Bombay High Court
AKASH ALIAS BABLU PANDHARINATH DAMBALEversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Allowed
Holding
Only Ravi Nikalje’s participation was proved; his conviction under Section 149 IPC is altered to Section 34 IPC, and the other four accused are acquitted of all charges.
Summary
The incident on 27‑12‑2017 in Rajiv Nagar resulted in the deaths of Devidas Ighe and Dinesh Birajdar. Five accused – Ravi Nikalje, Dipak Wavhal, Krushna Shinde, Nitin Pandit and Akash Dambale – were convicted by the Sessions Court under IPC 302 read with Section 149, and also under Sections 143 and 148, while being acquitted of Section 135 of the Maharashtra Police Act. On appeal, the High Court examined the eye‑witness testimony, the delay in FIR registration, and the applicability of Section 149 versus Section 34. It held that only Ravi Nikalje’s participation was clearly proved; the other accused were not shown to share a common object or knowledge of the assault, warranting benefit of doubt. Consequently, the conviction of Nikalje was altered to IPC 302 with Section 34, and he was sentenced to life imprisonment; the other four were acquitted of all charges, including Sections 143 and 148. The appeal filed by the victims’ family seeking capital punishment under the Maharashtra Police Act was dismissed.
Issues considered
- The applicability of Section 149 IPC to the five accused versus Section 34 IPC.
- Whether the eye‑witness evidence sufficiently establishes a common object for unlawful assembly.
- The effect of the delay in lodging the FIR on the reliability of the prosecution case.
- Whether the accused other than Ravi Nikalje are entitled to benefit of doubt and acquittal.
- The appropriateness of capital punishment under Section 135 Maharashtra Police Act.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 164, 428
- Indian Penal Code — s. 143, 148, 149, 302, 34
- Maharashtra Police Act — s. 135
Subjects
- murder
- IPC 302
- Section 149
- Section 34
- unlawful assembly
- benefit of doubt
- eye witness testimony
- acquittal
- capital punishment
- Maharashtra Police Act
- criminal appeal
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
[1] CRIMINAL APPEAL NO.555 OF 2023
Ravi Gautam Nikalje …..Appellant
Versus
The State of Maharashtra ….Respondent
…..
WITH
INTERIM APPLICATION NO.1305 OF 2026
IN
CRIMINAL APPEAL NO.555 OF 2023
……
WITH
[2] CRIMINAL APPEAL NO.615 OF 2023
Dipak Datta Wavhal …..Appellant
Versus
The State of Maharashtra ….Respondent
……
WITH
[3] CRIMINAL APPEAL NO.891 OF 2023
Krushna Dadaram Shinde …..Appellant
Versus
The State of Maharashtra ….Respondent
……
WITH
[4] CRIMINAL APPEAL NO.434 OF 2023
Nitin Uttam Pandit …..Appellant
Versus
The State of Maharashtra ….Respondent
……
WITH
[5] CRIMINAL APPEAL NO.422 OF 2023
Akash alias Bablu Pandharinath Dambale …..Appellant
Versus
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Deshmane(PS)
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The State of Maharashtra ….Respondent
……
WITH
[6] CRIMINAL APPEAL NO.811 OF 2023
Nilkanth Kisan Birajdar, & another …..Appellants
Versus
Ravi Gautam Nikalje
and others ….Respondents
-----
Ms. Anjali Patil, Advocate a/w. Tohid Shaikh for the Appellant in
Apeal/555/2023 and for the Applicant in IA/1305/2026.
Mr. Aniket Vagal, Advocate a/w. Juhi Kadu, Savvy Kolhekar for the
Appellant in Apeal/615/2023.
Mr. Keshav Chavan, Advocate a/w. Anita Marbhal, Ankush Dhokale for
the Appellant in Apeal/891/2023.
Mr. Sudarshan Salunkhe, Advocate a/w. Heena Suvarnakar i/b.
Prabhanjan Gujar for the Appellant in Apeal/434/2023.
Mr. Pratik Kalantri, Advocate (through VC) for the Appellant in
Apeal/422/2023.
Mr. Ramesh Dube-Patil, Advocate a/w. Lisa Das i/b. Jay & Co. for the
Appellant in Apeal/811/2023.
Ms. Gauri S. Rao, APP for the Respondent – State.
-----
CORAM : SARANG V. KOTWAL &
RANJITSINHA RAJA BHONSALE, JJ.
DATE : 18th SEPTEMBER, 2026
JUDGMENT : [PER SARANG V. KOTWAL, J.]
1. Heard Ms. Anjali Patil, learned counsel for the Appellant in
Apeal/555/2023, Mr. Aniket Vagal, learned counsel for the Appellant
in Apeal/615/2023, Mr. Keshav Chavan, learned counsel for the
Appellant in Apeal/891/2023, Mr. Sudarshan Salunkhe, learned
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counsel for the Appellant in Apeal/434/2023, Mr. Pratik Kalantri,
learned counsel appearing through video conferencing for the
Appellant in Apeal/422/2023, Mr. Ramesh Dube-Patil, learned counsel
for the Appellant in Apeal/811/2023 and Ms. Gauri Rao, learned APP
for the Respondent – State.
2. All these Appeals are decided by this common judgment
because they arise from the same impugned judgment and order dated
14.2.2023 passed by the learned Additional Sessions Judge, Nashik in
Sessions Case No.198/2018. For convenience, the Appellants are
referred to by their status before the trial Court as mentioned in the
cause title of the impugned judgment and order and also in their
operative part.
3. Criminal Appeal No.555/2023 is preferred by the original
accused No.1 Ravi Nikalje, Criminal Appeal No.615/2023 is preferred
by the original accused No.2 Dipak Wavhal, Criminal Appeal
No.891/2023 is preferred by the original accused No.3 Krushna
Shinde, Criminal Appeal No.434/2023 is preferred by the original
accused No.4 Nitin Pandit, and Criminal Appeal No.422/2023 is
preferred by the original accused No.5 Akash alias Bablu Dambale.
