	ccused and the		prosecution	witnesses,
except	Dinkar,	stay in	the locality	known	as Rajwada	at

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Village Pimpalgaon. It is inhabited by Hindu Boudha

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persons.

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4.	It	is the	case	of the	prosecution	as	made out	in
Ex-19,	the	complaint	of	PW-1	Gautam,	that	there	was
enmity		between the	prose	cution	witnesses	on	the one	hand
and	the	accused on	the	other,	on account	of	some	past
disputes.		According	to	the	prosecution,	on	2/10/1985,	at
about	9.00	p.m.,	PW-1	Ga	utam, PW-	18	Shirish,	PW-11
Indubai,	P	W-12 Sangita		were	in their	house	and	were
taking	m	eals. At	that	time,	accused 1	Vish	nu, his	wife
accused	12	Drupadabai,	his	sons	, accused	2	Vijay,	accused
10	Sah	ebrao and	accused	11	Sanjay,	his	daughter	Nirmala,
accused		4 Bhagwan,	accu	sed	5 Sunil,	their	father	accused
3	Ratan	came in	front	of	their house	an	d started	abusing
in f	ilthy	language.	Th	erefore,	PW-1	Gautam	started	going
to	the	police station	to	file	a complaint.		When he	came
near	G	anpati temple	in	villa	ge market	at	Pimpalgaon,	the
aforesaid		persons cam	e	there	with s	ticks,	gupti	and
knives	in	their han	ds.	They	were also		accompanied	by
accused		7 Anil, ac	cused	6	Suresh, accu	sed	8 Kailash,	one
Rajkumar		and accused	9	Kamle	sh. They		started	abusing

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: 4 :

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PW-8	Vasant,	PW-10 Prakash	and	decea	sed Ramdas.	Then
deceased	Ramdas	was stabbed by		accused	11 Sanjay with	his
knife	on	his stomach. T	here	was	a bleeding	injury.
PW-18	Shiris	h was then stab	bed	with	knife by accused	2
Vijay.	Accu	sed 2 Vijay and	ac	cused	4 Bhagwan dealt	gupti
blows	to	PW-1 Gautam on	his	che	st and stomach,	causing
bleeding	injuries.	PW-8 Vasant		was	then assaulted by	all
these	persons.	Accused 1	Vi	shnu	and accused 2	Vijay
dealt	gupti	blows on the sto	mach	of	PW-8 Vasant.	The
remaining	p	ersons gave kicks a	nd	fist	blows. Accused	9
Kamlesh,	acc	used 5 Sunil,	accu	sed	3 Ratan, accused	2
Vijay	and	accused 11 Sanj	ay	assaul	ted PW-8 Vasant	with
knife	and	kicks. All of th	em	were	injured and lying	at
the	place	of incident. P	W-10	Pra	kash somehow managed	to
reach	the	police station, but		his	condition was	serious

¶27

and, therefore, his statement could not be recorded. He

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was immediately shifted to the Civil Hospital, Nasik.

¶29

5.	PW-14	Head Constable	Jadh	av was	on	pat	rolling duty	on
2/10/1985	from	8.00 p.m.	o	nwards.	At	ab	out 10.00	p.m.,
when	he was	at Niphad	Fata,	one	person	infor	med him	about
the	incident	going on in	Rajw	ada nea	r vill	age	gate.	He
proceeded	to	that place	and	found	that	a	crowd	had
gathered	there	and two	inj	ured pe	rsons	were	lying	near
Ganpati	temple.	He	arranged	to	send	those	two	injured
persons	to	the dispensary	at	Pimpalgaon.		He	gave	phone
message	about	the incident	to	the	po	lice	station	officer.
PW-19	ASI	Gholap was		present	in	P	impalgaon	police
station.	At	about 10.30	p.m.	he	was	asked	by	police

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: 5 :

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station	officer	to	go to	Rajwada	as	some	incident	had
taken	place.		Accordingly,	PW-19	ASI	Gholap	came	there
and	found	that	PW-8	Vasant,	his so	n	deceased	Ramdas,
PW-10	Prakash	and	PW-18	Shirish	were	lying	injured.	He
put	them in	a	taxi and	brought	them	to	the dispe	nsary at
Pimpalgaon.		The	medical	officer		on	duty	advised
immediate	removal	of	these	persons	to	the	Civil	Hospital,
Nasik.	Accord	ingly,	they	were	shifted	to	the	Civil

¶32

Hospital, Nasik by PW-19 ASI Gholap. While admitting in

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the hospital, deceased Ramdas died.

¶34

6.	PW-21	PSI	Patil attache	d to	the		Pimpalgaon	police
station	kept p	olice	guard at	the	scene	of	offence.	At
12.00	midnight,	he	received a	me	ssage	about	the dea	th of
deceased	Ramdas	i	n the hos	pital	from		police	constable
Pathan.	PW-21	PSI	Patil ins	tructed	Pathan	to	ask	PW-19
ASI	Gholap to	recor	d the co	mplaint	of	any	of the	injured
persons,	who was	in	a position	to		speak.	A	ccordingly,
PW-19	ASI Ghol	ap	recorded the	com	plaint	of	PW-1	Gautam,
which	is at E	x-19.	It was	se	nt to	the	Pimpalgaon	police
station	for re	gistering	the o	ffence.		This	complaint	was
brought	by PW-	15	police const	able	Panpatil	at	6.15	a.m.
on	3/10/1985.	PW-2	1 PSI	Pat	il	then	registered	the
offence.	PW-20	AS	I Gurhale	came	to	the	Civil	Hospital,
Nasik,	at 3.00	p.m.	and	r	ecorded	sup	plementary	statement
of	PW-1 Gaut	am	and the st	atement	s of	PW-1	8 Shirish	and
his	brother Sham.		He f	ound	that	the	other	injured
persons	were not	in	a position	to	speak.		On	4/10/1985,
he	recorded the	state	ments of	PW-	11	Indubai,	Sakhubai	and

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: 6 :

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PW-12 Sangita, but he could not record the statements of

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the injured persons even on that day. Even on 5/10/1985,

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they were unable to speak.

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7.	During		the	course	of	invest	igation,	panchnama	of
scene	of	offence	was	drawn.		The	accused	were	arrested.
Their	clothes	were	taken	charge	of.		At the	instance	of
some	of	the	accused,	some	weap	ons	were reco	vered.	The
accused	were	also	examined	to	find		out whet	her ther	e were
any	injuries	on	their	persons.			Post-mortem	was	conducted
on	the	corpse	of	deceased	R	amdas.	P	rosecution	witnesses
were	exam	ined	and	their		inju	ry cer	tificates	were
obtained.		Operati	on was	perfo	rmed	on	PW-8	Vasant	as his
injury	was	se	rious.	Afte	r		completion	of	the

¶40

investigation, the accused came to be charged as aforesaid.

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8.	In	short,	the case	of	the prosecu	tion	was th	at	on
account	of	past	enmity,	accus	ed 1 t	o	12 form	ed	an
unlawful	asse	mbly	with	the	common	object	of		assaulting
the	aforesaid		witnesses	and	attempting	to	commit		their
murder	and	in	prosecuti	on	thereof,		caused		various
injuries to th	e aforesaid wi	tnesses and	caused the mu	rder
of Ramdas G	angurde.

