Bombay High Court
SANTOSH VIJAY PAGAREversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Dismissed
Holding
The convictions under Sections 302, 143, 147, 148 r/w 149 and 120B IPC are upheld and the appeals are dismissed.
Summary
The accused were convicted for the murder of Kiran Nikam under Sections 302, 143, 147, 148 r/w 149 and 120B of the IPC, receiving life imprisonment and fines. On appeal, they challenged the reliability of eye‑witnesses, the delay in filing the FIR, the admissibility of defence CCTV and photographic evidence without a Section 65B certificate, the alibi defence, and the recovery of weapons after two months. The Court examined the testimony of multiple eye‑witnesses, the post‑mortem report, and the CA report, finding the witnesses credible and the prosecution evidence sufficient. It held that the defence digital evidence was inadmissible without the statutory certificate and that the alibi was not proved. Consequently, the Court upheld the trial court’s findings, affirmed the convictions and sentences, and dismissed all the appeals.
Issues considered
- The prosecution proved the murder beyond reasonable doubt despite alleged delays and witness credibility issues.
- The admissibility of defence CCTV and photographic evidence without a Section 65B certificate.
- The sufficiency of alibi evidence presented by the accused.
- The relevance of motive and the recovery of weapons after two months.
- The impact of the delay in filing the FIR and recording statements on the reliability of witnesses.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 313, 428, 65B
- Indian Evidence Act, 1872 — s. 65B
- Indian Penal Code, 1860 — s. 120B, 143, 147, 148, 149, 302
- Maharashtra Police Act — s. 135
Subjects
- murder
- homicide
- IPC
- life imprisonment
- appeal
- eyewitness testimony
- alibi defence
- digital evidence
- Section 65B
- motive
- weapon recovery
- set‑off
- compensation
Judgment
Gokhale 1 of 52 APEAL-701-23+ (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 701 OF 2023
Santosh Vijay Pagare ..Appellant
Versus
The State of Maharashtra ..Respondent
WITH
CRIMINAL APPEAL NO. 762 OF 2023
1. Ganesh Ashok Ughade
2. Santosh Ashok Ughade ..Appellants
Versus
The State of Maharashtra & Anr. ..Respondents
WITH
CRIMINAL APPEAL NO. 1254 OF 2023
Jitesh @ Bandu Sampat Murtadak ..Appellant
Versus
The State of Maharashtra ..Respondent
__________
Dr. Yug Mohit Chaudhary a/w. Mr. Anush Shetty for Appellant in
Appeal No.701 of 2023.
Dr. Yug Mohit Chaudhary a/w. Mr. Anush Shetty and Ms. Shraddha
Sawant for Appellant in Appeal No.762 of 2023.
Mr. Aniket Vagal a/w. Ms. Savvy Kolhekar for Appellant in Appeal
No.1254 of 2023.
Ms. Gauri S. Rao, APP for State/Respondent.
Mr. Akshay Bankapur for Intervenor in all Appeals.
__________
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2026.09.01
12:44:03
+0530
2 of 52 APEAL-701-23+ (J)
CORAM : SARANG V. KOTWAL &
RANJITSINHA RAJA BHONSALE, JJ.
RESERVED ON : 19 AUGUST 2026
PRONOUNCED ON : 01 SEPTEMBER 2026
JUDGMENT : (PER SARANG V. KOTWAL, J.)
1. All these Appeals are decided by this common Judgment
as they arise out of the same impugned Judgment and order. For
convenience, the Appellants are referred to as accused as per their
status before the Trial Court.
The Criminal Appeal No.762 of 2023 is preferred by
the original Accused No.1 Ganesh Ughade and the original
Accused No.5 Santosh Ughade.
The Criminal Appeal No.1254 of 2023 is preferred by
the original Accused No.2 Jitesh Murtadak.
The Criminal Appeal No.701 of 2023 is preferred by
the original Accused No.3 Santosh Pagare.
2. Heard Dr. Yug Mohit Chaudhary, learned counsel for
the Appellants in Criminal Appeal No.701 of 2023 and Criminal
Appeal No.762 of 2023, Mr. Aniket Vagal, learned counsel for the
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Appellant in Criminal Appeal No.1254 of 2023, Ms. Gauri Rao,
learned APP for the State and Mr. Akshay Bankapur, learned
counsel for the Intervenor in all Appeals.
3. The Accused-Appellants faced the trial before the
learned Additional Sessions Judge, Nashik, in Sessions Case
No.261 of 2017. Vide the Judgment and order dated 09.05.2023
all of them were convicted and sentenced as follows:
All of them were convicted for commission of the
offence punishable under Sections 302, 143, 147, 148 r/w. 149
and under section 120B of the IPC. They were sentenced to suffer
imprisonment for life and to pay a fine of Rs.10000/- each and in
default of payment of fine to suffer S.I. for six months each, for the
offences punishable under sections 302, 120B r/w. 149 of the IPC.
The Appellants-Accused were acquitted from the
charges of commission of the offence punishable U/s.135 of the
Maharashtra Police Act.
Along with the Appellants, there were two more
accused i.e. the Accused No.4 Sagar Jadhav and the Accused No.6
Jayesh @ Jaya Dive who had faced the trial, but those two accused
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were acquitted from all the charges.
The Appellants were granted set off U/s.428 of the
Cr.PC.
The wife of the deceased was given liberty to approach
the District Legal Services Authority, Nashik for appropriate
compensation as per rules.
4. The prosecution case, in brief, is that the Accused were
having previous enmity with Kiran Nikam-the deceased in this
case. On 18.05.2017 at about 10:00 p.m. Kiran was returning
home after purchasing cooking oil. He was intercepted near his
house by the Accused. He was assaulted with sharp weapons. He
was assaulted brutally causing about 101 injuries. The incident
was witnessed by a few eye witnesses including a cousin and the
wife of Kiran. After the Accused left the place, the police reached
the spot; by then, Kiran had died. He was taken to the hospital, but
he was declared dead. The FIR was lodged by Kiran’s cousin Nitin
Pagare vide the C.R.No. I-201 of 2017 at Panchavati police station;
at 3:50a.m. on 19.05.2017. The investigation was conducted. Two
accused namely Vikas @ Vicky Punjabi and Anupkumar @ Chhotu
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Kanojia were absconding. The Accused were arrested on different
dates. Various panchanamas were conducted. The postmortem was
conducted on the dead body. Two sickles and clothes were
recovered at the instance of the Accused No.5 Santosh Ughade on
18.07.2017. The seized articles were sent for the chemical
analysis. At the conclusion of the investigation, the charge-sheet
was filed and the case was committed to the Court of Session.
5. During trial, the prosecution examined sixteen witnesses
including the eye witnesses, the Medical Officer, the Panchas and
the Investigating Officers. Three defence witnesses were examined
by the Accused No.2 Jitesh, and two defence witnesses were
examined by the Accused No.3 Santosh Pagare. The defence
witnesses were examined to establish alibi of these two accused.
