Criminal Appeal No. 707 of 2018 · The High Court
Case Details
2025:BHC-AUG:5124-DB Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.707 OF 2018Mohammad Navid s/o Mohammad SalimAge 26 years, Occu. Business,R/o Near Chunna Bhatti, NandedTaluka & District Nanded(At present the appellant is in Nashik Road Central Prison, Nashik,Taluka and District Nashik… APPELLANTVERSUSThe State of Maharashtra through the Police Station Officer,Itwara Police Station,Taluka & District Nanded(Notice to the respondent to be served through the Public Prosecutor,High Court of Bombay,Bench at Aurangabad)… RESPONDENT.......Mr. Joydeep Chatterji, Advocate for appellant Mr. S.D. Ghayal, A.P.P. for respondent....…WITHCRIMINAL APPEAL NO.698 OF 2018Sk. Abdulla Sk. Abdul Samad,Age 26 years, Occu. Labour,R/o Near Khubha Masjid, Degloor Naka, Nanded… APPELLANT
Facts
Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 2 ::VERSUS1)The State of Maharashtra (Copy to be on the Public Prosecutor,High Court of Bombay,Bench at Aurangabad)2)Pralayasinh Rajkumarsinh Thakur,Age 19 years, Occu. Business,R/o Near Renuka Mata Mandir, Nanded3)Shubham Sanjaysinh Thakur,Age 24 years, Occu. Business,R/o Near Renuka Mata Mandir, Nanded… RESPONDENTS.......Mr. Joydeep Chatterji, Advocate for appellant Mr. S.D. Ghayal, A.P.P. for respondent....…WITHCRIMINAL APPEAL NO.776 OF 2018Mohammad Yousuf s/o Mohd. Abdul Hak,Age 22 years, Occu. Business,R/o Fateh Burju, NandedTaluka & District Nanded … APPELLANTVERSUSThe State of Maharashtra (Copy to be on the Public Prosecutor,High Court of Bombay,Bench at Aurangabad)… RESPONDENT.......Mr. N.S. Ghanekar, Advocate for appellant Mr. S.D. Ghayal, A.P.P. for respondent Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 3 ::....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.Date of reserving judgment : 15th January, 2025Date of pronouncing judgment : 13th February, 2025J U D G M E N T (PER : R.G. AVACHAT, J.) : The challenge in these three appeals is to thejudgment dated 5/9/2018, passed by Additional SessionsJudge-1, Nanded in Sessions Case, No.9/2015, whereunderthe appellants herein have been convicted and consequentlysentenced to various terms of imprisonments. The relevantpart of the order impugned herein reads thus : 01] The accused Nos.01- Mohd. Yousuf s/o Mohd. Abdul Hak,02- Mohammad Navid s/o Mohammad Salim,03- Sk. Abdulla s/o Sk.Abdul Samad,All r/o Nanded are convicted under section 235(2) of Cr.P.C. for theoffences punishable under section 302 r.w. section 34, 307 r.w.section 34 of the Indian Penal Code and under section 4/25 of ArmsAct, arising out of crime No. 126/2014 registered with Police Station,Itwara, Nanded.02] Each accused Nos.1 to 3 are sentenced to suffer rigorous Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 4 ::imprisonment for life each and pay fine of Rs. 5,000/ (Rs. FiveThousand only) each in default they shall suffer further rigorousimprisonment of six months for an offence punishable under section302 r.w. section 34 of Indian Penal Code.03] Each accused Nos.1 to 3 are sentenced to suffer rigorousimprisonment for five years and pay fine of Rs. 5,000/( Rs. FiveThousand only) each, in default they shall suffer further rigorousimprisonment of six months for an offence punishable under section307 r.w. section 34 of Indian Penal Code.04] Each accused Nos. 1 to 3 are sentenced to suffer rigorousimprisonment for one year and pay fine of Rs.1,000/- (Rs. OneThousand only) each, in default they shall suffer further rigorousimprisonment of one months for an offence punishable under section4/25 of Arms Act, 1959.05] All the sentences shall run consecutively. 06] The period of detention undergone by the accused during theinvestigation, inquiry or trial shall be set of against the term ofimprisonment imposed on them, as per provisions of section 428 ofthe Code of Criminal Procedure.07] The accused Nos. 1 to 3 are acquitted under section 235(1) ofCr.P.C. for an offence punishable under section 294 of Indian PenalCode.The appellants have, therefore, preferred theseappeals.2.The facts, in brief, giving rise to present appealsare as follows : Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 5 :: The incident took place by 10.30 p.m. on 5/10/2014near Renuka Mata Mandir, Chirag Galli, Nanded. Those werethe days of “Navratri Celebrations”. The appellants (trio) onone motorbike, No.MH-22-G-2250 emerged from the lane bythe side of the temple. Appellant Yousuf was said to be ridingthe motorbike. The two others were riding pillion. Theyabused the persons standing on the road. The rider of themotorbike raced the accelerator. Appellants assaulted Pawan(deceased) first with a Khanjar. Nareshsinh (informant),Bholasinh (P.W.6), Shubham (P.W.4), Pralaysinh (P.W.3)rushed towards Pawan. Ajay Kaushik came from his residenceon hearing commotion. He too was assaulted. When thesefour intervened, the appellants assaulted all of them with sharpweapons. Persons from the vicinity started gathering. Theappellants, therefore, took to their heels, leaving behind themotorbike. All the six injured were first rushed to GovernmentHospital, Nanded. Then they were shifted to private hospitalsat Nanded itself. Two of them namely, Bholasinh andShubham were admitted to hospital at Secunderabad for bettertreatment. Ajaysinh and Pawan succumbed to the injuries. Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 6 ::3.A police official (Sadashiv Dhakne P.W.17) rushedto Aadhar Hospital. The Medical Officer there examinedNareshsinh and certified him to be conscious oriented to makea statement. He then recorded Nareshsinh’s statement-cum-F.I.R. (Exh.60). Based on the F.I.R. (Exh.60), a crime bearingC.R. No.126/2014 was registered at Itwara Police Station,Nanded for offences punishable under Sections 302, 307, 294read with Section 34 of the Indian Penal Code and Sections4/25 of the Arms Act. Crime scene panchanama (Exh.62) wasdrawn. The appellants were arrested. All the three appellantsmade disclosure statements, pursuant to which the weaponsused in commission of the crime and clothes on their personwhich were concealed, were recovered. Clothes on the personof the deceased and injured were also seized. Mortal remainsof both the deceased were subjected to inquest and autopsy.Blood samples of the appellants and that of the injured anddeceased were obtained. All the seized articles were sent toForensic Science Laboratory (FSL), Aurangabad. Statementsof persons acquainted with the facts and circumstances of thecase were recorded. Upon completion of the investigation, theappellants were proceeded against by filing a charge sheet. Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 7 ::4.The Trial Court framed the Charge (Exh.44). Theappellants pleaded not guilty. Their defence was of falseimplication.5.To bring home the charge, the prosecutionexamined 21 witnesses and adduced in evidence certaindocuments. On appreciation of the evidence in the case, theTrial Court passed the order impugned herein.6.Heard. Learned Advocates for the appellantswould submit that there was delay of 8 hours in lodging of theF.I.R. The delay has not been explained. Medical evidenceand testimonies of some of the witnesses indicate that theinformant and two other injured were conscious oriented. Stillthey did not relate the names of the assailants to anyone. Theinjured and the deceased were rushed to the hospital by theirrelatives/ family members and friends. In medical papers, thehistory was given as, “assault by somebody”. It was alsoreported to the Medical Officer that, the scuffle took place. Thelearned Advocates would further submit that, the appellants did
Legal Reasoning
Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 23 ::Exh.109. It indicates he suffered grievous injury to his rightlumber region 4 x 6 cm.24.In our view, the testimony of P.W.1 Nareshsinhalone is vital (very important) to drive home the charge. Theother injured namely, P.W.3 Pralayasinh faltered in the cross-examination while the others two gave their statements on10th/ 12th i.e. 5 days after the incident even though they wereconscious oriented from the time of assault until theirdischarge from the hospital. True, two of them were shifted toSecunderabad. Their statements were recorded 3 days aftertheir discharge from the hospital and when they had alreadybeen to Nanded. We have every reason to observe that these2 injured, P.W.4 Shubham and P.W.6 Bholasinh might havegiven names of the assailants in their statements since by thattime the appellants were arrested and everything was in publicdomain.25.Let us advert to other evidence. P.W.2 Tolesinh isa witness to the crime scene panchanama (Exh.62). Based onhis evidence, the crime scene panchanama has been admitted Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 24 ::in evidence. The learned A.P.P. took us through the same soas to bring on record topography at and around the crimescene. There is no dispute in that regard. The learned A.P.P.would submit that, the sketch attached to the crime scenepanchanama corroborates the situation at the crime scene.When there is no quarrel about the same, we find no muchimportance thereto.26.P.W.3 Pralayasinh is another injured eye witness.Although he testified almost on the lines of the examination-in-chief of P.W.1 Nareshsinh, his replies to the questions put tohim during cross-examination lead us to not rely on hisevidence. We, therefore, directly refer to his cross-examination, wherein he admitted that he did not know theappellants prior to the incident. He had not given the policedescription of the assailants. No test identification parade washeld. He admitted to have seen the appellants for the first timebefore the Court. He went on to admit that he did not see whoassaulted whom. He was frightened. He did not know whobrought him to the hospital. He went on to admit that, he told Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 25 ::the doctor that he was not knowing the assailants. He came toknow about the assailants from the people of his vicinity. 