¶42

9.	At	the	trial,	the	prosecution	examin	ed as	many	as 21
witnesses.		Out	of	them,	PW-1	Gautam,	PW-8	Vasant,	PW-10
Prakash	and		PW-18	Shiris	h are	injured	witnesses.		PW-1
Gautam	is	the	co	mplainant.	PW-1	1	Indubai	and	PW-12

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: 7 :

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Sangita	are the	eye-witness	es. PW-6	Dr.	Ashtapu	tre had
done	post-mortem	on the	corpse of dece	ased	Ramdas.	PW-7
Dr.	Savkar	has exa	mined some	of	the	prosecution
witnesses	and	accused	11 Sanjay	and	accused	12
Drupadabai.	PW-9	Dr.	Dey examined	accus	ed 2	Vijay.
PW-16	Dr.	Pawar had	performed operati	on	on PW-8	Vasant.

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The details of investigation have been given by PW-15 PC

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Panpatil, PW-20 ASI Gurhale and PW-21 PSI Patil.

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10. Th	e	defence	of the accused wa	s	one	of		denial.
Accused	1 an	d 10	took up the defence	of	alibi.			Accused
6, 9	and	10 st	ated that they are not	co	ncerned	with		the
incident	and	they	are falsely implicated.		Acc	used	2,	11
and 12	were	taking	meals in their hou	se	with	Nirm	ala	when
Dinkar	came	in	front of their house	and	start	ed		abusing
them.	They	,	therefore, went to the	po	lice	station		and
lodged a		complaint	against Dinkar.	Wh	ile	they		were
returning	from	the	police station, they	ca	me	in	front	of
the shop	of	B	havsar, when Dinkar	a	nd	his		brothers
surrounded	and	assau	lted them. They ra	ised	hue	and		cry
and	because	of	that residents of	Rajw	ada	gathere	d	there.
They	interve	ned	and, therefore, the	accu	sed	could		escape
and reach	the	pol	ice station. For	this	in	cident,		accused
11 Sanjay	had	lodged	a complaint. It	is	sugg	ested	by	the
accused	that	the	residents of Raj	wada		assaulted		the
prosecution	wit	nesses	because they were		har	assing		the
females and	chi	ldren.	It is because	of	this	ass	ault	that
the	prosecutio	n	witnesses received	i	njuries.			The

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remaining accused stated that they were falsely

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: 8 :

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implicated due to enmity.

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11.	Afte	r perusing the evidence on record,	the	trial
court	held	that the prosecution had failed	to prove	that
accused	1	to 12 formed an unlawful assembly,	the	common
object	of	which was to assault and commit mu	rder of	the
prosecution		witnesses. The learned	Sessions	Judge
further	held	that accused 2 Vijay and accused	11	Sanjay
committed		murder by intentionally causing the	death	of
deceased	Ramd	as in furtherance of their c	ommon	intention.
He	further	held that accused 2 Vijay and	accused	11
Sanjay	had	attempted to commit murder of P	W-8 Vasant	and
PW-10	Prak	ash. He further held that accused	2 Vijay	and
accused	11	Sanjay had voluntarily caused griev	ous hurt	to
PW-1	Gautam,	PW-8 Vasant, PW-10 Prakash and	PW-18	Shirish
by	sharp	and cutting objects and accused 4	Bhagwan	is
proved	to	have caused grievous hurt to PW-10	Prakash	by
sharp	and	cutting object. The learned judge	held	the
charge	of	criminal intimidation as not proved.	He	held
that	accused	2 Vijay and accused 11 Sanjay	had c	ommitted
offences	pu	nishable under sections 302, 207,	326	read
with	section	34 of the IPC and accused 4	Bhagwan	is
proved	to	have committed offence punishable	under	section
324	of t	he IPC. He came to the conclusi	on that	the
prosecution		has failed to prove the charges	against	the
other	accused.	In the circumstances,	he	convicted
accused	2	Vijay and accused 11 Sanjay for	the	offences
under sentenced	section them	302 read with section 34 of the to suffer R.I. for life.	IPC For the	and offence

¶52

: 9 :

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under section 307 read with section 34 of the IPC, each of them were sentenced to suffer R.I. for a period of seven years. No separate sentence is awarded for the offences punishable under sections 326 and 324 read with section 34 of the IPC. Accused 4 Bhagwan was sentenced to suffer R.I for one year for offence under section 324 of the IPC. He was acquitted of all the other charges. All the other accused were acquitted of all the charges levelled against them. Being aggrieved by this judgment

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and order accused 2, 4 and 11 have approached this court.

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12.	We	have	heard, at some	length,	Mr.	Shirish	Gupte
and	Mr.	Palwe,	the learned	counsel	appear	ing for	accused
2	Vijay	and	accused 11 Sanjay,	Ms.		Sharmila	Kaushik,
advocate	app	ointed	for accused 4	Bhagwan	and	Mr.	Mehta,
the	learned	A.P.P.	for the St	ate.	With	the	assistance

¶56

of the learned counsel, we have gone through the entire

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evidence and other record.

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13.	Mr.	Gupte	and Mr. Palwe, the	learned	counsel
appearing	for	accused	2 Vijay and accu	sed 11	Sanjay
contended	that	the	prosecution has failed	to prove	its
case	against	accused 2	Vijay and accused	11 Sanjay.	Mr.
Gupte	contended	that	all the witnesses	are	interested
witnesses	and,	hence,	their evidence will	have to	be
appreciated	with	caution.	Their evidence	is replete	with
major	omissions	and,	hence, it does	not	inspire
confidence.		The lea	rned counsel contended	that	whereas
all	the w	itnesses in	the court wanted to	suggest	that

¶59

: 10 :

¶60

PW-18	Shirish came	after deceased Ramdas and		PW-10
Prakash	had received	injuries and fallen down,	it	is
clear	from the	cross-examination of PW-18 Shirish		that
before	the police	he had given a completely		contrary
version.	He had	deposed about the assault on	all	the
prosecution	witnesses.	The learned counsel	s	ubmitted
that	this suggests	that the prosecution has not	come	out
with	the entire truth.	He submitted that the	pro	secution
has	suppressed the	genesis of the case. So far	as	the
assault	on deceased	Ramdas is concerned, the	pro	secution
witnesses	are not cons	istent. PW-8 Vasant, the	father	of
the de	ceased had stated	that he did not see where	his	son
deceased	Ramdas r	eceived injury. The learned		counsel
contended	that it is	inconceivable that PW-8 Vasa	nt	would
not	have seen	where his son deceased Ramdas		received
injury.	This mak	es the prosecution story shaky.		The
learned	counsel furth	er contended that in his	e	vidence,
PW-10	Prakash has	admitted that he went to the		police
station	after the	incident and accused 2 Vi	jay	and
accused	11 Sanjay	and some other accused were		already
there	at the police	station. However, his com	plaint	was
not	recorded. In	the opinion of the learned	counsel	, if
PW-8	Vasant had	reached the police station, the		police
ought	to have recor	ded his statement. The fact	that	the
police	have not	recorded his statement and acc	used	2
Vijay	and accused	11 Sanjay were present in the		police
station	suggests that	the incident did not take	place	in
the it	manner in which took place.	the prosecution wants us to The learned counsel further	co	believe ntended

¶61

: 11 :
that this is affirmed by the fact that the accused have
also suffered injuries. Accused 12 Drupadabai has
suffered a fracture. These injuries have not been
explained by the prosecution. This also casts a shadow
of doubt on the prosecution story. The learned counsel
further submitted that there is a delay in recording the
FIR, which also suggests the falsity of the case. It was
further contended that the alleged discoveries of
weapons, at the instance of the accused, are from open
places, which are easily accessible to the public and,

¶62

hence, the discoveries ought to have been discarded and

¶63

the learned judge erred in placing reliance on them.

