State Of Maharashtra vs Govind Gangaram Kendre And Others on 23 August, 2017

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO.400 OF 1998

The State of Maharashtra,
(Through P.S.O. Gangakhed).
…APPELLANT
VERSUS

1) Govind s/o Gangaram Kendre,
Age-35 years, Occu:Agri.,
R/o-Pimpaldari, Tq-Gangakhed,
Dist-Parbhani,

2) Balaji s/o Gangaram Kendre,
Age-32 years, Occu:Agri.,
R/o-As Above,

3) Dnyanoba s/o Gangadhar Kendre,
Age-25 years, Occu:Education,
R/o-As Above.
…RESPONDENTS
(Orig. Accused)


Mr. R.V. Dasalkar, A.P.P. for Appellant.
Mr. R.N. Dhorde, Senior Counsel instructed by
Mr. Vasant N. Shelke, Advocate for Respondent
Nos.1 to 3.
Mr. B.R. Kedar Advocate for assist to P.P.

CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.

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DATE OF RESERVING JUDGMENT : 06TH JULY, 2017.

DATE OF PRONOUNCING JUDGMENT: 23RD AUGUST, 2017.

JUDGMENT [PER S.S. SHINDE, J.]:

1. This Appeal is filed by the State

challenging the Judgment and order dated 2nd May,

1998, passed by the Additional Sessions Judge,

Parbhani in Sessions Trial No.112 of 1995, thereby

acquitting the Respondent Nos.1 to 3/original

accused Nos. 1 to 3, for the offences punishable

under Sections 302, 307, 324, 323, 452 and 427

read with Section 34 of the Indian Penal Code (For

short “I.P. Code”).

2. The prosecution case, in nut-shell, is as

under :-

A) Informant Padminibai w/o Shatrughan

Nirudunde is resident of village Pimpaldari, Tq-

Gangakhed, Dist-Parbhani. Vithal Maroti Nirdunde

is resident of village Pimpaldari. He had four

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sons (1) Shriram (2) Laxman (3) Bharat (deceased)

and (4) Shatrughan (deceased). Vithal has one

daughter by name Gayabai, who is married with one

Namdeo Hingrupe also resident of Pimpaldari. He

has also another daughter by name Prayagbai. The

name of Laxman’s wife is Urmilabai. The name of

Bharat’s wife is Vimalbai. The name of

Shatrughan’s wife is Padminibai, who is informant

in the present prosecution. It is the prosecution

case that Vithal and his sons were residing

jointly at village Pimpaldari. Bharat Vithal

Nirdunde (deceased) and Shatrughan Vithal Nirdunde

(deceased) were residing in the house constructed

on field Survey No.198 along-with their wives and

children, situate within Shiwar of village

Pimpaldari. Shriram and Laxman were residing in

the house situate at village Pimpaldari. It is the

prosecution case that, Vithal and his sons formed

joint family.

B) Accused Nos.1 to 3 are the sons of

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deceased Gangaram. Accused Nos.1 to 3 are

residents of village Pimpaldari, earning their

livelihood by doing agricultural occupation.

C) The field Survey No.198 situate in the Shiwar

of village Pimpaldari, was admeasuring 25 acres.

Deceased Gangaram Piraji Kendre also owned land in

the field Survey No.198. About 20 to 25 years ago,

due to the mistake of revenue authorities in the

field Survey No.198, 13 acres agricultural land

was mutated in the name of Vithal and his family.

Due to this, dispute arose between the parties and

consequently resulted into filing of civil suit

between the father of the accused persons namely

Gangaram Piraji Kendre and father of Vithal namely

Maroti. Said Civil Suit was decided, and it was

ordered by the Court that, Gangaram Piraji Kendre

should retain 12 and 1/2 acres land out of field

Survey No.198 and Maroti, the branch of

complainant should retain 12 and 1/2 acres land.

Accordingly, during the execution of decree

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through Court bailiff, possession of 12 and 1/2

acres land was given to the family of Vithal and

remaining 12 and 1/2 acres land out of said Gut

number was given in the possession of Gangaram

Piraji by the Court bailiff. But, due to the

mistake of revenue authorities, 13 acres land was

mutated in the name of family of Vithal.

D) In the year 1985, Bombay Prevention of

Fragmentation and Consolidation On Holdings Act

came into force. Before the authorities under this

Act, deceased Gangaram Piraji Kendre made an

application stating before them that, in the name

of Vithal and his family only 12 and 1/2 acres

land should be recorded instead of 13 acres. He

also made an application that, in the 7/12 extract

in his name 13 acres agricultural land should be

recorded. The say of Gangaram Kendre was accepted

by the said authorities and the matter was decided

in his favour. Thereafter, Vithal filed suit

before the Civil Court at Gangakhed against said

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decision, in which injunction was granted in

favour of Vithal against Gangaram s/o Piraji

Kendre, and Gangaram Piraji Kendre was restrained

and prevented from entering into the field of

Vithal. In the year 1985, due to obstruction by

Gangaram Kendre and his sons, complaint was filed

by Vithal Nirdunde, on the basis of which

prosecution was filed against Gangaram Kendre and

his sons. Even thereafter, Gangaram Kendre was

often troubling and harassing Vithal and his sons.

The field of Gangaram Piraji Kendre is situate to

the southern side of the field of Vithal and they

are adjacent to each other. There is common

boundary between these two fields.

E) On 2nd January, 1995, an informant

Padminibai, Vimalbai, deceased Shatrughan,

deceased Bharat and their sister Prayagbai and

Laxman’s wife Urmilabai were present in the field

Survey No.198. At about 12.00 noon, informant

Padminibai, Vimalbai, Urmilabai and their

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husband’s sister Prayagbai were plucking the

cotton in the field. Shatrughan was watering grams

crop in the same field Survey No.198. Bharat had

pains in his tooth and hence he was taking rest at

the Akhada(cattle-shed) erected on the field. It

is the prosecution case that, when female members

stated above were plucking the cotton, deceased

Shatrughan was watering grams crop and deceased

Bharat was taking rest, from the western side of

their field, accused No.1 Govind Gangaram Kendre,

accused No.2 Balaji Gangaram Kendre and accused

No.3 Dyanoba Gangaram Kendre came and entered in

the field of informant. Accused Govind had an axe

in his hand. Accused Balaji had iron Katti and

accused Dyanoba had stick in his hand. They went

near Shatrughan and questioned him as to why he

had left free his cattle in the wheat crop of

accused persons. After saying this, accused Govind

inflicted blow with an axe on the head of deceased

Shatrughan. Accused Balaji inflicted blow with

Katti on the left hand of deceased Shatrughan.

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Accused Dnyanoba gave blows with stick with him on

both the legs and right leg thigh. After receipt

of such beating, deceased Shatrughan fell on the

ground in the field itself. On seeing this,

Padminibai and other female members made hue and

cry and on hearing their hue and cry, deceased

Bharat went towards deceased Shatrughan. When

Bharat reached near accused persons, accused

Govind inflicted blow with an axe in his hand.

Accused Balaji inflicted blow with iron Katti on

the left hand of deceased Bharat and accused

Dnyanoba inflicted blow with stick on the right

leg of deceased Bharat. When Padminibai and Vimal

went to rescue deceased Bharat, accused Dnyanoba

beat Padminibai with stick on her head and caused

injuries. He also beat Padminibai on both her

legs. Accused Balaji inflicted blow with Katti on

the right leg of Vimal. Accused Dnyanoba also beat

Vimalbai with stick.

F) After beating so, accused Nos.1 to 3 went

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towards the village – Basti. Urmila and Prayagbai

also went towards the village by following accused

persons.

G) Accused Nos.1 to 3 went to the

residential house of Shriram and Laxman in the

village. Laxman was present at his house along-

with his parents, brother Shriram, Shriram’s wife

Savitribai and daughter Meera. It was about 1.00

to 1.30 p.m. Accused went to Laxman who was

present at his house, and extended him threat by

saying that, ‘Kumbharde Majle Ahet’. They abused

Laxman and others. At that time, accused Govind

had an axe. He wore chocolate coloured half pant

and white coloured banyan. Accused Balaji had

iron Katti with him and he wore snuff coloured

Chaddi and white banyan. Accused Dnyanoba had

stick with him and he wore blue coloured Chaddi

and dark blue coloured banyan. Accused Nos.1 to 3

as aforesaid, entered in the residential house of

Laxman and threw away grocery articles and other

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material in the shop of Laxman. At that time,

Laxman was sitting in the ‘Dhalaj’ (court-yard) of

his residential house. Accused Balaji inflicted

blow with Katti on the head of Laxman. After so

beating, accused Nos.1 to 3 were dragging Laxman

outside the house. Shriram’s wife Savitribai

rescued Laxman and pulled him inside the house and

then closed the door of their house from inside.

H) Thereafter, it is the prosecution case

that, accused Nos.1 to 3 climbed on the roof of

the house of Ganpati Kendre and then pelted stones

towards the house of Shriram and Laxman. When

they were so pelting stones, Laxman’s wife Urmila

returned to her residential house from the field

and she witnessed such pelting of stones.

Deceased Gangaram Kendre was standing on the road

with stick in his hand and he did not allow Urmila

to go towards her house. Thereafter, Urmila went

by some other way towards the house of one Dadarao

and reported him the incident and requested him to

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accompany her towards her house. Accordingly

Dadarao accompanied with Urmila. Dadarao gave

understanding to accused Nos.1 to 3, but they did

not pay any heed towards the request of Dadarao.

Accused persons asked Dadarao not to intervene in

their matter. Thereafter, accused Nos.1 to 3 went

away. Urmila went in her residential house. She

came to know that, accused Balaji injured her

husband by giving blow with Katti on the head of

her husband. At that time, Urmila reported the

incident took place in the field, to the

inhabitants of the house.

I) It is the prosecution case that, Police

Jamadar Laxman Phad and Police Constable Dahiphale

attached to Gangakhed Police Station were posted

on duty at Check-post at Pimpaldari from 17th

December, 1994. Accordingly, on the day of

incident, they were on duty at the said check-

post. On 2nd January, 1995, both aforesaid Police

officials were not feeling comfortable in the

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village and hence they went in the field of Police

Patil of village Pimpaldari. When they were so

present in the field of Police Patil, at about

1.45 p.m. Laxman’s daughter Meera went to them and

requested them to come to the village. When

questioned, Meerabai narrated that, her parental

cousin uncles, Bharat and Shatrughan were killed

by axe, Katti and stick by accused Nos.1 to 3 and

that their corpse were lying in the field. She

further reported that, accused Nos.1 to 3 after

killing Bharat and Shatrughan, came to the village

and were pelting stones and that they were beating

the inhabitants in their house. On hearing this,

Head Constable Phad and Police constable Dahiphale

immediately went along-with Meera to the house of

the informant. At that time, user door of the

house was chained from inside. Head Constable Phad

requested inhabitants in the house to open the

door and accordingly the door was opened. Laxman

Nirdunde had bleeding injury to his head and

material in the grocery shop was scattered here

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and there. When questioned to Laxman by

Constables, he narrated the incident and informed

the Constables that, he was injured at the hands

of accused persons and the material in the grocery

shop was thrown here and there by accused persons.

J) Thereafter, Laxman was sent along with

Police Constable Dahiphale and Laxman’s wife

Urmila, for medical treatment to Gangakhed by S.T.

Bus. Head Constable Phad and Bali Kotwal of the

village went to the field. There were corpse of

Bharat and Shatrughan lying on the field. They

had injuries on their person. Padminibai had also

injury to her head. Padminibai was sent for

filing complaint to Gangakhed and Head Constable

Phad waited there on the field.

K) Accordingly, injured Laxman and Police

Constable Dahiphale went to Police Station

Gangakhed along with Laxman’s wife Urmila. Police

Station Officer, Gangakhed along-with a letter,

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sent Laxman for medical examination. Dr. Ghule

attached to Rural Hospital Gangakhed, examined

Laxman Nirdunde on 2nd January, 1995 at about 5.15

p.m. and issued injury certificate.

L) Police Inspector (for short “P.I.”)

Choudhary attached to Police Station, Gangakhed

was present in the police station on 2nd January,

1995. At about 7.00 p.m. informant Padminibai

Nirdunde had gone to Gangakhed Police Station and

orally narrated the incident and the same incident

was reduced into writing as per Exhibit-18. On the

basis of the complaint of Padminibai, Crime No.2

of 1995 was registered under Sections 302, 307,

324 of the I.P. Code. Reports were submitted by

him to his superiors.

M) Thereafter, P.I. Choudhary proceeded to

the spot where he noticed two corpse; one of

deceased Bharat and another of deceased

Shatrughan. On the next day morning, inquest

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panchnamas of deceased Bharat and Shatrughan were

prepared by him. Thereafter P.I. Choudhary drew

scene of offence panchnama of the situation on the

field. Some articles were seized. Chappal of

accused was seized from the scene of offence. From

the spot of field, normal earth and earth mixed

with blood were taken as sample. The scene of

offence panchnama of the residential house was

also prepared by P.I. Choudhary. Thereafter dead

bodies were sent for post-mortem and the post-

mortem was carried out on the dead bodies of

Bharat and Shatrughan. The investigating officer

carried out the investigation. During the course

of investigation, statements of witnesses were

recorded by P.I. Choudhary. The clothes on the

person of deceased Bharat and Shatrughan were

seized by drawing seizure panchnamas. Then, after

due investigation, accused Nos.1 to 3 were charge-

sheeted.

N) Thereafter the case was committed to the

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Court of Additional Sessions Judge, Parbhani. A

charge under Sections 302, 307, 324, 323, 452 and

427 read with Section 34 of the I.P. Code was

framed against all the accused persons and the

same was explained to them. The accused persons

pleaded not guilty and claimed to be tried, with

the defence of total denial.

3. After recording the evidence and

conducting full fledged trial, the trial Court

acquitted all the accused persons from the

offences with which they were charged, as stated

herein above in Para-1 of the Judgment. Hence this

Appeal.

4. Heard learned A.P.P. appearing for the

State and learned senior counsel appearing for

Respondents-accused, at length. Learned A.P.P.

appearing for the State invites our attention to

the evidence of three eye witnesses i.e. PW-1

Padminbai, PW-11 Vimal and PW-12 Urmila and

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submits that these witnesses have categorically

stated that accused assaulted deceased Shatrughan

and deceased Bharat by axe, Katti and stick, and

they have witnessed the incident. PW-13 Laxman

Nirdunde is injured witness. He submits that

overt act is attributed against all the accused

persons. He further submits that the trial Court

has not appreciated the evidence on record in its

proper perspective, and the findings recorded by

the trial Court are not in consonance with the

evidence brought on record by the prosecution. He

submits that, there is overwhelming evidence

brought on record by the prosecution in the nature

of eye witnesses, corroborated with medical and

other evidence. Therefore, he submits that the

Appeal may be allowed.

