VISHWAS ALIAS VISHU RAVASU GAVITversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:44123


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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                  CRIMINAL APPEAL NO. 72 OF 2026

                 Vishwas @ Vishu Ravasu Gavit
                 Age: 31 years, Occu.: Agriculture and Driver,
                 R/o. Wagadi, Tal. Navapur, District Nandurbar.     ….Appellant
                                                                    (Original Accused)
                             Versus

                 The State of Maharashtra
                 Through Police Station Officer,
                 Visarwadi Police Station,
                 Tal. Navapur, District Nandurbar.
                 (In Crime No.303/2023)                        …..Respondent
                                                  …..
                 Ms.Ranjana D.Reddy, Advocate for Appellant (Appointed through
                 Legal Aid)
                 APP for Respondent : Mrs.A.S.Mantri
                                                 …..

                                          CORAM : ABHAY S. WAGHWASE, J.

                                          Reserved on         : 28-09-2026
                                          Pronounced on       : 29-09-2026
                 JUDGMENT :

                 1.    Appellant, a convict hereby challenges Judgment and order

                 dated 17-10-2025 passed by learned Sessions Judge, Nandurbar in

                 Sessions Case No.12 of 2024 convicting accused for offence under

                 Sections 304 (Part II) and 324 of the Indian Penal Code (IPC).


                                      PROSECUTION CASE IN BRIEF

                 2.    In short, story of prosecution in trial Court is that, in June 2023

                 appellant assaulted one Chaganibai by means of axe in front of house
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of informant and said episode was reported by Dinesh (son of

Chaganibai) at Visarwadi Police Station thereby naming appellant and

informant’s husband Naresh. On said report, crime was registered

and criminal case was pending before the Court of Judicial Magistrate

First Class (JMFC), Navapur.    In the night of 25-08-2023, while

informant was preparing meals, at that time, accused appellant

Vishwas came to their house and her husband allegedly said to

appellant that had he not assaulted Chaganibai, there would not have

been any criminal case against them.       Feeling annoyed by the

questioning, accused lifted an axe kept near the door and hit it on

informant’s head.     He also assaulted her husband Naresh, who

collapsed with bleeding injury. Informant raised hue and cry and her

husband was taken to the hospital. On her report to the above extent,

Crime was registered bearing No.303 of 2023 for offence under

Sections 302, 307 of the IPC. Said crime was investigated by PW6

Investigating Officer, who after gathering sufficient evidence,

chargesheeted accused and finally, he was tried vide above Sessions

Case and ultimately stood convicted for offence under Sections 304

(Part II) and 324 of the IPC.

      Feeling aggrieved by the above, instant appeal has been

preferred questioning the sustainability of the Judgment passed by

the learned Sessions Judge, Nandurbar.
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                            SUBMISSIONS

On behalf of appellant :

3.      Learned counsel for appellant pointed out that case of

prosecution was not proved beyond reasonable doubt. That, at the

time of alleged occurrence, there was no source of light and therefore,

who assaulted and how deceased died has not been proved beyond

reasonable doubt. She would point out that, infact accused was at

Gujarat, but such plea of alibi has not been considered by the learned

trial Court. Moreover both informant and her husband were alcoholic

and therefore, informant’s evidence is not worthy of credence. That,

learned trial Court failed to assign sound reasons while convicting the

accused by accepting case of prosecution. On such counts and

grounds, appeal is sought to be allowed.



On behalf of Respondent State :

4.    Learned APP supported the impugned Judgment by submitting

that, prosecution evidence was full-proof.      That, there was eye

witness/injured witness account.        That, informant was natural

witness. That, testimonies of prosecution witnesses having remained

unshaken has rightly been taken aid of by learned trial Court to

convict the accused.
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        BRIEF ACCOUNT OF EVIDENCE BEFORE TRIAL COURT

5.      Re-appreciated the entire evidence. Case of prosecution was

rested on evidence of as many as six witnesses and their status is as

under                                                               :”

        PW1 Sarita Naresh Gavit is informant, who set law into motion

by lodging report Exhibit 15; PW2 Harish Ravasu Gavit, brother-in-

law of informant; PW3 Nilima Naresh Gavit, is child eye witness; PW4

Amit Girji Gavit, pancha to spot panchanama; PW5 Dr.Ajayraj

Anandraj Kuwar, Autopsy Surgeon and PW6 Prakash Marutrao

Wankhede (API), is the Investigating Officer.



6.      Prosecution case revolves around testimony of informant PW1,

brother-in-law of informant PW2, child witness PW3 and therefore,

their evidence is primarily dealt with.