¶64

14.	Mr. Palwe, the learned counsel added	th	at	the
complainan	t has not clearly stated in the	FIR		that
accused	2 Vijay assaulted the deceased.	He		further
contended	that all the witnesses have	state	d	that
deceased	Ramdas received injuries on his	stomach		whereas
deceased	Ramdas had received injuries on his	chest,		which
proved	to be fatal and, therefore, assuming	this		court
comes	to the conclusion that the accused	are	res	ponsible
for	them, the accused could be only c	onvicted		under
section	304, Part II of the IPC. He subm	itted	that	this
is	further clear from the fact that all the	accused		did
not	come together and, therefore, the intention	to		commit
murder	or pre-planning can never be attributed	to		the
accused.	The learned counsel also drew our	atte	ntion	to
the	evidence of PW-21 Investigating Officer PSI	Pa	til	and
PW-14	HC Jadhav, which according to him, show	that	at	the

¶65

: 12 :

¶66

scene	of incident, there was no	light. He	sub	mitted	that
the	lights were switched off and	there was	tota	l	darkness
and,	as such, the identification	made by	the	pro	secution
witnesses	is doubtful. Mr.	Palwe also		drew	our
attention	to the evidence of PW	-3 Pathare, w	ho	is	pancha
to	panchnama, under which accused	2 is said		to	have
discovered	the weapon of assault.	He subm	itted	that	the
pancha	has stated that he has	only signed	the	pan	chnama.
The	pancha has not reproduced the	statement o	f	accused	2.
Therefore,	this pancha appears to	be a got	up		pancha.
The	learned counsel also contended	that PW-4	Bab	urao,	who
is pa	ncha to panchnama, under which	accused 11	is	said	to
have	discovered the weapon of	assault, has	stated	in	his
evidence	that he has acted as pa	ncha previously	on	two	to
four	occasions. The learned	counsel contend	ed	that	this
pancha	is a habitual pancha	and, therefore,	his		evidence
is	doubtful and the same ought	not to have	been		relied
upon.	In the circumstances,	the lear	ned		counsel
contended	that the order of	conviction	and		sentence
deserves	to be set aside and,	in any case,	off	ence	under
section	302 is not made out and,	at the most,	acc	used	2

¶67

Vijay and accused 11 Sanjay could be convicted only under

¶68

section 304, Part II of the IPC.

¶69

15.	Ms.	Ka	ushik,	the	learned	counsel for	accuse	d 4
contended		that so	far	as	accused	4 Bhagwan	is	concerned,
there	is	hardly	any	evidence	against	him.	She	submitted
that	whereas	some		of the	witnesses	have	stated	that
accused	4	Bhagwan		was hav	ing gupti	in his	hand,	PW-1

¶70

			: 13 :
Gautam	has s	tated th	at accused 4	was	having	gupti	and
stick	in his	hand	. In the	cross-	examinatio	n, he	has
stated	that accuse	d 4	had a sti	ck	with	him an	d he
assaulted	the	prosecu	tion witnesses	with	a	stick.	The
learned	counsel	also	pointed out	from	the	evidence	of
PW-12	Sangita	that	though in the	court	she	has	stated
that	accused 4	was	having a	gupti	when	he	assaulted
deceased	Ramdas,	PW-8	Vasant, PW	-1	Gautam	and	PW-18
Shirish,	PW-10	Prakash,	Dinkar and	Shyam	, she	has	not
stated	so in	her	police statement.		The	learned	counsel
further	pointed ou	t tha	t whereas	PW-18	Shir	ish has	stated
that	accused 4	Bhagwan	had a g	upti,	he has	not st	ated so
in	his police	statem	ent. The	gupti	alle	gedly	recovered
at	the instance	of a	ccused 4 has	no	blood	stains.	There
were	no blood	stains	on his	clothes	als	o. In	the

¶71

circumstances, the learned counsel submitted that accused

¶72

4 deserves to be acquitted.

¶73

16.	Mr.	Me	hta, the	learned	A.P.P.	h	as conte	nded	that
the	order	of	conviction	and	sentence	be	confirmed.		He
submitted	that		in the	nature	of	things	consider	ing	the
manner	in	which	the	assault	took		place	and	other
attendant	circu	mstances,	the		prosecution		witnesses		cannot
be e	xpected to	be	consistent	on	all	minor	details.		There
are	bound	to	be some	inco	nsistencies	in	their		evidence.
That,	however,	does	not	make	the	prosec	ution	story	false.
He	submitted	that	all the	witn	esses	are	consistent	s	o far
as	the role	of	accused 2	Vijay	and	accused	11	Sanjay	is
concerned.		They	are	also	consistent	about	th	e	role of

¶74

			:	14 :
accused	4	Bhagwa	n.	The lear	ned	counsel	contend	ed	that
the	delay	in	recording	the FIR	an	d the	state	ments	is
properly	e	xplained by	the	prosecution	.	The	eviden	ce	of
PW-16	Dr.	Pawar	and	PW-21	PSI	Patil	establ	ishes	the
prosecution	s	tory that	the	witnes	ses	were	not	in	a
position	to	make	any	statements	due	to	the		injuries
suffered	by	them.	Learned	A.P.P.		furth	er con	tended	that
the	discov	ery of	weapons	at the		instance	of t	he	accused,
has	been	rightly	believed	by	the	learne	d Sess	ions	Judge.
He	pointed	out tha	t the	clothes	of	the	accused	had	blood
stains.		Relying on	the	decision	of	the	Supreme	Co	urt in
State	of	Maharashtra	v.	Milind	and	others,	2000	AIR	SCW
4303 ,	the	learned	A.P.P.	conte	nded	that	the		injuries
received	by	the	accused	are		minor	and,		therefore,
assuming		that they	are	not expl	ained,	that	will	not	have
any	adverse	impact	on	the prose	cution	story.	H	e	urged

¶75

that this court should not disturb the order of

¶76

conviction and sentence.

¶77

17.	We have		given	our	anxi	ous	consideration to	the
submissions	advanced	by	bot	h	sides.		Before we deal	with
the	rival submis	sions	and	the		evidence,	it is	necessary
to	note that	the	prosecu	tion	has	led	some evidence	to
suggest	that there	were		some	d	isputes	between the	accused
and the	deceased.	It	appe	ars	that	on	account of the	said
disputes,	the prose	cution	wi	tnesses		were	holding a	grudge
against	the accus	ed.	W	hat	see	ms to	have really	preceded
the	incident in	ques	tion	is	the	quarr	el which took	place
between	Dinkar	and	accuse	d	11	Sanjay	before the	incident

¶78

: 15 :

¶79

in	question. T	his is	admitted	by PW-12	Sangita	in	her
evidence.	However,	even	if	it is acc	epted	that	the
prosecution	has failed	to	prove	the motive,	when	there	is
consistent	eye-witness	account,	the	motive	receeds	in	the
background.	The evidence adduced in	this case wil	l have
to be appreci	ated keeping this in mind.

¶80

18.	In order	to appreciat	e the	circumst	ances	under	which
the	assault on	the prosecuti	on witnes	ses to	ok	place	and
the	seriousness of	the incident,	it	would	be	necessary	to
first	have a	look at the	medical	evidence.		PW-6	Dr.
Ravindra	Ashtaputre	had done	post-mortem	on	the	corpse	of
deceased	Ramdas. PW-6 Dr.	Ashtaputre found the
following	external injuries.
	"1. Punctured	wound on	chest right	side	2"
	lateral and little above size 1" x 1/2" x 5".	the right niple
	2. Punctured wound lumber region 1/2" x 1/	on abdomen on left 2" x 1".
	3. Punctured wound o 1" x 1/2" x muscle deep	n back of left elbow , muscle exposed.
	4. Superfi palm, near left thung i middle finger."	ciely incised ndex finger and	wounds	on	left

¶81

: 16 :

¶82

He found the following internal injuries on the

¶83

corpse of deceased Ramdas.

