STATE OF MAHAversusPRAKASH VISHWANATH JADHAV and ORS

2026:BHC-AUG:39855-DB


                                     1                    Cri.Appeal No. 743-2003

                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              BENCH AT AURANGABAD

                         972 CRIMINAL APPEAL NO. 743 OF 2003

                  The State of Maharashtra
                  Through PSO Police Station
                  Sonpeth, Dist. Parbhani.                         ….Appellant
                                                                 (Ori. Complainant)

                        VERSUS

            1.    Prakash S/o Vishwanath Jadhav,
                  Age: 28 years, Occu. Agriculturist.

            2.    Manik S/o Vishwanath Jadhav,
                  Age: 35 years, Occu. Agriculturist.

            3.    Achut S/o Vishwanath Jadhav,
                  Age: 22 years, Occu. Agriculturist.

            4.    Vaijanath S/o Abaji Jadhav,
                  Age: 45 years, Occu. Agriculturist.

            5.    Pratap S/o Vaijanath Jadhav,
                  Age: 29 years, Occu. Agriculturist.

            6.    Kesharnath S/o Dashrath Karhale,
                  Age: 35 years, Occu. Agriculturist.               …..Respondents
                                                                     (Ori. Accused)
                                             …..
            Adv. G. A. Kulkarni, APP for for Appellant-State
            Adv. N. K. Kakade, Advocate for Respondent Nos. 1 to 6.
                                             …..

                        CORAM               :    SANDIPKUMAR C. MORE AND
                                                 VAISHALI PATIL-JADHAV, JJ.

                        RESERVED ON             : 23 July, 2026

                        PRONOUNCED ON           : 21 August, 2026
                          2                 Cri.Appeal No. 743-2003

Judgment (PER : SANDIPKUMAR C. MORE, J.) :-


.    The    Appellant-State   has   challenged     the     acquittal   of

respondents accused in this appeal, recorded by learned Sessions

Judge, Parbhani (hereinafter referred to as, ‘‘the learned Trial

Judge’’) in Sessions Case No. 185 of 2001 under the judgment and

order dated 25.07.2003.



2.   According to the prosecution story, one Dnyanoba Haribhau

Jadhav an agriculturist from Gaundgaon was going to his field from

his house at about 9:00 p.m. on 09.04.2001. On the way to his

field he stopped to purchase cigarette from the shop of one Thoraji

Karhale. At that time, all the respondents-accused came there and

on account of previous enmity, they assaulted Dnyanoba with iron

bars and sticks on his legs, hands and head. In the said assault, he

sustained severe injuries and therefore his relatives took him to the

Rural Hospital, Gangakhed. In the said hospital, head constable

Uttam Bhusare, i.e. PW-4, recorded his statement on the same day

at about 11:45 p.m. in the presence of Dr. Shyam Nagapurkar, i.e.

PW-7. However, due to his critical condition, he was shifted to

Ambejogai Hospital and from their to Aurangabad Hospital where

he succumbed to his injuries. On the basis of         the statement of
                         3                   Cri.Appeal No. 743-2003

Dnyanoba initially Gangakhed Police had registered crime under

Zero number against the respondents-accused under Sections 147,

148, 307 and 149 of the Indian Penal Code and then transferred

the same to Sonapeth Police Station. However, on the death of

Dnyanoba, offence under Section 307 was converted into Section

302 of Indian Penal Code. Accordingly, the concerned police station

started an investigation and on completion of investigation, the

respondents-accused were charge-sheeted for the offence under

Sections 147, 148 and 302 read with Section 149 of I.P.C. The

learned Trial Judge then conducted the trial and recorded evidence

of in all ten witnesses, but ultimately acquitted all the respondents-

accused, as the prosecution failed to prove its case beyond

reasonable doubt.



3.   The learned APP vehemently argued that the learned Trial

Judge had not appreciated the evidence on record in a proper

manner and though there was evidence of all three eye witnesses

coupled with the trustworthy dying declaration of the deceased, the

learned Trial Judge committed grave error in acquitting the

respondents-accused by ignoring the same. He pointed out that

PW-1 Janabai daughter of Dnyanoba Jadhav had arrived on the

spot of the incident and saw the respondents-accused assaulting
                         4                   Cri.Appeal No. 743-2003

his father with iron bars and sticks. Her cousin Achut s/o

Venkatrao Karhale i.e. PW-5 as well as PW-6 Vaijanath s/o Nagorao

Jadhav i.e. uncle of the deceased had also supported her evidence

by witnessing the incident. According to him, all these eye

witnesses have corroborated each other on material aspects.