4. The cause title of the impugned judgment and order and
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the operative part of the said judgment and order referred to these
accused as per these numbers. However, in paragraph No.3 of the
Judgment the accused Nitin Pandit is mentioned as accused No.5 and
the accused Bablu Dambale is mentioned as accused No.6. However,
considering the cause title and the operative part of the impugned
judgment and order, we are referring to these accused as accused
Nos.1 to 5. Apart from these accused, there was a child in conflict with
law [CCL] whose trial was separated. He was the brother of the
accused No.1.
5. As far as Criminal Appeal No.811/2023 is concerned, it is
preferred by the family members of both the deceased in this case.
They have challenged the acquittal of the accused Nos.1 to 5 from the
offence punishable under Section 135 of the Maharashtra Police Act
and for awarding capital punishment to the accused Nos.1 to 5.
6. The learned trial Judge convicted and sentenced the
Appellants as follows :
i] All of them were convicted for commission of the offence
punishable under Section 302 read with Section 149 of IPC
and they were sentenced to suffer imprisonment for life and
to pay a fine of Rs.5,000/- each and in default to suffer S.I.
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for six months.
ii] All of them were convicted for commission of the offence
punishable under Section 143 of IPC and they were
sentenced to suffer R.I. for three months and to pay a fine of
Rs.500/- each and in default to suffer S.I. for fifteen days.
iii] They were convicted for commission of the offence
punishable under Section 148 of IPC and were sentenced to
suffer R.I. for two years and to pay a fine of Rs.1,500/- each
and in default to suffer S.I. for two months.
Iv] They were acquitted from the charges of commission of the
offence punishable under Section 135 of the Maharashtra
Police Act.
All the sentences were directed to run concurrently. They
were granted set off under Section 428 of Cr.P.C. for the period
undergone in prison pending trial.
7. The prosecution case, in brief, is as follows :
8. The incident occurred on 27.12.2017 at about 11.00 p.m..
All the accused came in a rickshaw near Rajiv Nagar Zopadpatti. There
was a quarrel between one Devidas Ighe and the accused No.1 Ravi
Nikalje. The child in conflict with law [CCL] and the accused No.3
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Krushna ran towards the hutment. They brought sharp weapons. The
CCL gave a blow with that sharp weapon on Devidas, who fell down.
Devidas’s relative Dinesh ran to save him. The accused No.1 Ravi took
the sharp weapon from the hands of the CCL and gave blows on
Dinesh. The first informant Ramesh Gaikwad tried to intervene but he
was threatened. He started running away. He was chased. The other
accused were carrying stones. He tripped and fell down. He suffered
simple injury on his foot. He again stood up and started running. He
looked back and saw that all of them were assaulting Dinesh and
Devidas. After that, the assailants ran away. Devidas was seriously
injured. Dinesh had succumbed to his injuries. Devidas was taken to
the hospital but he did not survive. PW-1 Ramesh Gaikwad lodged his
FIR with Indira Nagar Police Station vide C.R. No.348/2017. It was
registered at 4.52 a.m.. Investigation was carried out. The
postmortem examination of the two dead bodies was conducted. The
accused were arrested. Their clothes were seized. It is the
prosecution case that the murder weapon i.e. a big knife was
recovered at the instance of the accused No.1 Ravi Nikalje on 3.1.2018
from near the bank of a river. The seized articles were sent for
chemical analysis. The statements of various witnesses were recorded.
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At the conclusion of the investigation, the charge-sheet was filed. The
case was committed to the Court of Session.
9. During trial, the prosecution examined seventeen
witnesses including four eye witnesses, the panchas, the medical
officers and the investigating officers. The defence of the Appellants –
accused was of total denial.
10. The learned Judge relied on the evidence of all the eye
witnesses. He relied on the evidence of recovery of weapon and
ultimately convicted and sentenced the Appellant as mentioned above.
The learned Judge applied Section 149 of IPC as far as the accused
Nos.1 to 5 were concerned.
11. PW-1 Ramesh Gaikwad is the most important witness in
this case. He was the first informant. He deposed that he knew both
Dinesh Birajdar and Devidas Ighe. He was a rickshaw driver. On
27.12.2017, he was present near the State Bank Chowk, Rane Nagar.
Dinesh and Devidas were with him. They ate pavbhaji around 10.30
p.m.. After that, all three of them travelled on one motorcycle to drop
Devidas at Rajiv Nagar Zopadpatti. They reached there at around
11.00 p.m.. They reached outside the house of Devidas. They got
down from the motorcycle. One rickshaw was in front of them.
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According to him, all the accused were sitting in the rickshaw. He had
named all the accused as the persons who were sitting in the rickshaw.
They got down and came near Devidas. He further deposed that
because of some old dispute there was a quarrel between them and
Devidas. The CCL and the accused No.3 Krushna ran towards the
hutment area. They went inside. The CCL came with a weapon like
sword and the accused No.3 Krushna brought a sickle. The CCL
assaulted Devidas with his weapon on his neck. Devidas fell down in a
pool of blood. PW-1 and Dinesh tried to pick him up. At that time, the
accused No.1 Ravi Nikalje took the weapon like sword from the hands
of the CCL and stabbed Dinesh’s waist who also fell down. PW-1 got
scared and started running towards the old Indira Nagar Police
Station. The accused No.1 Ravi with a weapon in his hand and the
others having stones in their hands started chasing him. PW-1 fell
down and injured his left foot. He got up and went a little ahead. He
looked back. The persons chasing him went back to the place where
Dinesh and Devidas Ighe had fallen down. All of them assaulted both
of them with weapons like sword and sickle. The people in the
locality gathered there. The assailants ran away. PW-1 went back to
Dinesh and Devidas. Dinesh had succumbed to his injuries. Devidas
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was still alive. PW-1 put Devidas in a rickshaw and took him to Civil
Hospital but the doctor declared Devidas dead in the hospital. At
about 1.00 a.m to 1.30 a.m. in the night, he went to Indira Nagar
police station and lodged his FIR. It is produced on record at Exhibit-
61. He deposed that the weapon in the hands of the CCL was not a
sword but it was a knife and, therefore, he again went to the police
station and clarified that fact. He identified all the accused in the
Court. He identified the knife produced in the Court as Article ‘A’.