¶84

"Brain	was	pale. Thorax-there	was	fracture
of	3rd	rib below injury No.1.	There	was
tear	of	right pluera below	injury	No.1
correspo	nding	to external	injury	No.1.
There	was	punctured wound on	right	lung
1/2"	in	depth corresponding to	injury	No.1.

¶85

There was heaemothorax-left lung was pale."

¶86

19.		Accordi	ng	to	PW-6	D	r.	Ashta	putre, these	i	njuries
were		sufficient	to	cau	se de	ath	in	the	ordinary	course	of
nature		particul	arly	injury	no.1.			When	Muddemal		article
32,	33	and	34	were	shown	to	him,	PW-6	Dr.	Ash	taputre
stated		that	the	externa	l inju	ries	co	uld	be caused	by	any
one	of	these	we	apons.	The		cause	of	death, accor	ding	to

¶87

PW-6 Dr. Ashtaputre, was shock due to internal

¶88

haemorrhage due to rupture of lung.

¶89

20.	PW-7	Dr.	Vishwas	Savkar	was	attached	to the	Civil
Hospital,	Nasik	as	Medi	cal Offi	cer.	On	3/10/1985	at
12.45	p.m.	he	examined	PW-18	Shir	ish PW-8	Vasant,	PW-10

¶90

Prakash, PW-1 Gautam. He found the following injuries on

¶91

the person of PW-18 Shirish.

¶92

: 17 :

¶93

"(i) Incised wound in right hypochondria region 3 cm. above costal region costal margin 1.5 cm. x 0.5 cm. 0.5 cm. muscile deep (ii) Incised wound in left second inter costal region starting from parasternal line laterally 1.5 cm. x 0.5 cm. x 0.5 cm.

¶94

(iii) Contused Lacerated Wound on frontal region 4 cm. x. 0.5 x 0.5 cm. skin deep placed in anterioposterior direction. All the injuries were within 24 hours. Injury No.1 and 2 caused by sharp and cutting

¶95

object while Injury No.3 caused by hard and blunt object."

¶96

He issued the certificate, which is at Ex-46.

¶97

He found the following injuries on the person of PW-8 Vasant.

¶98

: 18 :

¶99

(ii) Incised wound 2.5 cm. x 0.5 cm. x 1 cm. in right hypochondreum region 3 cm. below costal margin. (iii) Incised wound

¶100

1.5 cm. x 0.5 cm. x 1 cm. in left lumber

¶101

region 5 cm. away from umbilicus."

¶102

He issued the certificate, which is at Ex-47.

¶103

21.	PW	-7	Dr.	Sav	kar	stated	that	PW-8	Vasant was	an
indoor	pa	tient	till	1/11/1	985.	O	n	the sa	me night	for
abdominal		injury		at sr.	nos.1	and	2,	he	was referred	to
surgeon		PW-16	Dr.	P	awar	who	p	erformed	operation on	him.
PW-16	Dr.	Pa	war	found	huge	tear		on liver	which coul	d not
be	sutur	ed.	Th	erefore,	the	live	r	was	packed by	jealfoam
and	ext	ernal	injury	was	s	utured.		He	further stated	that
the	said	wound	wa	s dang	erous	and	if	medical	aid was	not
given	in	time,	it	would	ha	ve pro	ved	fatal.	PW-7	Savkar

¶104

also examined PW-10 Prakash. He found the following

¶105

injuries on him.

¶106

"(i) Incised wound 1" x 1/4" x skin deep at

¶107

T-12-L-1 left side i.e. thoracic and

¶108

lumber first vertebra.

¶109

(ii) Incised wound at the same level above

¶110

4" x 1/2" x 1/4" muscle deep right side.

¶111

: 19 :

¶112

(iii) Scalp wound 2" x 1/4" x skin deep over frontal region.

¶113

(iv) Incised wound 1/2"		below	superior
illiae spine on the right side 1/2" x 1/4" x skin deep."
He issued the certificate, which is at Ex-48.
22. PW-7 Dr. Savkar also examined PW-1 Gautam. He found the following injuries on him.
"(i) Incised wound right space 8 cm. away from parasternal line 1 cm. x 0.25 cm. x 0.25 cm.	third	inter	costal
(ii) Incised wound right space on parasternal line 0.5 cm. x 0.25 cm. x 0.25 cm. x skin deep.	forth	inter	costal
(iii) Incised wound in left hypochondereum region 2 cm. x 1 cm. x 0.5 cm.
(iv) Incised wound 0.5 cm. 0.25 cm. in midauxillary line in 8th inter costal space."	x	0.5 cm.	x

¶114

: 20 :

¶115

He issued the certificate, which is at Ex-49.

¶116

On 2/10/1985, he also examined accused 11 Sanjay and

¶117

he found the following injuries on him.

¶118

"(i) C.L.W. scalp left parital, oblique 2" x 1/4" scalp deep. (ii) Contusion on right side back T-12-L-1 level 2" x 1 1/2" (iii) Contusion left side back T-12-L-1 level 2 1/2" x 1/2" (iv) Contusion left shoulder 1/2" x 1" (v) Contusion right shoulder 1 1/2" x 1". He stated that these injuries could be caused by hard and blunt object. He further stated that accused 11 Sanjay was admitted and discharged on 4/10/1985 itself.

¶119

PW-7 Dr. Savkar also examined accused 12 Drupadabai. He found following injuries on her.

¶120

"(i) C.L.W. left parital region scalp 4 1/2" x 1 1/2" scalp deep.

¶121

: 21 :

¶122

(ii) C.L.W. left forearm 1" x 1/3" by skin

¶123

deep.

¶124

accused 12 Drupadabai was admitted and discharged on

¶125

9/10/1985 itself.

¶126

PW-9 Dr. Dey, the Medical Officer at the Primary Health Centre, Pimpalgaon, examined accused 2 Vijay on

¶127

3/10/1985 at 3.05 p.m. He found following injuries on

¶128

accused 2 Vijay.

¶129

"(i) Oblique lacerated wound of 1/4 x 1/2" x muscle deep over posterior surface of left fore arm at upper 1/3rd with blood clots.

¶130

(ii) Oblique abrasion of 1/2 x 1/4" over posterior surface of left arm at lower half.

¶131

(iii) Six small abrasions over right

¶132

scaupula on pole.

¶133

(iv) One obliqur bruise of 4" x 1/2" over

¶134

left scapular.

¶135

: 22 :

¶136

(v) One obliqur bruise of 2 x 1/2" over

¶137

muscle right bieds.