Moreover, recovery of weapons was also there at the instance of the

accused. He further pointed out that PW-4 head constable Bhusare

and PW-7 Dr. Shyam Nagapurkar had also established the fact that

Dnyanoba was fit to give a statement in Gangakhed Hospital and

accordingly, his statement treated as dying declaration at Exh. 44,

which   clearly   indicated   that   the   respondents-accused         had

assaulted him with iron rods and sticks due to previous enmity. He

pointed out that, the respondents-accused namely Prakash, Manik

and Achut are the sons of Vishwanath, who was murdered prior to

10 to 12 years and the deceased Dnyanoba was accused in that

murder case. As such, he pointed out that the respondents-

accused were having the reason to assault the deceased. Thus, he

prayed for reversal of the judgment of acquittal and to convict the

respondents-accused under the aforesaid offenses. He placed

reliance on the judgment in the case of Laxman Vs. State of

Maharashtra reported in (2002) 6 SCC 710
                         5                  Cri.Appeal No. 743-2003

4.   On the contrary, the learned counsel for the respondents-

accused supported the acquittal of the respondents-accused

recorded by the learned Trial Judge. He pointed out that

Dnyanoba, being severely injured, was not at all in condition to give

a statement. Moreover, the endorsement given by PW-7 Dr. Shyam

Nagapurkar was without signature, making the entire dying

declaration highly suspicious and doubtful. According to him, the

testimonies of PW-5 and PW-6 are also doubtful, since their

presences on the spot appeared doubtful. According to him, all

these witnesses stated that on hearing shouts, they reached the

spot of the incident and saw the respondents-accused assaulting

Dnyanoba. However, admittedly one religious ceremony (Saptah)

was going on the village at the relevant time and there was the use

of loud speakers, making it difficult for them to hear the shouts

from their respective houses. He further submitted that no

independent witness from the locality has been examined by the

prosecution despite the incident took place in a public place

surrounded by shops and houses. He pointed out that PW-2

Abaibai cited as an eye witness, did not support the case of the

prosecution. According to him, the recovery of alleged weapons

used in the commission of crime is also not sufficient to connect

the respondents-accused with the crime, since no blood link was
                           6                 Cri.Appeal No. 743-2003

established in the CA report regarding the incriminating articles.

Ultimately, he submitted that the learned Trial Judge rightly

appreciated the evidence on record and properly extended benefit of

doubt to the respondents-accused. Accordingly, he prayed for

dismissal of the appeal.



5.   Heard. Rival submissions and also perused the entire

evidence on record along with impugned judgment with the able

assistance of learned APP as well as learned counsel Mr. Kakade.



6.   The prosecution has examined in all ten witnesses. However,

the case of prosecution is based on three major grounds. Firstly,

there is a dying declaration on record, wherein, the deceased had

stated as to how all the respondents-accused assaulted him with

iron bars and sticks on account of past enmity, making him

severely injured. Secondly, there are three eye witnesses, namely

PW-1 Janabai, i.e. the daughter of the deceased, PW-5 Achut, who

is nephew of the deceased and PW-6 Vaijanath, who is the uncle of

the deceased. All these eye witnesses have deposed that as to how

the deceased was assaulted by the respondents-accused. Thirdly,

the prosecution relied on the recovery of weapons at the instance of

the accused. As against this, it is the case in defense that the dying
                        7                  Cri.Appeal No. 743-2003

declaration was unreliable due to the unfit condition of the

deceased while making the same and there were contradictions

among the eye witnesses.



7.   Admittedly, from the post-mortem report at Exh 72 and

testimony of PW-9 Dr. Kailash Zine, who conducted the post-

mortem, it revealed that, the death of Dnyanoba was a homicidal

one, since he died from head injury with multiple bone fractures

leading to acute renal failure. PW-9 Dr. Zine has also ruled out the

possibility of sustaining such injuries due to a vehicular accident.