5. Mr. R.N. Dhorde, learned senior counsel

appearing for the original accused/ Respondents

invites our attention to the findings recorded by

the trial Court and submits that, on analysis of

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the evidence of all the prosecution witnesses and

in particular evidence of alleged eye witnesses

i.e. PW-1 Padminbai, PW-11 Vimal and PW-12 Urmila,

the trial Court found that it suffers from serious

contradictions, omissions, improvements and

therefore benefit of doubt is given to the

accused. It is submitted that PW-1 Padminbai has

stated different versions in her First Information

Report (for short “F.I.R.”), statement recorded by

the Investigating Officer and in her deposition

before the Court. Learned counsel submits that it

is the case of the prosecution that the incident

has happened at about 11.00 to 11.30 am. on 2nd

January, 2015, in which two persons were seriously

injured and died on the spot and thereafter the

accused persons have gone to the village

Pimpaldari and they had pelted stones and caused

injuries to PW-13 Laxman Nirdunde. He submits that

PW-12 Urmila, claims to be the eye witness to both

the incidents i.e. first incident in the field and

second incident in the house. PW-12 Urmila stated

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that she had gone to the police station at 5.00

p.m. and reported the matter to the police station

and then PW-13 Laxman was referred to the hospital

for medical treatment. However neither the station

diary entry made in that behalf by head constable

Deshpande, present in the police station at the

relevant time, is produced on record nor said

Deshpande is examined. Therefore, whatever report

had been given to police by PW-12 Urmila and PW-13

Laxman, is suppressed in order to substitute

another version suitable to the prosecution and/or

informant. He further submits that there is no

explanation as to why PW-9 Laxman Phad, police

head constable, Gangakhed police station, who

according to him, has gone in the village and met

PW-13 Laxman Nirdunde at around 2.00 O’clock, has

not reduced into writing the F.I.R. of Laxman.

Therefore, the case of the prosecution appears to

be suspicions and doubtful. Informant, PW-1

Padminibai specifically stated that in her F.I.R.

the details of dispute on the cause of

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agricultural land between them and accused have

been stated by Vithalrao, her father in law. It is

surprising as to how the part of the F.I.R. can be

given by somebody, who is not informant. PW-1

Padminibai stated that PW-9 Laxman Phad had sent

her and Vimalbai for medical examination however,

PW-9 Laxman Phad does not support the said

version. Thus the F.I.R. Exhibit-18 is fabricated

and concocted piece of evidence. The genesis of

the incident is suppressed by PW-9 Laxman Phad and

PW-19 Shivaji Choudhary. It is submitted that

considering the version of the Investigating

Officer PW-19 Shivaji, it is clear that the

complaint which is shown to have been lodged at

7.00 p.m., is concocted complaint.

6. Learned senior counsel referring to the

written notes of arguments, further submitted that

the evidence of three eye witnesses i.e. PW-1

Padminibai, PW-11 Vimal and PW-12 Urmila, claiming

to be eye witnesses, is not true and they are not

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the eye witnesses. There are various

contradictions and omissions in the evidence of

PW-1 Padminibai. Padminibai was present in the

field when the incident had taken place, is not

corroborated by any independent witness. The names

of various persons stated like Vithal, Namdeo,

Dnyanoba, Uttam, Sheshrao Guruji, Janardhan,

Sitaram, whose houses are located nearby, however

not a single person is examined about the incident

in the house of pelting stones or accused persons

being present in the surrounding area. Medical

evidence disproves the version of PW-1 Padminibai

that deceased Bharat had break-fast at 9.00 a.m.

PW-1 Padminibai has not disclosed the said

incident to anybody from 11.30 to 7.00 p.m. till

lodging of the F.I.R. Thus, it is clear that she

was not present at the scene of offence and she

has not witnessed the incident. It is further

submitted that there are serious omissions and

contradictions in the evidence of PW-11 Vimalbai

and therefore Vimalbai cannot be said to be an eye

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witness to the incident. PW-12 Urmilabai claims to

be an eye witness and present at both the spots

i.e. in the field and in house, however she has

not sustained any injury. There are

contradictions, omissions and various improvements

in her evidence, because she claims to have left

the field immediately after the accused have left

the field. Thus, when two persons were injured and

lying in the field, she left the field for no

reasons and therefore, her conduct is not natural.

7. Learned counsel further submitted that

PW-13 Laxman Nirdunde in his evidence stated that

Balaji has caused him injury by Katti, however

C.A. Report reveals that on Article-16 no blood

stains were found. On the contrary, Doctor has

specifically stated that the injury is caused by

axe. Therefore evidence of PW-13 Laxman Nirdunde

cannot be believed. It is further submitted that

evidence of PW-14 Dadarao cannot be accepted as he

is declared hostile. The evidence of PW-9 Phad is

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concocted evidence. PW-10 Dahiphale claims to have

accompanied with PW-13 Laxman and PW-12 Urmila,

but Laxman does not say so nor there is any other

independent evidence and therefore, the evidence

of PW-10 Dahiphale cannot be believed. It is

submitted that in the evidence of Investigating

Officer PW-19 Chaudhary, there are serious

omissions and contradictions and he has carried

out the investigation in most callous manner.

PW-19 Chaudhary has not recorded the statements of

independent witnesses of surrounding area or who

were present there. There is no explanation as to

why PW-19 Chaudhary has not recorded F.I.R.

immediately when he visited the field. His

evidence is contrary to the evidence of other

witnesses and he has categorically stated that,

earth smeared with blood was taken from the spot,

however, no blood was found in C.A. Report.

8. Learned senior counsel further submitted

that only interested witnesses have been examined.

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No independent witnesses have been examined. The

evidence of police witnesses is contrary to the

evidence of alleged eye witnesses and therefore

cannot be believed. The spot of incident is not

proved. Recovery of weapons and clothes is not

proved. No blood stained clothes of PW-1

Padminibai and PW-11 Vimalbai have been recovered.

The investigation does not disclose clearly that

the Respondents are guilty of said offence alleged

to have taken place in the field. Similarly,

regarding the second incident at house in village,

no independent witnesses have been examined. There

were no injuries caused to any other person other

than Laxman. There is hardly any evidence to show

that, the incident had taken place in the field

and/or in the house. There is delay in lodging the

F.I.R.

9. Learned senior counsel in the end

submitted that the Appeal is against the acquittal

and as possible view has been taken by the trial

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Court, the Appeal deserves to be dismissed.

10. Mr. Dhorde, learned senior counsel

appearing for the Respondents, in support of his

submissions regarding delay in lodging First

Information Report, pressed into service the

exposition of law in the case of Kunju Muhammed

Alias Khumani and another vs. State of Kerala1,

Rajeevan and another vs. State of Kerala2. In

support of his submissions that if only interested

witnesses are examined by the prosecution,

corroboration from collateral or surrounding

circumstances needed, such as scientific evidence

like medical and other evidence in order to

exclude possibility of false implication, he

placed reliance on the exposition of law in the

case of Jalpat Rai and others vs. State of

Haryana3, Babu Ram and others vs. State of Punjab 4,

Harijana Thirupala and others vs. Public

1 (2204) 9 S.C.C. 193
2 A.I.R. 2003 S.C. 1813
3 (2011) 14 S.C.C. 208
4 A.I.R. 2008 S.C. 1260

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Prosecutor, High Court of A.P., Hyderabad.

11. The learned senior counsel submitted that

the material witnesses mentioned in the F.I.R.,

like Prayagbai and Gayabai are not examined by the

prosecution and therefore adverse inference has to

be drawn. In support of said submission, he placed

reliance upon the case of Thulia Kali vs. The

State of T.N.5. In support of his submission that

blood stained clothes of the witnesses are not

seized, he relied upon the observations in the

case of State of Rajasthan vs. Taran Singh and

another6. He further placed reliance upon the case

of Niranjan Panja vs. State of West Bengal 7 in

support of his submissions that prosecution failed

to bring on record exact time of death of Bharat

and Shatrughan. In support of his submission that

prosecution failed to prove the spot of incident,

he placed reliance on the exposition of law in the

5 A.I.E. 1973 S.C. 501
6 2004 Cri. L.J. 654
7 (2010) 6 S.C.C. 525

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case of Buta Singh vs. The State of Punjab 8, State

of U.P. vs. Madan Mohan and others9. He relied upon

the case of State of Maharashtra vs. Prabhu Barku

Gade10, and submitted that clothes and Muddemal

seized were not sealed and therefore evidence of

recovery has to be excluded.

12. The learned senior counsel submitted that

though F.I.R. is a previous statement which can,

strictly speaking, be only used to corroborate or

contradict the maker of it, but omissions of

important facts, affecting the probabilities of

the case, are relevant under Section 11 of the

Evidence Act in judging the veracity of the

prosecution case. He placed reliance on the

exposition of law in the case of Ram Kumar Pande

vs. The State of M.P.11. In support of his

submission that if the entire prosecution case is

suspicious then the accused are entitled to

8 A.I.R. 1991 S.C. 1316(1)
9 A.I.R. 1989 S.C. 1519
10 1995 Cri. L.J. 1432
11 A.I.R. 1975 S.C. 1026(1)

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benefit of doubt, he placed reliance upon the case

of Sunil Kundu and another vs. State of Jharkhand 12

and Sevi and another vs. State of T.N. and

another13. He further submitted that, merely

because accused failed to prove its defence, the

same cannot be the basis for conviction. He placed

reliance on the exposition of law in the case of

Vikramjit Singh alias Vicky vs. State of Punjab14,

in support of his said submission.

13. Learned senior counsel appearing for the

Respondents submitted that, prosecution must prove

the case beyond reasonable doubt, and if two views

are possible benefit of doubt must go to the

accused. He placed reliance upon the case of State

of Maharashtra vs. Syed Umar Sayed Abbas and

others15, and in the case of Sujit Biswas vs. State

of Assam16. In support of his submission that,

while dealing with appeal against order of
12 (2013) 4 S.C.C. 422
13 A.I.R. 1981 S.C. 1230
14 2007 Cri. L.J. 1000
15 (2016) 4 S.C.C. 735
16 2013 Cri. L.J. 3140

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acquittal, an appellate Court must bear in mind

that in case of acquittal, there is double

presumption in favour of the accused, firstly, the

presumption of innocence available to him under

the fundamental principle of criminal

jurisprudence that every person shall be presumed

to be innocent unless he is proved guilty by a

competent Court of law, and secondly, the accused

having secured his acquittal, the presumption of

his innocence is further reinforced, reaffirmed

and strengthened by trial Court, the counsel

placed reliance on the exposition of law in the

case of Murugesan and others vs. State through

Inspector of Police17 and in the case of Chandrappa

and others vs. State of Karnataka18.

14. We have recorded herein above the

detailed submissions of counsel appearing for the

parties. Now, we would like to discuss the

evidence of the prosecution witnesses in detail.
17 A.I.R. 2013 S.C. 274
18 2007 A.I.R. S.C.W. 1850

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15. The prosecution has examined PW-15 Dr.

Ramgopal Mandanal Biyani. He deposed that from the

year 1990, he was working as Medical Officer,

Rural Hospital, Gangakhed. On 3rd January, 1995,

he has received a letter from Investigating

Officer, police station, Gangakhed, requesting him

to go at Pimpaldari for conducting the post-

mortem, two in number, by going at Pimpaldari on

the spot itself. He produced the original letter

Exhibit-48, received from Investigating Officer,

P.S.I. Choudhary. In the left hand side column of

the letter, he has put an endorsement about

receipt of the same and put the date and time of

the receipt of the letter. On 3rd January, 1995,

he along-with his staff reached at Pimpaldari on

the spot at about 10.30 a.m. and accordingly he

has performed post-mortem examination there.

. PW-15 Dr. Ramgopal Biyani further

deposed that firstly, he performed the post-mortem

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of the corpse of Shatrughan s/o Vithal Nirdunde.

The post-mortem was started at about 10.30 a.m.

and completed at about 11.25 p.m. He found

multiple injuries over body. Such injuries are

described on the separate sheet of paper annexed

to as part of the post-mortem report. The external

injuries were as follows:

“1. Incised wound with fracture of right
parietal bone – 7½ x 1 x 3½ cm. – vertical
over right parietal bone ½ cm. from mid-
line. Wound was clean-cut. Parietal bone
was fractured, deeper layers and coverings
of brain were torn. Brain – tissue was
lacerated and haemorrhage occurred. Blood
was accumulated in middle and anterior
cavity.

2. Incised wound with fracture of right
parietal bone 5 X 1 1½ cm. over right
parietal bone, lateral side, 1 cm. above
ear border, vertical. Bone was fractured
and brain tissue was lacerated. Bleeding
occurred.

3. Incised wound 5 X 1½ X 1 cm. over left

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palm, thumb side, vertical extending from
metacarpophalangeal joint of index finger,
clotted red blood present over wound. Palm
was stained with blood and mud.

4. Incised wound 2½ X 1 X ½ cm. over web
in between thumb and index finger, right
side, vertical, clotted red blood present
with mud over wound. Palm was stained with
blood.

. All above four injuries were
spindle shaped clean cut, edges were
everted and gaping

5. Contusion with fracture – 5 X 2 cm.
over lower 1/3rd of right forearm front
side. Both bones fractured, forearm was
loose – horizontal – red in colour.

6. Contusion with fracture – 2 X 1 cm.
over right clavical, lateral 1/3rd – red
in colour – Clavicle was fractured at
injured part and felt by palpation.

7. Compound fracture with lacerated wound

– 7 X 1 X 1½ cm. over right leg – lower
1/3rd lateral side, oblique – clotted red
blood with mud present over wound, –
Fractured bone ends seen through the wound

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– Leg part was loose.

8. Compound fracture with lacerated wound

– 3 X 1 X 1½ cm. over left leg 1 cm. above
ankle. Inner side – oblique – wound was
covered with red blood and black mud –
Fractured end of tibia bone is seen
through the wound.

9. Contusion 1 1 X ½ cm. over right cheek.

10. Abrasion – 7 X 1/4 cm. over back of
right shoulder.

11. Contusion with abrasion – 7 X 3 cm.
over right upper arm – upper 1/3rd
backside – oblique.

12. Abrasion – 5 X 2 cm. with contusion –
over middle 1/3rd of right forearm back
side.

13. Contusion – 3 X 2 cm. over left elbow

– lateral side.

14. Contusion – 3½ X 1 cm. over left
scapula at lower end.

15. Contusion – 2 X 1 cm. over left pubic
crest bone.

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16. Contusion – 2 X ½ cm. over left leg at
calf part.

17. Contusion – 3 X ½ cm. over right knee
upper and inner side.

18. Contusion – 7 X 3 cm. over back of
left knee.

19. Abrasion – 9 X ½ cm over right scapula

– horizontal at mid-part”.

. All contusion and abrasion injuries are

red in colour. Subcutaneous tissue shows diffused

blood.

. PW-15 Dr. Ramgopal Biyani further

deposed that, on internal examination, he found

following internal injuries:

“Right side of the chest shows rib
fracture at 7th, 8th and 9th at convex
angle. Both fractured ends of the ribs
lacerated lower lobe of lung lateral and
back side at three places.

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Size of laceration – ½ cm. to 2 cm. X 1 to
1 ½ cm. deep. Blood accumulated in plureal
cavity about 250 cc. Clotted blood was red
in colour over lacerated wounds and at
fractured ends of the ribs”.