27.The next injured witness is P.W.4 Shubham. Hetestified that, he was in the company of Bholasinh (P.W.6),Pawan (deceased) and P.W.1 Nareshsinh at the shop ofBholasinh. Three persons came on motorbike from behind thetemple. They stopped the motorbike near the hand-pump.The rider of the motorbike raised the accelerator. They,therefore, questioned him. Thereupon, the trio, armed withknives, started assaulting them. They first assaultedBholasinh. Then Pawan was assaulted. On hearingcommotion, Ajaysinh arrived. The assailants then assaultedAjay and Pralayasinh.28.P.W.4 Shubham further testified that, he knewappellant Yousuf as he used to visit Bholasinh’s shop. Hegave the names of the appellants. He also gave the motorbikenumber, that was left behind by the appellants. The policerecorded his statement on 10 October and seized the clotheson his person, stained with blood, on 12 October. Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 26 ::29.During his cross-examination, he admitted to havenot given full name of appellant Navid and place of hisresidence, to police. He even did not state to have knownNavid before the incident. He admitted that, he was consciousfrom 6 October to 9 October, but was not able to speak on 6and 7. He admitted to have not disclosed the doctor names ofassailants. He came to Nanded on 9 October i.e. on third/fourth day of the incident. Till his police statement wasrecorded, he did not disclose the names of the assailants toanyone. He even admitted that, he was conscious for twohours next after the incident. During that period, police did notrecord his statement. He even could not state full name ofappellant Abdulla Builder.30.P.W.6 Bholasinh gave his evidence in examination-in-chief almost on the lines of the evidence of P.W.1Nareshsinh and P.W.4 Shubham. He testified that, appellantYousuf assaulted on his ribs with a knife. He claimed to haveknown Yousuf as he would visit his shop. According to him,Navid and Abdulla Builder had accompanied Yousuf on the Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 27 ::motorbike. He testified that, as his condition was serious, hewas shifted to Hyderabad. He was discharged from thehospital on 9th, while his statement was recorded on 10th.31.During his cross-examination, he admitted to havenot stated the police that appellant Yousuf assaulted him withknife. He was confronted with matter portion marked “A” in hisstatement. According to him, he has not stated the same tothe police. He denied to have suffered injuries during inter-sescuffle as they had consumed liquor. He testified to haveinformed Manojsinh about the incident while he was beingtaken to the hospital. According to him, Manojsinh had arrivedon the spot within 10 minutes. His police statement is silent torecord that he knew Navid before the incident. During his stayat Hospital in Secunderabad, he did not inform the MedicalOfficers there names of the assailants. He admitted that, forthe first time on 10 October he disclosed the names of Navidand Abdulla Builder.32.P.W.10 Manojsinh, to whom P.W.6 Bholasinh claimto have related about the incident, testified that, Bholasinh had Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 28 ::told him the name of motorbike rider and was further informedthat the pillion riders were friends of Yousuf (Accused No.1).33.The conduct of P.W.10 Manojsinh in not lodging theF.I.R. or disclosing what he learnt from the injured eye witnesssoon after the incident goes a long way to disbelieve hisevidence. He was present at Government Hospital whilepolice had come there. He testified that, two unknown personswere in the company of Yousuf. Admittedly, Manojsinh did notclaim to be an eye witness.34.P.W.15 Dr. Avinash was a Medical officer on duty atDr. Shankarrao Chavan Medical College and Hospital,Nanded. He testified that, by 11.55 p.m., 6 injured (including 2deceased) were brought to the hospital by their relatives. Hegave their names. He examined all of them. He tendered inevidence medical papers of all of them (Exhs.119 to 124).35. In the cross-examination, he admitted that historyof “assault by somebody” was recorded in the medical papers.According to him, except Ajay and Pawan (deceased), all other Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 29 ::injured were conscious. He was specific to state that,Pralayasinh (P.W.3) was conscious and oriented. He (P.W.15)immediately informed Vazirabad Police Station. P.W.1Nareshsinh (informant) too was conscious. He admitted thathistory was given by P.W.1 Nareshsinh (informant) as“assault by somebody”. He admitted that, P.W.1 Nareshsinhdid not give names of assailants. Bholasinh too was conscious.36.P.W.14 Dr. Anand was the Medical Officer attachedto Yashoda Hospital, Nanded. He attended Pralayasinh.According to him, the history was given by relatives. Thehistory was - “Scuffle at Gadipura”. According to him,Pralayasinh (P.W.3) was conscious oriented. The history was,“assault by somebody”.37.The aforesaid was the material evidence in thecase. The appreciation thereof lead us to conclude that, threepersons who were not known to the injured had come on onemotorbike and they assaulted the six