In the cross-examination, he deposed that the distance
between the spot of incident and old Indira Nagar police station was
of two minutes and the new Indira Nagar police station was at a
distance of about 3 to 4 minutes. It took about 15 minutes to reach
the Civil Hospital from the spot of incident. He had not informed
about the incident at the chowky situated at the entrance of the Civil
Hospital. He was in the Civil Hospital for about two to two and half
hours. He did not tell the incident to the doctor. He had reached the
Civil Hospital at about 11.15 p.m. on 27.12.2017. During that period,
the doctor did not make any enquiry with him for his injuries and did
not ask about the assailants or the weapons. At about 1.30 a.m. in the
night, he reached Indira Nagar police station. He was there till 5.00
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a.m.. During all this period, the police were continuously asking him
details of the incident. According to him, he put his signature on the
FIR at 1.30 a.m. After 5.00 a.m., he went back to his house. He
reached there at about 5.15 a.m.. After that, till 12.00 p.m. he did not
go to any place with the police of Indira Nagar police station. He had
personally not lifted Devidas. He was sitting next to the driver in the
rickshaw. His clothes were not seized by the police. Both Devidas and
Dinesh were his childhood friends. Alka and Dagu Shelke were his
aunt and uncle. Dinesh was Dagu’s cousin. PW-1 had come to the
Court with Dagu and Alka. In the past, the police had imposed
penalty on him as he did not have badge for plying a rickshaw. He
was called to the police station to identify the weapon at the police
station. His statement was recorded by the Magistrate after that. He
did not see the knife at the police station.
The FIR produced on record at Exhibit-61 substantially
corroborates his evidence.
12. PW-8 Dagu Shelke is examined as an eye witness. He
deposed that on 27.12.2017 at 11.00 p.m. he was present in his house.
He heard a loud noise on the road. He went there. He saw that 5-6
people were assaulting his nephew Dinesh. The accused No.1 Ravi
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had caught Dinesh’s hair and was assaulting on his neck with a
chopper. PW-8’s brother Devidas was lying in a pool of blood at a
distance of about 5 to 6 ft.. PW-8 went towards Devidas. He was still
breathing. PW-8’s wife suggested that Devidas should be taken to the
hospital. Accordingly, PW-8’s wife took Devidas to the hospital and
PW-8 went towards Dinesh. In the meantime, the police van reached
there and Dinesh was taken to Civil Hospital in that police van. By that
time his wife had reached there. He identified the accused No.1 Ravi
Nikalje. He identified the chopper Article ‘A’ produced in the Court.
His statement was also recorded under Section 164 of Cr.P.C.. It is
produced on record at Exhibit-124. He identified the other accused i.e.
accused Nos.2 to 5. He deposed that all the accused were assaulting
his nephew Dinesh.
In the cross-examination, he stated that he did not know
the phone number of the police station. He had never called the police
station. The distance between Rajiv Nagar slum area and Indira
Nagar police station was about 1 km. It was at five minutes walking
distance. The police had come to the spot between 11.00 p.m. to
11.15 p.m.. He himself did not keep the injured in the rickshaw. There
were about 3000 to 4000 people residing in Rajiv Nagar slum area.
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After the incident, the police met him on 31.12.2017. The police had
given him notice on 29.12.2017. He was called at the police station
on 30.12.2017 but he did not go to the police station on that day. At
the time of incident, about 50 persons had gathered at the spot and he
had gone to the Civil Hospital in the midnight between 12.00 a.m. to
12.15 a.m. on 28.12.2017. He left the hospital at about 5.00 a.m..
During that time he did not see the police in the civil hospital. The
police did not record his statement in writing. From 28.12.2017 till
30.12.2017 he did not give information to the police on his own.
During those three days even the police officers did not approach him.
He accepted that when he went to the police station on 31.12.2017, by
that time, all the accused were arrested.
13. PW-9 Santosh Kadam was examined as another eye
witness. He deposed that on 27.12.2017 he had gone to meet his
uncle Nilkanth Birajdar at Ganesh Chowk at around 10.30 p.m..
Nilkanth Birajdar instructed him to go to Rajiv Nagar slum area for
making payment to one Ramesh Salve. PW-9 along with his friends
Chetan Bagul (PW-10) and Abhishek Shirsath reached Rajiv Nagar
slum area at around 10.45 p.m.. He called Ramesh Salve, who told
him to wait for about 10 to 15 minutes. He saw that some quarrel was
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going on at a distance of about 100 to 125 ft.. There were abuses and
exchange of blows. PW-9 and others went near the place of the
quarrel. He saw 5-6 persons assaulting his cousin Dinesh and Devidas
with a knife. He deposed that the accused No.1 gave a blow with a
knife on Devidas’s stomach, accused No.2 Dipak and accused No.5
Akash alias Bablu had caught hold of Devidas. The CCL stabbed
Devidas with a knife. Devidas had come forward to save Dinesh. The
accused No.1 Ravi Nikalje took the knife from the CCL and assaulted
Dinesh on his back and neck. Dinesh tried to run but the accused No.3
Krushna and the accused No.4 Nitin caught him. Accused No.1 came
near Dinesh and assaulted him on his throat using a knife. PW-9 and
others raised shouts. Nobody came to help. After that PW-8 Dagu
Shelke and his wife Alka came there. She took Devidas to Life Care
Hospital. The police recorded the statement of PW-9. Before that they
had given him a notice. The notice is produced on record at Exhibit-
127. His statement was recorded by the J.M.F.C.. He identified the
accused in the Court.