¶138

26.	This medi	cal	evidence shows	that	serious	and
grievous	injuries	were	received by	th	e pro	secution
witnesses,	which	could,	as per doctor’s		evidence,	be
caused by injuries we	sharp and cutting wea re received by the acc	pons and re used.	latively minor
27.	At this	stage,	it will also be n	ecessary	to see	the
position	of light.	In	the panchnama of	scene	of	offence,
existence	of elec	trical	pole is stated.	It	is argued	by
the	learned couns	el for	the appellants, on	the	basis	of
the	statement of	PW-21	PSI Patil and P	W-14	Jadhav,	that
the	lights were	switch	ed off and, hence,	there	was	no
visibility.	We	are	unable to accept	this	submission	for
it	is not clea	r from	the testimony of	these	witnesses	as
to	which lights	were	switched off.	It	is	also
significant	to n	ote that	PW-14 Jadhav had	gone	to	the
scene	of offence	after	the incident was	over.	Th	erefore,
whether	the lights	were	switched off at	the	relevant	time
when	the incident	had	taken place is not	clear	from	his
evidence.	Besides	the	evidence of PW-21	PSI	Patil	also
does	not take	the	defence story any	further	because	he
has	stated in	his evi	dence that on 3/10	/1985	he had	only
made	enquiries	from	Village P	anchayat,	Pimp	algaon,
whether	there w	ere	electric lights at	the	place	of

¶139

: 23 :

¶140

incident	a	nd those	were	worki	ng	. He	has		further	stated
that he	hi	mself did	not	opera	te	the	switch	to	see	whether
the	electric	ligh	t was	glowin	g.	Ther	e is		no	positive
statement		made	by	the	p	rosecution	witnesses		that	there
were	no	lights.	It	is		also pertin	ent	to	note	that
admittedly,	t	he acc	used	and		the pro	secution		witnesses	are
known	to	each	other.	They		are from	the		same	village.
There	is	enmity	between	the	t	wo sides	and	the	nature	of
injuries		sustained	by	the		prosecut	ion	wit	nesses	suggests
that	the	accused	must	have		inflicted	the	in	juries on	the
prosecution		witnesses	from	clos	e	quarters	.		Therefore,	in
our	opinion	, there	w	ill	be	no	question		of	mistaken
identity		particularly	when	the		panchnama	of		the scen	e of
offence	m	entions	the	existenc	e	of an	elect	ric	pole	and
there	is	nothing	to	suggest		that this	electri	c	pole	was

¶141

not in working condition. This submission of the learned counsel must, therefore, fail.

¶142

28.	We are also	not	impressed by the sub	mission	of	the
learned	counsel that	t	he evidence led by	the	p	rosecution
should	be discarded	be	cause the prosecution	witn	esses	are
interested	witnesses.	There	is no rule th	at the		evidence
of	interested witne	sses,	in all cases, will	have	to	be
discarded.	If the	eviden	ce is found to b	e con	sisten	t and
cogent,	it cannot	be	discarded only because	it	is	the
evidence	of interested	wit	nesses. It is	common	k	nowledge
that	many times,	in	incidents such as	the		present
incident,	independent	witnes	ses do not w	ant	to	get
involved.	Therefore,	we	do not find that	the	p	rosecution

¶143

: 24 :

¶144

case has become unreliable because the prosecution has

¶145

not examined any independent witnesses.

¶146

29.	Before we analyse the evidence,	we	may	note	tha	t in
this	incident number of persons from		both	sid	es	are
involved.	In our opinion, in an i	ncident	of	this		type,
it is	impossible for all the	witn	esses	to		state
everything	in the same sequence. It	is	pos	sible	for	one
witness	to see what the other witness	has	m	issed.		We
have	purposely noted the injuries		received		by	the
prosecution	witnesses. It is very cl	ear	that	they		were
seriously	injured. Therefore, it might	no	t	have		been
possible	for them to take note of	eveythi	ng	whe	n	they
were	in pain. Some inconsistency	would	be	inher	ent	in
their	evidence. In our opinion, that	wo	uld	in	fact	make

¶147

the prosecution story more reliable. There appears to be

¶148

no tutoring of witnesses.

¶149

30.	Th	e	co	mplaint	is			lodged	b	y	PW	-1	Gau	tam	a	t 6.15	a.m.
on	3/10/19	8	5.	He	h		as	state	d		that	he	is	the		brother	of
PW-18	S	h	irish.	H	is			brother			PW-18	S	hirish	an	d	his	sister
and	mother		were	taking			m	eals	on		2/10/	1985.		A	t	that	time,
accused	1		Vishnu,	his	so	n	s	acc	use	d	2	V	ijay	and		accused	10
Sahebrao	and		ac	cused	11			Sanjay	,		accus	ed	12		Dr	upadabai	and
Nirmala	c	a	me	in	fron	t		of	th	e	hou	se	and	star	te	d	abusing
them.	PW	-	18	Shirish	we	n	t	to	c	a	ll hi	s	broth	er.		Accuse	d 4
Bhagwan,			accused	5	Su	n	il	and			accused		3	Ratan		came	there.
He	left		the	house	to			lodge	a		comp	laint.		His		mother	also
followed	him.			When	he			came		n	ear	Ganp	ati	Par,		the	accused

¶150

: 25 :

¶151

came	there arm	ed with sticks and knives	and ob	structed
him.	PW-8 Vasant	also came there. Accused	2 Vijay	and
accused	11 Sanjay	dealt blows of knife on	the abdome	n of
PW-8	Vasant.	When PW-1 Gautam intervened,	accused	11
Sanjay	and accused	2 Vijay also dealt blows	of knife	on
right	side of his	chest and left side lumb	er region	and
costal	region.	When PW-8 Vasant fell down,	accused	9
Kamalesh,	accused 6	Suresh and accused 8	Kailash,	accused
4	Bhagwan, accused	5 Sunil and accused 7	Anil came	there
running	armed w	ith sticks. They	instigated	the
assailants	to assault.	At that time, deceas	ed Ramdas	was
coming	there. He	was held by accused	1 Vishnu	and
accused	10 Sahebra	o. Accused 2 Vijay and	accused	11
Sanjay	assaulted hi	m with knife on stomach	near	village
gate.	Deceased	Ramdas fell down near	village	gate.
PW-10	Prakash came	there. He was assaulte	d by accuse	d 4
Bhagwan,	accused 11	Sanjay, accused 2 Vijay	and accuse	d 1
Vishnu.	Accused	4 Bhagwan gave blows with	knife on	the
left sid	e of stomach	above waist of PW-10	Prakash.	PW-10
Prakash	fell down.	At that time PW-18	Shirish	came
there.	He was	assaulted by accused 1 Vish	nu, accused	2
Vijay,	accused 1	0 Sahebrao and accused 11	Sanjay	with
sticks	and knives	. By the time the poli	ce came	there.

¶152

The accused ran away. The injured were removed to the

¶153

dispensary at Pimpalgaon.

¶154

In his cross-examination, PW-1 Gautam has stated that his complaint came to be recorded at 10.30 a.m. on 3/10/1985. At 12.30 midnight deceased Ramdas died. This

¶155

: 26 :

¶156

witness was in the hospital for about 10	days.	The
evidence of this witness was attacked on	the ground	that
in his police statement, he has not stated	that accused	1
Vishnu and accused 10 Sahebrao held deceas	ed Ramdas	and
that accused 2 Vijay dealt blows with	knife on	the
stomach of deceased Ramdas. In our	opinion, though	this
witness has, in the complaint not stated in	so many	words
that accused 2 Vijay dealt blows with	knife on	the
stomach of deceased Ramdas, he has made	a statement	to
the effect that all the accused attacked	deceased R	amdas.
The omission to specifically assign the role	to accused	2
Vijay, in our opinion, does not damage	the pros	ecution
case. There are other minor omissions	in his stat	ement.
He has not stated in his police statement	that accused	10
Sahebrao and accused 11 Sanjay assaulted	PW-18	Shirish
and PW-10 Prakash was assaulted by accused	4 Bh	agwan,
accused 11 Sanjay, accused 2 Vijay and ac	cused 1	Vishnu
and that they also assaulted PW-18 Shi	rish with	sticks
and knives. As already stated by us,	these om	issions
would not affect the credibility of	this w	itness.
Considering the injuries received by him a	nd the	nature
of the incident, it would not be proper	to expect him	to
give all meticulous details in his police	statement.	We

¶157

feel that on the basic story of the prosecution, this

¶158

witness is consistent.