6. The learned Judge relied on the evidence of the eye
witnesses. He did not believe the defence witnesses and the
defence of alibi. The defence of the Accused Nos.1 and 5 was of
total denial. The learned Judge also relied on the evidence of
recovery. Based on these reasons, the learned Judge convicted and
sentenced the Appellants as mentioned earlier. He acquitted the
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other two accused because their names were mentioned by the
witnesses subsequently in their supplementary statements, and not
in their original statements.
7. PW-1 Nitin Pagare was an eye witness. He had lodged
the FIR in this case. He was the maternal cousin of the deceased.
He deposed that Kiran and Kiran’s brother Shekhar were his
maternal cousins. Both of them were residing behind Shani
Mandir, Peth road. On 18.05.2017 at 10:00p.m. he had his dinner
and he was going to meet his aunt at Navnath Nagar, Panchavati.
He reached there at about 10:15 p.m. He saw his cousin Kiran. He
was going ahead on his vehicle. The Accused No.3 Santosh Pagare
stopped him. The Accused No.3 Santosh Pagare, the Accused No.1
Ganesh Ughade, the Accused No.2 Jitesh Murtadak and the
Accused No.5 Santosh Ughade were having weapons like sickle
and they started inflicting blows on Kiran. Four more persons came
from the chowk; they included Accused No.4 Sagar Jadhav and the
two absconding accused Vicky and Chhotu. PW-1 deposed that, all
the accused were giving blows. They were exchanging weapons.
He could not tell how many blows were inflicted. The incident was
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going on for about five to seven minutes. He got scared and went
to PW-5 Archana’s house, which was at a distance about 25ft. away
from the spot. PW-5 Archana was on the terrace. PW-1 told her
about the incident. He deposed that, PW-3 Vikram had also seen
the incident and he had shouted at that time. Because of his
shouts, the accused fled away from the spot. After that, people
gathered there and Kiran was taken to the Civil Hospital. PW-1
also went to the Civil Hospital. He came to know that, Kiran had
died. He deposed that, he knew the Accused No.5 Santosh Ughade
and other accused prior to the incident, but he did not know the
cause of the incident. He deposed that, between 1:00 to 1:30a.m.
in the night, he had gone to Panchavati police station to lodge his
FIR. He identified the FIR. The FIR is produced on record at
Exhibit-89. He was shown two sickles in the Court. He identified
both those weapons. He correctly identified each of the Appellants-
accused by naming them. He further deposed that, after lodging
the FIR he had shown the spot to the police in the morning
between 6:30a.m. to 7:00a.m. On 01.06.2017, he again went to
the police station, as he recollected the names of the Accused No.4
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Sagar, Vicky and Chhotu. According to him, he was scared and,
therefore, he approached the police after a gap of time.
In the cross-examination, he accepted that, there could
be serious cases against Kiran and Shekhar. Shekhar was in jail
since past one year. Shekhar and Kiran were having vegetable shop
in the main market-yard, Nashik, Panchavati. He could not state as
to whether because of antecedents Shekhar and Kiran had many
enemies. PW-1’s house was at Mhasrul, Rajwada, Nashik. The
distance between his house and the spot was about four to five
kilometers. According to him, no other incident had taken place
before 10:15p.m. He could not give the description of the clothes
worn by the Appellants. He had not given the description of the
sickle and had not used the name of the weapon as ‘sickle’ in his
FIR.
However, in the FIR he had mentioned that Kiran was
assaulted by sharp weapons. He had not intervened in the assault
and had not called anyone else for help. He had not lifted the
injured and put him in the police van. The police reached at the
spot by 10:25p.m. It took about 5 to 10 minutes for the police to
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lift the injured and keep him in the van. During that time, he had
not disclosed about the incident and the names of the Appellants
to the police. Panchavati police station was the nearest of all the
police stations from the spot. Before lodging the FIR, he had no
occasion to go to Panchavati police station. There was a police
chowky at Civil Hospital. He had not given the information at that
police chowky. About 100 people i.e. the friends and the relatives
of the deceased had gathered at Civil Hospital. Kiran was brought
to the Civil Hospital before PW-1 reached there. PW-1 was at the
Civil Hospital till 1:30a.m. He had not informed about the incident
to the police at Civil Hospital. He reached Panchavati police station
at 3:00a.m. He had not informed the doctor about the assailants
and the weapons. About 50 persons could have gathered at the
spot of the incident. The distance from that spot to the Civil
Hospital was about three kilometers. The incident of assault had
taken place on the road. Kiran fell down on the road. The incident
took place in front of the house of Mr. Salve. It did not take place
in the varhanda of Mr. Salve. PW-1 did not go immediately to the
police station because he was in grief. He went to the police station
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at 3:30a.m. He admitted that, he had differences with the Accused
No.2 Bandu Murtadak and there were cases registered against
each other. But he added that, there was no case against him. He
knew all the accused from prior to the incident. Kiran was the son
of PW-1’s mother’s sister. PW-1 did not know regarding the nature
of offence against the deceased Kiran. For some days Kiran was in
jail. Kiran was a vegetable vendor and was working at market-
yard, Panchavati. When he went to his sister in law Archana’s
house, she was there with her two children. He reached the Civil
Hospital at 10:45p.m. He disclosed the names of the assailants to
his relatives. There was discussion about the names of the
assailants at the hospital itself. He knew PW-14 Vishal. He was a
close friend of PW-1.
The FIR was registered at 3:50a.m. on 19.05.2017 vide
the C.R.No. I-201 of 2017 at Panchavati police station. It
substantially corroborates his deposition. In the FIR he has
described the weapons as ‘sharp weapons’.
8. PW-5 Archana Nikam was the wife of the deceased. She
had seen the incident. She deposed that, she was residing with her
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husband and two sons at Yash Laxmi Nisarga Apartment,
Panchavati, Nashik. Kiran was selling vegetables. On 18.05.2017 at
2:00p.m. Kiran left for work on his Hero Duet two wheeler. It was
owned by Kiran’s cousin Nitin. Kiran returned back at about
6:00p.m. with milk. He again left the house for work. At about
9:30p.m., PW-5 went on the terrace with her younger son. She
played with him for some time and was looking at the road. It was
adjacent to their building. That road was going from Govind Mama
chowk towards Datta Nagar. She saw her husband coming from
Govind Mama chowk. He reached upto the house of Mr. Salve
which was 30ft away from PW-5’s building. Accused No.1 Ganesh
Ughade, Accused No.2 Bandu Murtadak, Accused No.3 Santosh
Pagare, Accused No.5 Santosh Ughade and others were present in
front of Salve’s house. They all stopped her husband. He parked
his motorcycle. All the accused were abusing him. Then they
started assaulting her husband repeatedly. They were exchanging
the weapons between them and assaulting her husband. She got
scared. She did not know what to do. She came back to her house.