In the cross-examination, he deposed that the notice of the
police station was dated 2.1.2018. It was another notice. It is
produced on record at Exhibit-128. He admitted that both the
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deceased were his relatives, but he had no financial transactions with
them. Nilkanth Birajdar’s finances were looked after by Nilkanth
himself and his son Dinesh. The distance between Rajiv Nagar
hutment and PW-9’s residence was about 4 to 5 km. After the incident
he was present at Rajiv Nagar Zopadpatti between 11.00 p.m. to
12.00 a.m.. During that time, the police attached to Indira Nagar
police station had reached there. He had seen the police for 45
minutes but he did not reveal the details of the incident to them. He
did not take any part in shifting the injured to the hospital. He went
to the hospital from the spot of the incident. He was there till about
3.00 a.m. to 4.00 a.m.. Many police officers were present but he had
not given information either to the police or to the relatives of the
deceased present in the hospital. On 28.12.2017 till 1.1.2018, he on
his own did not approach the police station to give information about
the incident. The police also did not contact him. The police had
called him on 30.12.2017 but he had not gone to the police station.
14. The evidence of PW-10 Chetan Bagul who was also
examined as an eye witness; is exactly the same as that of PW-9.
According to him, after the incident Dinesh was put in an ambulance
and was taken to the civil hospital and after that PW-10 had gone back
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to his house. Then he had gone to Jalgaon as his relative was serious.
He returned on 2.1.2018. The police gave him a notice and then his
statement was recorded on 2.1.2018. His statement was recorded
under Section 164 of Cr.P.C. on 7.2.2018. It is produced on record at
Exhibit-131. His description of the incident is exactly the same as that
of PW-9.
In the cross-examination he admitted that both the
deceased were his close friends. He admitted that he had stated in his
police statement that the accused No.3 Krushna had caught Dinesh’s
hand but this fact was not mentioned in his police statement.
15. PW-6 Pravin Maru was a pancha for recovery of the
weapon at the instance of the accused No.1 Ravi. He deposed that he
was working in Municipal Corporation. On 2.1.2018, his superior gave
him written instructions to go to Indira Nagar police station to act as
a pancha. On the next day i.e. on 3.1.2018 he went to Indira Nagar
police station at around 1.30 p.m. with another pancha Anil Naik.
They met PI Chaudhari. The accused No.1 Ravi was brought before
them. PI Chaudhari told them that the accused No.1 Ravi wanted to
give memorandum statement and that they should listen to it. The
accused No.1 told them that he would show the place where he had
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thrown the weapon used in the crime. The memorandum statement
was recorded. It is produced on record at Exhibit-110. It was recorded
between 1.53 p.m. to 2.04 p.m. on 3.1.2018. After that, the accused
No.1 Ravi took the panchas and the police towards Waldevi river.
The accused No.1 asked them to stop near a bridge. He took them to
another small bridge and told them that he had thrown the knife from
that bridge. Search was conducted for finding a knife. It was found
in the mud. It was seized. The panchnama was recorded. The
recovery panchnama is produced on record at Exhibit-111. The knife
was sealed. Photographs were taken.
16. PW-11 Harshal Pawar was a photographer who had
accompanied the panchas and the police when the recovery of knife
was effected. He produced the photographs on record.
17. PW-13 Dr. Vaibhav Dhoom had conducted the postmortem
examination on the dead bodies. Dinesh had suffered eleven injuries in
the nature of incised wounds, stab wounds and abrasions. There
were injuries on left zygomatic region, face, mandible, neck, shoulder,
chest, abdomen, palm and back. There were abrasions on both the
knees. The cause of death was mentioned as ‘hemorrhagic shock due
to multiple stab injuries to neck, chest and abdomen which was
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sufficient to cause death in the ordinary course of nature’. The
postmortem notes were produced on record at Exhibit-147.
Devidas had suffered eight injuries. Out of them, one was
in the nature of abrasion. The others were stab and incised wounds on
face, neck, mandible, chest and abdomen. The cause of death was
‘hemorrhagic shock due to multiple stab injuries to chest and
abdomen which was sufficient to cause death in the ordinary course of
nature’. On 15.1.2018, he received a letter from the investigating
officer for examination of the weapon. He received the weapon in a
sealed condition with that letter. He drew sketch of that weapon.
According to him, the injuries mentioned in the postmortem notes
were possible by that weapon. The weapon was again sealed in his
presence and was handed over to the police officers.
In the cross-examination, he accepted that the injuries on
both the bodies were not similar or identical.
18. PW-12 Dr. Mahesh Khairnar had examined PW-1 for his
injuries to his foot. PW-1 was examined at 4.40 p.m. on 28.12.2017 at
Civil Hospital. PW-1 had lacerations over left foot of the size 1 x 0.1
cm.. There was blunt trauma over left calf and knee joint. The
medical certificate is produced on record at Exhibit-141.
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In the cross-examination, he deposed that the injury was
possible if a person falls on hard surface.
19. PW-2 Umesh Jadhav and PW-4 Santosh Deore were the
panchas for inquest panchnamas for two dead bodies. PW-3 Mahesh
Deore was a pancha for the spot panchnama. Their evidence is hardly
in dispute.
20. PW-5 Umeshkumar Nagare was a pancha in whose
presence clothes of both the deceased as well as clothes of the accused
were seized. The clothes of the deceased were seized on 28.12.2017.
The panchnama is produced on record at Exhibit-83. On 31.12.2017,
the clothes of all the accused were seized under different panchnamas.
Those panchnamas are produced on record at Exhibits-84 to 88. He
deposed that the clothes of the accused were kept in a carry bag. The
police showed each of those pieces of clothes to him and told him as to
which clothes belonged to which accused. These panchnamas are in
the form of separate search and seizure panchnamas; separate detailed
panchnamas were not prepared.
21. PW-7 Amol Ghaiwate had turned hostile. According to the
prosecution case, the accused No.1 and CCL had travelled in his
rickshaw after the incident. Though he did not support the prosecution
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case, in the cross-examination conducted by learned APP he accepted
that the statement was recorded by the police on 29.12.2017. In that
statement he had stated that at about 11.40 p.m. on 27.12.2017 the
accused No.1 had contacted him on the mobile phone and called him
to a temple behind Rajiv Nagar hutment. The accused No.1 and the
CCL sat in his rickshaw and went to Nasik Road. They did not pay him
the fare. He accepted that he had made that statement before the
police. Hence that contradiction in his deposition and police statement
is proved.