persons named aboveindiscriminately. True, two of the six injured namely Ajay andPawan died. They had suffered multiple injuries. Both of them Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 30 ::were not in a position to speak. All the six injured were firstrushed to Dr. Shankarrao Chavan Medical College andHospital. P.W.15 Dr. Avinash attended them. The injured werethere for half an hour. The four injured who had beenexamined as prosecution witnesses, were consciousthroughout. In spite of the same and the fact that the policeofficials had rushed to the crime scene, and the said hospitalas well, still no attempt was made by police officials to recordstatement of any of the injured. The police officials appear tohave consciously allowed the time to pass until they couldknow the names of the assailants/ appellants. In our view, thenames of the appellants might have come to the knowledge ofthe police on the enquiry based on the motorbike that wasfound at the crime scene. 38.P.W.16 Mohd. Saleem was the owner of themotorbike. He was examined as a prosecution witness. Hetestified that, by 9.30 p.m., he gave his motorbike to Navid(According to the prosecution, one of the appellants herein).He further testified that, after a while, he received a phone callof Navid. He, therefore, went to Itwara Police Station. Navid Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 31 ::was present there. He told that, his motorbike has been takenaway from him at a place of Renuka Mata Temple. He furthertestified that, Navid before the Court was not that Navid towhom he had given the motorbike. The learned A.P.P.,therefore, cross-examined him, but nothing fruitful has comeon record.39.As stated above, all the four injured namely P.W.1Nareshsinh, P.W.3 Pralayasinh, P.W.4 Shubham and P.W.6Bholasinh were conscious and oriented at all the threehospitals whereto they were shifted one after the other. Still,the F.I.R. was recorded 8 hours after the incident. In case ofGanesh Bhavan Patel & anr. Vs. State of Maharashtra,(1978) 4 SCC 371, the Apex Court observed in paragraphsNo.15 and 18 as follows :-“15.As noted by the trial Court, one unusualfeature which projects its shadow on the evidenceof PWs Welji, Pramila and Kuvarbai and casts aserious doubt about their being eye witnesses ofthe occurrence, is the undue delay on the part ofthe investigating officer in recording theirstatements. Although these witnesses were orcould be available for examination when theinvestigating officer visited the scene of Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 32 ::occurrence or soon thereafter, their statementsunder Section (6), Cr.P.C. were recorded on thefollowing day. Welji (P.W.3) was examined at 8a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at1 p.m. Delay of a few hours, simpliciter, inrecording the statements of eye-witnesses may not,be itself, amount to a serious infirmity in theprosecution case. But it may assume such acharacter if there are concomitant circumstances tosuggest that the investigator was deliberatelymarking time with a view to decide about theshape to be given to the case and the eye-witnessesto be introduced. A catena of circumstances whichlend such significance to this delay, exists in theinstant case.18.In this connection, the second circumstance,which enhances the potentiality of this delay as afactor undermining the prosecution case, is theorder of priority or sequence in which theinvestigating officer recorded the statements ofwitnesses. Normally, in a case where thecommission of the crime is alleged to have beenseen by witnesses who are easily available, aprudent investigator would give to the examinationof such witnesses precedence over the evidence ofother witnesses.. . . . .”40.One need not spell importance of prompt lodging ofF.I.R. The informant has to explain the delay in lodging theF.I.R. When a very serious incident took place and policerushed to the crime scene and hospital as well immediatelyand more so injured were conscious oriented, no attempt wasmade to record their statements at the earliest point of time. Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 33 ::On the contrary, the history recorded in all the medical papersis either “scuffle” or “assault by someone”. 41.We have perused the authorities relied on bylearned A.P.P. A criminal case has to be decided on the factsand circumstances appearing therein. Law of precedent canhardly apply in criminal cases since no two criminal casescould be similar on facts. We agree with the learned A.P.P’s.submission based on the authorities relied on that delay inrecording statements of witnesses may not be fatal. Moreover,when gruesome incident has occurred, the injured may not bein a frame of mind to recollect everything. Minorinconsistencies inter-se the evidence of eye witnesses arebound to occur. At the cost of repetition, and with utmostrespect, we observe that the findings and observations madein the authorities relied on were based on factual matrixappearing therein. Judicial utterances are made in the settingof