NAGYA @ NAGESH WACHYA BHOSALE AND ANR.versusTHE STATE OF MAHARASHTRA.

2026:BHC-AUG:41970


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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                 CRIMINAL APPEAL NO. 25 OF 2016

                 1.    Nagya @ Nagesh s/o Wachya Bhosale
                       Age: 60 years, Occu.: Labour,
                       R/o. Dokewadi, Tq. Bhoom,
                       Dist. Osmanabad.

                 2.    Jahalya @ Jalindar s/o Dagdu Bhosale,
                       Age: 55 years, Occu.: Labour,
                       R/o. Ieet, Tq. Bhoom,
                       Dist. Osmanabad.                            … Appellants

                             Versus

                 .     The State of Maharashtra,
                       Police Station Washi,
                       Through Tanya Wachya Bhosale,
                       Age: 40 years, Occu.: Labour,
                       R/o. Dokewadi, Tq. Bhoom,
                       Dist. Osmanabad.                            … Respondent

                                                  …..
                 Mr. Vilas M. Humbe, Advocate for the Appellant.
                 Mr. V. V. Jahagirdar, APP for Respondent-State.
                                                  .....

                                         CORAM :       ABHAY S. WAGHWASE, J.
                                         Reserved on       : 10.09.2026
                                         Pronounced on     : 11.09.2026

                 JUDGMENT :


                 1.    Appellants, who have been convicted by the learned Adhoc

                 Additional Sessions Judge, Bhoom in Sessions Case No,114 of 2014

                 for offences punishable under Sections 147, 148, 323, 504, 506 read
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with Section 149 of Indian Penal Code [IPC], have preferred instant

appeal.

              BRIEF FACTS OF THE PROSECUTION CASE


2.    Prosecution was lodged on FIR steaming from the statement of

PW5, who gave statement that for questioning accused for throwing

waste in the well water, accused persons formed unlawful assembly

and they mounted assault in him by means of knife. On his such

statement, crime was registered, which was duly investigated and

accused persons were charge-sheeted. In all five accused were charge-

sheeted, but except appellants, other accused were absconding. Trial

came to be separated and present appellants came to be convicted for

offences under Sections 147, 148, 323, 504, 506 read with Section

149 of IPC.

                           SUBMISSIONS


On behalf of appellants/original accused Nos.1 and 2 :

3.    Learned Counsel for the appellants submitted that almost all

prosecution witnesses have turned hostile, including informant. That,

even recovery panch did not support prosecution. Only based on

testimony of injured and his son and taking into account the evidence

of medical expert, conviction has been recorded.
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On behalf of respondent/State :-

4.    Learned APP would support the judgment and order of

conviction by pointing out that, here, there is evidence of injured

himself as well as his son, who was in his company. That, injuries

were suffered by victim and he was taken to the hospital and he was

examined and treated. Said doctor was also examined by prosecution.

That, presence of all the accused is marked by above witnesses. They

have stated that there is common object to carry out assault and

therefore, such evidence has been taken into account by the learned

Trial Court, while convicting the accused. Learned APP further

pointed out that as learned Trial Court had acquitted accused from

charges under Section 307 of IPC, there is correct appreciation.

Therefore, as charges for offence under Sections 147, 148, 323, 504,

506 read with 149 are made out, the judgment and order may not be

disturbed, as it is a well reasoned judgment.


     BRIEF ACCOUNT OF EVIDENCE BEFORE THE TRIAL COURT


5.    Prosecution evidence comprises of as many as 12 witnesses.

PW1 is the panch to recovery panchanama, which is at Exhibit-32;

PW2 is the panch witness; PW3 is the independent witness; PW4 is

the panch to spot panchanama and spot map; PW5 is the

victim/injured; PW6 is the son of injured; PW7 is the wife of injured;
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PW8 is the police constable, who recorded statement of informant;

PW9 is the PSO, who registered crime; PW10 is the medical expert,

who examined and treated injured, PW11 is the Investigating Officer;

and PW12 is the informant.


6.    Re-appreciated the entire evidence. As pointed out, it is noticed

that almost all the witnesses, except the injured, his son, the doctor

and the Investigating Officer, including the very informant, have

resiled en bloc. Therefore, what remains for consideration is the

testimony of informant, his son, Investigating Officer and medical

expert.


7.    PW5 is the injured, who has been examined at Exhibit-39.

According to him, incident took place three years back. His son had

been to village. Incident took place in front of Dr. Mane hospital and

according to him, he questioned accused, why waste was thrown in

the well. He deposed that, on this count, Jahalya Bhosale and Anil

Bhosale beat him by means of knife. He identified Jahalya to be

present in the Court, who assaulted him.

.     While under cross-examination, he admitted that accused

Nagya is his brother and accused Jahalya is his uncle. He is unable to

state whether all accused persons gathered on the day of weekly

bazaar at village Ieet. He answered that incident took place at 7.30
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p.m. and he also admitted that there was darkness at the time of

incident. He is unable to state the distance of the electric pole and the

spot of the incident. He denied suffering injuries after fall from a cow.

He admitted that accused Nagya had not assaulted him.


8.    PW6 is the son of PW5 and he stated that injured is his father.

The incident took place in July 2012 in front of Dr. Mane hospital.

That, according to him at that time he was also with his father. That,

incident took place at 7.30 p.m. He testified that his father asked

accused as to why waste was thrown in the well and so accused Anil

assaulted his father by means of knife, whereas others assaulted his

father by means of fists and kick blows. Then, he stated that Anil,

Jahalya, Garvya were also present at the spot and other accused were

not present. He identified article 1 with which his father was

assaulted.