She left her child alone in the house and she ran towards the
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house of Salve. The assailants ran away. She saw her husband
having suffered number of injuries all over his body. At that time,
her cousin PW-3 Vikram and maternal aunt Sarubai came there
and put a blanket on her husband. After some time, the police
came there. They put Kiran in police vehicle. She also went with
her husband. She deposed that, they were taken to a private
hospital. The Doctors declared him dead. The police had come to
her, but she was not in a position to talk with them. She was
disturbed. She did not leave her house for thirteen days as per the
custom. She came to know about the other three persons namely
Sagar, Vicky and Chhotu. When she was little stable, she went on
her own to the police station and gave her statement. She deposed
that, she could identify the assailants if shown to her. She deposed
that, four persons seen on the screen and one sitting in the dock
were the assailants. She further deposed that, about four months
prior to the incident, her deceased husband had some dispute with
the Accused No.5 Santosh Ughade. In this connection, a complaint
was lodged with Panchavati police station. That dispute was
settled. But when her husband used to go to the vegetable market,
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the Accused No.5 Santosh Ughade and his associates used to
threaten him. Her husband had told this fact to her. He had even
showed those persons to her on ‘Facebook’. According to her, he
had shown those accused when the accused were passing on the
road in front of their building.
In the cross-examination, she stated that her building
was not immediately next to Salve’s house. Salve’s house was not
seen from her flat. She could not explain as to why her police
statement did not mention that the accused were exchanging the
weapons repeatedly or that the distance between her house and
Salve’s house was about 30 meters. She did not recollect whether
she had stated to the police that the Accused No.5 Santosh Ughade
and others used to threaten her husband and that he had shown
their faces on the Facebook, or he had pointed them out to her
when they were proceeding from near their building. She could
not tell whether there were criminal cases against her husband.
But she added that, in one of the offences she was an accused with
her husband. But she was acquitted from that case. She admitted
that, for many years her husband was in jail. Even on that day, her
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brother in law and her husband’s friends were in jail in connection
with MCOCA case. She could not tell exactly at what time the
police arrived at the spot. She herself did not pick up her husband
and place him in the police vehicle. While travelling in the police
vehicle, she did not give the information about the incident to the
police. She volunteered that, she was crying. She added that they
had gone to Civil hospital and not to a private hospital. She stated
that, she could have mistakenly stated in her deposition that they
had gone to a private hospital. When she met the police on the day
of the incident, she did not inform them about the incident. She
was not in a position to give answers. She went to the police
station on 05.06.2017 for the first time after the incident dated
18.05.2017. On the day of the incident, PW-1 Nitin met her on the
staircase. When she reached near the body of her husband, about
50 persons had gathered. There were blood stains on her clothes.
The police did not ask her to produce her clothes.
9. PW-14 Vishal Varule was an eye witness. He deposed
that on 18.05.2017, as he was suffering from acidity, he was going
towards Dr. Patil’s dispensary from Datta Nagar road, at about
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9:00p.m. He saw the accused No.1 Ganesh Ughade, Accused No.2
Bandu Murtadak, Accused No.3 Santosh Pagare, Accused No.5
Santosh Ughade, Vicky and Chhotu near Salve’s house. Accused
No.5 Santosh Ughade and Sagar Jadhav were having sickles in
their hands. Both of them assaulted Kiran. After that, Bandu
Murtadak, Santosh Pagare, Ganesh Ughade, Vicky Punjabi and
Chhotu took those sickles from them and assaulted Kiran. They
were shouting. Few of the assailants fled away on their
motorcycles and others ran away. Kiran was lying on the ground.
PW-3 Vikram put a blanket on Kiran. The police came there and
took Kiran’s body to Civil hospital. PW-14 knew the accused as
they were also working in the market-yard, Panchavati; as he
himself was a vegetable vendor at market-yard, Panchavati. He
deposed that, he could identify the accused. Initially, he made a
mistake in identifying the Accused No.5 Santosh Ughade, but he
corrected himself and then he correctly identified the accused No.5
Santosh Ughade. He identified both sickles produced in the Court.
After the incident, he had gone to the civil hospital. He had seen
PW-1 Nitin, PW-5 Archana and other relatives at Civil hospital. He
16 of 52 APEAL-701-23+ (J)
got scared and, therefore, he stayed in his house. He did not come
out for about ten days. After that, his statement was recorded.
Apart from his vegetable business, he was also a
Reporter. There was one case registered against him for assaulting
one Sushil Kakade. According to him, it was a false case. He could
not say whether the incident had taken place on the otta of
someone’s house. He could not recollect which clothes were worn
by the assailants. When he went to the hospital, he did not discuss
the incident with PW-5 Archana. After the tension subsided, he
thought of giving information to the police. He gave his statement
on 01.06.2017, that was about 13 days from the incident. He
explained that he was scared.
10. PW-3 Vikram Mhaske is another important witness.
Though, he had not seen the actual incident, but he had seen some
accused after the incident. He deposed that on 18.05.2017, he had
his dinner and had come out of the house at around 9:45p.m. He
was sitting near a shop at Govind Mama chowk. At about
10:00p.m., some persons passed from in front of him. He saw and
recognized the Accused No.5 Santosh Ughade as a pillion rider on
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one motorcycle. He was having one weapon with blood stains on
it. PW-3 could identify him because of the streetlight. He saw the
crowd gathered in front of Salve’s house which was around 30 feet
away from where he was sitting. He saw Kiran lying on the
ground. Kiran was the brother in law of PW-3 Vikram. There were
bleeding injuries on Kiran. He raised shouts and went to his house
and brought his mother to the spot. They brought one blanket and
put it on Kiran’s body. He saw his sister PW-5 Archana and PW-1
Nitin at the spot. His mother went to the hospital with Kiran’s
body. She told him that all the Appellants-accused had committed
that offence. During trial, he identified the Accused No.5 Santosh
Ughade on the screen. He deposed that, he could not identify the
weapon seen in the hands of the Accused No.5 Santosh Ughade.
In the cross-examination, he deposed that he knew the
Accused No.5 Santosh Ughade because he was working in the
vegetable market. He could not tell which clothes the Accused
No.5 Santosh Ughade was wearing on 18.05.2017. He could not
give the description of the other persons sitting on the motorcycle.
He did not tell the police that his sister was present and she was
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crying, and PW-1 Nitin was present there.
11. PW-13 Sachin Lokhande was doing vegetable business at
vegetable market-yard, Panchavati, Nashik. On 18.05.2017, after
taking dinner at about 9:30p.m. he went for a walk at Navnath
Nagar. He saw the Accused No.5 Santosh Ughade, Accused No.4
Sagar Jadhav, Accused No.1 Ganesh Ughade, Accused No.2 Bandu
Murtadak and Accused No.3 Santosh Pagare near Salve’s house.
The Accused No.3 Santosh Pagare and the Accused No.1 Ganesh
Ughade were waiting on the main road. They were looking at each
other and making some signs. PW-13 anticipated that there would
be a quarrel, therefore, he returned home. At about 11:00p.m. he
came to know that Kiran was murdered near Salve’s house. He
thereafter went to Mumbai as his grand-mother was not well. He
returned after 15 days. Then his statement was recorded. He
identified the accused by names before the trial Court.
In the cross-examination, he deposed that, till about
9:35p.m. he had not seen the accused. On that day he had gone to
the spot at about 11:45p.m. after the incident. He had not told the
police that he had gone to Mumbai because his grandmother was
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not well. He could not recollect whether he had told the police
that the Accused were making signs amongst themselves and he
had anticipated the quarrel.