¶159

32.		Simil	arly,	PW-8	Vasant		is also	an	injured		witness.
He	is	the	father	of	deceased		Ramdas.	He	has	stated	that
at	about	9.15	to	9.30	p.m.,	he	returned	to	his	house	from

¶160

: 27 :

¶161

the	village and came near Ganpati	temple	at	village	gate.
Accused	1 Vishnu, accused 2 Vija	y, ac	cused	10	Sahebrao
and	accused 11 Sanjay were present	there.		They	assaulted
him.	Accused 2 Vijay and accused	11	Sanjay	had	knives.
Accused	1 Vishnu had a gupti and	accus	ed 1	0 Sahebra	o had
a k	nife. They gave knife blows on	PW-8		Vasant.	PW-1
Gautam	was also assaulted. Accused	1	Vishnu,	accused	2
Vijay,	accused 10 Sahebrao and acc	used	11	Sanjay	also
assaulted	deceased Ramdas with knife a	nd	gupti.	No	major
omission	has been brought on recor	d in	the	evidence	of
this	witness. It is true that he	has	said	that he	did
not	see where accused 2 Vijay and		accused	11	Sanjay
assaulted	the deceased. But thi	s	witness	was	also
seriously	injured. We cannot loose	sight	of	the	fact
that	he is the father of dece	ased	Ramd	as.	It is
significan	t to note what he has s	tated	in	his	evidence.
He	has stated that "Police recorded	my	stateme	nt when	I
was	understanding little. This was	after	8/10	days.	In
those	days, I was understanding little.	I	was	not in	a
position	to understand or recollect	who	had	a	ssaulted."
It	appears that he was shaken up b	ecause	of	the loss	of
his	son. We have already noted	the	nature	of	injuries
suffered	by him. He had to	be	operated	upon	on
3/10/1985	. PW-16 Dr. Pawar ha	s sta	ted	that the	patient
would	not have survived if thi	s	operatio	n was	not
performed	. As per the medical	state	ment,	on	3/10/1985
his c	ondition was very bad and his	state	ment	could n	ot be
recorded.	Considering this, we find	his	evide	nce to	be

¶162

reliable so far as the substratum of the prosecution case

¶163

: 28 :

¶164

is concerned.

¶165

33. p.m.	PW-10 Prakash is also an injured witness. on the day of the incident, he went	At to Milan	8.30 Video
centre	to see a movie. At about 9.15 p.m.	PW-18	Shirish
came	to call him. PW-18 Shirish told him	that accu	sed 1
Vishnu,	accused 2 Vijay and accused 11 San	jay and	others
were	abusing the members of their family. H	e asked	PW-18
Shirish	to go ahead and told him that he	would	follow.
He	left Milan video centre for home. When	he	reached
Ganpati	temple near village gate, he found	that	deceased
Ramdas	was lying in an injured condition. Wh	en he	went
towards	deceased Ramdas, accused 1 Vishnu,	accused	2
Vijay,	accused 10 Sahebrao and accused	11	Sanjay
assaulted	him. We find this witness to be	a	truthful
witness.	He has frankly stated that he came	to the	scene
of	offence after deceased Ramdas was attacked	and h	e has
stuck	to this version. On this aspect, ther	e are	no
omissions	in his evidence. We find that	he co	rroborates
the e	vidence of PW-1 Gautam on the sequence	of event	s and
also	so far as the attack on him by accused	2 Vijay	and
accused	11 Sanjay is concerned. It appears	that	PW-10
Prakash	had stated before the police that he	and	PW-18
Shirish	had started going home from Milan	video	centre,
however,	in the court, he has corrected this	and	stated
that	PW-18 Shirish went ahead. Barring this,	there	are
no	omissions in his evidence which would mak	e him	an
unreliable	witness. His evidence was attacked	on	the
ground	that he has stated that after the	incident,	he

¶166

			: 29 :
went	to	the	police station and at the	police		station,
accused	2	Vijay,	accused 11 Sanjay, accused	12	Dr	upadabai
and	her	daughter	were already there and he	has		admitted
that	his	complai	nt was not recorded by the	police.		It
was	argued	that	this suggests that the genesis		of	the
prosecution		case	was suppressed. This subm	ission	of	the
learned	co	unsel m	ust be rejected. We have	alr	eady	noted
the	injuries	suf	fered by PW-10 Prakash.	The		injuries
have	been	described	by PW-7 Dr. Savkar.	PW-10		Prakash
himself	had,	in	his evidence, stated that du	e	to	the
assault,	he	had	fainted. He has further	stat	ed	that
thereafter,		anyhow	by sitting intermittently he	cam	e	to
the pol	ice	station.	There was profuse blee	ding	from	his

¶167

injuries. Immediately, he was sent to the Civil

¶168

Hospital, Nasik.

¶169

34.	P	W-11	In	dubai ha	s stated that	after	the		incident,
she	went		to the	dispensa	ry at Pimpalgaon	.	The		injured
were r	emoved	in	two	vehicles.	PW-10 Pra	kash	was t	a	ken in
the	vehicle		along	with acc	used 2 Vijay	and	accused		11
Sanjay	to	the	Civil	Hospital	, Nasik. P	W-10	Prakash		had
gone	to	th	e polic	e station	but, his com	plaint	was		not
taken.	PW	-10	Prakas	h told	her this	a	fter h	e	was
discharged		from	the	hos	pital and came		to	P	impalgaon.
From	the	t	estimony	of	PW-11 Indubai,	it	appears		that
PW-10	Pr	akash	had	to be	taken to the	hos	pital alo	n	g with
accused	2	Vijay	and	accused	11 Sanjay.	On	account		of the
seriousness		of	the	injury,	his complaint	could	not		be
taken.		It	is a	lso sign	ificant to note	tha	t on		6/10/1985

¶170

: 30 :

¶171

and 1	2/10/1985	stat	ements of PW-8		V	asant and	PW-10
Prakash	could		not be recorded b	e	cause	of their	serious
condition.		This	is evident from E	x	-65	and Ex-66,	which
are	the	certificate	s issued by Nasi	k	C	ivil Hospital.	It
will also	be	useful	to refer to the		evid	ence of PW-21	PSI
Patil,	who	has	stated that at ab	o	ut	12 midnight	he
received	wireless	mess	age from Nasik		that	Ramdas had	died
in the	ho	spital.	PC Pathan gave		this	message and	he
instructed	him	to	ask PW-19 ASI		Gholap	to record	the
complaint	of	any	of the injured pe	r	sons	who was in	a
position	to	speak.	This is als	o	cor	roborated by	the
evidence	of	PW-	15 PC Panpatil, who		has	confirmed	that
PW-21	PSI	Patil	instructed PC Pathan		on	phone to	record

¶172

the complaint of any of the injured, who was in a

¶173

position to speak.

¶174

35.	S	imilarly, P	W-20 A	SI Gurhale attache	d to	Pimpalgaon
police	stat	ion has	stated	that on 3/10/19	85, he	recorded
supplement	ary	statements	of	the comp	lainant,	Shirish
Gangurde	and	Sham	Sudam	Gangurde but,	other	injured
witnesses	were	not in	a	position to speak	and,	therefore,
he	could	not record	their	statements. On	4/10/1985,	he
recorded	state	ments	of some	of the witnesses.	On	that
day	also,	the injured	persons	were not in	a position	to
speak.	O	n 5/10/1985	also	PW-10 Prakash and	PW-8	Vasant
were	not	in a	position	to speak. All	this	establishes
that	the	prosecution	wit	nesses had	suffered	serious
injuries	and	were u	nable to	speak. Even	though	PW-10
Prakash	had	gone	to the	police station,	his	statement

¶175

: 31 :

¶176

could not be recorded and from there, he had to be shifted to Nasik Civil Hospital. The criticism levelled against PW-10 Prakash and also the criticism as regards

¶177

delay in recording the FIR and other statements must, therefore, be rejected.