. PW-15 Dr. Ramgopal Biyani further deposed

that, in his opinion, injury No.1 to 4 were caused

by sharp cutting edged substance and rest of the

injuries by hard and blunt object. Injury Nos.1, 2

and internal injuries were dangerous to life and

injury Nos.3 to 8 were grievous in nature and rest

of the injuries were simple in nature, and age for

all injuries was within 24 hours. He has prepared

post-mortem examination report, for post-mortem of

Shatrughan, which is scribed and signed by him. It

is at Exhibit-49. In his opinion, the death of

Shatrughan was caused due to multiple injuries

over body with fracture of right parietal bone

with laceration of brain tissue and intra-cranial

haemorrhage with fracture of ribs right side and

laceration of right lung, haemorrhage, shock and

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death. He is shown axe (Article-19), Katti

(Article-20) and stick (Article-21). He deposed

that injury Nos.1 and 2 externally noticed by him

on the person of Shatrughan could be caused with

an axe (Article-19). Injury Nos.3 and 4 could be

caused by Katti (Article-20) if it’s straight

sharp part coming in contact with force. Injury

No.4 could be caused by entire blade of Katti.

Injury Nos.5 to 18 could be caused with stick

(Article-21). So also injury No.19 could be caused

with stick. Internal injuries mentioned at Sr.

No.20 in post-mortem notes could not be caused by

stick (Article-21). Injuries mentioned at Sr.

No.20 in post-mortem notes could not be caused

even if forceful blow with stick by holding the

stick in both hands is given. If person falls on

the ground and coming in contact with hard

surface, the internal injury mentioned in Column

No.20 could be caused.

. PW-15 Ramgopal Biyani further deposed

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that on the same day, he started post-mortem of

Bharat s/o Vithal Nirdunde at about 11.30 a.m. and

the same was completed by 12.30 p.m. At the time

of post-mortem, he noticed following surface

injuries and wounds found on the person of

deceased Bharat:

“1. Incised wound 12½ X 1 X 2 ½ cm. over
left parietal bone – vertical – 2 cm. above
ear border – anterior half portion of the
injury was deep and bone was fractured.
Coverings of brain torn and brain tissue
was lacerated. Haemorrhage occurred and
clotted red blood present over brain tissue
and at injury – Godhadi was stained with
blood at head part of the deceased.

2. Incised wound – 7½ X 1 X ½ cm. over left
parietal bone – Vertical extending from
occipito parietal joint and 2 cm. from mid-
line. Clotted red blood present over wound.
Scalp hairs were stained with blood and
mud.

3. Incised wound 1½ X ½ X 1 cm. over left
forearm near wrist – oblique – lateral
side.

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4. Incised wound – with compound fracture
of left forearm bone – 2 X ½ X 1 cm. over
left forearm, back side – lower 1/3rd –
oblique – clotted red blood with mud
present over wound. Surrounded part was
stained with blood and mud. Hand was loose
and fractured ends of the bones were seen
through the wound.

5. Incised wound – 2½ X ½ X 1½ cm. over
back right side at thoracic 8th vertebra
half cm. from mid-line – oblique – Clotted
red blood present over wound. Wound was
opened – inside in the plural cavity,
pleura was torn and blood was collected in
right pleural cavity about 50 cc.

6. Incised wound 1 X ½ X 1 cm. over right
upper arm, back and lateral side – oblique

– upper 1/3rd – Clotted red – blood present
over wound with mud.

7. Incised wound – 5 X ½ X 1/4h cm. over
right parietal bone – 3 cm. above ear
border – vertical – clotted red blood
present.

8. Incised wound – 2 X ½ X 1/4 cm. over
occipito parietal joint – oblique – right

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side 1 cm. from mid-line. Clotted red blood
was present over wound. Scalp hairs were
stained with blood.

9. Incised wound 2 X ½ X ½ cm. over left
upper arm, upper 1/3rd lateral side –
oblique – Clotted red blood present over
wound with mud.

. All above incised wounds were
spindle shaped – Margins were clean-cut
even gaping and edges were everted.

10. Contusion with abrasion – 7 X 4 cm.
over right calf – red in colour.

11. Contusion – 10 X 5 cm. over right foot
and ankle lateral side. Part was red and
swollen and covered with mud.

12. Contusion – 3 X 2 cm. over left
metacapo phaseal joint and dorsam at index
finger – red in colour – part was swollen
and on internal examination, fracture of
proximal phyrynx was found.

13. Contusion 2 X 1 cm. over right knee
upper lateral side – red in colour –
covered with black mud.

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. All contusion and abrasion injuries
shows defused blood in subcuttaneous
tissue”.

. PW-15 Ramgopal Biyani further deposed

that Injury Nos.1 to 9 on the person of Bharat

could be caused by sharp cutting edged substance

and injury Nos.10 to 13 could be caused by hard

and blunt object. Injury Nos.1, 2, 4, 5, 7, 8 and

12 were grievous injuries and rest were simple

injuries. Injury Nos.1 and 5 were dangerous to

life even. In his opinion, the age of all injuries

was within 24 hours. In his opinion, cause of

death was multiple injuries over body and skull

bones with fracture of left parietal bone with

laceration of brain tissue and intracrenial

haemorrhage leading to shock and death. He has

scribed and signed post-mortem report of Bharat,

Exhibit-50. He deposed that injury Nos.1 and 2 on

the person of Bharat could be caused by axe shown

to him. Injury Nos.1, 2, 5, 7 and 8 could be

caused by axe (Article-19). Injury Nos.3, 4, 6

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and 9 could be caused by Katti (Article-20). For

causing injury No.4, such weapon should be used

forcefully. Injury Nos.10 to 13 could be caused

with stick (Article-21).

. During the course of his cross-

examination, PW-15 Ramgopal Biyani stated that

necessarily the injury inflicted is not

corresponding to the length of the blade of

weapon. It could be more than or some times less

than that. He was unable to say how much more

would cause or how much less would cause than the

length of the blade. Injury of the large size than

the length of the blade of the weapon could be

caused maximum by 2 to 3 cm., and less length of

the blade depends on how much part of the blade

comes into contact. Even if the blade is not sharp

one and if force is applied then edges of injury

would come clean-cut. If the blade is not clean

cut and sharp then edges would not be even and

clean-cut. He was unable to say how much heeling

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process would be done within 24 hours after

causing of the injuries in respect of edges. In

respect of the injuries noticed by him, he has

firstly mentioned length, then width and then

depth. When injury No.1 was caused to Shatrughan,

he must be in lying down position on one side. So

also injury No.2 must have been caused when he was

in the same position. Width of the weapon has

nothing to do with the size of the injury. It is

his say that, the width of the weapon might be ½

cm., 1 cm. 1 ½ cm. but the same size of the

injuries in width would be inflicted. He again

said that width of the weapon would change the

width of the injury. He is shown axe before the

Court. After seeing the weapon he stated that the

width of the blade is more towards upward portion

of the blade than lower end. When the depth of the

injury is 3½ cm. then the width of the injury

would correspond to the width of the blade of axe.

Even though he is of the opinion that, width of

the injury must correspond to the width of the

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blade, still he says that injury Nos.1 and 2 could

be caused by axe before the court. For causing

injury Nos.1 and 2, two separate blows are

required. He denied that injury Nos.1 and 2 could

not be caused by the same weapon.

. During the course of his cross-

examination, PW-15 Ramgopal Biyani further stated

that, in respect of Bharat, the depth of injury

No.1 was 2½ cm. and depth of injury No.2 was ½ cm.

In respect of both the injuries, their width is

similar i.e. 1 cm. He does not agree with the

proposition that the width of the injury is to

correspond with the width of the weapon. The width

of the axe before the Court at the height of 2½

cm., which is more than 1 cm. The width of axe at

the height of ½ cm. is less than 1 cm. He was

shown the blade of axe (Article-19).

Approximately, it’s length is 2½” to 3″. It is not

his say that the length of the blade for causing

injury Nos.1 and 2 on the person of Bharat should

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be more than 4 inches. For causing injury No.1 of

the length of 12½ cm. for causing such injury,

more than one blow is necessary. He has not

mentioned in his post-mortem report concerning

Bharat that more than one blow is required for

resulting injury of the length of 12½ cm. In

respect of injury No.1 of Bharat, he has not

mentioned as to how much anterior half portion of

injury No.1 was deep. In respect of injury Nos.1

and 2 of Bharat and Shatrughan, their length

differs. Length of the injury depends on how much

part of the weapon comes in contact. He admits

that in respect of Bharat, the length of injury

Nos.1 and 2 is considerably more than the length

of blade of an axe (Article-19). He does not agree

with the proposition that injury Nos.1 and 2 on

the person of Bharat and Shatrughan could be

caused by other hard and sharp weapon. On the

basis of report from the police in Column No.5 of

post-mortem reports (Exhibit-49 and Exhibit-50) he

has mentioned that, death occurred due to beating

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by axe, knife and Lathi. The said report of police

of which he has mentioned in Column No.5 was

received to him on 3rd January, 1995. The said

report is signed by the Investigating Officer Shri

Choudhary. In the post-mortem notes of Shatrughan,

the breadth and the depth mentioned is uniform

through-out the length. He admits that injury

Nos.3, 4, 6 and 9 on the person of Bharat were on

non-vital parts of the body. So also, injury

Nos.10, 11, 12 and 13 on the person of Bharat are

on non-vital parts. He admits that injury Nos.5

to 19 on the person of Shatrughan were on non-

vital pats of the body of Shatrughan. Shatrughan

might have taken his last meals about 6 hours

before his death, so also Bharat. There was no

food in the stomach cavity. Injuries on the person

of Bharat possibly were caused while lying down on

one side on parietal region.

16. We have discussed in detail the evidence

of the medical officer PW-15. In his evidence, he

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has clearly stated that the death of Shatrughan

and Bharat was homicidal. He also expressed the

opinion that the age of all injuries was within 24

hours. On 3rd January, 1995, he started post-

mortem of the corpse of Shatrughan at about 10.30

a.m. and completed at about 11.25 p.m. On the same

day he started post-mortem of the corpse of Bharat

at about 11.30 a.m. and completed at about 12.30

p.m. The evidence of the medical officer is

consistent with prosecution case with the alleged

incident that had taken place on 2nd January, 1995

at about 12.00 noon. Therefore, his evidence

clearly shows that the multiple injuries over the

bodies of deceased Shatrughan and Bharat were

caused within 24 hours preceding the post-mortem.

Upon careful perusal of the cross-examination of

Dr. Ramgopal Biyani (PW-15), it is abundantly

clear that nothing useful to the defence has been

elicited and brought on record by the defence. The

trial Court on appreciation of the evidence of the

medical officer, observed that, on perusal of

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medical evidence on record and cross-examination

of PW-15 Dr. Ramgopal Biyani it is seen that, it

is not seriously disputed by the accused persons

that death of deceased Bharat and Shatrughan was

homicidal one. It is further observed that there

is sufficient evidence on record to show that

death of Bharat and Shatrughan were homicidal one.

Therefore, the prosecution has proved beyond doubt

that death of Bharat and Shatrughan was homicidal

and injuries found on their person were inflicted

within 24 hours preceding performing the post-

mortem of both the deceased.

17. The prosecution examined PW-17 Manohar

Keshavrao Ghule. He deposed that he was attached

to Rural Hospital, Gangakhed from January, 1991 to

August, 1997. Injured Vimalbai w/o Bharat, Laxman

s/o Vithalrao and Padminibai w/o Shatrughan were

referred to him for medical examination by Police

Station Officer, Gangakhed. Laxman was referred to

him for medical examination on 2nd January, 1995,

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along-with the letter. He examined Laxman s/o

Vitthalrao Nirdude on the same day at about 5.15

p.m. and on examination, he found following

injuries on the person of Laxman:

“1. Incised wound – 6 X 1 X ½ cm. on left
parieto occipital region of skull – edges
were clearly cut. Blood clot was present.

2. Contusion – 5 X 4 cm. on left forearm
Doral aspect – reddish discolouration was
present.

3. Contusion – 7 X 4 cm. on left thigh
middle 1/3 level – ventral aspect oblique
in direction – reddish discolouration was
present.

4. Abrasion – 5 X 3 cm. on right scapular
area – reddish discolouration present.

5. Contusion – 5 X 4 cm. on right scapular
area – reddish discolouration was present.”

. Medical Officer (PW-17) Manohar further

deposed that Injury No.1 was grievous in nature,

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caused by hard and sharp object. The age of the

injury was within 12 hours. Injury Nos. 2 to 5

were caused by hard and blunt object. They were

simple in nature and age was within 12 hours.

Accordingly, he has prepared certificate

Exhibit-54, which is scribed and signed by him.

The patient was referred to Medical College,

Ambejogai for the treatment of head injury.

. Medical Officer (PW-17) Manohar further

deposed that on 3rd January, 1995, Police Station

Officer, Gangakhed referred Padminibai w/o

Shatrughan Nirdunde and Vimalbai w/o Bharat

Nirdunde for medical examination, along with

reference letter dated 3rd January, 1995,

Exhibit-55. He has first examined Padminibai w/o

Shatrughan and on examination he found following

injuries:

“1. Contused Lacerated Wound – 3 X 1 X ½
cm. on left frontal region of skull – Blood

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clot was present. – reddish discolouration
was present.

2. Contusion – 5 X 4 cm. on right forearm
reddish bluish discolouration was present.

3. Contusion – 5 X 4 cm. on right arm
middle 1/3 level – oblique in direction
reddish bluish discolouration was present.

4. Contusion – 5 X 4 cm. on left infra-
scapular area – reddish bluish
discolouration was present.”

. Medical Officer (PW-17) Manohar further

deposed that, all these injuries could be caused

possibly by hard and blunt object. The age of

injuries was within 24 hours and they were simple

in nature. He has prepared the certificate

Exhibit-55, of such examination, which is scribed

and signed by him.

. Medical Officer (PW-17) Manohar further

deposed that, at the same time, and date, he

examined Vimalbai w/o Bharat Nirdunde and on

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examination, he found following injuries present

on her person:

“1. Abrasion – 3 X 1/4 cm. on right arm
upper 1/3 level. – Blood clot was present –
redish bluish discolouration was present.

2. Contusion – 3 X 2 cm. on right arm
anterior aspect – bluish redish
discolouration was present.”

. Medical Officer (PW-17) Manohar further

deposed that the injuries were caused by hard and

blunt object. They were simple in nature and age

of injuries was within 24 hours. Accordingly, he

prepared certificate Exhibit-57 and scribed and

signed by him.

. Medical Officer (PW-17) Manohar further

deposed that, injury No.1 on the person of Laxman

could be caused by hard and sharp object like axe.

Injury No.1 could be caused by axe (Article No.19)

shown to him. Such injury cannot be caused by any

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other weapon except an axe. Rest of the injuies on

the person of Laxman could be caused with the

stick (Article No.21) shown to him. Injuries

present on the person of Padminibai could be

caused by stick (Article No.21) shown to him.

Injuries on the person of Vimal could be caused by

stick, like Article No.21 shown to him.

. During the course of his cross-

examination by the counsel for accused Nos.2

and 3, Medical Officer (PW-17) Manohar stated

that, when Laxman was produced before him on 2nd

January, 1995, at about 5.15 p.m., initially he

was conscious. In his presence, statement of

Laxman was not recorded by Taluka Executive

Magistrate.