facts of each case.42.On appreciation of the evidence in the case, wefind the injured witnesses including the informant were not in Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 34 ::the know of the identity of the appellants. The informant, in thecross-examination, testified that, he did not understandMarathi. It was specifically suggested to him that the policeincorporated the names of the appellants in the F.I.R. In ourview, 8 hours time might have been availed by the prosecutionagency to realize or to come to know names of the assailantsand thereafter only statement-cum-F.I.R. of P.W.1 Nareshsinhhas been recorded at 6.15 a.m. in the morning. While he wasconscious oriented, since the incident onwards. Other threeinjured too were conscious oriented.43.When eye witness account becomes unreliable, thecircumstantial evidence in the nature of seizure of bloodstained clothes and weapons would be of little consequence tocorroborate the prosecution case. Accepting the prosecutioncase as it is, that the three appellants gave disclosurestatements in presence of panchas and pursuant thereto threeknives were seized, clothes on their person at the time ofincident were also seized under the panchanama, the C.A.Reports (Exhs.172 to 181) suggest the clothes to have beenstained with blood and one of the knives too had blood stains, Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 35 ::it is not known as to why the investigating officer kept all thesearticles with the S.D.P.O. up to 31 October and then sent toFSL. This fact has not been explained. It was specificallysuggested to the investigating officer that the said clothes weretampered with during this period. The seized articles were notin muddemal room, but said to have been in the cupboard ofthe S.D.P.O. So has been testified by P.W.21 RamdasShrimangle. We, therefore, do not propose to lay muchemphasis on the circumstantial evidence in the nature of C.A.reports, recovery of weapons and blood stained clothes,besides the opinion given by the Medical Officer that theinjuries might have been caused with the seized weapons.44.For all the aforesaid reasons, we are not at onewith the findings recorded by the Trial Court. In the result, theappeals succeed. Hence the order : O R D E R(i)All the Criminal Appeals are allowed. Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 36 ::(ii)The impugned order of conviction and sentence dated5/9/2018, passed by Additional Sessions Judge-1, Nanded inSessions Case, No.9/2015 is hereby set aside. The appellantsare acquitted of the offences punishable under Sections 302read with Section 34, 307 read with Section 34 of the IndianPenal Code and Section 4/25 of the Arms Act.(iii)The appellants be set at liberty forthwith if not required inany other case. Fine amount, if paid, be refunded to them. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-
Arguments
Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 8 ::not know or have acquaintance with the victims. Statements ofother victims have been recorded 5 days after the incident.They gave names of the appellants on the basis of informationreceived from others. According to the learned Advocates, theinvestigating officer ought to have resorted to test identificationparade. He did nothing in that regard. Our attention wasadverted to some C.A. reports to indicate that alcohol wasdetected in the blood of the deceased Ajaysinh. The learnedAdvocates would mean to say that, all the injured anddeceased belong to Rajput community. The crime scene waslocated in the vicinity whereat most of the population belongsto Rajputs. One of the victims admitted that Rajputs keepknives with them. He would further submit that a fight tookplace amongst the victims themselves, resulting into twodeaths and injuries to others. We were taken through theevidence of each and every witness and their cross-examination. Omissions in their statements, amounting tomaterial contradictions, which are said to have been dulyproved, have also been brought to our notice. LearnedAdvocates have relied on the following set of authorities toultimately urge for allowing the appeals :- Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 9 ::(1)Kanan and Ors. Vs. State of Kerala [AIR 1979 SC 1127 ](2)Ramesh Vs. State of KarnatakaMANU/SC/1312/2009 : 2009(1) SCALE 131(3)Babu Sahebagouda Rudragoundar & ors. Vs. State ofKarnataka [ AIR 2024 SC 2252 ](4)State of Maharashtra Vs. Ashok Suresh Laxman Babar& ors. [2021] 3 MhLJ (Cri.) 5857.Learned A.P.P. would, on the other hand, submitthat, it was a gruesome incident. Two innocent persons losttheir lives. Four suffered bid on their lives. The prosecutionexamined the witnesses who were injured in the incident.They have no reason to falsely implicate the appellants,sparing the real culprits. The evidence of injured eyewitnesses stand on higher pedestal. According to him, therelations were first engaged in securing best of the treatment.All the injured were, therefore, shifted to 2-3 hospitals atNanded. Even two of them were admitted to hospital atSecunderabad. M.L.C. was first received at the concernedPolice Station very late. Immediately thereafter the policeofficer rushed to Aadhar Hospital and recorded the F.I.R. Assuch, there was no delay at all. Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 10 ::8. According to learned A.P.P., the incident was suchthat the injured would not be in a position to watch andrecollect each and every aspect with minute details. Someminor inconsistencies were bound to occur in their evidence.The same do not go to the root of the matter. He would furthersubmit that, on arrest of the appellants, they made disclosurestatements, pursuant to which the weapons wielded by themcame to be recovered along with their blood stained clothes.Our attention was adverted to the C.A. reports, indicatinghuman blood to have been noticed on the weapons. Theweapons were shown to the Medical Officers. They confirmedthat injuries on the person of the deceased and injured werepossible by those weapons. The learned A.P.P. too placed onrecord his written notes of arguments and relied on thefollowing set of authorities :(1)Balu Sudam Khalde & anr. Vs. The State of Maharashtra2023 LiveLaw (SC) 279(2)Govardhan & anr. Vs. State of Chhatisgarh(Criminal Appeal No.116/2011, decided on 9/1/2025)(3)Criminal Reference No.14/2019 with Criminal Appeal Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 11 ::No.10771/2019 [ Ramjag Bind s/o Ramshankar BindVs. State of Madhya Pradesh9.Considered the submissions advanced. Perusedthe judgment impugned herein. Let us advert to the evidenceon record and appreciate the same. Admittedly, the incident took place by 10.30 p.m. on5/10/2014 near Renuka Mata Mandir, Chirag Galli, Nanded.It was one of the days in “Navratri Festival”. Necessarily,devotees in number were there. The main road was in thenearby. It was a crowded place, so to say. Three persons(appellants) on one motorbike (No. MH-22-G-2250) emergedfrom the lane by the side of the temple. They abused thosestanding on the road as they wanted them to make way forthem. The motorbike rider was said to have accelerated theaccelerator. One of the injured, therefore, questioned him ashe was enraged thereby. The trio (appellants) indulged inindiscriminate assaults with sharp weapons. Six persons weretheir victims. Two of them, namely Ajay and Pawan lost theirlives. Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 12 ::10.The post mortem report (Exh.88) proved Ajaysinshto have died of shock due to stab injury to his liver. P.W.9 Dr.Maroti noticed following two injuries on the person of Ajay :(1)Stitched wound present over right subcostal marginobliquely placed situated 11 cm. below right nipple and 9cm. lateral to midline, on opening of stitches stab injuryof size 2.2 cm. x 1 cm. x cavity deep, directedbackwards, medially and slightly upwards, onapproximation of margins, length of injury 2.5 cm., bothmargins sharp and both angles acute, blood oozing outthrough the injury.(2)Contusion present over left cuibital fossa on flexaraspect of size 4 x 2 cm., obliquely placed, brownishin colour.11.The post mortem report (Exh.94) indicatesPawansinh died of stab injury to his left lung and heart.Column No.17 of the post mortem report indicates 8 injurieswere noticed on his person by P.W.11 Dr. Santosh, whoconducted autopsy. He found following injuries on the deadbody of Pawansinh :-(1)Sutured wound present over front of left side of chest in4th inter-costal space at anterior axiliary line situated 2 Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 13 ::cm. from nipple, vertical of size 2 cm. in length with 2sutures in situ. On removal of sutures margins wereclean cut, reddish with both angles acute of size 1.7 cm.x 0.5 cm. x cavity deep with blood oozing out. It wasdirected medially backward and upward, cutting throughskin, subcutaneous tissues, muscles of anterior chestwall, forth inter-costal muscles, cutting lower margin of4th rib, parietal pleura, piercing through and throughlower part of upper lobe of left lung, pericardium, thenpierces up to two third of left ventricle near spetum.(2)Sutured horizontal wound with one suture at anterior partof size 2 cm. x 0.5 cm. x cavity deep, margins clean cut,reddish placed at mid axiliary line, left lateral side ofchest in 4th inter-costal space.(3)Healing super-facial wound present on front of left thighof size 29 cm. x 13 cm. with hypo pigmonted patches atplaces and granulation at middle medial part of size 3 x 2cm. with evidence of intermittent normal skin suggestiveof skin graft Donar site.(4)Healing wound with depressed area present over leftdorsum foot and ankle of size 15 cm. x 12 cm. extendingup to lateral border of dorsum with exfoliation.(5)Healed hypo pigmented areas over dorsum of left footnear third, forth and fifth toe involved in of size 5 x 4 cm.(6)Abrasion present over dorsum of left great toe, secondand third toe of sizes 2x1.5 cm., 3x1 cm., 1x1 cm.,reddish.(7)Abrasion present over medial left great toe of size 2x1cm. reddish.(8)Intravenous puncture marks present over both cutitalfossa. Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 14 ::12.The injury certificate of informant Nareshsinh(P.W.1) indicate stab injury to right lumber region, measuring4x6 cm. It was caused by sharp weapon, it was fresh andgrievous in nature. The injuries sustained by Shubham are :-1)Stab wound over left side of chest wall at mid axillarylined at second to third inter- costal space of size 1 x 1 xcavity deep.2)Stab wound over right arm medial just above the rightelbow of size 1 x 1 x muscle deep The injuries sustained by Bholasinh are :-1)Stab injury over left side of chest wall at second to thirdinter-costal space near to mid axillary lined.2)Stab wound over right arm at medial aspect of size 1 x 1x muscle deep.13.The aforesaid are the facts not in dispute. We,therefore, need not to advert to the evidence of the MedicalOfficers in much extenso. Wherever necessary, a reference totheir evidence would be made. Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 15 ::14.As such, it is a case wherein two deaths occurredand 4 persons suffered injuries, grievous in nature. Theinjuries might have proved fatal. The question is, whether theappellants are the authors of the crimes they were chargedwith.15. The incident took place by 10.30 p.m. on one of thedays of “Navratri festival”. Nearby the crime scene, there wasRenuka Mata Temple. The scene of offence was located in apopulated area. According to the injured eye witnesses, theappellants came on one motorbike from a lane adjacent to thetemple. It is true that there is a little bit variance as to whattriggered the incident. According to two of the injured eyewitnesses, the motorbike rider abused them in filthy languageas they were standing at the middle of the road and themotorbike rider (appellant) wanted to have a clear way. Thesecond version is that, the motorbike rider raced theaccelerator and therefore, one of the injured questioned him. Apetty quarrel ensued thereupon resulting into the incident. Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 16 ::16.Let us now advert to the evidence of injured eyewitnesses. The F.I.R. (Exh.60) was recorded by P.W.17Sadashiv in Aadhar Hospital, Nanded by 6.15 a.m. on6/10/2014. As such, there was a delay of 8 hours in recordingof the F.I.R. The informant (P.W.1 Nareshsinh) testified that hewould run a wooden switch board cutting shop. He along withhis friends Bholasinh (P.W.6), Pawan (deceased) were talkinginter-se. It was 10.30 p.m. Three persons emerged onmotorbike from the lane behind the temple. The motorbikeborne the registration number – MH-22/G-2250. The triostarted abusing them - “Hato Na Tumhari Maa Ki Chut” Pawanwent to a hand-pump (public water tap). The one who wasriding the motorbike, (appellant Yousuf) assaulted Pawansinhwith dagger. Pawansinh fell thereby. He along with Bholasinhand Shubham therefore rushed towards Pawansinh. Onhearing commotion, Ajay (deceased) came on the spot. Theone who was riding the motorbike assaulted Ajay with adagger. Ajay too fell down. The others assaulted theinformant and others with knives. Bholasinh and Shubhamsuffered injuries to their left chest. He suffered injury to his Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 17 ::right side of waist. People gathered. The assailantsthereupon ran away, leaving behind the motorbike.17.P.W.1 Nareshsinh further testified that, theappellant Yousuf was riding the motorbike. Appellants Navidand Abdulla were riding pillion. The people gathered first tookthem to Government Hospital. Then they were rushed toAadhar Hospital. Bholasinh and Shubham were shifted toSecunderabad for further treatment. He further testified that,on the following day, the police came to the hospital andrecorded his statement-cum-F.I.R. (Exh.60). He referred to thesame and identified his signature thereon. His evidencefurther disclosed that, he had sported faint pink colour shirt andchocolate colour Jeans Pant while the incident took place. Hewas shown the knife and those clothes. He identified thesame.18.P.W.1 Nareshsinh was subjected to a searchingcross-examination. He testified that, people belonging toRajput community reside in Chirag Galli and Gadipura atNanded. All the injured belonged to Rajput community. He Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 18 ::admitted that, the community members keep knives with them.The distance between the Government Hospital and the crimescene was 3-4 Kms. He admitted that, Vazirabad PoliceStation was on way to the hospital, while Itwara Police Stationwas at a distance of half or one Km. from the crime scene.Whereas the distance between the spot of the incident andAadhar Hospital was about 6-7 Kms. He was confronted withhis F.I.R. which was silent to record that Pawansinh had gonetowards hand-pump. It has also not been recorded therein thatthe person riding the motorbike assaulted Pawan with dagger.The F.I.R. is also silent to record what kind and colour ofclothes the informant was clad in. In our view, this omission isnot a material one so as to constitute contradiction so as todisbelieve P.W.1 Nareshsinh