¶178

36.	PW-11	Indubai is the wife of PW-8 Vasant.	In her
evidence,	she has	stated that accused 1 Vishnu, ac	cused 2
Vijay,	accused 4	Bhagwan, accused 10 Sahebrao and	accused
11	Sanjay	came together and they assaulted PW-8	Vasant
with	knife, gupti,	stick and iron bar. Accused 4	Bhagwan
hit	gupti on	the stomach of PW-8 Vasant and accu	sed 2
Vijay	and accused	11 Sanjay dealt blows with knife	on the
stomach	of PW	-8 Vasant. PW-1 Gautam tried to	intervene.
He	was also	assaulted by accused 1 Vishnu, accu	sed 2
Vijay,	accused 4	Bhagwan, accused 10 Sahebrao and	accused
11	Sanjay. P	W-18 Shirish came there. He w	as also
assaulted	by	the accused. He fell down.	Thereafter,
PW-10	Prakash	came there. Accused 1 Vishnu, accus	ed 2
Vijay,	accused	4 Bhagwan and accused 11 Sanjay	assaulted
him.	PW-10	Prakash also fell down. No	material
omissions	have	been brought out in her cross-	examination.
The	omissions	only pertain to the role of accu	sed 4

¶179

Bhagwan with which we shall deal a little later. We find

¶180

this witness to be a reliable witness.

¶181

37.	PW-	12	Sangita,	the	sister	of PW	-1 Ga	utam	stated	that
accused	2	Vijay	and	accuse	d 11	Sanjay	gave	knife	blows	on
the	stomac	h	of	PW-8	Vasant.	PW-1	Gautam	c	ame	there.

¶182

: 32 :

¶183

Accused	2	Vijay and ac	cused 11 San	jay	assau	lted hi	m with
knife.	Accused	4 Bhagwan	assaulted him	wit	h	gupti	on his
stomach.	At	that st	age, deceased	Ramdas		came	there.
Accused	2	Vijay and	accused 11	Sanjay	a	ssaulted	deceased
Ramdas	with	knife. Acc	used 4 Bhag	wan	also	assault	ed him
with	gupti.	Accused 1	Vishnu and	accused		10	Sahebrao
gave	stick	blows on him.	At that	time,		PW-18	Shirish
came	there.	Accused 2	Vijay and	accu	sed	11	Sanjay
assaulted	him	with knife.	Accused	4		Bhagwan	also
assaulted	him	with gupti.	Then PW-10	Pra	kash	also	came
there.	Acc	used 2 Vijay	and accused	11	Sanj	ay gave	blows
on	his ba	ck and stomach	with knife.	Acc	used	4	Bhagwan
gave	blow	with gupti on	his head.	He fel	l	down.	No
material	omiss	ions have	been brou	ght	out	in	the
cross-exa	mination	of this	witness.		O	missions	only

¶184

pertain to the role of accused 4 Bhagwan, to which we

¶185

shall advert a little later.

¶186

38.	Th	at	takes	us		to the	last		m	ate	rial			witn	ess	viz.
PW-18		Shirish.	In		h	is evid	ence,	th	i	s	witne	ss			has	stated
that	he	along	with	his		brothers	and		o	the	r m	em	b	ers	wa	s in
his	house	on the	day	of		inciden	t.	T	h	e	accus	ed			came	there
and	started	abusing	them.			There	fore,	he			went		t	o	call	his
brother		PW-10	Prakash,	w	h	o had	gone			to	the			Vid	eo	Centre.
He	told	his	broth	er		about th	e abu	ses.				PW		-10		Prakash
asked	him	to	go ahe	ad.		He	came	nea	r		village			gate	.	He
saw	decea	sed	Ramdas,	P		W-1 Gau	tam	and			PW-8		V	asan	t	lying
injured	near	village	gate.			Accuse	d 1			Vis	hnu	g	a	ve	a	stick
blow	on	his	head.	A	c	cused 2	Vija	y		an	d acc	us	e	d	11	Sanjay

¶187

: 33 :

¶188

gave	knife blow	s on	his	sto	mach. He fell	down.
Thereafter	, PW-10	Prak	ash	came	there. He was	also
assaulted	with	knife	.	Howeve	r, the cross-examination	of
this	witness	indicate	s tha	t he	is an unreliable	witness.
It	appears tha	t he	has	given	a totally contrary	version
to	the police.	He	had	stated	before the police that	he
had	seen the	assault	on	deceased	Ramdas, PW-1 Gautam	and
PW-8	Vasant.	Theref	ore,	it is	very doubtful whether	this
witness	has	seen	deceased	Ramdas,	PW-8 Vasant and	PW-1
Gautam	being assa	ulted a	t all.	W	e find it very unsaf	e to
rely	on the	evidenc	e of	this	witness and, therefore,	we
propose	to	leave	his	evidence	out of consid	eration.
However,	even	if his	evid	ence is	left out, on the	basis
of	rest of	the	evidenc	e, convic	tion of accused 2	Vijay
and	11 Sanjay	can	be up	held.	We concur with the	learned
Sessions	Judge	that	so far	as	attack on deceased	Ramdas
by	accused	2 Vij	ay and	accused	11 Sanjay is co	ncerned,
all	the	witnesses	are	consistent	and, therefore,	they
have	been	rightly	convicted	. We	may also note that	at
the	instance	of a	ccused	2 Vijay	and accused 11	Sanjay,
knives	have bee	n dis	covered.	T	hese discoveries have	been
proved	by	panch	witness	es as	well as the Inves	tigating
Officer.	We	find	no	hesitation	in relying on	the
evidence	of	discovery	of	weapons	at the instance	of
accused	2 Vijay	and	accused	11	Sanjay. It is sig	nificant
to	note that	the	knife	recovered	at the instance	of
accused	2 was	blood	stain	ed.	It is also significant	to
note	that the	clothes	of	accused	2 Vijay and accused	11
Sanjay,	which	were	sei	zed unde	r panchanama had	blood

¶189

					: 34 :
stains.		It is	true	that	no	link	can	be established	in
this	case	between	the	blood	stai	ns	found	on the	clothes
of the		accused	and	the	blood		group	of the	injured
witnesses		and dece	ased	Ramdas.		But,	in	our opinion,	in
the	facts	of	this	case,	finding	of	blood	stains on	the

¶190

clothes of these accused would be one of the

¶191

circumstances against them.

¶192

39.	So	far	as	the	inju	ries suffe	red by	the	accu	sed	are
concerned,		as	co	mpared	to	th	ose su	ffered	b	y	the
prosecution		witnesse	s,	they	are	minor.	It	is	tru	e	that
the	prose	cution		has	not	offered	any	expla	nation		about
them	but	then	it	app	ears	to us	from	the	eviden	ce	adduced
by	the	prosecutio	n	that	they	could	be the	res	ult	of	the
resistance		offered		by	the	prosecu	tion w	itnesses		who	were
seriously		injured	by	the	ac	cused.	There	is	no	rul	e that
in	all	cases		where	the	prosec	ution of	fers	no	e	xplanation
of	the	injuri	es	suffer	ed	by the	accused,	its	case		must
fall t	o th	e ground	.	In	Lax	mi Singh	& Ors	.	v.	S	tate of

¶193

Bihar (1976) 4 SCC 394 , while dealing with this question

¶194

the Supreme Court has observed as under:

¶195

"However		there may	be	cases	where	non
explanation		of	the	injuries	by	the
prosecution		may	not	affect	the pro	secution
case.		This princ	iple	would	obviously	apply
to	cases	where	the	injuries	sustained	by
the	accu	sed are	minor	and	superficial	or
where	the	evidence	is	so	cogent,	so

¶196

: 35 :

¶197

independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries".