18. The prosecution examined PW-1 Padminibai

w/o Shatrughan Nirdunde, who is informant in this

case. The prosecution examined PW-11 Vimal w/o

Bharat Nirdunde. The prosecution examined PW-12

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Urmilabai w/o Laxmanrao Nirdunde. The prosecution

examined PW-13 Laxman Vithalrao Nirdunde. We would

discuss, in detail, the evidence of PW-1

Padminibai, PW-11 Vimalbai, PW-12 Urmilabai and

PW-13 Laxman, in later part of the Judgment.

19. The prosecution examined PW-2 Keshav

Sambhaji Paithane and PW-3 Datta Gyanba Kappe,

panch witnesses to inquest panchnama Exhibit-20,

Exhibit-21 and spot panchnamas Exhibit-22 and

Exhibit-23. But they turned hostile and did not

support the prosecution case. The prosecution

examined PW-4 Parashram Namdeo Chavan and PW-5

Tukaram Khanduji Ambhore, panch witnesses to

Memorandum Exhibits-26 to 28 and seizure panchnama

of weapons Exhibits-29 to 31. But they turned

hostile and did not support the prosecution case.

The prosecution examined PW-6 Ramchandra Narayan

Gaikwad and PW-7 Narhari Dnyanoba Solanke, panch

witnesses to arrest panchnama Exhibit-34 and panch

witnesses to seizure panchnama of clothes of

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deceased, Exhibit-35. But they also turned hostile

and did not support the prosecution case. The

prosecution examined PW-8 Vithal Baburao Shinde,

panch witness to seizure panchnama of clothes of

deceased, Exhibit-35. But he also turned hostile

and did not support the prosecution case.

20. The prosecution examined PW-9 Laxman

Bhaurao Phad, police head constable, police

station, Parbhani (Rural). He deposed that from

1993 to 1996, he was attached to Gangakhed police

station and worked as head constable. He was

posted for duty at Pimpaldari check-post by P.S.I.

Gangakhed. Police constable Dahiphale was posted

on duty along with him. On 2nd January, 1995, he

himself and his companion constable had gone to

the field of police patil casually, because they

were not feeling comfortable in the village. At

about 1.45 p.m., Meera Laxman Nirdunde, aged about

12 years, had come to call them from the field.

She informed them in the field of police patil

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that, Kendre’s sons had killed her cousin uncles-

Bharat and Shatrughan. On hearing the said

information from Meera, he himself and his

companion constable went to village Pimpaldari.

Meera informed him names of Kendre’s sons as

Govind, Dnyanoba and Balaji. She also informed him

that the father of Govind, Balaji and Dnyanoba was

at village Pimpaldari. Govind, Balaji and Dnyanoba

had come to village from the field and they along

with their father attacked on the house of Meera

and beat her father, her cousin uncle and other

family members present at the house. Meera also

informed that these accused pelted stones on their

house and then beat. Along with Meera, they went

at her residential house and he noticed that the

door of the house was closed from inside. The

inhabitants of the house were not ready to open

the door. He disclosed his identity and on hearing

his identity, they opened the door of the house.

There were injuries on the person of Laxman. Such

injuries were caused with Katti. Other inhabitants

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of the house had sustained invisible injuries due

to beating. The household articles in the house

were scattered here and there. There were stones

lying in front of their house. In the S.T. Bus, he

sent injured Laxman along with the constable for

medical treatment. He had enquired with Laxman and

other inhabitants and they told that accused beat

them. Laxman informed that, Balaji injured him

with Katti and Dnyanoba with stick. They also

informed him that stones were pelted. Fists and

kick blows were also given to them. In the

circumstances, they further informed that, by

closing door of the house, they sat inside the

house.

. PW-9 Laxman Bhaurao Phad, further

deposed that after sending Laxman for medical

treatment, he along with Kotwal of the village,

went to the field at the spot. The field is

about 2 K.M.s away from the village. The wife of

Bharat, the wife of Shatrughan were present in the

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field. There were corpse of Bharat and Shatrughan

lying. Their wives, who were present in the field,

started weeping. There were injuries present on

the head of both the deceased. He waited in the

field. After some times, P.S.I., Gangakhed namely

Choudhary came to the field. The wife of

Shatrughan had also sustained injury. For that

night, he waited near the corpse. On the next day

morning, post-mortem were performed.

. During the course of his cross-

examination, PW-9 Laxman Phad stated that, in the

field of police patil, there was no one present

and both the constables had gone to the field and

sat there. Whatever incident that was reported to

them by Meerabai, was reported to them in the

field only and thereafter not at any time. On

receiving report from Meera, they were satisfied

that cognizable offence was committed. They did

not reduce into writing the report given by Meera.

He did not reduce into writing the incident

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reported to them by Laxman. It would have been

possible for him to reduce in writing the report

given by Laxman and submit the same to the police

station along with the constable. He was also

cross-examined by the counsel for accused Nos.2

and 3.

21. The prosecution examined PW-10 Baburao

Manikrao Dahiphale, police constable, police

station, Gangakhed. He also deposed in tune with

Laxman Shahurao Phad (PW-9). He was also cross-

examined by the counsel for the accused.

22. The prosecution examined PW-14 Dadarao

Kishanrao Mundhe. But he turned hostile and did

not support the prosecution case.

23. The prosecution examined PW-16 Ramrao

Namdeorao Muley, P.S.I. He deposed that in the

year 1994-95 he was attached to police station,

Gangakhed. On 31st January, 1995 at about 8.30

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p.m. when he was present at police station,

Gangakhed, he arrested accused Gangaram, Balu and

Govind. He has seized the clothes on the person of

accused, namely Chaddi and banyan.

24. The prosecution examined PW-18 Balasaheb

Shankarrao Shinde, Talathi of Pimpalgaon Sajja who

deposed about the details of the concerned survey

numbers, names of land holders in the village, and

the lands owned by the family of the accused

persons and the family of deceased persons.

25. The prosecution examined PW-19 Shivaji

Salubaji Choudhary, Investigating Officer in this

crime. He deposed about the manner in which he has

carried out the investigation of the crime. In his

evidence, he stated that on 2nd January, 1995 at

about 7.00 p.m. informant Padminibai Nirdunde had

come to the police station, Gangakhed, and she

orally narrated the incident which was reduced

into writing. He has further stated details about

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the registration of the F.I.R. i.e. Crime No.2 of

1995 under Section 302, 307, 324 of the I.P. Code.

He further narrated details of carrying out the

spot panchnama, inquest panchnama and other

details.

26. The prosecution also examined PW-20

Ismailkhan Yusufkhan, P.S.I., Gangakhed. He

deposed about various panchnamas effected by him.

He further deposed that after recording memorandum

panchnamas, accused Govind Gangaram Kendre

produced axe, accused Balaji produced Katti and

accused Dnyanoba produced stick.

27. As already observed, the prosecution has

proved that the death of Bharat and Shatrughan was

homicidal. The real question falls for

consideration is, who is author of the injuries

inflicted on the person of Bharat and Shatrughan

and ultimately responsible for their death. It

appears that the trial Court instead of making

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honest endeavour to find out who are the real

culprits of the death of Bharat and Shatrughan,

and also serious injuries inflicted/ caused on the

person of Laxman (PW-13), keeping aside the

core/substratum of the prosecution case, travelled

in periphery and tried to find out reasons to

dislodge and disbelieve the evidence of the

injured eye witnesses to the incident i.e. PW-1

Padminibai and PW-11 Vimalbai and so also

overwhelming medical evidence brought on record by

the prosecution which corroborates to the evidence

of eye witnesses. The trial Court has given much

importance and emphasis on motive for commission

of offences. It is trite law that when the case

rests upon the direct evidence, the motive looses

its importance and the intention assumes

significance. However, the trial Court proceeded

to discuss in detail about the motive for

commission of such offence. The trial Court after

discussing the evidence of prosecution witnesses,

observed that though the civil dispute was pending

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between the parties, since for considerable period

there was no any scuffle or untoward incident

between the parties, there was no motive for

alleged commission of offence by the accused. In

fact the evidence of Padminibai (PW-1) and also

the other witnesses unequivocally indicates that

the accused arrived at the spot armed with axe,

Katti and stick, with an intention to assault and

kill Shatrughan and thereafter when Bharat came to

rescue him, then they assaulted Bharat and killed

him. The witnesses in their evidence, have stated

that the accused armed with weapons when arrived

at spot, were saying that the cattle of deceased

Shatrughan had entered in their field of the wheat

crop and damaged the wheat crop, since Shatrughan

has left his cattle free, and that was the

immediate reason/cause for the accused for

commission of offences alleged against them by the

prosecution and also enmity on account of civil

dispute.

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28. At this juncture, and before we proceed

to discuss the evidence of the eye witnesses, we

deem it appropriate to remind ourself the scope of

appeal under Section 386 of the Code of Criminal

Procedure filed by the State against the acquittal

of the Respondents. The Supreme Court in the case

of State of M.P. vs. Bacchudas Alias Balram and

others19, in Para 9 of the Judgment, observed thus:

“9. There is no embargo on the appellate
Court reviewing the evidence upon which an
order of acquittal is based. Generally,
the order of acquittal shall not be
interfered with because the presumption of
innocence of the accused is further
strengthened by acquittal. The golden
thread which runs through the web of
administration of justice in criminal
cases is that of if two views are possible
on the evidence adduced in the case, one
pointing to the guilt of the accused and
the other to his innocence, the view which
is favourable to the accused should be
adopted. The paramount consideration of
the court is to ensure that miscarriage of

19 (2007) 9 S.C.C. 135

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justice is prevented. A miscarriage of
justice which arise from acquittal of the
guilty is no less than from the conviction
of an innocent. In a case where admissible
evidence is ignored, a duty is cast upon
the appellate court to reappreciate the
evidence where the accused has been
acquitted, for the purpose of ascertaining
as to whether any of the accused really
committed any offence or not. (See Bhagwan
Singh v. State of M.P.20). The principle to
be followed by the appellate court
considering the appeal against the
judgment of acquittal is to interfere only
when there are compelling and substantial
reasons for doing so. If the impugned
judgment is clearly unreasonable and
relevant and convincing materials have
been unjustifiably eliminated in the
process, it is a compelling reason for
interference. These aspects were
highlighted by this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra 21,
Ramesh Babulal Doshi v. State of Gujarat 22,
Jaswant Singh v. State of Haryana23, Raj
Kishore Jha v. State of Bihar24, State of

20 (2003) 3 S.C.C. 21
21 (1973) 2 S.C.C. 793
22 (1996) 9 S.C.C. 225
23 (2004) 4 S.C.C. 484
24 (2003) 11 S.C.C. 519

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Punjab v. Karnail Singh25, State of Punjab
v. Phola Singh26, Suchand Pal v. Phani Pal 27
and Sachchey Lal Tiwari v. State of U.P.28
(Underlines added)

29. The same view is reiterated by the

Supreme Court in the case of Valson and another

vs. State of Kerala29.

30. Keeping in view the observations made by

the Supreme Court in the case of State of M.P.

vs. Bacchudas Alias Balram and others (supra) and

in the case of Valson and another vs. State of

Kerala (supra), we would proceed to review/re-

appreciate the crucial evidence brought on record

by the prosecution.

31. The prosecution examined PW-1 Padminibai

w/o Shatrughan Nirdunde. She deposed that she was

25 (2003) 11 S.C.C. 271
26 (2003) 11 S.C.C. 58
27 (2003) 11 S.C.C. 527
28 (2004) 11 S.C.C. 410.

29 (2008) 12 S.C.C. 241

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married with the deceased Shatrughan Nirdunde. She

has two sons and two daughters born out of the

said wedlock. Shriram is her husband’s elder

brother. Laxman is also her husband’s elder

brother, so also deceased Bharat. Her family and

family of deceased Bharat were residing in the

field along-with them. Their family and family of

Bharat were residing jointly. Shriram, Laxman and

rest of the family members were residing in the

village Pimpaldari. The field in which they were

residing, is situate about 5 to 7 fields away from

the village-Basti. Initially they owned and

possessed 12½ acres agricultural land. Out of

that, they sold 6½ acres land and now they possess

only six acres agricultural land. The agricultural

land of deceased accused Gangaram is situate to

the south of their agricultural land and adjacent

to the same. There is a common Dhura between their

agricultural land and land of Gangaram. The Survey

Number of their agricultural land is 198. The

total area of field Survey No.198 was 25 acres. In

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the decision of Civil Court, half of that land

i.e. 12½ acre land was given to Gangaram and rest

12½ acres land to their family. Dispute was going

on between their family and family of accused

persons on the cause of agricultural land. It was

the say of deceased Gangaram that, her family was

in possession of some portion of agricultural land

of Gangaram.

. PW-1 Padminibai further deposed that

incident took place about 3 and 1/4 years prior to

recording her evidence. It was the date 2nd, of

beginning month of new year. On that day, she

herself, Vimal w/o Bharat and her husband’s sister

Prayagbai were plucking cotton in the field. The

deceased Bharat was taking rest at the Akhada

(cattle-shed) erected in the field. Her husband

was watering grams crop. It was about 11.00 a.m.

During the time her husband was watering grams

crop, the assailants came and then assaulted her

husband. The assailants came from the western

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side. The assailants were Govind, Balaji and

Dnyanoba. They were wearing half-pant, banyan and

handkerchiefs were tied around the forehead.

Accused Govind had an axe in his hands. Accused

Balaji had Katti with him. There were two injuries

on the head of her husband due to an axe blow

given by Govind. There were injuries of Katti on

the right hand fingers, and fingers were partly

cut off. They were so cut off due to injuries by

Katti of Balaji. Accused Dnyanoba had stick with

him. There were beating marks on the hands and

legs of her husband due to which fractures were

caused to the hands and legs and bones were almost

separated and hanging. On hearing the shouts of

her husband, she went running to her husband. When

she was proceeding towards her husband and she was

at a distance of about 4 to 5 ft. from her

husband, accused Dnyanoba came towards her and

inflicted blow with stick on her head, hands and

legs. Due to blows with the stick as aforesaid,

she became unconscious and fell on the spot where

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beating was given. On hearing their shouts, Bharat

came running towards them and when he was at some

distance from them, accused Nos.1 to 3 beat him.

Vimalbai and Prayagbai also came running towards

them. Assailants went away towards the village.

The right leg of Bhrat was fractured. Vimal and

Prayagbai followed the accused, who proceeded

towards village-basti. Prayagbai reported her

that, accused also beat to the inhabitants at

their house in the village. Prayagbai reported her

that, brother Laxman (Bhau) was injured with

Katti. Police came to the field. When police came

to the field, her husband Shatrughan was lying in

dead condition and Bharat was alive. After the

police came in the field, Bharat made signal with

his hand and then he died. Police officer Phad had

come to their field after the incident.