        PW1 Sarita Naresh Gavit, informant in her testimony at Exhibit

14 deposed that, deceased was her husband and accused was her

brother-in-law i.e. brother of her husband.       She deposed about

quarrel between present appellant and one Chaganibai of which

Dinesh, son of said lady, had filed a criminal case and also naming

husband of informant alongwith appellant and the case to be on the

file of JMFC, Nawapur and on 25-08-2023, her husband and accused
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returning home after attending the Court date. According to her, at

about 8:30 p.m. while she, her husband, children sat for dinner, at

that time, present appellant came to their house and informant’s

husband deceased Naresh said to appellant that “if he had not beaten

Chaganibai, there would not have been any case against them”. Upon

this, it is alleged that, accused picked up an axe and hit it on the head

of informant and when deceased questioned him, it is alleged that,

accused assaulted by means of axe on his head.             Her deceased

husband died due to assault by axe on head and therefore, she lodged

report.

      While under cross-examination, she is initially questioned about

location and geographical set up of the house. She admitted that, she

is unable to give reason for Chaganibai filing complaint. She also

admitted that her husband consumed liquor and there used to be

quarrel between husband and wife. She admitted that, iron cot and

wooden peg used for hanging clothes and that, her husband had

agricultural implements in the house. She admitted that, there were

no lights in the village that night, but while answering a question to

that extent, she answered that her husband fell down after assault by

appellant and thereafter, lights got switched off. Rest is all denial.



7.    PW2 Harish Ravasu Gavit is brother of deceased and brother-in-
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law of informant and he claims to have seen his brother lying on the

ground with blood oozing from his head and seen informant crying

and about shifting his brother to the hospital.

      While under cross-examination, he denied a suggestion that

there was quarrel between informant and her husband and informant

pushing him as a result of which, he fell.



8.    PW3 Nilima Naresh Gavit is the star witness and she is a child

witness. In her testimony at Exhibit 18, she gave name of her mother,

father and even identified accused and deposed that, on 25-08-2023,

her uncle killed her father. That, her uncle dealt a blow of axe on the

head of her father after which her father fell down. She also deposed

that, her uncle dealt a blow of axe on the head of her mother.

      While under cross-examination, she flatly denied suggestion

that she was deposing as per say of her mother.



9.    PW4 Amit Girji Gavit is pancha to spot panchanama of which

there is no challenge.



10.   PW5 Dr.Ajayraj Anandraj Kuwar is the Autopsy Surgeon, who

has opined death of Naresh due to “cardio-respiratory arrest due to

hemorrhagic shock due to head injury.
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11.   PW6 Prakash Marutrao Wankhede is the Investigating Officer,

who narrated about all steps taken by him during investigation.



                   ANALYSIS AND CONCLUSION

12.   Thus, on analyzing above discussed evidence, here, there is

indeed direct injured witness account i.e. of PW1 informant. She has

deposed that, she being hit by axe on head by accused. PW5 an

Autopsy Surgeon also seems to have occasion to examine PW1

informant and noticed she too have suffered CLW on her fronto

parietal region admeasuring 4 cm x 1 cm and he issuing medical

certificate Exhibit 29. Therefore, there is evidence about voluntarily

causing hurt by dangerous weapon like axe.          PW1 Informant’s

evidence also finds support from her child PW3.



13.   As regards to assault on deceased by means of axe is concerned

also PW1 informant’s evidence finds support from her child PW3. She

was very much in the house at the time of dinner when the incident

took place. This child has also stated about assault by axe on her

father by accused. She has flatly denied in cross-examination that she

was tutored by her mother.
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14.   The settled law on the point of evidence of child witness is as

under :

      In Mangoo and another v. State of Madhya Pradesh; AIR 1995

SC 959, the Hon’ble Apex Court while dealing with the evidence of a

child witness observed that;

      “There was always scope to tutor the child, however, it
      cannot alone be a ground to come to the conclusion that
      the child witness must have been tutored. The Court must
      determine as to whether the child has been tutored or
      not. It can be ascertained by examining the evidence and
      from the contents thereof as to whether there are any
      traces of tutoring.”



      In the case of Dattu Ramrao Sakhare v. State of Maharashtra;

1997 (5) SCC 341, the Hon’ble Apex Court held that;

      “A child witness if found competent to depose to the facts
      and reliable on such evidence could be the basis of
      conviction. In other words even in the absence of oath the
      evidence of a child witness can be considered under
      Section 118 of the Evidence Act provided that such
      witness is able to understand the answers thereof. The
      evidence of a child witness and credibility thereof would
      depend upon the circumstances of each case. The only
      precaution which the Court should bear in mind while
      assessing the evidence of a child witness is that the
      witness must be a reliable one and his/her demeanour
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      must be like any other competent witness and there is no
      likelihood of being tutored.”