22. PW-14 Narayan Nahyalade had conducted some part of
investigation. He had collected information from MSEDCL to show
that the street lamps were functioning at the spot on 27.12.2017. He
had recorded the statements of some of the witnesses and he had
caused some of the statements to be recorded under Section 164 of
Cr.P.C.. He had filed the charge-sheet against the accused before the
J.M.F.C. on 27.3.2018. The C.A. reports received by him were
produced on record at Exhibits-168 to 175.
23. PW-15 P.I. Kumar Chavan was another investigating
officer. He had seized the clothes of the deceased. He had arrested
four accused on 28.12.2017. He had supervised recovery of weapon.
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He had seized clothes of all the accused. He had sent the articles to
FSL. He had sought opinion of the doctor regarding the weapon and
the injuries.
In the cross-examination, he deposed that the information
about the incident was received by the police station before 1.30 a.m.
on 28.12.2017. Before that the police attached to Indira Nagar police
station had gone to the spot and had made inquiries but he had not
recorded the statements of those police officers. He accepted that
station diary entry mentioning that Dagu Shelke had telephonically
informed that one person from Rajiv Nagar Zopadpatti was lying on
the road and he could have died. No further details were mentioned.
This witness was at the spot from 1.30 a.m. to 7.00 a.m. but he did
not recollect whether the first informant was present there. He had
recorded Dagu and Alka Shelke’s statement on 31.12.2017. The
accused No.1 was arrested on 29.12.2017 and the other accused were
arrested on 28.12.2017.
24. PW-16 API Anil Jagtap had conducted the spot
panchnama. According to him, the spot was shown by PW-1 Ramesh
Gaikwad. He informed the Forensic Science Laboratory team who
collected the blood samples.
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In the cross-examination, he deposed that there were
about 1500 to 2000 huts in Rajiv Nagar Zopadpatti. He was at the
spot till the morning. For five hours the spot panchnama was not
conducted. During those five hours, the local residents gave
information about the incident, but, he did not take down anything in
writing.
25. PW-17 was the last witness examined by the prosecution.
He was API Sunil Bodake. He had gone to Civil Hospital, Nashik and
supervised the inquest panchnamas.
26. Apart from this evidence, the prosecution produced the
C.A. reports on record. The C.A. report at Exhibit-168 shows that
there was blood of ‘O’ group on the clothes of the accused No.1.
Similarly there was blood of ‘O’ group on the clothes of both the
deceased. No blood was detected on the clothes of the other accused.
The blood was detected on the knife but the blood group was
inconclusive.
. This, in short, is the evidence led by the prosecution.
27. Shri Salunkhe, learned counsel appearing for the accused
No.4 Nitin Pandit made the following submissions:
i. The evidence of the eye witnesses is not consistent.
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ii. A specific role is not attributed to the accused No.4 Nitin Pandit.
iii. There is delay in registering the FIR. The incident had taken
place at about 11.00 p.m. in the night and the FIR was lodged at
about 4.52 a.m.. No explanation is offered as to why it was
lodged belatedly though PW-1 was present in the Civil Hospital.
PW-1 himself had stated that he had gone to the police station
at about 1.00 a.m. Therefore, the FIR should have been lodged
immediately. The delay in lodging the FIR indicates
afterthought, deliberation and false implication.
iv. The conduct of the eye witnesses is unnatural. Neither of the
eye witnesses who were either the relatives or friends of the
deceased tried to save the deceased from the assault. They had
not taken the deceased to the hospital except PW-8’s wife but
she does not refer to the name of PW-1 as the person
accompanying them in the rickshaw. PW-8 had allegedly called
the police station in the night itself and disclosed details of the
incident. As deposed by PW-15, PW-8 has himself denied this
fact. PW-8 was residing in the same locality, but, his statement
was not recorded immediately. His statement was recorded only
on 31.12.2017. No explanation is offered as to why his
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statement was not recorded immediately. Even the statements of
PW-9 and PW-10 were recorded much later on 2.1.2018. There
is no explanation offered and only in those statements specific
roles are attributed to the other accused and to accused No.4 as
an afterthought.
v. There was no recovery at the instance of accused No.4. No blood
was found on his clothes.
vi. There was no motive for him to commit the murder or take part
in the assault. He had no enmity with the deceased.
vii. Section 149 of the IPC is wrongly applied. There was neither
knowledge nor common object as far as the accused No.4 is
concerned with the other accused. The accused had come to the
spot in a rickshaw and they were not carrying any weapons.
Therefore, there cannot be a common object of an unlawful
assembly to commit the murder of the deceased.
viii. There are two different versions given by PW-1 on one hand and
PW-9 & PW-10 on the other. Therefore, there is no consistency.
In such a case, benefit of doubt must be given to the accused.
28. Learned counsel Smt. Anjali Patil appearing for the
accused No.1 Ravi Nikalje made the following submissions:
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i. There was delay in lodging the FIR.
ii. Her submissions were similar to that of the learned counsel Shri
Salunkhe as far as registration of FIR is concerned. She added
that the police station was very near from the spot of incident. It
was hardly at a walking distance of five minutes from the spot of
incident and that the FIR was lodged after about five hours.
iii. There was no motive brought on record by the prosecution.
There is no investigation as to from which hut the weapons were
brought. The police had ample opportunity to carry out the
investigation from that angle. The accused were arrested soon
enough. The evidence of PW-1 on one hand and PWs-8,9 and 10
on the other is directly contrary. PWs-8,9 and 10 did not speak
about the presence of PW-1.
iv. PW-1’s conduct was unnatural. He had not told anything to
anybody in the hospital. PW-1’s case was that he was in the
rickshaw when Devidas was taken to the hospital. PW-8 does not
support this case, as according to him only PW-8’s wife had
taken Devidas to the hospital. The statements of eye witnesses
are recorded much belatedly.
v. There is inconsistency in the evidence of PW-9 and PW-10
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regarding how they met each other before reaching the spot.