. PW-1 Padminibai further deposed that, on

that day it was the say of accused persons that,

her husband Shatrughan had left free his cattle in

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the wheat crop of accused persons. On that day, at

about 6.00 she herself, Padminibai and Vimalbai

were taken to Gangakhed. She was examined by the

doctor in the hospital at Gangakhed. Her statement

was recorded by the police. The complaint dated

2nd January, 1995, which was shown to her, bears

her signature. The contents of the complaint after

recording the same, were read over to her. The

complaint is at Exhibit-18. Muddemal property

Article No.19 (axe), Article No.20 (Katti) and

Article No.21 (stick) shown to her, were the same

weapons. She identified the clothes of Shatrughan

and Bharat. At the time of incident, accused

Govind was wearing stitched half-pant. Accused

Balaji and Dnyanoba were wearing half-pants having

elastics at the waist (ready-made). Accused Govind

was wearing banyan (Article No.23), accused

Dnyanoba was wearing banyan (Article No.27) and

accused Balaji was wearing half-pant (Article

No.22), accused Dnyanoba was wearing Article No.24

and accused Balaji was wearing Article No.26.

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. During the course of her cross-

examination by the counsel for accused No.1, PW-1

Padminibai stated the details about the field

Survey No.198 owned by them. She further stated

that the height of common Dhuras of three sub-

divisions is ranging from 2 ft., 2½ ft. to 3 ft.

There is well in the sub-division where there was

cotton crop. Around the well there is heap of

excavated material like stone and earth, having

the height up-to the ceiling of the Court-Hall

from the ground level, i.e. 13 to 14 ft. In the

sub-division of the field where there is well, to

the western side of the well there is half Dhura

having the height of about 3 ft. from the ground

level in that sub-division of the well. The Akhada

on the field is at a distance of about 30 to 40

ft. from the well and not at a distance of about

300 to 400 ft. Such Akhada is erected to the

western side of the well on the first Dhura of

sub-division after the well, towards western side.

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On the said Dhura, and surrounding the residential

house and Akhada, there are trees of Jambhul,

Sheoga, Babhul, Anjan. She has further stated

details about the Akhada (cattle-shed) and their

residential house. She further stated that at the

time of incident, cotton was stored in the house.

At the place of residential house and Akhada on

the field, there is heap of fodder, adjacent to

Dhura. She has further stated about the details

about the fields owned by other persons. She

further stated that, adjacent to their field where

there was cotton crop, big bullock-cart way

leading to village passes. The said road also

leads to villages Waghadari, Pisewadi, Anandwadi,

Tandalwadi, Selmoha and Anterwali. The said

bullock-cart way is busy road, and there is often

traffic on the said road. She further stated that

village Pimpaldari is at a distance of about 1½

K.M. to 2 K.M. from their field. She further

stated details about her residential house and the

details about adjoining houses. She further stated

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that front portion of their residential house is

constructed in stones and mortar. Rest of the

three walls of the house are constructed in mud.

After effecting entry in the house, by the front

entrance door, on both sides there are “Dhalaj”

(open space). There is stair-case inside the house

for going on the terrace of their house. If the

northern side entrance door is closed, then no one

can enter in their house, and entry to the outside

is prohibited.

. During the course of her cross-

examination, PW-1 Padminbai further stated that

prior to the incident, on the large scale Ganja

plants were seized by the police from the fields

of villagers of their village. She further stated

that after the incident, she herself and Vimalbai

are residing at their motherhood respectively.

32. We have discussed in detail, in foregoing

Paragraph, the evidence of PW-1 Padminibai. It is

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brought on record by the prosecution that

Padminibai also sustained the injuries. Medical

Officer PW-17 Manohar Ghule deposed in his

evidence that, he medically examined Padminibai

w/o Shatrughan and on examination he found four

injuries which are already mentioned while

discussing the evidence of PW-17 Manohar Ghule. He

has stated that the age of injuries was within 24

hours and the injuries sustained by Padminibai

were simple in nature. The fact that PW-1

Padminibai sustained injuries is brought on record

by the prosecution. There was no reason for the

trial Court to hold that Padminibai has not

witnessed the incident. As already observed, the

trial Court after discussing the evidence of

Padminibai, recorded the conclusion that

Padminibai was not eye witness to the incident. At

one stage the trial Court reached to the

conclusion that Padminibai (PW-1) has not

witnessed the incident at all, and then went on

discussing her evidence by observing that, even as

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per her version she has not actually seen the

assault by the accused on Shatrughan.

33. If the evidence of Padminibai (PW-1) as

discussed herein above is considered in its

entirety, she stated the date of incident, the

approximate time of the incident. She further

stated that she herself, Vimal w/o Bharat and her

husband’s sister Prayagbai were plucking cotton in

the field. Deceased Bharat was taking rest at the

Akhada (cattle-shed) erected in the field. Her

husband was watering grams crop. It was about

11.00 a.m. When her husband was watering grams

crop, the assailants came and then assaulted her

husband. She stated that assailants Govind, Balaji

and Dnyanoba arrived at the spot armed with

weapons. Accused Govind had an axe in his hands.

Accused Balaji had Katti with him and accused

Dnyanoba had stick with him. On hearing the shouts

of her husband, she went running to her husband.

When she was proceeding towards her husband and

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was at a distance of about 4 to 5 feet from her

husband, accused Dnyanoba came towards her and

inflicted blow with stick on her head, hands and

legs. Due to the blows of stick she became

unconscious and fell on the spot where beating was

given to Shatrughan. Her evidence, even

slightestly cannot be doubted. Therefore the

findings recorded by the trial Court that she had

no opportunity to see assailants or the assailants

holding the weapons or that she did not see

assailants actually assaulting the husband, are

totally perverse. As stated by Padminibai, she was

at a distance of 4 to 5 feet from her husband, and

she started going towards her husband after

hearing the shouts of her husband, that itself

indicates that she witnessed that the blow by axe

was given by accused Govind on the head of

Shatrughan and other accused were also assaulting

him. Padminibai (PW-1) had complete opportunity

to see the accused, the weapons held by them,

their demeanour and actual assault on Shatrughan.

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Ultimately, Padminibai and other eye witnesses are

residing in the village, and it is not expected

from the rustic villagers that they should tell

exact time of the incident and minute details,

that too in such a state of mind when Padminibai

was witnessing the incident of murderous attack by

the accused on her husband Shatrughan. At the cost

of repetition, Padimibai is injured witness and

her injuries are noticed by medical officer (PW-

17) Manohar Ghule on her medical examination. By

any stretch of imagination her presence at the

spot of incident cannot be doubted or disbelieved.

Her evidence is completely trustworthy, and

inspires full confidence. The suggestion given by

the defence that on account of some dispute in her

joint family, there was quarrel amongst four

brothers, and as a result there was scuffle, in

which death of Shatrughan and Bharat took place,

and Laxman sustained serious injuries, has been

firmly denied by Padminibai (PW-1) and other

witnesses as well. On the contrary, Padminibai

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reiterated her version stated in the examination

in chief, that accused assaulted Shatrughan and

when Bharat came to rescue Shatrughan, then Bharat

was also assaulted, and both of them were killed

by the accused. Merely because Padminibai stated

during her cross-examination that, she does not

know about the civil dispute pending between the

family of the deceased and accused, cannot be the

ground to dislodge or disbelieve her evidence.

Though it is argued by the senior counsel

appearing for the Respondents that the part of the

F.I.R. is as per narration of Vithal i.e. father-

in-law of Padminibai about the pendency of civil

suit, on that ground we are not convinced to

disbelieve the evidence of Padminibai. Ultimately

F.I.R. is an information given to the police

station so as to set the investigation in motion.

The F.I.R. is not an encyclopedia. As already

observed, neither the defence nor the trial Court

concentrated on the core/substratum of the

prosecution case, as narrated by the injured

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witness Padminibai and Vimal and other witness

Urmila that – the assailants came armed with

weapons and assaulted Shatrughan and Bharat on

vital parts, which resulted into their death. Upon

considering the evidence on record in its

entirety, it is crystal clear that the accused

came prepared having weapons in their hands like

axe, Katti and stick and gave blows on the vital

parts of the body of Shatrughan and Bharat. The

intention was obvious, that they wanted to ensure

the death of Shatrughan, and in the said process

when Bharat came to rescue Shatrughan, then Bharat

was also assaulted on vital parts, and both of

them were killed by the Respondents-accused. When

there is substantive piece of evidence/direct

evidence in the nature of eye witnesses and it

gets complete corroboration from the medical

evidence, it needs to be emphasized that, it is

not necessary to search for further corroboration

to the evidence of the eye witnesses. The evidence

of Padminibai gets complete corroboration from the

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medical evidence, and also from the evidence of

other eye witnesses.

34. It appears that the trial Court went on

discussing insignificant admissions given by the

witnesses in cross-examination which would not

really affect core/substratum of the prosecution

case and also proceeded to rely upon the minor

contradictions and omissions, and thereby

disbelieved the entire evidence of the eye

witnesses. The trial Court observed that there is

pendency of civil litigation between the parties

on the cause of agricultural land since 1949-50,

however there was no any untoward incident in the

past between two families, and therefore there was

no immediate cause to kill two persons and attempt

to kill third person by the accused. As already

observed, Padminibai in her evidence has stated

that the accused were asking her husband

Shatrughan, why he left free his cattle in wheat

crop of the field owned by the accused. Though the

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learned Judge has observed that, he is aware that

question of motive is not material where there is

direct evidence of acts of accused and acts

themselves are sufficient to disclose the

intention of the actor, however proceeded to

discuss the ‘motive’ and devoted few pages, and

ultimately reached to the conclusion that, there

was no motive for commission of offence, and also

there was no immediate cause to kill the deceased

and attempt to kill Laxman. Such findings recorded

by the trial Court that there was no immediate

cause to kill deceased and attempt to murder

Laxman, are perverse and contrary to the evidence

of the prosecution witnesses brought on record

that, there was immediate cause for attacking the

deceased by the accused on account of cattle of

the deceased Shatrughan entering into the field of

the accused, as stated by the accused themselves

when they arrived at the spot of incident armed

with weapons. The finding recorded by the trial

Court that there was no damage to the wheat crop

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is insignificant, in as much as, it would not

affect the core/substratum of the prosecution

case as stated by the eye witnesses, of actual

assault by the accused and death of Shatrughan and

Bharat and subsequent murderous attack by the

accused on Laxman by going to his house sitaute in

village, immediately on the same day, after the

main incident which had taken place in the

agricultural field of the deceased. It has also

come on record that the deceased i.e. Shatrughan

and Bharat, along with their family members, were

residing in the field having their houses in the

field and other two brothers, Laxman and Shriram

were residing in the house situate in village,

which is about 1½ to 2 K.M. from their

agricultural field. The presence of Padminibai,

Vimalbai and Urmila in the agricultural field at

the relevant time was but natural being

agriculturists and they were in the field for

plucking the cotton. It is disturbing to note

that the trial Court observed, Padminibai (PW-1)

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maintained the secrecy about the incident and

about the names of the assailants till the time of

recording First Information Report on 2nd January,

1995 till 7.30 p.m.

35. It is also observed by the trial Court

that there was delay in lodging the F.I.R. and

when the police constable came to the field and

arrived at the spot there was no reason for not

lodging the F.I.R. immediately. Such findings

recorded by the trial Court are completely

unacceptable and perverse, in as much as

Padminibai herself sustained injuries and

thereafter, for a while she was unconscious, and

in such a state of mind and mental trauma when her

husband was killed in front of her, delay of few

hours in lodging the F.I.R., by any stretch of

imagination cannot be considered fatal to the

prosecution case and reason for the criticism by

the trial Court and defence. Therefore, the

argument of the learned senior counsel appearing

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for the defence that there was delay in lodging

the F.I.R. and therefore the case of the

prosecution should be disbelieved, is without any

substance. The Reported Judgments on which

reliance has been placed by the learned senior

counsel, in support of his submission about delay

in lodging the F.I.R. are pronounced in total

different fact situation, and facts of said cases

cannot be compared vis-a-vis the facts involved in

the present case. The Supreme Court in the case of

Mukesh and another vs. State (NCT of Delhi) and

others30, in Paras 53, 54 and 55 held thus:

“53. In the context of belated FIR, we may
usefully refer to certain authorities in
the field. In Ram Jag v. State of U.P.31,
it was held as: (SCC p. 208, para 16)

“16. … that witnesses cannot be called
upon to explain every hour’s delay and
a commonsense view has to be taken in
ascertaining whether the first

30 (2017) 6 S.C.C. 1
31 (1974) 4 S.C.C. 201

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information report was lodged after an
undue delay so as to afford enough
scope for manipulating evidence.
Whether the delay is so long as to
throw a cloud of suspicion on the
seeds of the prosecution case must
depend upon a variety of factors which
would vary from case to case. Even a
long delay in filing report of an
occurrence can be condoned if the
witnesses on whose evidence the
prosecution relies have no motive for
implicating the accused. On the other
hand, prompt filing of the report is
not an unmistakable guarantee of the
truthfulness of the version of the
prosecution.”

54. In State of H.P. v. Rakesh Kumar32, the
Court repelled the submission pertaining to
delay in lodging of the FIR on the ground
that the first endeavour is always to take
the person to the hospital immediately so
as to provide him medical treatment and
only thereafter report the incident to the
police. The Court in the said case further
held that every minute was precious and,
therefore, it is natural that the witnesses
accompanying the deceased first tried to
32 (2009) 6 S.C.C. 308

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take him to the hospital so as to enable
him to get immediate medical treatment.
Such action was definitely in accordance
with normal human conduct and psychology.
When their efforts failed and the deceased
died they immediately reported the incident
to the police. The Court, under the said
circumstances ruled that in fact, it was a
case of quick reporting to the police.

55. Judged on the anvil of the aforesaid
decisions, we have no hesitation in
arriving at the conclusion that there was
no delay in lodging of the FIR.”

36. There was no question of maintaining

secrecy about the incident by Padminibai as has

been held by the trial Court. It has come on

record that other eye witnesses have also

witnessed the incident. It is common knowledge

that independent witnesses are always hesitant to

come forward to give evidence against accused

persons by reason of apprehension on their part as

regards the safety of their person or property. In

the present case, the accused dared to kill

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Shatrughan and Bharat by using sharp weapons,

assaulted Padminibai (PW-1) and Vimalbai (PW-11),

and attempted to kill Laxman by going from field

to his house and also challenged other family

members of Laxman that, they should not dare to

come forward against accused. In such a situation

when the accused committed two murders in broad

day light and also assaulted Padminibai (PW-1) and

Vimalbai (PW-11) and attempted to kill Laxman, the

expectation that independent witnesses should come

forward to depose against them, was impossible.

Merely because Padminibai, Vimal and Urmila were

interested witnesses, is no ground to dislodge or

disbelieve their evidence as has been observed by

the trial Court.

37. The main criticism by the defence qua the

evidence of PW-1 Padminibai, PW-11 Vimal and PW-12

Urmilabai is that they are partisan or interested

witnesses. In this respect, at this juncture, it

would be apt to make reference to the judgment of

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the Supreme Court in the case of Masalti vs. State

of Uttar Pradesh33. The Supreme Court in the case

of Masalti (supra) has made it clear that it is,

no doubt, the quality of the evidence that matters

and not the number of witnesses who give evidence.