12. PW-2 Kishor Mohite was a pancha for the inquest
panchanama which is produced on record at Exhibit-97. PW-7
Gaurav More was a pancha for different panchanamas. The
panchanamas produced on record at Exhibits-150 and 151 are not
important because the Accused No.5 Santosh Ughade had shown
the place where the accused had hatched the conspiracy, but
nothing was recovered or discovered as a result of his statement.
On 20.07.2017 the Accused No.4 Sagar Jadhav
produced the motorcycle. It does not concern the other accused.
On 27.07.2017 the Accused No.6 Jayesh Dive showed the place
where they had taken shelter after the incident. That also does not
concern the Appellants in this case. Therefore, evidence of these
witnesses is not very important.
13. PW-8 Ganesh Ghansham was present when the police
pasted prohibitory orders. PW-11 Nitin Tuplondhe had pasted the
prohibitory orders issued by the Deputy Commissioner of Police,
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Special branch. PW-10 Police Naik Dilip Bombade had carried the
muddemal articles to the laboratory.
14. PW-9 Dr. Anand Pawar had conducted the postmortem
examination. The postmortem report is produced on record at
Exhibit-172. There were 101 incised wounds all over the body. The
cause of death was mentioned as “combined effect of cranio-
cerebral damage due to sharp injuries to head and heamorrhagic
shock due to multiple stab injuries to neck, chest and abdomen
which are sufficient to cause death in ordinary course of nature
individually and collectively. All injuries are antemortem in nature,
fresh in duration.”
In the cross-examination, he deposed that, at the time
of postmortem, two sickles were not shown to him. The sickles
produced in the Court were curved in shape. There were no curved
shaped injuries on the dead body.
15. PW-4 Yogesh More was a pancha for the spot
panchanama which is produced on record at Exhibit-110. He
deposed about the spot panchanama conducted on 19.05.2017.
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The spot was shown by PW-1 Nitin. It was in the courtyard of
Shantabai Salve. There was blood on the ground. The police
collected the blood and the soil mixed with blood.
In the cross-examination, he accepted that, he was a
Reporter and on many occasions he had visited Panchavati police
station. He knew PW-1 Nitin prior to 19.05.2017. He admitted
that, in one of the photographs he was seen with the brother of the
deceased namely Shekhar. The photograph was taken at some
function. However, the spot of the incident is hardly in dispute. A
map is also produced. The photographs of the spot are on record.
16. PW-6 Sunil Khatri is an important witness. He was a
pancha for the recovery of clothes of the deceased, clothes of the
Accused No.1 Ganesh Ughade and for recovery of sickles and
clothes at the instance of the Accused No.5 Santosh Ughade. He
deposed that the blood stained clothes of the deceased were seized
under the panchanama on 19.05.2017. He identified those clothes
when produced in the Court. On the same day in the evening, the
Accused No.1 produced his clothes in the police station. After two
months i.e. on 18.07.2017 again he was called by the police. At
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that time, the Accused No.5 Santosh Ughade made a statement
that he will produce the weapon. The memorandum statement was
recorded. It is produced on record at Exhibit-138. PW-6 identified
Accused No.5 Santosh Ughade in the Court. The Accused No.5 led
the police and the panchas to Dream Castle. There was an open
ground in front of Balaji Heights. There were two electric poles.
The Accused No.5 Santosh Ughade dug the middle portion
between both the poles and took out one nylon bag. There were
two sickles. They were bent. There were clothes in the bag. The
articles were seized. The police seized the soil from that place. The
panchanama was prepared. It is produced on record at Exhibit-
139. PW-6 identified both the sickles produced in the Court.
In the cross-examination, he deposed that on
19.05.2017 in the morning when he reached the police station, the
clothes were kept on the table. He admitted that the clothes
produced in the Court previously belonging to the Accused No.1
Ganesh Ughade did not show any blood stains when they were
produced in the Court. On 18.07.2017, he went to the police
station after receiving a call at 11:30a.m. He spoke with the
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Accused No.5 Santosh Ughade for about 20 to 25 minutes. At that
time, he was behind the bars. He was tied with a rope and he was
handcuffed. He was removed from the lockup at 12:00p.m. He
explained that, in the panchanama it was not mentioned that the
Accused No.5 Santosh Ughade had buried those articles. However,
the panchanama mentions that the articles were taken out from
the spot where they were buried. The panchanama mentions that
the clothes worn by the Accused No.5 Santosh Ughade and the
Accused No.4 Sagar Jadhav were recovered under that
panchanama; besides the two weapons.
17. PW-12 Sunita Nikam was examined to show the previous
enmity between the parties. She deposed that on 03.01.2017, the
Accused No.5 Santosh Ughade and the Accused No.4 Sagar Jadhav
had assaulted one other Santosh who was working with this
witness. She had told about this quarrel to the deceased Kiran and
his brother Shekhar. She had lodged a complaint against the
Accused No.5 Santosh Ughade and the Accused No.4 Sagar Jadhav.
On 18.05.2017, at 10:30p.m. she heard the talks amongst the
vegetable vendors that Kiran Nikam was assaulted. She went to
24 of 52 APEAL-701-23+ (J)
the spot with her son Kunal and saw Kiran lying on the otta of the
house of Salve. She deposed that, four months prior to this
incident, there was a quarrel between the deceased Kiran and the
Accused No.5 Santosh Ughade. According to her, because of that
rivalry, the accused had committed murder of Kiran. She identified
all the accused present in the Court by their names. She accepted
that, she revealed the names of the accused to the police after 15
days from the incident.
18. PW-15 P.I. Kailas Wagh was one of the investigating
officers. He deposed that, he was entrusted with the investigation
in C.R.No. I-201 of 2017 on 24.06.2017. He arrested the Accused
No.5 Santosh Ughade on 13.07.2017. On 14.07.2017, he arrested
the Accused No.4 Sagar Jadhav. He supervised the recovery
panchanama of weapon and clothes at the instance of the Accused
No.5 Santosh Ughade on 18.07.2017. He recovered the motorcycle
at the instance of the Accused No.4 on 20.07.2017. He arrested the
Accused No.6 Jayesh Dive on 25.07.2017. On 04.08.2017, he
himself carried the seized muddemal articles to the Forensic
Science Laboratory (FSL), Dindori Road, Nashik.
25 of 52 APEAL-701-23+ (J)
In the cross-examination, he stated that he had not
collected the relevant station diary entry. He accepted that the spot
was in a crowded locality. He also accepted that the case diary did
not mention that there was terror of the accused in the locality
and, therefore, no witnesses were coming forward. He further
accepted that the deceased Kiran and his brother Shekhar were
habitual criminals. Shekhar was facing the offence under MCOCA.
There was terror of Shekhar in the vegetable market. One Zonwal
had taken down the FIR. He had carried out the spot panchanama
and the inquest panchanama. This witness had filed the charge-
sheet.