Their third friend Abhishek Shirsat who was an important
witness was not examined.
vi. The clothes of the accused were already in the police station.
They were not seized from their person in presence of the
panchas when the accused were arrested on 28.12.2017 and
29.12.2017. The accused No.1 was arrested on 29.12.2017 and
there is no explanation as to why their clothes were seized on
31.12.2017. The clothes were sent to FSL belatedly on
9.1.2018.
vii. The evidence of recovery of weapon is not trustworthy. The
pancha was given information one day prior to the recovery.
Therefore, it indicates that the statement given by the accused
No.1 may not be voluntarily.
viii. The weapon was recovered from an open place which was
accessible to all. The weapon was sent to the doctor for
examination. That time, the seal was removed and then it was
resealed; but there is no explanation why there was no fresh
panchnama in that behalf. The carrier of the knife was not
examined. The knife was sent to FSL on 28.1.2018.
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29. Shri Vagal, learned counsel appearing for the accused
No.2 Dipak Wavhal made similar submissions and added that no
specific role is attributed to the accused No.2 Dipak by anyone. PW-8
has also not assigned any role to him. Though PW-9 and PW-10 have
assigned a specific role to the accused No.2, but their statements are
recorded belatedly and, therefore, involvement of the accused No.2 is
clearly an afterthought. No independent witness from the locality is
examined.
30. Learned counsel Shri Keshav Chavan appearing for the
accused No.3 Krushna Shinde adopted the same submissions of the
other learned counsel. He emphasized that there was delay in lodging
the FIR. There was no motive for the accused No.3 Krushna to take
part in the assault. There was no recovery at his instance though
allegedly he had brought a weapon from the hut. His clothes do not
show presence of blood.
31. Shri Kalantri, learned counsel appearing for the accused
No.5 Akash alias Bablu Dambale adopted the submissions made by the
other learned counsel for the other accused.
32. On the other hand, learned APP as well as learned counsel
for the father of the deceased submitted that the case is based on the
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evidence of four eye witnesses. Their evidence on major aspects is
consistent. It is not necessary that every eye witness has to mention
the presence of the other eye witness. PW-1 had suffered injury while
trying to run away and, therefore, the injury indicates that he was a
truthful witness. The description given by the eye witnesses is
corroborated by the medical evidence. All the accused had come at
the spot in the same rickshaw. Devidas was the target. The weapons
were kept ready at some place from where they were brought and
Devidas and Dinesh were assaulted. Therefore, it is a clear case of
commission of offence with common object. They submitted that since
Section 149 of IPC is attracted, it is not necessary to describe a specific
overt act vis-a-vis a particular individual accused.
33. We have considered these submissions. The most
important aspect in this case is the evidence of the eye witnesses. As
far as PW-8 is concerned, he himself had deposed that when he came
near the spot, Devidas was already lying in a pool of blood and Dinesh
was being assaulted. He has not attributed any specific role to any of
the other accused except the accused No.1 Ravi Nikalje. His evidence
is corroborated by the medical evidence. Therefore, his evidence can
be used only against the accused No.1 Ravi Nikalje. He has made a
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general statement that 5-6 persons assaulted Dinesh but he has given a
specific role to the accused No.1 Ravi. He has deposed that the
accused No.1 Ravi had caught Dinesh’s hair and assaulted him on his
neck. He has identified the accused No.1 and the chopper. He
identified the other accused persons in the Court. Beyond that he has
not deposed anything of significance. Importantly he has not deposed
about all the accused chasing PW-1 and then coming back to the spot
and continuing the assault on Devidas and Dinesh. To that extent his
evidence does not support PW-1’s version. He had made general
statement that all the accused were assaulting Dinesh. However, he
has not attributed any weapon to any of these accused. To that extent
there is important contradiction to his evidence and PW-1’s evidence.
Whether PW-1 was chased by all the accused is entirely in the
evidence of PW-1. Importantly, PW-8’s statement was recorded on
31.12.2017. He was a resident of the same area. There is absolutely
no explanation offered as to why his statement was not recorded
earlier. He had gone to the Civil Hospital and was there till 5.00 a.m..
He had seen the police in the Civil Hospital, but, he had not stated
anything to the police during that period. Even after returning home
he had not gone to the police station on his own. He had admitted
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that he had not given any information to the police on his own till his
statement was recorded on 31.12.2017. He had admitted that when
he had gone to the police station, by that time all the accused were
arrested. Because of all these factors, his evidence is less reliable than
the evidence of PW-1. His evidence does not fully corroborate the
evidence of PW-1.
34. PW-9 and PW-10 are the other two eye witnesses examined
by the prosecution. Their evidence has to be scrutinized carefully. Both
of them have deposed consistently. They were chance witnesses. They
were not residing in that area, but they had gone there to meet one
Ramesh Salve. PW-9 Santosh Kadam wanted to make some payment
and PW-10 had accompanied him. While they were waiting, they saw
that a quarrel was going on at a distance of 100 to 125 ft. Therefore,
they have not seen the incident from the time when the accused came
at the spot. They first saw the incident when the quarrel had already
started. They deposed that 5-6 persons were assaulting Dinesh and
Devidas. The CCL gave knife blow on Devidas’s stomach. They have
stated that the accused No.2 Dipak and the accused No.5 Akash alias
Bablu had caught Devidas. The accused No.1 Ravi Nikalje had
assaulted Dinesh on the back of his neck. Dinesh tried to run but he
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fell down. The accused No.3 Krushna and the accused No.4 Nitin had
caught him. All this description is absent from the evidence of PW-1.