The Supreme Court in para 14 of the judgment in

case of Masalti (supra) observed, thus:

“14. Mr. Sawhney has then argued that where
witnesses giving evidence in a murder trial
like the present are shown to belong to the
faction of victims, their evidence should
not be accepted, because they are prone to
involve falsely members of the rival
faction out of enmity and partisan feeling.
There is no doubt that when a criminal
Court has to appreciate evidence given by
witnesses who are partisan or interested,
it has to be very careful in weighing such
evidence. 51 S.C.-IO 146 Whether or not
there are discrepancies in the evidence;

whether or not the evidence strikes the
Court as genuine; whether or not the story
disclosed by the evidence is probable, are
all matters which must be taken into

33 AIR 1965 SC 202

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account. But it would, we think, be
unreasonable to contend that evidence given
by witnesses should be discarded only on
the ground that it is evidence of partisan
or interested witnesses. Often enough,
where factions prevail in villages and
murders are committed as a result of enmity
between such factions, criminal Courts have
to deal with evidence of a partisan type.
The mechanical rejection of such evidence
on the sole ground that it is partisan
would invariably lead to failure of
justice. No hard and fast rule can be laid
down as to how much evidence should be
appreciated. Judicial approach has to be
cautious in dealing with such evidence; but
the plea that such evidence should be
rejected because it is partisan cannot be
accepted as correct.”

38. The Supreme Court in the case of Rakesh

and another vs. State of Madhya Pradesh34, in Para

18 of the Judgment, observed thus:

“18. Evidence of related witness can be
relied upon provided it is trustworthy.

34 (2011) 9 S.C.C. 698

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Mere relationship does not disqualify a
witness. Witness who are related to the
victim are as competent to depose the facts
as any other witness. Such evidence is
required to be carefully scrutinised and
appreciated before reaching to a conclusion
on the conviction of the accused in a given
case. [See Himanshu v. State (NCT of
Delhi)35 and Bhajan Singh36.”

39. It is also surprising to note that the

trial Court proceeded to take into consideration

and gave much importance to the subsequent conduct

of Padminibai, after incident was over. In fact as

already observed, the trial Court ought to have

concentrated on the core/substratum of the

prosecution case instead of traveling in periphery

and making endeavour to disbelieve the prosecution

case by disbelieving evidence of injured eye

witnesses and over-whelming medical evidence which

corroborates to the evidence of eye witnesses. The

prosecution witnesses have no control over the

35 (2011) 2 S.C.C. 36
36 (2011) 7 S.C.C. 421

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police officers and in the present case on the

constables who went to the spot of incident. The

informant cannot be blamed for not passing on the

information by the concerned police constables to

their superiors and recording the F.I.R. by the

concerned police station immediately after the

incident was over and when the police constables

visited the place of occurrence. It has also come

on record that police station is at Gangakhed

which is about 15 KMs. away from the place of

occurrence. Upon appreciation of evidence of

Padminibai (PW-1), we are of the view that the

evidence of Padminibai, gets complete

corroboration from the medical evidence, and can

form the basis for convicting the Respondents-

accused for committing murder of Shatrughan and

Bharat and also assaulting Padminibai (PW-1) and

Vimalbai (PW-11). Though the defence tried to

bring on record certain omissions, contradictions

and improvements in the evidence of Padminibai,

nevertheless those alleged omissions,

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contradictions or improvements are not of

substantial in character, which would affect the

core/substratum of the prosecution case and

nullify the direct evidence of injured witnesses

which gets complete corroboration from the medical

evidence. The Supreme Court in the case of

Mahendra Pratap Singh vs. State of Uttar Pradesh37,

in Para 28 of the Judgment, observed that:

“28. In Inder Singh v. State (Delhi Admn.) 38
this Court while dealing with the
appreciation of evidence in a criminal
case, held that: (SCC p.162, para 2)

‘2. Credibility of testimony, oral and
circumstantial, depends considerably
on a judicial evaluation of the
totality, not isolated scrutiny. While
it is necessary that proof beyond
reasonable doubt should be adduced in
all criminal cases, it is not
necessary that it should be perfect.'”

40. The suggestion given to Padminibai in her

37 (2009) 11 S.C.C. 334
38 (1978) 4 S.C.C. 161

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cross-examination that Shriram and Laxman at one

hand and Bharat and Shatrughan at the other hand,

on account of some dispute and differences,

quarreled with each other and the incident was

outcome of their scuffle/quarrel has been denied

in toto by Padminibai and other prosecution

witnesses. It is improbable and unacceptable that

injured prosecution witnesses will leave the real

culprits aside and will falsely implicate the

Respondents-accused in the commission of offence.

41. Now we would like to discuss the evidence

of PW-11 Vimalbai w/o Bharat Nirdunde. Vimalbai

(PW-11) deposed that her marriage with deceased

Bharat took place at Pimpaldari about 12 years ago

from the date of recording her evidence. After

marriage, she started residing with her husband at

village Pimpaldari. Deceased Bharat, Shatrughan,

she herself and Padminibai and their children were

residing in the field. The area of that field was

12½ acres. She knows accused Nos.1 to 3. Their

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names are Govind, Balaji and Dnyanoba. The name of

their father is Gangaram Kendre. The agricultural

land of accused is situate to the southern side of

her agricultural land. There were disputes on the

cause of the field between them and Gangaram, but

she did not know the details of such dispute.

. PW-11 Vimal further deposed that

incident took place about 3 and 1/4 years ago from

the date of recording her evidence. It was the

date 2nd of 1995, and Marathi month “Poush”. She

herself, Prayag, Urmila and Padmini were plucking

the cotton in the field. Bharat and Shatrughan

were also present in the field. Shatrughan was

watering grams crop. Her husband was taking rest

at the Akhada. Govind, Balaji and Dnyanoba came

from southern side. She again says that they came

from western side. They wore banyan and Chaddi and

handkerchiefs were tied to their heads. Balaji had

on his person ready-made Chaddi and white banyan.

Dnyanoba had on his person ready-made half Chaddi

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and blue coloured sandow banyan. Accused Govind

had an axe in his hands. Accused Balaji had Katti

and accused Dnyanoba had stick with him in his

hands. First of all Govinda came, thereafter

Balaji and thereafter Dnyanoba. They assaulted

Shatrughan. Accused Govinda inflicted blow with an

axe on the head of Shatrughan. Accused Balaji

inflicted blow with Katti on the left hand palm of

Shatrughan. Accused Dnyanoba gave stick blows on

the legs of Shatrughan due to which fractures were

caused to the legs and bones had come out. Accused

assaulted Shatrughan alleging that cattle were

left free in their wheat crop. After assault to

Shatrughan, Padmini went towards Shatrughan. She

went near Shatrughan and requested accused not to

assault her husband. In that process, she had

received beating on her head because of which due

to giddiness, she fell on the ground. Accused

Dnyanoba gave blow with stick on the head of

Padmini.

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. PW-11 Vimal further deposed that, her

husband, who was resting at the Akhada, went

towards western side, the place where Shatrughan

was assaulted. Accused Govind, Balaji and Dnyanoba

assaulted her husband. Govind inflicted two blows

with an axe on the head of her husband due to

which head of Bharat was cut. Accused Balaji

inflicted blow with Katti on the left hand of her

husband. Accused Dnyanoba inflicted blow with

stick on the right leg of her husband, due to

which there was severe swelling to the right leg.

When she went near her husband, accused beat her.

Accused Balaji gave blow with Katti on right leg

on ulna bone. Accused Dnyanoba beat her with

stick.

. PW-11 Vimal further deposed that, after

assaulting afore-said, accused Nos.1 to 3

proceeded towards village. Urmila and Padmini also

went to the village-basti. She was waiting in the

field upto 6 to 7 p.m. When Phad Jamadar came to

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the field, her husband Bharat was in the bullock-

cart. After Phad came, her husband made signal to

Phad by his hand and then her husband died. She

herself, Padmini and Gaya put Bharat in the

bullock-cart for taking him towards village.

Police Jeep came and then they took them to police

station, Gangakhed. Thereafter, they were taken

for medical examination. She was interrogated in

the police station.

. During the course of her cross-

examination, PW-11 Vimal stated that she did not

know whether dispute on the cause of field is

going on between family of accused persons and her

family since last 40 to 50 years. She did not know

what is mean by sub-division and fragmentation.

She did not understand consolidation, injunction,

civil suit. She did not know about mutation of

names, recording names in the 7/12 extract. She

knows that there was dispute over agricultural

land between her family and family of accused

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persons. She did not know since when such dispute

existed and subject matter and details of the

dispute. In the adjoining lands of her land,

agricultural operations, watering of the crops

were in progress. The agricultural lands of

accused persons is situate to the southern side of

her agricultural land. The assailants came from

western side. The “Maramari” (fight) took place in

the field where there was standing grams crop.

Shatrughan was lying in the field where there was

grams crop standing. Bharat was lying in the

adjoining field where there was cotton crop

standing. On hearing hue and cry, she herself and

Padmini started towards the same. It did happen

that Padminibai led on the person of her husband

and she herself on the person of her husband. Her

clothes were blood stained. She showed her blood

stained petticoat to the police but police did not

take the same in their possession and police burnt

the same in fire. Incident took place at about

11.00 to 11.30 a.m. She was in the field upto 6.30

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p.m. Police Jamadar first arrived at the spot.

Thereafter 2 to 3 villagers had come to the field.

They saw the situation and then went away. She

denied that on the day of incident, Shriram and

Laxman came in the field and demanded agricultural

produce from Bharat and Shatrughan and on that

cause dispute took place and in that dispute

Bharat and Shatrughan sustained injuries and died.

. PW-11 Vimal further stated in her cross-

examination that her statement was recorded by the

police. The contents of portion marked “A” were

read over to her. She asserted that she has not so

stated in her statement before the police. Her

father-in-law did not tell the contents of portion

marked “A” in her statement. She did not know as

to how the contents of portion marked “A” came to

be incorporated in her statement dated 3rd

January, 1995. She has stated in her statement

before the police that accused wore banyan, Chaddi

and handkerchiefs were tied to their heads. She

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cannot assign the reasons for such omission in her

police statement. She has stated in her statement

before the police that, Balaji had on his person

ready-made Chaddi and white banyan, Dnyanoba had

on his person ready-made half Chaddi and blue

coloured sandow banyan. She cannot assign any

reason for such omission in her police statement.

She has stated in her statement before the police

that, accused Govind inflicted two blows with an

axe on the head of her husband due to which head

of her husband was cut into two portions. She

cannot assign any reason for such omission in her

police statement. She has not stated in her

statement before the police that, after the

incident was over, Padminibai proceeded towards

village. She has stated in her statement before

the police that, when Phad Jamadar came to the

field, Bharat was kept in the bullock-cart. She

cannot assign any reason for such omission in her

police statement. She has stated in her police

statement that, after Phad Jamadar arrived in the

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field, her husband Bharat made signal to him by

hand and then he died. She cannot assign any

reason for such omission in her police statement.

42. We have discussed the evidence of Vimal

(PW-11) in detail in afore-said paragraph. She has

clearly stated in her evidence that family of

Shatrughan and her family were residing in the

field. She has stated about the details how the

incident had taken place. As already discussed,

she categorically stated that accused assaulted

Shatrughan. Accused Govind inflicted blow with an

axe on the had of Shatrughan. Accused Balaji

inflicted blow with Katti on the left hand palm of

Shatrughan. Accused Dnyanoba gave stick blows on

the legs of Shatrughan. We have already discussed

the evidence of PW-17 Manohar Ghule who medically

examined Vimalbai (PW-11) wherein he noticed two

injuries on her person. His evidence shows that

Vimalbai suffered injuries within 24 hours before

she was examined by him and he described that

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those injuries are simple in nature. Therefore,

Vimalbai was not only eye witness to the incident

but she was also injured in the said incident. She

stated that when she went near Bharat, accused

beat her. She further deposed that after the said

incident in the field, the accused proceeded

towards the village. Evidence of Vimalbai (PW-11)

is not shattered in the cross-examination, in as

much as she denied the suggestion that on the day

of incident, Shriram and Laxman came in the field

and demanded agricultural produce from Bharat and

Shatrughan and on that cause dispute took place

and in that dispute Bharat and Shatrughan

sustained injuries and died. She reiterated during

her cross-examination, the manner in which the

incident had taken place and how the accused

assaulted Shatrughan and Bharat and killed them

and also assaulted Padminibai and herself. It

appears that the trial Court by ignoring the

evidence of Vimalbai on the core/substratum of

the prosecution case, proceeded to discuss her

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evidence and gave importance to minor

contradictions, omissions, and recorded perverse

finding that the presence of Vimalbai on the spot

is not proved by the prosecution beyond reasonable

doubt.

43. Upon considering the evidence of

Padminibai (PW-1) and Vimalbai (PW-11) in its

entirety, their evidence corroborates with each

other and also gets corroboration from the medical

evidence. Their presence on the spot cannot be

doubted since both of them sustained injuries

during the said incident, as noticed by PW-17

Manohar Ghule. The Supreme Court in the case of

Mukesh and another vs. State (NCT of Delhi) and

others (supra), while discussing the evidentiary

value of the injured witnesses, in Para 81 and 82

of the Judgment held as under:

“81. The injuries found on the person of PW
1 and the fact that PW 1 was injured in the

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same occurrence lends assurance to his
testimony that he was present at the time
of the occurrence along with the
prosecutrix. The evidence of an injured
witness is entitled to a greater weight and
the testimony of such a witness is
considered to be beyond reproach and
reliable. Firm, cogent and convincing
ground is required to discard the evidence
of an injured witness. It is to be kept in
mind that the evidentiary value of an
injured witness carries great weight.

82. In Mano Dutt v. State of U.P.39, it was
held as under: (SCC pp. 90-92, para 31)

“31. We may merely refer to Abdul
Sayeed v. State of M.P.40 where this
Court held as under: (SCC pp. 271-72,
paras 28-30)

’28. The question of the weight to be
attached to the evidence of a witness
who was himself injured in the course
of the occurrence has been extensively
discussed by this Court. Where a
witness to the occurrence has himself
been injured in the incident, the
39 (2012) 4 S.C.C. 79
40 (2010) 10 S.C.C. 259

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testimony of such a witness is
generally considered to be very
reliable, as he is a witness that
comes with a built-in guarantee of his
presence at the scene of the crime and
is unlikely to spare his actual
assailant(s) in order to falsely
implicate someone. ‘Convincing
evidence is required to discredit an
injured witness.’ [Vide Ramlagan Singh
v. State of Bihar41, Malkhan Singh v.
State of U.P.42, Machhi Singh v. State
of Punjab43, Appabhai v. State of
Gujarat44, Bonkya v. State of
Maharashtra45, Bhag Singh v. State of
Punjab46, Mohar v. State of U.P.47 (SCC
p. 606b-c), Dinesh Kumar v. State of
Rajasthan48, Vishnu v. State of
Rajasthan49, Annareddy Sambasiva Reddy
v. State of A.P.50 and Balraje v. State
of Maharashtra51.]