¶198

In	our opinion,	apart	from	the	fact	that	the		injuries
suffered	by the	accused	are	compar	atively	min	or,	in	this
case the	evidence	is	consistent	and		credit-	worthy		and
therefore	non-explanation	of	the		injuri	es	by		the

¶199

prosecution does not affect the credibility of

¶200

prosecution story.

¶201

40.	We	also	find that the	prosecution	witnesses	are
consistent	so	far as	injuries on	PW-8 Vasant,	PW-1	Gautam
and	PW-10	Prakash	and PW-18	Shirish	are	concerned.
Therefore,		in our	opinion, the	conviction of	accused	2
Vijay and	accused 1	1 Sanjay as regard	s the injuries on

¶202

these witnesses cannot be disturbed.

¶203

41.		We,	howev	er,	have re	servati	ons about	the	conviction
of acc	used	4	Bhagwan.		In our	opi	nion, there	is no	cogent
and	cons	istent	e	vidence	to i	ndicate	the in	volvement	of
accused	4		Bhagwan.		It is	sign	ificant to	note	that
whereas	P	W-1	Gaut	am	has	in	his	examinati	on-in-chief
stated	that	a	ccused	4	Bhagwan	use	d a kn	ife, in	his
cross-exa	mination,		he	has	stated	that	accused	4	Bhagwan
used	knife	as	well	as	gupti.	It	is also	significant	to
note	that	in	the	FIR,	Ex-19,	he	has not	stated	that

¶204

: 36 :

¶205

accused	4 assaulted PW-10 Prakash.	It is	also
significant	to note that in the court, he	has state	d that
accused	4 Bhagwan was armed with stick a	nd he	instigated
the oth	er accused to assault but that is not	found	in the
FIR, E	x-19. Therefore, it is not clear wh	ether acc	used 4
Bhagwan	had used a knife, a gupti or a stick.	It	is also
significant	to note that when PW-8 Vasant	was	shown
muddemal	article 34, which is alleged to	have	been
recovered	at the instance of accused 4 Bhag	wan, he	stated
that	it was with accused 1 Vishnu and acc	used 4	Bhagwan.
Similarly,	PW-12 Sangita has not stated befo	re the	police
that	accused 2 was having a gupti and that	he	assaulted
deceased	Ramdas, PW-8 Vasant, PW-18 Shirish	and	PW-10
Prakash	with gupti, though she has stated	so in	the
court.	Similarly, PW-18 Shirish has stated	in the	court
that	accused 4 Bhagwan had a gupti in his	hand but,	he
has	not stated so in his police statement.	It is	also
pertinent	to note that there were no blood	stains	on the
clothes	of accused 4 Bhagwan. There were	no blood	stains
even	on the gupti, which was allegedly recov	ered at	his
instance.	We are, therefore, of the	opinion	that

¶206

conviction of accused 4 Bhagwan deserves to be set aside.

¶207

42.	It was	argued	that	if	the	witnesses	are	found
exaggerating	on	some	aspects	of	the	prose	cution	story
leading	to the	acquittal	of		some	of	the	accused,
conviction	of	other ac	cused	cannot	be	based	on	such
evidence.	This	conv	iction	does	not	impress	us,	as here
the	prosecution	witnesses	are	consis	tent	on the	role	of

¶208

: 37 :

¶209

accused	2	Vijay and	accu	sed	11	Sanjay. T	heir e	vidence
can	be	sifted and i	nvolv	ement	of	accused 2	Vijay	and
accused	11	Sanjay can	be	found	out	. There	does	not
appear	to	be any att	empt	made	by	the	prosecution	to
concoct		a case and if	t	here	are	any minor	discre	pancies
they	are	entirely due	to	the		manner in	which	the
prosecu	tion	witnesses were		attac	ked	and	the	serious
injuries	re	ceived by t	hem.		Before	we pass	the	final
order,	it	would be nece	ssary	to	q	uote the	observations	of
the	Supreme	Court in Sucha		Singh	and	another v.	Stat	e of

¶210

Punjab (2003) 7 SCC 643 , which we had kept in mind while

¶211

dealing with this appeal.

¶212

"So	even if a major portion	of evide	nce is
found	to be deficient, in case	residue	is
sufficient	to prove the guilt	of	an
accused,	notwithstanding acquittal	of	a
number	of other co-accused	persons,	his
conviction	can be maintained.		Merely
because	some of the accused	persons	have
been	acquitted, though evidence	against	all
of	them, so far as direct test	imony	went,
was	the same does not lead as	a	necessary
corollary	that those who	have	been
convicted	must also be acquitted.	It	is
always	open to a court to	differentiat	e the
accused	who had been acquitted	from	those
who	were convicted. It is the	duty	of the
court	to separate the grain from	the	chaff.

¶213

		: 38 :
Where	chaff	can be separated from grain, it
would	be	open to the court to convict an
accused	notwi	thstanding the fact that
evidence	has	been found to be deficient to
prove	the	guilt of other accused persons.
Where	it	is not feasible to separate the
truth	from	falsehood, because grain and
chaff	are in	extricably mixed up, and in the
process	of	separation an absolutely new
case	has	to be reconstructed by divorcing
the	essential	details presented by the
prosecuti	on co	mpletely from the context and
the	background	against which they are made,

¶214

the only available course to be made is to

¶215

discard the evidence in toto."

¶216

In our opinion, in this case, it is very easy to get to the truth. There is no question of reconstructing any new case. Above observations of the Supreme Court cover

¶217

the present case completely. In the result we pass the

¶218

following order:

¶219

O R D E R

¶220

"(a) Criminal Appeal No.490 of 1987 is allowed. Conviction and sentence of accused 4 Bhagwan Ratan Gangurde under the impugned judgment and order dated

¶221

: 39 :

¶222

7/5/1987		passed	by	th	e	IInd	Addl.
Sessions		Judge,	Nasik,	in	Sess	ions	Case
No.19	of	1986	is qua	shed	and	set	aside.
Accused	4	Bhag	wan	Rat	an	Gangurde	is
ordered to b	e relea	sed forthwit	h unless
otherwise req	uired	in some oth	er case.

¶223

(b)	Crimin	al Appeal No.470 of 1987 is
	dismissed.	The conviction and sentence
	of	accused 2 Vijay Vishnu Gangurde and
	accused	11 Sanjay Vishnu Gangurde under
	the	impugned judgement and order dated
	7/5/1987	passed by the IInd Addl.
	Sessions	Judge, Nasik, in Sessions Case
	No.19	of 1986 is confirmed. Accused are
	on	bail. Their bail bonds stand
	cancelled. eight week	They should surrender within s.
(c)	Office this order t immediatel	is directed to send the writ of o Nasik Road Central Prison, y."

¶224

(SMT. RANJANA DESAI, J.)

¶225

(A.S. OKA, J.)

Shri Vijay Vishnu Gangurde and Another v. the State of Maharashtra

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Shri Vijay Vishnu Gangurde and Another v. the State of Maharashtra

Case brief

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What the court decided

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