.     While under cross-examination, he admitted that, the well, in

which waste was thrown, does not belong to them. He admitted that

incident took place during bazaar day. He too admitted that at the

time of incident there was darkness and it took place at 7.30 p.m. and

that, there was electric pole near the place of incident. He denied that

he was not present with his father as well as accused Nagesh was not

present at the time of incident. However, he admitted that even
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persons, who were not present at the spot, are named as accused.

Rest is all denial.


9.    PW7, wife of PW5, in her evidence at Exhibit-41, stated that

while she was in the house when she made phone call to her son, she

learnt that accused assaulted her husband by knife and accused

Nagesh was not present there. Police took her husband to hospital.

.     While under cross-examination, he admitted that she was not

present at the spot.


10.   PW8 is the police constable, who recorded statement of

informant, which he identified to be at Exhibit-43.


11.   PW9 is the PSO, who, on the strength of the statement,

registered crime.


12.   PW10 is the medical expert, who in his evidence at Exhibit-46,

deposed about Prakash being brought with history of assault and he

examining him. He described the four injuries in his testimony.

.     While under cross-examination, he answered that he did not

mention the colour of the injures in the injury certificate, but

mentioned age of the injuries. He denied that such type of injures are

possible on account of fall on hard surface. Rest is all denial.
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13.   PW11 is the Investigating Officer, who has narrated all the

steps taken by him during investigation till filing of the charge-sheet.


14.   PW12 is the informant, who merely stated that Prakash and

Nagesh were his brothers and Jalinder was his uncle. In examination-

in-chief itself, he stated that he does not know about the incident

between accused and complainant.

.     Thereafter, he was subjected to cross-examination, however, all

the suggestions were denied, except the suggestion that Prakash was

admitted for treatment at Osmanabad Hospital and that he had gone

to see him in the hospital.


                               ANALYSIS

15.   On re-appreciation and analysis of the above discussed

evidence, here, it is emerging that PW12 informant, who is brother of

injured Prakash, flatly denied any occurrence taking place in his

presence. PW5 injured Prakash, in his evidence, as stated above, has

merely named Jahalya and Anil for beating him by means of knife.

Thus, who amongst them inflicted blow is not clarified by him. Then

he stated that Jahalya was present in the court, who assaulted him.

Beating and assault is attributed to two persons, but there is use of

only one article and, therefore, overt act was expected to be

attributed to one of them. In cross-examination, injured has admitted
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that accused Nagya did not assault him at all.


16.   PW6 son of PW5 claims to be the eye witness, however, PW5

has not stated or marked about the presence of his son PW6 at that

time. Be it so, PW6 stated that in the incident, which took place at

7.30 p.m. when his father asked accused why waste was thrown in

the well, according to him, accused Anil assaulted his father by way of

knife. Thus, he contradicts his own father, because his father PW5 has

attributed assault to Jahalya and not Anil. He merely named Jahalya

and Garvya to be present there.


17.   Therefore, primarily, the presence of five accused persons at the

spot has not been established so as to attract Section 149 of the IPC.

Unless the assembly of five or more persons is established, the rigours

of Section 149 of the IPC cannot be attracted.


18.   Moreover, it is noticed that present appellant Nagya is held

guilty by the learned Trial Court, but as stated above, very informant

has in his cross-examination admitted that Nagya did not assault him.

His own son PW6 also in his cross-examination admitted that even

persons, who were not present at the spot, are mentioned to be

accused.
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19.     Admittedly, wife of PW5 was in her house and she has hearsay

information and she also admitted that she was not present at the

spot.


20.     Indeed, there is evidence of PW10, but he has merely noted

history of assault.


21.     Charge-sheet was filed against as many as five persons and

three are shown to be absconding, but above discussed evidence, as

stated, is ambiguous on the point of assault. When injured himself has

admitted that there was no assault by Nagya i.e. appellant No.1,

learned Trial Court ought not to have convicted him.

.       As regards appellant No.2 Jahalya, though PW5 has named

him, the alleged eyewitness, i.e. the son of PW5, attributes the assault

on his father with a knife to accused Anil and not to either Nagya or

Jahalya.


22.     For the aforesaid reasons, the case of the prosecution has not

been proved beyond reasonable doubt. The injured witness and his

son have attributed the assault with a knife to different accused.

Though an attempt has been made to show that there was a recovery

at the instance of accused Nagesh, and though the witness to the

memorandum has not supported the prosecution, neither PW5 nor his
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son PW6 attributes the role of inflicting the knife blow to Nagesh.

Consequently, the appellants succeed. Hence, the following order is

passed :-

                                    ORDER

I.    The Criminal Appeal is allowed.


II.   The conviction awarded to the appellants i.e. 1) Nagya @
      Nagesh s/o Wachya Bhosale and 2) Jahalya @ Jalindar s/o
      Dagdu Bhosale, by learned Adhoc Additional Sessions Judge,
      Bhoom in Sessions Case No.114 of 2014 on 27.11.2015 for
      offence punishable under Sections 147, 148, 323, 504, 506 read
      with Section 149 of IPC, stands quashed and set aside.


III. The appellants i.e. 1) Nagya @ Nagesh s/o Wachya Bhosale and
      2) Jahalya @ Jalindar s/o Dagdu Bhosale stand acquitted of the
      offences punishable under Sections 147, 148, 323, 504, 506 read
      with Section 149 of IPC.

IV. The bail bonds of the appellants stand cancelled.

V.    Fine amount deposited, if any, be refunded to the appellants
      after the statutory period.

VI. It is clarified that there is no change as regards the order
      regarding disposal of muddemal.



                                            [ABHAY S. WAGHWASE, J.]

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