All the eye witnesses’ evidence are consistent only about the role
played by the accused No.1 Ravi Nikalje and the CCL. As far as the
other accused are concerned, PW-9 and PW-10 have given particular
roles to them but PW-1 has not stated about the role played by each of
these accused. Admittedly PW-9 was a relative of the deceased and
PW-10 was a friend of both the deceased. The police statement of PW-
9 was recorded on 2.1.2018. From 28.12.2017 till 1.1.2018, he
himself had not gone to the police station to give information. PW-9
had seen the police at the spot for about 45 minutes. Even at that
time, he had not informed the police about the incident. PW-10 had
gone to Jalgaon, as his relative was serious and had returned on
2.1.2018. PW-9 was very much available in Nashik, but inspite of
having seen the incident and being a close relative and friend, they did
not give any information to police or anybody else. Their conduct
was quite unnatural. This assumes importance because the specific
roles were attributed to the accused Nos.2, 3, 4 & 5 only after their
statements were recorded. This clearly indicates that to rope in the
accused Nos.2, 3, 4 & 5, their statements were recorded belatedly. No
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explanation is offered.
35. The evidence of PW-8, PW-9 and PW-10 has to be tested
against the evidence of PW-1 who was also a friend of the deceased
but he had lodged the FIR and, therefore, he had not suppressed the
incident from the police or from anyone else. He was a natural
witness because he had reached the spot with both the deceased. They
were together from 10.30 p.m.. Therefore, the evidence of PW-1 is
important. His presence is also established through the injury
sustained by him, which is proved through the evidence of PW-12.
Thus, we find that PW-1’s evidence carries more weight.
36. As against that PW-8, PW-9 and PW-10 cannot be termed
as reliable witnesses. In that background, we have considered the
evidence of PW-1. PW-1 has stated that he was with both the
deceased. They ate pavbhaji around 10.30 p.m.. After that all three of
them came to Rajiv Nagar slum area at 11.00 p.m. on one motorcycle.
One rickshaw was in front of them. All the accused got down from
that rickshaw. Significantly, he has not stated that, at that time all the
accused or any one of them was carrying any weapon. They went near
Devidas and there was a quarrel between them and Devidas. Then the
CCL and the accused No.3 Krushna ran towards the zopadpatti and
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brought two weapons. Again, significantly, the accused No.3 Krushna
never used that weapon. PW-1 has never deposed that the accused
No.3 Krushna had assaulted Devidas with that weapon. The accused
No.1 Ravi assaulted Dinesh after taking that weapon from the CCL.
The weapon brought by Krushna was not used either by Krushna or by
anyone else. At least PW-1 has not stated so in his deposition.
Therefore, to that extent his deposition is incriminating only against
the accused No.1 Ravi Nikalje and the CCL.
37. As far as the other accused are concerned, he had made
general statement that the others had chased him with stones in their
hands. However, it is not his case that they had either pelted the
stones on him or on any of the deceased. While running he fell, got
up and looked back. He again made a general statement that the
persons chasing him went back to the place where Dinesh and Devidas
were and started assaulting both of them with weapons like sword and
sickle. This is a general statement. No specific name is mentioned in
that context. Therefore, the evidence against the accused No.1 and
other accused can be separated.
38. Though there is a criticism from the learned counsel for
the Appellants that there was delay in lodging the FIR, PW-1 has
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deposed that he had gone to the police station at about 1.30 a.m. and
he was there till 5.00 a.m.. Therefore PW-1 had informed the police
about the incident soon after the incident as he went to the police
station from civil hospital. He was there till 5.00 a.m.. During that
period, his FIR was taken down and it was actually registered at 4.52
a.m. on 28.12.2017. Therefore, we do not see any unexplained and
unreasonable delay in lodging the FIR. He was a natural witness. He
had seen the incident right from the inception. He is a reliable witness.
However, we find that he has not made any specific statement against
the accused Nos.2, 3, 4 & 5. The general statement made against them
is vague. To that extent, we are not inclined to accept his evidence as
far as the accused Nos.2, 3, 4 & 5 are concerned.
39. The learned Judge has applied Section 149 of IPC though
the accused Nos.2, 3, 4 & 5 are not attributed the specific role of using
weapons against either of the deceased. In this context, the sequence
of the events is important. According to PW-1, all the accused had
come to the spot in a rickshaw but as mentioned earlier, at that time,
neither of them was carrying any weapon. After they got down, a
quarrel took place. Therefore, it cannot be said that all the accused
had formed an unlawful assembly and had reached the spot with the
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common object of committing an offence. The quarrel took place at
the spot. The prosecution has not brought out any motive behind the
quarrel. Be that as it may, after the quarrel started, the CCL and the
accused No.3 Krushna went to the zopadpatti and brought the
weapons. Even at that point of time, it cannot be said that the others
had any knowledge or idea that the CCL and the accused No.1 would
assault Devidas and Dinesh on vital parts to commit their murder.
Immediately, the CCL had assaulted Devidas who had fallen down.
The accused No.1 had taken that weapon from the CCL and had
assaulted Dinesh on his neck. The attack was on vital parts. By that
time, none of the other accused can be attributed any knowledge or
common object regarding the role played by the accused No.1 Ravi
and the CCL.
40. In this context, a reference can be made to the judgment of
the Hon’ble Supreme Court in the case of Pandurang Kalu Patil and
another Vs. State of Maharashtra1. In this context, paragraph Nos.10 and
17 are important, which are as follows:
10. The gist of the prosecution case is the following:
There was a dispute between A-1 and the
father of the deceased over some landed property. The said
dispute made them enemies. This is the background of the
1 (2002) 2 SCC 490
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occurrence. While deceased Ramdas, and his brother PW 2
Narayan were proceeding to their village for taking lunch
around 1.30 P.M. on 29.6.1992 the assailants went in a jeep
and stopped just near the place of occurrence. All the
assailants alighted from the jeep. A-1, A-2 and A-3 had a
gun each with them. A-4 and A-6 had either a knife or a
sword with them. It is unnecessary to mention about the
weapons possessed by other persons. The assailants who
were armed with guns opened fire at the deceased as well as
PW 2. The deceased was then a few feet ahead of PW 2 and
both were running up presumably to escape from the chasing
assailants. Both of them sustained serious gun shot injuries,
though PW 2 did not succumb to them. But the deceased fell
down at the spot and died. Seeing this the assailants took to
their heals leaving the jeep remaining at the spot as a mute
remnant of the acts done by them.
xxxxx
xxxxx
17. But the position of A-4 and A-6 is different. Though
they had knives with them they had not chosen to do
anything. Even after the deceased fell down they did not
move forward to inflict even a scratch on him. They did not
do any harm to PW 2. There is nothing to indicate that they
new about the design of the other assailants. They were
acquitted by the trial court. The view taken by the trial court
on the facts of the case is reasonable and hence it was
impermissible for the appellate court to interfere with the
acquittal.”