29. While deciding this issue, a

41 (1973) 3 S.C.C. 881
42 (1975) 3 S.C.C. 311
43 (1983) 3 S.C.C. 470
44 1988 Supp. S.C.C. 241
45 (1995) 6 S.C.C. 447
46 (1997) 7 S.C.C. 712
47 (2002) 7 S.C.C. 606
48 (2008) 8 S.C.C. 270
49 (2009) 10 S.C.C. 477
50 (2009) 12 S.C.C. 546
51 (2010) 6 S.C.C. 673

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similar view was taken in Jarnail
Singh v. State of Punjab52 where this
Court reiterated the special
evidentiary status accorded to the
testimony of an injured accused and
relying on its earlier judgments held
as under: (SCC pp. 726-27, paras 28-

29)

“28. Darshan Singh (PW 4) was an
injured witness. He had been
examined by the doctor. His
testimony could not be brushed
aside lightly. He had given full
details of the incident as he was
present at the time when the
assailants reached the tubewell.
In Shivalingappa Kallayanappa v.
State of Karnataka53 this Court
has held that the deposition of
the injured witness should be
relied upon unless there are
strong grounds for rejection of
his evidence on the basis of
major contradictions and
discrepancies, for the reason
that his presence on the scene
stands established in case it is

52 (2009) 9 S.C.C. 719
53 1994 Supp. (3) S.C.C. 235

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proved that he suffered the
injury during the said incident.

29. In State of U.P. v. Kishan
Chand54 a similar view has been
reiterated observing that the
testimony of a stamped witness
has its own relevance and
efficacy. The fact that the
witness sustained injuries at the
time and place of occurrence,
lends support to his testimony
that he was present during the
occurrence. In case the injured
witness is subjected to lengthy
cross-examination and nothing can
be elicited to discard his
testimony, it should be relied
upon (vide Krishan v. State of
Haryana55). Thus, we are of the
considered opinion that evidence
of Darshan Singh (PW 4) has
rightly been relied upon by the
courts below.”

30. The law on the point can be
summarised to the effect that the
testimony of the injured witness is

54 (2004) 7 S.C.C. 629
55 (2006) 12 S.C.C. 459

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accorded a special status in law. This
is as a consequence of the fact that
the injury to the witness is an inbuilt
guarantee of his presence at the scene
of the crime and because the witness
will not want to let his actual
assailant go unpunished merely to
falsely implicate a third party for the
commission of the offence. Thus, the
deposition of the injured witness
should be relied upon unless there are
strong grounds for rejection of his
evidence on the basis of major
contradictions and discrepancies
therein.'”

44. Now, we would proceed to discuss the

evidence of PW-12 Urmilabai w/o Laxmanrao

Nirdunde. PW-12 Urmilabai deposed that the name of

her father-in-law is Vithalrao. Bharat,

Shatrughan, Shriram and Laxman were residing

jointly. Shriram and Laxman were residing in the

house in the village and Bharat and Shatrughan in

the house which was in the field. She did not know

the Survey Number of the field. Gangaram’s land is

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situate to the southern side of her land. She did

not understand as to how many acres land her

family owned. The dispute was going on in respect

of agricultural land, but she did not know such

dispute.

. PW-12 Urmilabai further deposed that

incident took place about 3 and 1/4 years prior to

recoding her evidence. They were plucking cotton.

It was about 10.00 to 11.00 a.m. She herself,

Prayag, Vimal and Padmin were plucking the cotton.

Bharat and Shatrughan were also present in the

field. Shatrughan was watering grams crop and

Bharat was taking rest. Govind Kendre, Dnyanoba

Kendre and Balaji Kendre, all of a sudden came

there and all inflicted blow with an axe on the

head of Shatrughan. They came from Varla side

(western side). Govind Kendre inflicted blow with

an axe. Heavy beating was given on the leg which

caused multiple fractures. Dnyanoba Kendre so

beat. Balaji Kendre beat on the hand and fingers.

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Shatrughan was shouting for help. Bharat came

running on hearing such cry. On hearing the cry of

Shatrughan, she also proceeded towards Shatrughan.

When Bharat was coming, beating was given to him

on his head by all three accused. Govind assaulted

Bharat with an axe on his head. Balaji beat on the

leg of Bharat. Dnyanoba beat on the hand. Balaji

assaulted with Katti on the hand of Bharat.

Dnyanoba assaulted with stick on the leg. Then she

proceeded to village. Accused persons after

assaulting as such, also proceeded towards

village.

. PW-12 Urmilabai further deposed that, as

the accused proceeded towards village, she also

started. When she reached at her house, she saw

that stone pelting was going on their house. As

the stone pelting was going on, hence she did not

go to her house. Then she went to one Dadarao

Mundhe to whom she reported the incident happened

in the field and earnestly requested him to

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accompany with her as accused also beat her

husband. Accordingly, Dadarao came along with her

to her house. Her husband was lying down in the

house. He made arrangement for taking her husband

for medical treatment. Accordingly, her husband

was taken to S.T. Bus. She also accompanied with

her husband. So also Dahiphale constable

accompanied them.

. During the course of her cross-

examination by the counsel for accused No.1, PW-12

Urmilabai stated that she did not know the details

of dispute over the land between them. She did not

know anything about fragmentation and

consolidation. She has stated in her statement

before the police that, dispute was going on

between her family and family of accused on the

cause of agricultural land. Vithalrao did not

provide information to the police in respect of

fragmentation, consolidation, civil suit and stay

order. Field of accused persons is at a distance

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of two fields away from her house in the field.

They were plucking cotton at a distance of about

15 to 20 ft. from the residential house in the

field where Bharat was taking rest. She herself

and Padminibai were plucking cotton on the same

portion of the land. Vimalbai was also with them

plucking the cotton. She herself, Padmini, Vimal

and Prayagbai started going together on hearing

the hue and cry. Padminibai was little ahead of

three of them. Bharat also reached near Shatrughan

along with them, simultaneously. The road passing

adjacent to their field goes to village

Pimpaldari, Anter-veli, Selmoha etc. The said

bullock-cart way passes through the field of

Gangaram. The cattle-shed in the field of the

accused had no door.

. PW-12 Urmilabai further stated that,

towards the village side, accused first proceeded

and then she followed them. In the fields, by both

the sides of the road leading to village

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Pimpaldari, the respective land owners were

working. While going towards her house, she was

shouting and weeping. She further stated that when

she herself and Dadarao reached to her house, the

door of her house was open. Police had just

reached ahead of them at her house. She had talk

with the police and she informed the police that

her two family members were killed in the field.

She denied that there was dispute between Shriram

and Laxman on one hand and Bharat and Shatrughan

on the other hand, on the cause of partition of

landed property. She denied that Bharat and

Shatrughan were demanding partition from Shriram

and Laxman, to which Shriram and Laxman were

resisting. She further denied that, on the day of

incident, Shiram and Laxman came to the field and

wanted to take the agricultural produce along with

them, and Bharat and Shatrughan resisted them to

give agricultural produce unless property was

partitioned and on that cause quarrel took place,

during which Bharat and Shatrughan sustained

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injuries and died.

. PW-12 Urmilabai further stated that, she

has stated in her statement before the police

that, Govind Kendre, Dnyanoba Kendre and Balaji

Kendre all of a sudden came there and all of a

sudden inflicted blow with an axe on the head of

Shatrughan and Govind Kendre inflicted blows with

an axe. She was unable to assign any reason for

such omissions in her police statement dated 3rd

January, 1995. She has stated in her statement

before police that, multiple fractures were caused

to the leg of Shatrughan. She was unable to assign

any reason for such omissions in her police

statement. The defence has further brought on

record certain omissions in her police statement.

. During the course of her cross-

examination by the counsel for accused Nos.2

and 3, PW-12 Urmilabai stated that after the

incident at residential house, when she returned

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to her house along-with Dadarao, her husband

Laxman was lying down on the cot on which quilt

was laid. Serious injury was caused to the head of

Laxman, from which blood was oozing and spread on

the quilt which was on the cot. As it was

bleeding, in order to stop such bleeding, she

poured kerosene oil in the injury and then tied

injury with pant. Despite her aforesaid treatment

bleeding did not stop and the same continued till

she reached in the hospital. During the process of

tying injury, Phad Jamadar was present near her

and Laxman. The blood also spread on the clothes

of Laxman. The pant with the help of which injury

was tied was also blood stained. At the S.T. Stand

of Pimpaldari, waiting for the bus, she had taken

head of Laxman on her lap. She further stated that

from the time of her return to the house till she

started for Gangakhed for treatment of her

husband, one hour passed. When she herself, her

husband and police constable Dahiphale started by

the bus for Gangakhed, her Bhaya Shriram was also

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with them in the same bus.

. PW-12 Urmilabai further stated that,

while they four female members were plucking

cotton, they heard the shouts of Shatrughan and

then on hearing the cries, they started towards

that direction. The cotton crop standing in the

field where they were plucking the cotton, was of

the height upto neck to head level. When they

reached on the spot, they saw that Shatrughan was

lying down on the ground. Thereafter they all four

females started shouting loudly and on hearing

their shouts, Bharat came running to the spot. She

again said that Bharat reached to the spot

simultaneously with them. After the dispute was

over, when she started towards the village, she

was alone. Thereafter she did not return to the

field.

45. We have discussed the evidence of

Urmilabai (PW-12) in detail. The finding recorded

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by the trial Court that she did not know details

about the civil dispute and discussed about other

minor contradictions, omissions and improvements

in her evidence and recorded the finding that the

prosecution has not proved her presence on the

spot of incident, which are contrary to the

evidence brought on record by the prosecution.

46. As already observed, there is sufficient

evidence brought on record by the prosecution in

the nature of evidence of Padminibai (PW-1) and

Vimalbai (PW-11). Their evidence corroborates with

each other and gets sufficient corroboration from

the medical evidence, and therefore we need not

search for any other evidence. However, evidence

of Urmilabai (PW-12) also lends support to the

prosecution case. The Supreme Court in the case of

Mukesh and another vs. State (NCT of Delhi) and

others (supra), in Paras 86 to 89 of the Judgment,

held as under:

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86. In this context, we may fruitfully
reproduce a passage from State of U.P. v.
M.K. Anthony56: (SCC p. 514, para 10)

“10. While appreciating the evidence of
a witness, the approach must be whether
the evidence of the witness read as a
whole appears to have a ring of truth.

Once that impression is formed, it is
undoubtedly necessary for the court to
scrutinise the evidence more
particularly keeping in view the
deficiencies, drawbacks and infirmities
pointed out in the evidence as a whole
and evaluate them to find out whether
it is against the general tenor of the
evidence given by the witness and
whether the earlier evaluation of the
evidence is shaken as to render it
unworthy of belief. Minor discrepancies
on trivial matters not touching the
core of the case, hyper-technical
approach by taking sentences torn out
of context here or there from the
evidence, attaching importance to some
technical error committed by the
investigating officer not going to the
root of the matter would not ordinarily
permit rejection of the evidence as a
56 (1985) 1 S.C.C. 505

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whole. …”

87. In Harijana Thirupala v. Public
Prosecutor57, it has been ruled that: (SCC
p. 476, para 11)

“11. … In appreciating the evidence
the approach of the court must be
integrated not truncated or isolated.
In other words, the impact of the
evidence in totality on the
prosecution case or innocence of the
accused has to be kept in mind in
coming to the conclusion as to the
guilt or otherwise of the accused. In
reaching a conclusion about the guilt
of the accused, the court has to
appreciate, analyse and assess the
evidence placed before it by the
yardstick of probabilities, its
intrinsic value and the animus of
witnesses.”

88. In Ugar Ahir v. State of Bihar58, a
three-Judge Bench held: (AIR p. 279, para

6)

57 (2002) 6 S.C.C. 470
58 A.I.R. 1965 S.C. 277

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“6. The maxim falsus in uno, falsus in
omnibus (false in one thing, false in
everything) is neither a sound rule of
law nor a rule of practice. Hardly one
comes across a witness whose evidence
does not contain a grain of untruth or
at any rate exaggerations, embroideries
or embellishments. It is, therefore,
the duty of the court to scrutinise the
evidence carefully and, in terms of the
felicitous metaphor, separate the grain
from the chaff. But, it cannot
obviously disbelieve the substratum of
the prosecution case or the material
parts of the evidence and reconstruct a
story of its own out of the rest.”

89. In Krishna Mochi v. State of Bihar59,
the Court ruled that: (SCC pp. 104-05, para

32)

“32. … The court while appreciating the
evidence should not lose sight of these
realities of life and cannot afford to
take an unrealistic approach by sitting
in an ivory tower. I find that in
recent times the tendency to acquit an
accused easily is galloping fast. It is

59 (2002) 6 S.C.C. 81

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very easy to pass an order of acquittal
on the basis of minor points raised in
the case by a short judgment so as to
achieve the yardstick of disposal. Some
discrepancy is bound to be there in
each and every case which should not
weigh with the court so long it does
not materially affect the prosecution
case. In case discrepancies pointed out
are in the realm of pebbles, the court
should tread upon it, but if the same
are boulders, the court should not make
an attempt to jump over the same. These
days when crime is looming large and
humanity is suffering and the society
is so much affected thereby, duties and
responsibilities of the courts have
become much more. Now the maxim “let
hundred guilty persons be acquitted,
but not a single innocent be convicted”
is, in practice, changing the world
over and courts have been compelled to
accept that “society suffers by wrong
convictions and it equally suffers by
wrong acquittals”. I find that this
Court in recent times has
conscientiously taken notice of these
facts from time to time. In Inder
Singh60, Krishna Iyer, J. laid down

60 (1978) 4 S.C.C. 161

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that: (SCC p. 162, para 2)

‘2. … Proof beyond reasonable doubt
is a guideline, not a fetish and
guilty man cannot get away with it
because truth suffers some
infirmity when projected through
human processes.’

In State of U.P. v. Anil Singh61, it was
held that a Judge does not preside over a
criminal trial merely to see that no
innocent man is punished. A Judge also
presides to see that a guilty man does not
escape. One is as important as the other.
Both are public duties which the Judge has
to perform.”

47. Now, regarding the second part of

incident which had taken place in the house of

PW-13 Laxman, we would like to discuss the

evidence of PW-13 Laxman Vithalrao Nirdunde. PW-13

Laxman Nirdunde deposed that he himself, Shiram,

their wives, children and their parents were

residing in the house in village Pimpaldari Bharat

61 1988 Supp. S.C.C. 686

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and Shatrughan, their wives and children were

residing in the house in the field. It is Survey

No.198, ad-measuring six acres. Ground-nut, grams,

cotton and wheat crop were standing in the field.

The Survey Number of the land of Gangaram is also

198. The total area of Survey No.198 was 24 acres.

During the implementation of consolidation and

fragmentation scheme, 13 acres land from Survey

No.198 was detached and then consolidated to some

other Survey Number. Against such decision,

Gangaram filed case, claiming 6 acres land from

them from Survey No.198. Then his family members

filed civil suit in the Civil Court at Gangakhed.

Injunction was issued in their favour and against

Gangaram by Civil Court.

. PW-13 Laxman Nirdunde further deposed

that, incident took place about 3 years and 3

months prior to recording his evidence. On that

day, he himself, Shriram, their parents were

present at their house. He was sitting in front of

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his grocery article shop, in the “Dhalaj” (court-

yard). It was about 1.00 to 1.30 p.m. When he was

so sitting, Govind, Balaji and Dnyanoba came to

his house with axe, stick and Katti in their

hands. They abused him by saying “Kumbhardya”.