Moreover, the defense taken by the respondents-accused that

Dnyanoba died of accident, is not supported by any theory. Thus, it

is clearly evident that the death of Dnyanoba was homicidal.

However, it has to be seen in the light of other evidence, whether

the respondents-accused person were responsible for the same.



8.   So far as, involvement of the respondents-accused in the

incident is concerned, the dying declaration of the deceased is on

record at Exh. 44. According to the prosecution, when the deceased

was taken to Gangakhed Hospital immediately after the incident,

PW-4 Head Constable, Mr. Bhusare had recorded the said dying

declaration in the form of a statement. On going through the said
                        8                   Cri.Appeal No. 743-2003

dying declaration, it is clearly evident that the deceased had stated

therein as per the prosecution story. However, learned counsel for

the respondents-accused disputed the said dying declaration as

being unreliable. As such, the evidence in respect of the said dying

declaration needs to be scrutinized.



9.   PW-4, Uttam Namdeo Bhusare was the Police Head Constable

at the relevant time, attached to Gangakhed Police Station, has

deposed that, as per the letter dated 09.04.2001, he went to record

the statement of Dnyanoba, wherein the deceased had stated so.

However, in the cross-examination he admitted that, though he was

attached to Gangakhed Police Station, but he wrote “Police Station,

Sonpeth” on his own in said dying declaration. Moreover, it has also

come on record that the deceased was not in a fit mental and

physical condition to give such dying declaration, since as per the

doctor’s opinion, his BP was unrecordable, the pulse was

impalpable and he was in shock. Moreover, it is also important to

note that PW-4 had stated that he had obtained the opinion of

doctor about the fit condition of the deceased for giving the

statement. The doctors fitness certificate is at Exh. 53. The said

dying declaration is without signature. Even PW-7 Dr. Shyam

Nagapurkar has admitted the said fact. Thus, the doctor in the
                          9                   Cri.Appeal No. 743-2003

cross-examination had given certain admissions that the BP and

Pulses of the deceased injured were unrecordable and the patient

was in shock. He has specifically admitted that the condition of

Dnyanoba at the time of his examination was critical and

thereafter, the patient was immediately transferred after recording

of the alleged dying declaration.



10.   Though the learned APP placed reliance on the judgment of

Hon’ble Apex Court in the case of Laxman Vs. State of

Maharashtra (supra), wherein it is held that mere absence of

doctor’s certification as to the fitness of declaration of state of mind

would not ipso facto rendered the dying declaration unacceptable,

but it is also observed, further that the evidentiary value of such

declaration would depend on the facts and circumstances of the

particular case. In the instance of the aforesaid admission on the

part of PW-4 Head Constable Mr. Bhusare and PW-7 Dr. Shyam

Nagapurkar, it is evident that the condition of Dnyanoba at the

time of his admition to the hospital was so critical that the

possibility of giving such elaborate statement by telling the names

of all the accused was very less, and therefore, the dying

declaration (Exh. 44) appears doubtful.
                         10                  Cri.Appeal No. 743-2003

11.   So far as the evidence of eye-witnesses are concerned,

admittedly, all of these are closely related to the deceased, as

mentioned above. It is settled that the evidence of such witnesses

merely because they are close relatives of the deceased, cannot be

thrown out, but it has to be scrutinized with great care and

caution. PW-1 Janabai, who is the daughter of deceased, has

stated that after she heard cries, she rushed to the shop of Thoraji

and saw all six accused beating her father with iron bars and

sticks. When she tried to intervene, she was also kicked, but

somehow shifted the deceased to the hospital. However, there are

certain contradictions in her evidence as regards the timing,

presence and unnatural conduct. It has come on the record during

the cross-examination of these witnesses that a religious ceremony

(Saptah) was going on at the time of       the incident and use of

loudspeakers was their in the said ceremony. Therefore, it was very

difficult for a person to hear the cries from the house which was at

some distance from the spot of incident. Moreover, PW-1 had stated

in the cross-examination that when she saw all the respondents-

accused assaulting Dnyanoba, she tried to cover the deceased and

at that time she was also beaten by the accused. However, she was

not at all referred to medical treatment, and therefore, it can safely

be inferred that she was not present at the time of the actual
                          11                 Cri.Appeal No. 743-2003

incident, but might have come at the spot after the incident was

over.