19. PW-16 PSI Mukhtar Shaikh had conducted the
investigation before PW-15 PI Wagh. PW-16 received the F.I.R., the
spot panchanama and the inquest panchanama. He visited the
spot. He deposed that there was atmosphere of fear. He recorded
the statements of a few witnesses. He arrested the Accused No.1
Ganesh Ughade. He seized the Accused No.1 Ganesh’s clothes. He
seized the clothes of the deceased. He recorded the supplementary
statement of PW-1 Nitin and PW-14 Vishal. He approached PW-5
26 of 52 APEAL-701-23+ (J)
Archana for recording her statement. She was scared. Her mental
condition was not proper, therefore, her statement was recorded
on 05.06.2017. Between 21.05.2017 to 28.05.2017 he was
assigned bandobast duty, therefore, during that period the
investigation was assigned to API Wagh; who had arrested the
Accused No.3 Santosh Pagare. After that, this witness again took
over the investigation. He arrested the Accused No.2 Bandu
Murtadak. His clothes were seized.
In the cross-examination, he deposed that, he had not
collected the station diary entry regarding the incident. One
Zonwal was on PSO duty on the night of the incident. According to
him, the deceased was lying on the platform of Salve’s house.
There were houses of Shankar Nalawade, Nana Nikam, Donde,
Changle and More near the spot. But he could not tell whether
there were entries in the case diary and station diary that those
persons were called as witnesses. He deposed that, whenever he
visited the spot, he did not find any witnesses. The first phone call
regarding the incident was made by an unknown person. He
proved the omissions from the police statement of the witnesses
27 of 52 APEAL-701-23+ (J)
which he had recorded.
20. Besides this evidence, the prosecution produced the CA
certificate at Exhibit-224. The CA certificate shows that no blood
was found on the clothes of the Accused No.1, Accused No.2 and
the Accused No.4. The blood group of the deceased was ‘B’ group
as found from his clothes. The blood found on the spot was
inconclusive for grouping. The CA report-Exhibit-224 shows that
the clothes of the Accused No.5 Santosh Ughade showed presence
of blood of ‘B’ group. Similarly, the clothes of the Accused No.4
Sagar Jadhav also showed presence of blood of ‘B’ group. Both the
sickles which were recovered showed presence of blood of ‘B’
group.
21. As mentioned earlier, the Accused No.2 Bandu Murtadak
and the Accused No.3 Santosh Pagare examined their own defence
witnesses. DW-1 Rupali Murtadak who was examined for the
Accused No.2 Bandu Murtadak was the wife of the Accused No.2.
She deposed that, Kiran’s murder took place at 9:00p.m. on
18.05.2017. At about 6:30p.m. the Accused No.2 Bandu Murtadak
i.e. her husband had gone to attend the marriage function of one
28 of 52 APEAL-701-23+ (J)
Chakor. She produced the wedding card before the Court. She
came to know about the murder at about 11:30p.m. Her husband’s
friend Nagesh Dargode (DW-2) came to her house and told her
about the same. He told her that the people in the area were
naming Accused No.2 Jitesh and, therefore, she should go
somewhere else along with her children. She told Nagesh that her
husband had gone to attend the marriage. Nagesh told her that he
had already informed about this fact to the Accused No.2 Jitesh
and, that DW-1 should leave the house with the children.
Therefore, she went in hiding with her children. On the third day
from the incident, Nagesh came to her house. Both of them went
to the police station and they came to know that the Accused No.2
Jitesh was not connected with the murder. Both of them then went
to Shubhechha Lawns where the marriage had taken place. They
met Chetan Wadhane who was the owner of Shubhechha Lawns.
He did not know the Accused No.2 Jitesh, but he offered to check
the CCTV footage. He showed the CCTV footage. DW-1 Rupali was
satisfied that her husband was present in the marriage ceremony.
She, therefore, asked Chetan to give the CCTV footage. He gave
29 of 52 APEAL-701-23+ (J)
the footage in two pen-drives. She submitted one pen-drive with
Panchavati police station and kept one with her. She produced that
pen-drive before the Court which she had with her. She further
deposed that, her husband was arrested on 28.05.2017. She
approached the Crime Branch Unit-1 asking about the pen-drive
given by her. She had given an application under the Right to
Information Act. She was informed that the pen-drive was filed
along with the charge-sheet. She produced the reply at Exhibit-D-
248/D-1, but she verified that the pen-drive was not filed with the
charge-sheet. She appealed against that order.
Learned Advocate for the defence submitted that the
pen-drive was provided by her before the Court, however, the Trial
Judge ruled that there was no certificate U/s.65B of the Evidence
Act and, therefore, the pen-drive was not played.
This witness was cross-examined by the learned APP.
She deposed that, the distance between her residence and Navnath
Nagar where the incident took place was half a kilometer. The
incident took place near an electric pole. The street lights were on.
On 18.05.2017, she had not met her husband. There was no
30 of 52 APEAL-701-23+ (J)
communication on the phone as well. From 18.05.2017 till
28.05.2017 she did not meet her husband and there was no
communication between them even on telephone. She had not
informed her husband that he was implicated in the crime. She did
not know whether her husband had quarreled with Kiran and
Shekhar. She admitted that, she did not know where the CCTV
footage was stored and as to how it was removed. She had
approached Chetan Wadhane for the CCTV footage on 20.05.2017.
She had no document to show that she had supplied the pen-drive
to the police. Exhibit-D-251 mentions that the Accused No.2 Jitesh
@ Bandu Murtadak was present at Shubhechha Lawns attending
the wedding from 19.51 hrs. to 21.42 hrs. However, as held by the
learned Judge, these timings are not proved through CCTV footage
as there was no certificate U/s.65B of the Evidence Act.
22. DW-2 Nagesh Dargude was also examined on behalf of
the Accused No.2 Murtadak. He corroborated the evidence of DW-
1 Rupali. His evidence is exactly on the same line.
In the cross-examination, he deposed that the distance
between the spot of the incident and Shubhechha Lawns is of half
31 of 52 APEAL-701-23+ (J)
an hour by two wheeler. He himself had not gone to Shubhechha
Lawns. To a specific question put to him, he could not answer as to
whom he had met at Shubhechha Lawns. He could not tell in
which form the CCTV footage was kept in the office. He had seen
the CCTV footage for two minutes.
23. DW-3 Chetan Wadhane, the owner of Shubhechha
Lawns, was also examined on behalf of the Accused No.2 Jitesh
Murtadak. He deposed that, he could not recollect whose marriage
took place on 18.05.2017. There were CCTV cameras. After two
days from 18.05.2017, two to three people had come to collect the
CCTV footage. They had collected two pen-drives.
In the cross-examination conducted on behalf of the
prosecution, he deposed that he did not recollect the names of
those two people. According to him, the CCTV footage of the
dining hall could have been collected. He did not keep the record
of the present CCTV footage.