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41. In the case before the Hon’ble Supreme Court, two of the
accused were carrying sharp weapons. The other accused were
carrying guns. The two accused carrying sharp weapons had not
chosen to do anything. Even after the deceased fell down, they did
not move forward to inflict even a scratch on him. There was nothing
to show that they knew about the design of the other assailants.
42. Therefore, the Hon’ble Supreme Court gave them benefit
of doubt and they were acquitted. The other accused were convicted
under Section 302 read with Section 34 of IPC instead of Section 302
read with Section 149 of IPC.
43. The same principle can be applied in the facts of the
present case. PW-1 has not given clear and cogent evidence regarding
the roles played by the accused Nos.2, 3, 4 & 5. They had not used any
weapon to assault the deceased. There is a general statement that
they were assaulting the deceased with weapons like sword and sickle;
but those four accused i.e. the accused Nos.2, 3, 4 & 5 were not even
carrying any weapon when they came at the spot. The weapons were
used by the accused No.1 Ravi and the CCL. Therefore, the role of the
accused Nos.2, 3, 4 & 5 cannot be equated with the roles played by the
accused No.1 and the CCL. Similarly they cannot be roped in by using
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Section 149 of IPC. These four accused, therefore, deserve benefit of
doubt.
44. Apart from the evidence of eye witnesses, there is recovery
of clothes; but we are not inclined to place reliance on that evidence
because admittedly the clothes were kept in a carry-bag in the police
station. There is no linking evidence that the clothes were taken from
the person of the accused in the presence of the panchas. These
clothes cannot be directly connected with any of the accused including
the accused No.1. Therefore, that part of the evidence is not held
against any of the accused including the accused No.1.
45. As far as the recovery of the weapon is concerned, though
the pancha was called on 2.1.2018 and the recovery was effected on
3.1.2018, we do not find anything wrong in this approach of the police
because only when the accused would express his willingness to show
the place where he had concealed the weapon then the police can
swing into action to call the panchas. Therefore, in this case
accordingly, the panchas were called and on 3.1.2018 the accused
No.1 gave a statement before the panchas that he was willing to show
the place where he had thrown the weapon. He then led the police
and the panchas to that spot. Though, as submitted by the learned
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counsel, it was an open place accessible to all, however, it was near a
bank of river and it was not easily accessible to all. It was only the
accused No.1 who was aware where he had thrown the knife. Some
efforts were taken to search that knife and only then the knife could
be recovered. Therefore, recovery of knife at the instance of the
accused No.1 is an additional corroborative circumstance against the
accused No.1. Though the knife was sent to FSL and the carrier was
not examined, that itself does not mean that the knife was not
recovered at his instance. The CA report shows that there was human
blood but the blood group was not determined. In any case the fact of
recovery of knife at his instance from the place which was not easily
accessible is proved against the accused No.1.
46. As far as the Criminal Appeal preferred by the
parent/relative of the victims is concerned, no evidence is led to hold
that the offence under Section 135 of the Maharashtra Police Act is
made out. No case for enhancement of sentence is made out.
47. As a result of the above discussion, we are of the opinion
that the accused Nos.2, 3, 4 & 5 deserve benefit of doubt. The
conviction of the accused No.1 has to be altered from the one under
Section 302 read with 149 of IPC to Section 302 read with Section 34
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of IPC. Consequently he will have to be acquitted from the charge of
commission of offences punishable under Sections 143 and 148 of IPC.
48. Hence, the following order :
:: O R D E R ::
i. Criminal Appeal Nos.615/2023, 891/2023, 434/2023 &
422/2023 are allowed.
ii. The accused No.2 Dipak Datta Wavhal, the accused No.3
Krushna Dadaram Shinde, the accused No.4 Nitin Uttam Pandit
and the accused No.5 Akash alias Bablu Pandharinath Dambale
are acquitted from all the charges. The judgment and order
dated 14.2.2023 passed by the learned Additional Sessions
Judge, Nashik in Sessions Case No.198/2018 convicting and
sentencing them is set aside.
iii. They are on bail. They need not surrender. However, they shall
execute a P.R. bond in the sum of Rs.15,000/- (Rupees Fifteen
Thousand only) each before the trial Court to secure their
presence in case Appeal against acquittal is preferred, within a
period of one month from uploading of this order.
iv. The Appeal of the accused No.1 Ravi Gautam Nikalje is partly
allowed. It is clarified that the conviction under Section 302
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read with 149 of IPC is altered to conviction under section 302
read with 34 of IPC. He is sentenced to suffer imprisonment for
life and to pay a find of Rs.5000/- (Five Thousand Only) and in
default to suffer S.I. for six months. He shall be granted set off
under Section 428 of Cr.P.C..
v. The the accused No.1 Ravi Gautam Nikalje, the accused No.2
Dipak Datta Wavhal, the accused No.3 Krushna Dadaram
Shinde, the accused No.4 Nitin Uttam Pandit and the accused
No.5 Akash alias Bablu Pandharinath Dambale are acquitted
from the charges of commission of offence punishable under
Sections 143 and 148 of IPC. The sentence imposed on them for
commission of the offence punishable under Sections 143 and
148 of IPC is set aside.
vi. Criminal Appeal No.811/2023 is dismissed.
vii. With disposal of the Appeals, the connected Applications are also
disposed of.
(RANJITSINHA RAJA BHONSALE, J.) (SARANG V. KOTWAL, J.)
Deshmane (PS)
Digitally signed 40 of 40
by
PRADIPKUMAR
PRADIPKUMAR PRAKASHRAO
PRAKASHRAO DESHMANE
DESHMANE
Date:
2026.09.29
18:03:46 +0530
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