      In Ratansinh Dalsukhabhai Nayak v. State of Gujarat; (2004) 1

SCC 64, the Hon’ble Apex Court held that;

      “Child witness – evidence of – conviction on the basis of –
      held, permissible if such witness is found to be competent
      to testify and the court after careful scrutiny of its
      evidence is convinced about the quality and reliability of
      the same.”



      The Hon’ble Apex Court in the case of Gagan Kanojia and

another v. State of Punjab; (2006) 13 SCC 516 has ruled that,

      “Part of statement of child witness, even if tutored, can be
      relied upon, if the tutored part can be separated from the
      untutored part, in case such remaining untutored part
      inspires confidence.”



      In Nivrutti Pandurang Kokate and ors. v. State of Maharashtra;

AIR 2008 SC 1460, the Hon’ble Apex Court dealing with the child

witness has observed as under;

      “The decision on the question whether the child witness
      has sufficient intelligence primarily rests with the trial
      Judge who notices his manners, his apparent possession or
      lack of intelligence, and the said Judge may resort to any
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      examination which will tend to disclose his capacity and
      intelligence as well as his understanding of the obligation
      of an oath. The decision of the trial court may, however, be
      disturbed by the higher court if from what is preserved in
      the records, it is clear that his conclusion was erroneous.
      This precaution is necessary because child witnesses are
      amenable to tutoring and often live in a world of make-
      believe. Though it is an established principle that child
      witnesses are dangerous witnesses as they are pliable and
      liable to be influenced easily, shaped and moulded, but it is
      also an accepted norm that if after careful scrutiny of their
      evidence the court comes to the conclusion that there is an
      impress of truth in it, there is no obstacle in the way of
      accepting the evidence of a child witness.”



      In a celebrated case of Hari Om v. State of U.P.; (2021) 4 SCC

345, very recently the Hon’ble Apex Court, in paragrap 22 of this

judgment, has spelt out legal principles, summarized the evidentiary

value of child witness, effects of its discrepancies, and duty of Court

and corroboration when to be insisted upon, which we borrow and

quote here:

      “22. The evidence of the child witness cannot be rejected
      per se, but the court, as a rule of prudence, is require to
      consider such evidence with close scrutiny and only on
      being convinced about the quality of the statements and
      its reliability, base conviction by accepting the statement
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      of the child witness. If the child witness is shown to have
      stood the test of cross-examination and there is no
      infirmity in her evidence, the prosecution can rightly
      claim a conviction based upon her testimony alone.
      Corroboration of the testimony of a child witness is not a
      rule but a measure of caution and prudence. Some
      discrepancies in the statement of a child witness cannot be
      made the basis for discarding the testimony. Discrepancies
      in the deposition, if not in material particulars, would
      lend credence to the testimony of a child witness who,
      under the normal circumstances, would like to mix up
      what the witness saw with what he or she is likely to
      imagine to have seen. While appreciating the evidence of
      the child witness, the courts are required to rule out the
      possibility of the child being tutored. In the absence of any
      allegation regarding tutoring or using the child witness for
      ulterior purposes of the prosecution, the courts have no
      option but to rely upon the confidence inspiring testimony
      of such witness for the purposes of holding the accused
      guilty or not. The evidence of the child witness must be
      evaluated more carefully and with greater circumspection
      because a child is susceptible to be swayed by what others
      tell him and thus an easy prey to tutoring. The evidence of
      the child witness must find adequate corroboration before
      it is relied upon, as the rule of corroboration is of practical
      wisdom than of law.”



15.   Consequently, apart from testimony of injured informant, there
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is credible child witness account.



16.   Here, there is conviction for offence under Section 304 (Part II)

of which there is discussion by trial Court in paragraph 40, 41, 42 of

the judgment. Going by the sequence of the events that took place

that night, it is seen that PW1 informant and PW3 child witness speak

about arrival of accused to their house, it is only after questioning by

deceased, accused allegedly picked up an axe and used it. He had not

come there with any predetermined intention to carryout assault.

Therefore, case was not of homicide, but as rightly held by learned

trial Court, it is a case of culpable homicide not amounting to murder

and so rightly convicted accused by the learned trial Court for said

offence.



17.   Perused the judgment under challenge. Learned trial Court has

dealt and appreciated available evidence in its proper perspective.

Findings are supported by sound reasons.        Settled law has been

applied.   The view taken by the learned trial Court is the most

probable view that could emerge with such quality of evidence on

record. There being no illegality or infirmity, this Court does not find

any reason for interference in the impugned judgment. Accordingly,

following order is passed :
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                                ORDER

I.    The Criminal Appeal is dismissed.


II.   The fees of the learned counsel (appointed through Legal Aid)
for appellant, is quantified at Rs.10,000/- and it is to be paid through
the High Court Legal Services Sub-Committee, Aurangabad.




                                          [ABHAY S. WAGHWASE, J.]
SPT