24. The Accused No.3 Santosh Pagare also examined two
defence witnesses. DW-1 Varsha Pagare who was examined on
behalf of the Accused No.3 is his wife. She deposed that, on
32 of 52 APEAL-701-23+ (J)
18.05.2017, in the evening, there was marriage of one Satish
Sangle. Her husband left their house at 8:30p.m. to attend the
marriage. It was to take place at 10 to 11 kilometers away from
her house. Her husband returned home between 11:00 to
11:30p.m. He was apprehended by the police after 3-4 days from
that day in connection with murder of Kiran Nikam. She produced
the wedding card of that marriage. She had gone to the police
station along with the wedding card. She approached Ashok
Sangle, father of Satish Sangle asking for video footage,
photographs and CD of the marriage. With the help of her brother,
she took out the relevant footage wherein her husband was seen in
the marriage. It was taken on the pen-drive. She produced the
certificate U/s.65B of the Evidence Act along with the pen-drive
and the photograph. That certificate was signed by her.
However, it is quite clear that, she was not the person
who had kept that device where CCTV footage was captured and,
therefore, her certificate U/s.65B of the Evidence Act does not
carry any evidentiary value.
25. She further deposed that, she could identify the contents
33 of 52 APEAL-701-23+ (J)
of the pen-drive and photographs if shown to her. She identified
the photograph of her husband. The pen-drive was played in the
Court. She identified her husband. She admitted that, she had not
produced the pen-drive in the police station.
In the cross-examination conducted on behalf of the
prosecution, she admitted that she did not know the meaning of
‘downloaded’. She had not personally downloaded the contents of
CD. She admitted that the reference in the purported certificate
U/s.65B of the Evidence Act, that she had downloaded the video
recording from CD, was false. She had not personally used the
computer from which the contents of the CD were transferred.
26. DW-2 Ashok Sangle was the other defence witness
examined on behalf of the Accused No.3 Santosh Pagare. He
deposed that, his son’s marriage took place on 18.05.2017 at
Aurangabad road, Geetai Lawns. The marriage took place at
around 8:30p.m. to 8:45p.m. According to him, the Accused No.3
Santosh Pagare had attended the marriage. The marriage was
scheduled to take place on ‘goraj muhurt’. The marriage was video-
graphed and the photographs were taken. He identified the
34 of 52 APEAL-701-23+ (J)
photograph in which his son, his daughter-in-law and the Accused
No.3 were seen. The photographs are produced on record at
Exhibits262 and 263.
In the cross-examination, he deposed that the CD was
not ready in June 2017. He could not tell on which date the CD
was provided to DW-1 Varsha. It was kept with her for 2-3 days. It
was prepared by the photographer. He did not recollect the name
of the photographer. The photographs did not bear signature and
stamp of the photographer. The printouts of the photographs were
not taken by him. There could be approximately 1000 guests who
attended the wedding He could not tell the time at which the
guests attended the marriage ceremony. Only Accused No.3
Santosh Pagare from his family had attended the marriage. His
family had not attended the marriage. After the marriage was
performed, this witness was on the stage. He could not tell the
exact time when the Accused No.3 Santosh Pagare arrived and left.
This is the entire evidence led in this case.
SUBMISSIONS OF DR. YUG MOHIT CHAUDHARY, LEARNED
COUNSEL FOR THE ORIGINAL ACCUSED NOS.1, 3 AND 5:
27. Dr. Chaudhary submitted that, there were 101 injuries
35 of 52 APEAL-701-23+ (J)
on the dead body. Therefore, it is clear that the offence was
committed due to extreme hatred. In that case, it was necessary for
the prosecution to have established the motive behind the crime.
In the entire evidence, no such motive is brought on record to
support the theory of assault due to extreme hatred. In this case,
the motive is not established. Admittedly, the area was crowded.
The incident had taken place, according to the prosecution, at
10:00p.m., therefore, many people from the locality could be
present around that time. Yet no independent eye witness is
examined. All the eye witnesses were related to the deceased. They
were interested witnesses.
28. The FIR was lodged after about five hours and thirty
minutes. This delay is not explained. PW-1 Nitin had not named
the three accused i.e. the Accused No.2 Jitesh and two others in
his FIR. He had added their names in the supplementary
statement. The Accused No.4 Sagar Jadhav who was subsequently
named and the Accused No.6 Jayesh Dive were rightly acquitted
by the learned Judge. This indicates that, PW-1 Nitin had
implicated at least two accused falsely and, therefore, he is not a
36 of 52 APEAL-701-23+ (J)
reliable witness.
29. According to the prosecution case, PW-1 Nitin was
present at the spot. It does not explain his complete silence for
about five and half hours. He did not try to help the deceased.
Even after the assailants had left the spot, he had not even
provided water to the deceased. His conduct was, hence,
unnatural. PW-1 Nitin was carrying a phone and he could have
contacted the wife of the deceased i.e. PW-5 Archana over phone
instead of running to her house. He was a chance witness, residing
at four to five kilometers away from the spot of the incident. He
had not named the weapons in his FIR.
30. The statement of PW-5 Archana was recorded after 18
days. There is no explanation for not recording her statement
earlier. One case is pending against her. She does not appear to be
a weak lady and, therefore, there was no reason as to why the
police did not approach her in her house to record her statement.
Recording of her statement after 18 days shows that she had time
to concoct a false story after discussion with others. Her
identification of the Accused is not believable. She was not
37 of 52 APEAL-701-23+ (J)
knowing the accused. No test identification parade was conducted
to enable her to identify the accused.
31. PW-3 Vikram was a chance witness. The eye witnesses
have stated that the incident had taken place in front of Salve’s
house on the road. But the spot panchanama shows that the spot
of the incident was on otta of one Salve’s house. The blood is seen
on the wall and the otta of Salve’s house and not on the road.
Salve was an important witness, but he was not examined. PW-3
Vikram claims to have been sitting thirty feet away from the spot.
He ought to have seen the incident, but he has not described the
incident of assault.
32. The Accused Nos.2 and 3 led the evidence of alibi. Their
witnesses had approached the police at the first instance, but the
police had not investigated the case from that angle, and this has
caused prejudice to these accused. The evidence of the defence
witnesses has to be treated at par with the evidence of the
prosecution witnesses. If the evidence of the defence witnesses has
to be discarded because they were close friends and relatives,
and hence were interested witnesses; the same reasons should
38 of 52 APEAL-701-23+ (J)
apply equally to the prosecution witnesses who were the relatives
and hence were interested witnesses. The learned trial Judge erred
in ignoring the defence witnesses. It was too much to expect
production of the marriage certificate of the weddings which the
accused had attended.
33. The recovery of sickles after two months cannot be relied
on. The Accused No.5 Santosh Ughade was handcuffed and was
tied with the rope, hence, his memorandum statement was not
voluntary. The contents of the CA report were not put to the
accused No.5 Santosh Ughade at the time of his examination
U/s.313 of the Cr.PC. The inquest panchanama mentions different
sections from the FIR which would mean that the FIR was
manipulated.
34. Dr. Chaudhary submitted that the nature of injuries on
the dead body did not match with the sickle. The description of the
weapon shows that semicircular injury ought to have been caused,
but in this case, no such injury was found on the dead body.