12.     Same is the case of another eye witness i.e. PW-5 Achut, who

is the nephew of the deceased. Though he stated that when he was

sitting near the school, he heard cries and saw five accused

assaulting Dnyanoba and helped to shift him to hospital but

reference of only 5 persons has come in his evidence, however, the

prosecution is claiming that there were in all six accused. He did

not state anything about the presence of PW-1 Janabai and when

the religious function was going on, at the time of the incident, it

was highly difficult for him to hear the cries, as stated. Therefore,

considering these facts, his presence on the spot of the incident at

the relevant time also appears doubtful. PW-6 Vaijanath is also

cited as an eyewitness, who stated that accused Nos. 1 to 3 beat

Dnyanoba with an iron rod and accused Nos. 4 and 6 assaulted

him with sticks, but his conduct of not intervening in the incident

of rescuing the deceased from the clutches of accused appears

doubtful. Moreover, in the cross-examination he also did not

mention the presence of PW-1 Janabai on the spot. Therefore,

considering the distance of his house from the spot of incident, it

was not possible for him to hear cries of the deceased from his own
                         12                   Cri.Appeal No. 743-2003

house. Therefore, these facts also support the fact that he might

not be present at the spot of the incident. As such, if the evidence

of the eye witnesses is scrutinized minutely, then it gives the

impression that they were not present on the spot to witness the

incident.



13.   It is significant to note that the prosecution besides these eye

witnesses, who are relatives of the deceased, has examined one

independent witness, i.e. PW-2 Abaibai, who is the sister of

shopkeeper    Thoraji. However, this independent witness had not

supported the case of the prosecution and according to her, the

shop of Thoraji was closed at the time of the incident. As such,

there is no corroboration to the evidence of eye-witnesses from this

independent witness.



14.   The prosecution has also relied on recovery of weapons at the

instance of the accused. PW-8 Bhagwan has stated to that effect.

According to him, the accused persons made disclosure statements

about the places where the weapons, comprising iron bars and

sticks, were hidden and thereafter produced from their respective

houses. Though this witness has stated so, the recovery of such

articles which are common household and agricultural items, from
                         13                   Cri.Appeal No. 743-2003

the respective houses of the accused, cannot be given much

weightage to convict the accused without other corroborative

evidence. As per the scientific evidence, no blood links were

established in respect of these allegedly recovered articles. Further,

the Investigating Officer, i.e. A.P.I. More has admitted in the cross-

examination that he did not examine independent witness and also

did not seize the clothes of eye witness, who were in close proximity

to the deceased and their clothes might have stained with blood.

The CA report at Ex. 79 also indicates that no blood was found on

the seized articles. In such circumstances, considering all these

aspects conjointly, it gives the impression that the dying declaration

is surrounded with clouded circumstances. Moreover, the evidence

of eye witnesses is also contradictory to each other and the

recovery also does not inspire confidence. The alleged motive put

forth by the prosecution, that the deceased was accused in the

murder of father of one of the respondents-accused, is also not

supported by the evidence of recent disputes between the parties.

Moreover, it is found that the witnesses were also unaware of

current relations between the parties. Therefore, it appears that the

prosecution has not proven the guilt of the respondents-accused

beyond reasonable doubt. Moreover, in the principles of Criminal

jurisprudence, there is a presumption of innocence and unless the
                            14                Cri.Appeal No. 743-2003

prosecution proves its case beyond reasonable doubt, the accused

cannot be convicted. Further, if two views are possible, then the

view which is favorable to the accused has to be chosen. Therefore,

considering the overall evidence, it appears that the learned Trial

Judge has rightly given the benefit of doubt to the respondents-

accused.



15.        It is also settled that when an inference is drawn by the

learned Trial Judge by appreciating the evidence on record in the

proper manner, then in the appeal from acquittal, it is not

supposed to be disturbed unless there is gross negligence on the

part of the learned Trial Judge and ignorance of the material

evidence. Here, in this case, the learned Trial Judge, after

considering the evidence on record, appears to have taken a

possible view and therefore, it cannot be disturbed in the appeal

merely because the other view is possible. Therefore, we find that

the appeal is devoid of merits and accordingly, it stands dismissed.




( VAISHALI PATIL-JADHAV, J. ) ( SANDIPKUMAR C. MORE, J. )


shivani/