Govind had an axe in his hand wearing half-Chaddi

and banyan of white colour and chocolate coloured

Chaddi. Balaji had on his person white banyan and

snuff coloured Chaddi. Balaji had Katti in his

hand. Dnyanoba was wearing blue coloured banyan

and Chaddi and he had stick in his hand. Accused

Balu inflicted blow with Katti on his head. He was

sitting in the court-yard of his residential

house. After so assaulting him, accused started

pulling him out of the house. Savitribai, his

brother’s wife came near him and rescued him and

shut the door of the house from inside. Then stone

pelting was started from near the house of Ganpati

Kendre by climbing on the roof of house of Ganpati

Kendre. Thereafter, his wife came to the house

from the field. He was conscious. His wife

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reported him that, Govind, Dnyanoba and Balu

killed Bharat and Shatrughan in the field.

Thereafter, he was taken for medical treatment at

Gangakhed.

. He further deposed that he would be able

to identify the weapons and clothes on the persons

of accused persons. Katti (Article No.20) before

the Court shown to him was the same. Stick and axe

( Article Nos.19 and 21) shown to him are also the

same. Chaddi (Article No.23) and Banyan (Article

No.22) belonged to accused Govind. Article Nos.26

and 27 are the clothes of Dnyanoba. Articles

Nos.24 and 25 are the clothes of Balaji.

. During the course of his cross-

examination by the counsel for accused No.1,

PW-13 Laxman Nirdunde stated that, besides his

family members, Ram Nivrutti and Ram Madhav Mundhe

are other sharers in Survey No.198. The claim of

Gangaram before the Consolidation Officer was

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allowed, and decided in favour of Gangaram. The

dispute restricted to the office of Consolidation

Officer and in the Court. His family members and

Gangaram had no dispute with northern side land

owners namely Babu, Trimbak, Sudam and Ankush, and

eastern side land owners namely Maroti and

Ganpati. Ram Nivrutti and Ram Madhav Mundhe had no

dispute with them. Ram Nivrutti had dispute with

Gangaram. He was unable to say area of the lands

of Ram Nivrutti and Ram Madhav, the other holders

of the land in Survey No.198. Ram Nivrutti’s land

was vacant and there was ground nut crop in the

field of Ram Madhav. He was unable to say whether

on that day ground nut crop in the field of Ram

Madhav Mundhe was being watered by Ram. He further

stated about the details of the crops in the

field. The process of plucking cotton from the

land by the side of the well was in progress. He

denied that he himself and Shriram were claiming

that they should be allowed to take agricultural

produce stored in the house at the field at home,

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for which Bharat and Shatrughan were opposing. He

denied that on the day of incident, they wanted to

bring the agricultural produce from the field to

the house and Bharat and Shatrughan opposed the

same by saying that unless property was

partitioned and given to them, they would not

allow him and Shriram to take the agricultural

produce. He further denied that on the said cause

fight took place between the brothers and in that

fight, Bharat, Shatrughan and he himself sustained

injuries.

. PW-13 Laxman Nirdunde further stated that

his statement was recorded by the Magistrate on

2nd January, 1995. He has stated in his statement

before the Magistrate that after beating him,

accused pulled him outside the house, and that

Savitrabai intervened and rescued him from accused

persons and then she closed the door of the house

from inside, and that accused climbed on the roof

of the house of Ganpati Kendre and from there

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accused pelted stones, and that his wife informed

him that accused Nos.1 to 3 killed Bharat and

Shatrughan. He was unable to assign any reason for

such omissions in his statement before the

Magistrate. He has stated in his statement before

the Magistrate that accused Govind had axe in his

hand and Govind wore white banyan and chocolate

coloured Chaddi, and that accused Balaji had Katti

in his hand and he wore white banyan and snuff

coloured Chaddi, and that accused Dnyanoba had

stick in his hand and he wore blue coloured banyan

and Chaddi. He was unable to assign reasons for

such omissions in his statement before the

Magistrate. He further stated that police did not

show him the clothes from the person of the

accused seized by the Police after seizure till

the date of recording of his evidence. He denied

that clothes and weapons before the Court are not

of the accused.

. During the course of his cross-

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examination by the counsel for accused Nos.2

and 3, PW-13 Laxman Nirdunde stated that their

residential house in village Pimpaldari is situate

on the main road of village Pimpaldari. He

understands the difference between Chaddi and

underwear (Jangya). Article Nos.22, 24 and 26 were

shown to him. He denied that those were underwears

(Jangya) and not Chaddi. Prior to the incident, at

any time he had not seen accused Nos.1 to 3 on

Jangya on their person, or such Articles before

the Court. Articles like Article Nos.22, 24 and 26

before the Court, are available in the open

market. In every house of agriculturist, stick,

Katti and an axe are available. There is no

special identification marks on the clothes

Article Nos.22, 24 and 26, and sticks, Katti and

axe before the Court. The house of Ganpati Kendre

is not visible after closing the door of his house

from inside the house.

. PW-13 Laxman Nirdunde further stated

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that, their residential house faces towards east.

To the east of their house, there is temple of

Motiram Maharaj. The temple is not visible by

standing in the door of their house. Even such

temple is not visible if one comes from the road

in front of their house. Even if loud shouts are

raised from in front of their house, such loud

shouts are not audible from temple. He further

stated about the details of other houses near his

house. He stated that after attack, he himself or

his family members did not shout for the help.

Stone pelting was made after they closed the door

of their house from inside. There was heavy

bleeding from the head after receiving beating to

the head. He was not made to sleep on the cot. He

was sitting inside the house resting the wall. He

was resting to the wall till he started going to

Gangakhed. After receiving injury to his head,

till he started for Gangakhed for medical

treatment, he was conscious. After reaching at

Gangakhed, from S.T. Stand at Gangakhed they hired

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auto-rickshaw and went in front of police station

and parked auto-rickshaw on the road for a while.

His wife went in the police station, reported the

incident and then police came near auto-rickshaw

and then they went for medical treatment. For that

night, he was admitted in the hospital and on next

day, he was referred to Ambejogai hospital.

48. The second part of the incident had taken

place in the house of PW-13 Laxman. Prosecution

witnesses in detail, have stated that after the

incident of killing Shatrughan and Bharat, accused

proceeded towards the village and then they made

murderous attack on Laxman. Since Laxman (PW-13)

himself was examined by the prosecution, we have

discussed his evidence in detail. It clearly

emerges from his evidence that the accused abused

him by saying “Kumbhardya”. He deposed that Govind

had an axe in his hand, Balaji had Katti in his

hand and Dnyanoba had stick in his hand. As

already discussed, he had stated about the manner

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in which he was assaulted. We have already

discussed the evidence of medical office PW-17

Manohar Ghule, wherein he deposed that on medical

examination of Laxman, he found five injuries on

the person of Laxman. It appears that Laxman was

examined by PW-17 on the day of incident itself at

about 5.15 p.m. PW-17 deposed that injury No.1 was

grievous in nature, caused by hard and sharp

object. Injury Nos.2 to 5 were caused by hard and

blunt object. They were simple in nature. He also

observed that age of injury was within 12 hours.

Therefore, the evidence of PW-13 Laxman, who was

injured witness, gets complete corroboration from

the evidence of medical officer PW-17 Manohar

Ghule and therefore apart from the evidence of

other witnesses who supported the version of

Laxman, the evidence brought on record by the

prosecution is sufficient to hold that the accused

tried to kill Laxman. It has been brought on

record that thereafter Laxman was taken for

medical treatment at Gangakhed and from there, he

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was referred to Medical College, Ambejogai for the

treatment of head injury. Though some omissions

are brought on record by the prosecution in the

evidence of PW-13, same are minor and

insignificant in nature and would not affect core

of the prosecution case.

49. We have also referred to the evidence of

other prosecution witnesses who acted as panch,

however it appears that some of them turned

hostile.

50. The prosecution case also gets support

from the evidence of PW-9 Laxman Phad, who was

police constable and visited the spot of incident

in the agricultural field. His evidence clearly

points out and suggested the spot of incident of

murder of Shatrughan, Bharat and assault on

Padminibai (PW-1) and Vimalbai (PW-11) by the

accused was in the agricultural filed of the

deceased. We have already discussed his evidence

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in detail and same supports the prosecution case

on various aspects.

51. Though the learned senior counsel

appearing for the Respondents had made serious

endeavour to point out the improvements, omissions

and contradictions in the evidence of Padminibai

(PW-1), Vimalbai (PW-11), Urmilabai (PW-12) and

also Laxman (PW-13), in our opinion those

contradictions, omissions and improvements are not

of the substantial nature which would affect the

core of the prosecution case. The evidence of

Padminibai and Vimalbai who are the injured

witnesses, inspires full confidence and gets

corroboration from the medical evidence. Their

evidence corroborates with each other. The

evidence of Urmilabai (PW-12) also lends support

to the evidence of PW-1 Padminibai and PW-11

Vimalbai, so far incident of murder of Shatrughan

and Bharat in the agricultural filed is concerned.

The evidence of PW-13 Laxman about the incident

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which had taken place in his house coupled with

the medical evidence is sufficient to hold

Respondents responsible for attempt to murder

Laxman. The evidence of Urmilabai (PW-12) lends

support to the evidence of Laxman (PW-13). It is

true that some prosecution witnesses to the

panchnamas turned hostile and also there is no

assistance from the C.A. report to the prosecution

case. But as already observed, evidence brought on

record by the prosecution in the nature of eye

witnesses and the medical evidence is sufficient

to hold that the Respondents-accused were

responsible for the murder of Shatrughan and

Bharat and attempt to commit murder of Laxman and

also for assaulting Padminibai (PW-1) and Vimalbai

(PW-11). The prosecution has proved beyond

reasonable doubt that the Respondents-accused

killed Shatrughan and Bharat and caused injuries

to Padminibai and Vimalbai during the course of

assaulting to Shatrughan and Bharat, and

thereafter proceeded to village and forcibly

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entered in the house of Laxman and attempted to

kill Laxman.

52. The evidence brought on record by the

prosecution shows that, murder of Shatrughan and

Bharat was committed by the accused with brutality

and exceptional violence, and they further

attempted to kill Laxman with determined mind with

an intention to finish the entire family of

deceased and his brothers.

53. We find considerable force in the

argument of learned A.P.P., assisted by Advocate

Kedar, that the family of deceased hails from

minority community i.e. potter and there is only

one house of them in the village Pimpaldari. It

has also come in the evidence of Laxman that

accused uttered word “Kumbhardya” (person from

potter community) to him. It is argued by the

A.P.P. that the deceased family belongs to

minority community, and in the entire village it

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is single family from potter community, and with a

view to finish said family, accused belonging to

influential community having sizable population in

the village, tried to dominate and made serious

attempt to finish the family of deceased, and they

substantially succeeded in it.

54. In the light of discussion in foregoing

paragraphs, we hold that the findings recorded by

the trial Court are totally perverse and view

taken by the trial Court was not possible. There

is total miscarriage of justice and Judgment and

order of acquittal of accused passed by the trial

Court is clearly unreasonable and unsustainable,

since over-whelming evidence of injured eye

witnesses, other witnesses and also medical

evidence brought on record by the prosecution is

unjustifiably disbelieved and discarded, and under

the afore-stated compelling reasons the impugned

Judgment and order deserves to be quashed and set

aside and the accused-Respondents are liable to be

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convicted and sentenced for the offences with

which they were charged by allowing the Appeal. In

the result, we pass the following order:

O R D E R

(I) The Criminal Appeal is allowed.

(II) The Judgment and order dated 2nd

May, 1998, passed by the Additional

Sessions Judge, Parbhani in Sessions

Trial No.112 of 1995, thereby acquitting

Respondent Nos.1 to 3/original accused

Nos. 1 to 3 for the offences punishable

under Sections 302, 307, 324, 323, 452

and 427 read with Section 34 of the

Indian Penal Code, is quashed and set

aside.

(III) Accused No.1 – Govind s/o

Gangaram Kendre, accused No.2- Balaji

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s/o Gangaram Kendre and accused No.3 –

Dnyanoba s/o Gangaram Kendre are

convicted for the offence punishable

under Section 302 read with Section 34

of the Indian Penal Code and sentenced

to suffer imprisonment for life and to

pay a fine of Rs.5000/- each and in

default to suffer rigorous imprisonment

for six months.

(IV) Accused No.1 – Govind s/o Gangaram

Kendre, accused No.2- Balaji s/o

Gangaram Kendre and accused No.3 –

Dnyanoba s/o Gangaram Kendre are further

convicted for the offence punishable

under Section 307 read with Section 34

of the Indian Penal Code and sentenced

to suffer rigorous imprisonment for ten

(10) years and to pay a fine of

Rs.3000/- each and in default to suffer

rigorous imprisonment for four months.

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(V) Accused No.1 – Govind s/o Gangaram

Kendre, accused No.2- Balaji s/o

Gangaram Kendre and accused No.3 –

Dnyanoba s/o Gangaram Kendre are further

convicted for the offence punishable

under Section 324 read with Section 34

of the Indian Penal Code and sentenced

to suffer rigorous imprisonment for

three (3) years and to pay a fine of

Rs.2000/- each and in default to suffer

rigorous imprisonment for three months.

(VI) Accused No.1 – Govind s/o Gangaram

Kendre, accused No.2- Balaji s/o

Gangaram Kendre and accused No.3 –

Dnyanoba s/o Gangaram Kendre are further

convicted for the offence punishable

under Section 323 read with Section 34

of the Indian Penal Code and sentenced

to suffer rigorous imprisonment for one

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(1) year and to pay a fine of Rs.1000/-

each and in default to suffer rigorous

imprisonment for three months.

(VII) Accused No.1 – Govind s/o Gangaram

Kendre, accused No.2- Balaji s/o

Gangaram Kendre and accused No.3 –

Dnyanoba s/o Gangaram Kendre are further

convicted for the offence punishable

under Section 452 read with Section 34

of the Indian Penal Code and sentenced

to suffer rigorous imprisonment for four

(4) years and to pay a fine of Rs.3000/-

each and in default to suffer rigorous

imprisonment for four months.

(VIII) Accused No.1 – Govind s/o

Gangaram Kendre, accused No.2- Balaji

s/o Gangaram Kendre and accused No.3 –

Dnyanoba s/o Gangaram Kendre are further

convicted for the offence punishable

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under Section 427 read with Section 34

of the Indian Penal Code and sentenced

to suffer rigorous imprisonment for two

(2) years and to pay a fine of Rs.2000/-

each and in default to suffer rigorous

imprisonment for three months.

(IX) All the substantive sentences

shall run concurrently.

(X) Accused No.1 – Govind s/o Gangaram

Kendre, accused No.2- Balaji s/o

Gangaram Kendre and accused No.3 –

Dnyanoba s/o Gangaram Kendre would be

entitled to set off under Section 428 of

the Code of Criminal Procedure.

(XI) Accused No.1 – Govind s/o Gangaram

Kendre, accused No.2- Balaji s/o

Gangaram Kendre and accused No.3 –

Dnyanoba s/o Gangaram Kendre shall

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surrender to their bail bonds

immediately before the Sessions Judge,

Parbhani. The Sessions Judge, Parbhani

to ensure that, accused shall surrender

immediately to undergo sentence recorded

as above against them and send the

compliance report to that effect, to

this Court.

[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
asb/AUG17

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