35. Dr. Chaudhary relied on the following judgments in
support of his contentions:
39 of 52 APEAL-701-23+ (J)
i) Shaikh Mohammed Salim Karimullah and others
V. State of Maharashtra1. In this case, a Division
Bench of this Court has held that the attention of
the accused has to be drawn to the CA report to
seek his response, only then it could be held
against the accused.
ii) Ram Lal Narang V. State (Delhi Admn.) 2 It was
held that, it was the duty of the police officers to
investigate into the alibi of the accused.
iii) State of U.P. Versus Babu Ram3 It was held that
the defence witnesses are entitled to equal
treatment with the witnesses of the prosecution.
SUBMISSIONS OF MR. ANIKET VAGAL, LEARNED COUNSEL FOR
THE ACCUSED NO.2.
36. Mr. Vagal, learned counsel for the Accused No.2 adopted
the arguments of Dr. Chaudhary, learned counsel for the Accused
Nos.1, 3 and 5. In addition, he emphasized that, there was no
motive for the Accused No.2 to commit murder. He submitted that,
it was very unusual for the Accused to exchange the weapons and
to assault the deceased turn by turn. All the witnesses were
interested witnesses. No independent witnesses were examined.
1 1998 CRI.L.J. 3170
2 AIR 1979 SUPREME COURT 1791
3 (2000) 4 Supreme Court Cases 515
40 of 52 APEAL-701-23+ (J)
The supplementary statement was recorded only to attract Section
149 of the IPC, so that, mere presence of the accused could be held
punishable U/s.302 of the IPC. There is variance in the time of the
incident. There was no recovery at the instance of the Accused
No.2. There was delay in recording the statement of PW-5
Archana. The time mentioned by PW-14 Vishal is different from the
time of the alleged incident.
SUBMISSIONS OF MR. AKSHAY BANKAPUR, LEARNED COUNSEL
FOR THE INTERVENOR.
37. Mr. Bankapur made submissions on behalf of the wife of
the deceased. He invited our attention to the map of the incident
and also to the photographs. He submitted that, Salve’s house was
on the road. The otta was only a small elevation. It was not of
some height where steps were required to climb it. Therefore, the
deposition of the witnesses that the incident had taken place on
the road, is correct.
38. PW-3 Vikram and PW-5 Archana were residing in the
same locality. The deceased Kiran and PW-5 Archana were residing
very near to the spot of the incident. PW-1 Nitin has mentioned the
presence of PW-3 Vikram, in his FIR. PW-1 Nitin has described the
41 of 52 APEAL-701-23+ (J)
weapons as sharp weapons and there is nothing wrong in the
description. The injuries were caused with sharp weapons. In the
inquest panchanama, the C.R. number is correctly mentioned.
39. PW-5 Archana could give her statement only after the 13
days rituals were over; which was not unusual. She was on the
terrace. She was a natural witness. There is no fault in her
identification of the Accused in the Court. PW-14 Vishal had given
his police statement after 10 days, but he has explained that he
was scared because of the incident. It was not unnatural. He could
give the statement only after the Accused No.1, 3 and 4 were
arrested. PW-14 Vishal has also deposed about the presence of
PW-3 Vikram at the spot. PW-12 Sunita Nikam has given the
background of enmity. Even DW-2 Nagesh for the Accused No.2
had admitted enmity between two groups. PW-13 Sachin has
deposed about the prior movement of the accused showing their
pre-plan to commit the murder.
40. Considering the brutality, no one else would come
forward and, therefore, no independent witnesses could be
examined.
42 of 52 APEAL-701-23+ (J)
41. As far as, alibi is concerned, Mr. Bankapur submitted
that the defence witnesses examined by both the accused i.e. the
Accused Nos.2 and 3 were not with them when they had attended
those different weddings. No other person attending those
weddings was examined. In any case, the distance from the venues
of those weddings was not very far from the spot of the incident.
The evidence of DW-1 Rupali for the Accused No.2 shows that, the
last frame was at about 9:42p.m. In any case, it was quite possible
for the said accused to leave that venue and come to the spot at
the time of the incident. The evidence of DW-2 Ashok for the
Accused No.3 shows that the marriage was only upto 8:45p.m.
Mr. Bankapur submitted that the recovery of weapons and the
clothes was not from an open space. This is an additional
circumstance. The CA report was shown to the Accused No.5
Santosh Ughade at the time of his examination U/s.313 of the
Cr.PC. Considering the number of injuries, it was quite possible
that those accused assaulted the deceased with sickles turn by
turn. The Medical officer has accepted that the injuries were
possible by the same weapons.
43 of 52 APEAL-701-23+ (J)
SUBMISSIONS OF MS. GAURI RAO, LEARNED APP FOR THE
STATE:
42. Learned APP reiterated the submissions made by Mr.
Bankapur. She submitted that the wedding card in the defence
evidence shows goraj muhurat. It was evening and sunset time.
The incident had taken place after 10:00p.m., therefore, the
evidence of alibi does not help the defence. The nature of injuries
depends on the manner of assault.
RESPONSE BY DR. YUG MOHIT CHAUDHARY, LEARNED
COUNSEL FOR THE ORIGINAL ACCUSED NOS.1, 3 AND 5:
43. In response to the submissions of the learned APP and
Mr. Bankapur, Dr. Chaudhary submitted that, the 13 th day from the
date of the incident was over on 31.05.2017 and the statement of
PW-5 Archana was recorded on 05.06.2017. In between, the I.O.
had gone to her house. There was no explanation as to why her
statement was not recorded prior to 05.06.2017. PW-1 Nitin has
admitted that the Accused No.2 Bandu Murtadak had filed cases
against him. The charge-sheet shows that the statements of other
witnesses were recorded, but they were not examined during trial.
Therefore, adverse inference needs to be drawn.
44 of 52 APEAL-701-23+ (J)
REASONS AND CONCLUSION
44. The prosecution has examined PW-1 Nitin, PW-5
Archana and PW-14 Vishal as the eye witnesses to the incident.
PW-1 Nitin is the most important witness in this case. The
deceased was his cousin. PW-1 Nitin had deposed that, after
dinner, he had gone to Navnath Nagar, near the spot of the
incident to meet his Aunt. He reached there at 10:15p.m.
Therefore, though Dr. Chaudhary branded him as a chance
witness, he was not an unnatural witness. He had sufficient reason
to go to that area. He was knowing all the accused by names. He
saw the actual incident of assault on the deceased at the hands of
all the accused. Considering that the accused had inflicted as many
as 101 injuries, it was not unnatural that he would get extremely
scared and would run towards the house of the deceased which
was very near to the spot of the incident. We do not find force in
the submissions of Dr. Chaudhary that PW-1 Nitin could have made
a phone call to the wife of the deceased. If the house of the
deceased was hardly a few steps away, PW-1’s conduct was natural
that he would run to the house to take shelter and to inform the
45 of 52 APEAL-701-23+ (J)
wife of the deceased. We do not find anything unnatural in his
conduct.