on this aspect only. He deniedthe suggestion that the incident was a fall-out of quarrel inter-se the victim and the deceased. He admitted that there was aPolice Chowki near Habib Talkies. It was on main road. All theinjured were in the Government Hospital for about 30 minutes.The doctor had examined him there. He did not disclose theincident to the doctor or anyone else. People were visiting thehospital. He did not see police official among them. He and Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 19 ::other injured were shifted to Aadhar Hospital. He was in ICU.He did not disclose the incident to doctor at Aadhar Hospital.He admitted that, one Sagarsinh had accompanied thepersons who took them to the Government Hospital and thento Aadhar Hospital. He admitted to have not disclosed theincident to anyone else until the police arrived at AadharHospital. He denied the suggestion that the police on theirown recorded the names of the appellants in the F.I.R. 19.P.W.17 Sadashiv, (Police Officer) testified that hewas serving with Itwara Police Station as P.S.I. on the fatefulnight. P.S.I. Gite passed on the information to the PoliceStation Officer (P.S.O.) that a quarrel took place near RenukaMata Temple. He along with police officials namely Kankaleand Sonaskar besides other staff went to Gadipura. P.I.Kankale directed him to record statements of injured. He,therefore, went to Government Hospital, Nanded and thenother hospital wherein the injured were rushed. According tohim, the doctors there told him that the injured were not in aposition to give statement. He, therefore, could not recordstatement of any of the injured. He further testified that, doctor Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 20 ::at Aadhar Hospital certified P.W.1 Nareshsinh to be consciousto make a statement. He, therefore, recorded the statement-cum-F.I.R. (Exh.60) as narrated by P.W.1 Nareshsinh. He thenreturned to the Police Station and registered the crime. Anentry in the station diary was also made. He referred to thesame.20.During the cross-examination, P.W.17 admittedthat, he did not give information to the Police Station thatdoctor at Aadhar Hospital certified Nareshsinh to be conscious.He denied that Nareshsinh was unconscious until 6.45 a.m.This was in response to a question put on behalf of appellantYousuf. He admitted that, in the station diary entries, whichwere made before registration of the crime, neither the namesnor the description of the appellants were reflected. He alsoadmitted that there is no station diary entry indicating injuredPralayasinh, Bholasinh and Shubham were unconscious. Headmitted that, the same is the case about P.W.1 Nareshsinh.He admitted that, he was unaware of the names anddescription of the appellants until 6.30 in the morning. Hedenied that the names of the appellants were incorporated in Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 21 ::the F.I.R. in consultation with higher-ups and to avoid wrath ofpublic. He admitted that, Nareshsinh did not state that heknew appellants Navid and Abdulla since prior to the incident.According to him, MLC was received to the Police Station by4.15 a.m.21.P.W.20 Dinesh was serving as Assistant PoliceInspector with Itwara Police Station. It is disclosed in hisevidence that he had received information that some incidenthad taken place in Gadipura area. He, therefore, went there.It was a few minutes past 12.00 midnight. He noticed onemotorbike was lying there. He learnt that the injured wereshifted to Government Hospital. He, therefore, rushed toGovernment Hospital. A lame excuse has been offered bythis witness for not interacting with the injured.According to him, since there was crowd in the precinct ofthe hospital, he did not make enquiry with injured(victims). Even though he was directed by the PoliceInspector, he returned to the Police Station withoutrecording anyone’s statement. It was he who seized the Cri.Appeal No.707/2028 with698/2018 & 776/2018:: 22 ::motorbike, cap and handkerchief from the crime scene. Healso collected blood spots for analysis.22.In the cross-examination, he testified that, he learntat the crime scene and even at the hospital as well that therewas scuffle, “Names of assailants were not disclosed to me.”He tried to cover up lapse in his duty to lodge the report on hisown, by stating that he did not get detailed account of theincident, so he did not lodge the report. When he paid visit tothe crime scene, street lights were glowing. He gave a vitaladmission to the effect that the PSO had received informationthat the assailants were unknown.23.P.W.13 Dr. Sanjay Kadam was the Medical Officerat Aadhar Hospital. He had treated P.W.1 Nareshsinh. Duringhis cross-examination, he admitted that 3 injured were referredto his hospital from Yashoda Hospital. Nareshsinh wasconscious. He, however, did not disclose history of assault.He was specific to state that, Nareshsinh was conscious from6 October to 11 October and when he was discharged, he wasquite healthy. The injury certificate of P.W.1 Nareshsinh is at