45. PW-5 Archana herself has deposed that PW-1 Nitin met
her on the staircase. She was on the terrace. This answer was
given by her in paragraph-16 of her deposition in the cross-
examination conducted on behalf of the Accused No.3. The
defence itself has elicited this answer from PW-5 Archana. PW-1
Nitin in his FIR has described that the deceased was assaulted by
sharp weapons carried by the accused. His FIR was registered at
3:50a.m. on 19.05.2017 at Panchavati police station. He had gone
to the Civil hospital. We do not find any delay in lodging of the FIR
or delay in PW-1’s informing to the police about the incident. Thus,
we find that, he is a wholly reliable witness. Just because he had
not lifted the deceased and put him in the police van that cannot
be held against him. After suffering 101 incised wounds, there was
no chance that the deceased could have survived. PW-1 Nitin was
in the Civil Hospital till 1:30a.m. and he had not informed about
the incident to the police at Civil Hospital. But then he went to
Panchavati police station. The distance between Panchavati police
46 of 52 APEAL-701-23+ (J)
station and Civil Hospital is about 3 to 4 kilometers. He had gone
to the police station at 3:00a.m. in the night and then his FIR was
registered. We do not find any unexplained delay in registration of
the FIR.
46. PW-1 Nitin’s evidence is supported by PW-14 Vishal
Varule. On 18.05.2017 in the night, at about 9:00p.m. he was
going to Dr. Patil’s Dispensary. When he reached near Salve’s
house, he saw the accused standing there having weapons in their
hands. He saw the actual incident of assault. He deposed that, he
knew the accused persons from earlier as they were also working
in the market-yard. Though, initially, he made a mistake in
identifying the Accused No.5 Santosh Ughade, he corrected
himself and then rightly identified the Accused No.5 Santosh
Ughade. He identified the Accused No.2 Jitesh correctly. The
criticism of his evidence was that, his police statement was
recorded after 10 days. He has explained that he was scared. He
was afraid because of the circumstances. He had stayed in his
house and did not leave the house. Therefore, his statement was
recorded after ten days. His evidence corroborates the main
47 of 52 APEAL-701-23+ (J)
evidence of PW-1 Nitin.
47. PW-5 Archana is another eye witness. She was residing
very close to the spot of the incident. She was on the terrace with
her younger child. She saw her husband approaching their house
and on the way, this incident had taken place. She had seen the
incident. Dr. Chaudhary criticized her evidence because her
statement was recorded after 18 days. Her deposition shows that
she was not knowing the accused very well before the incident.
She has deposed that, her husband had shown the accused on
Facebook and had pointed them out when they were passing on
the road in front of their building. Therefore, her identification of
the accused is not very clear. The test identification parade was not
held. However, it cannot be said that she had not seen the incident
or that she was not in a position to see the incident. She was on
her terrace. She could easily see the incident. Her presence on the
terrace was most natural and, therefore, to that extent, her
evidence is acceptable. She cannot be termed as a totally
unreliable witness. To that extent she had corroborated the
evidence of PW-1 Nitin. She has also deposed that, as mentioned
48 of 52 APEAL-701-23+ (J)
earlier, PW-1 rushed to her house and met her on the staircase. She
definitely corroborates the evidence of PW-1 Nitin.
48. Apart from these witnesses, the prosecution has also
examined PW-3 Vikram. He was a natural witness. He was residing
in the same area. He was the brother in law of the deceased and
cousin of PW-5 Archana. At about 10:00p.m. he had seen the
Accused No.5 Santosh Ughade going away on a motorcycle. He
was a pillion rider and was carrying a blood stained weapon. This
witness was sitting near one shop which was about 30 feet away
from the spot. He had seen the crowd gathered in front of Salve’s
house and, therefore, he went there. He saw his brother in law
Kiran lying on the ground. He went back to his house, informed his
mother, brought one blanket and put it on Kiran. His mother
accompanied Kiran to Civil Hospital. He fairly deposed that, it
would be difficult for him to identify the weapon in the Court. This
witness has not unnecessarily roped in all the accused. He has
stuck to his limited story. He had only described the Accused No.5
Santosh Ughade going away from the spot. He had not seen the
actual incident, though, it had taken place in the vicinity of the
49 of 52 APEAL-701-23+ (J)
shop where he was sitting. There is no specific cross-examination
as to whether the spot of the incident was visible, or there were
other shops in between where he was sitting and the spot of the
incident. He has deposed that the shop where he was sitting was at
Govind Mama chowk. Thus, the evidence of PW-3 Vikram also
corroborates the evidence of PW-1 Nitin, to this extent. PW-3
Vikram does not appear to be a witness who was giving false
evidence. PW-13 Sachin Lokhande’s evidence also lends
corroboration as he had seen the accused at the spot before the
incident.
49. Thus, we find that PW-1 Nitin is a wholly reliable
witness and his evidence is corroborated by PW-3 Vikram, PW-5
Archana and PW-14 Vishal. In view of this direct evidence, the
motive pales in comparison.
50. As far as, the recovery is concerned, we find force in the
submission of Dr. Chaudhary that it was effected after two months
from the incident. The accused was tied with a rope and was
handcuffed.
The evidence of recovery does not inspire confidence in
50 of 52 APEAL-701-23+ (J)
this case and, therefore, we are ignoring that evidence.
51. The evidence of PW-9 Dr. Anand shows that he had
examined the weapons and, according to him, the injuries
mentioned in the postmortem report were consistent with the use
of those weapons. Therefore, though in the cross-examination he
deposed that the sickles were curved in shape and there was no
curved shaped injury on the dead body, his specific opinion is very
clear. As rightly submitted by the learned APP, it depends on the
manner of the assault.
52. As far as, the evidence of alibi is concerned, we have
examined the evidence of defence witnesses and we have treated
them at par with the prosecution witnesses. We are not discarding
their evidence because they were interested witnesses. However,
we are not satisfied that the defence has proved their alibi. The
defence evidence is based on the CCTV footage, the photographs
and video shoot. In none of these, the requisite certificate required
U/s.65B of the Evidence Act is produced. The device on which
those digital images were captured were not used by the defence
witnesses who were examined, therefore, they could not have
51 of 52 APEAL-701-23+ (J)
proved those images.
53. The defence evidence also shows that the venues of
those weddings were not very far from the spot of the incident and
there is no reliable evidence to show that at the time of the
incident i.e. at around 10:15p.m, the Accused No.2 Bandu and the
Accused No.3 Santosh Pagare were at some other places. As rightly
submitted by the learned APP and Mr. Bankapur, no other guest
attending those ceremonies was examined by the defence. DW-2
Ashok Sangle examined by the Accused No.3 Santosh Pagare was
the father of groom, but he was on the stage and he could not
notice continuous presence of the Accused No.3 Santosh Pagare at
the venue. DW-3 Chetan for the Accused No.2 Bandu was only the
owner of the lawn. He did not depose about the presence of the
Accused No.2 at the wedding ceremony or wedding reception.
Both these accused Nos.2 and 3 had absconded and were arrested
later. The defence evidence does not help either of these accused.
54. As a result of the above discussion, we are of the opinion
that the prosecution has proved its case beyond reasonable doubt
and the accused in this case cannot be acquitted. The conviction
52 of 52 APEAL-701-23+ (J)
and the sentence imposed are proper. The impugned Judgment
and order need no interference.
55. All the Appeals are dismissed.
(RANJITSINHA RAJA BHONSALE, J.) (SARANG V. KOTWAL, J.)
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