Bombay High Court
AKASH DILIP UTTEKARversusSTATE OF MAHARASHTRA
- Decided
- Disposal
- Disposed Off
Holding
The conviction for murder under IPC §302 is upheld as the evidence, particularly that of PW‑5 Gulchand, establishes the appellant’s intent to kill despite procedural flaws in the TIP.
Summary
The appellant Akash Dilip Uttekar was convicted for murder (IPC §302) and causing hurt (IPC §324) after a violent incident in which he allegedly used a scissor to stab the deceased Sameer, resulting in death. The trial court relied mainly on the testimony of four eye‑witnesses, especially PW‑5 Gulchand, while several other witnesses turned hostile and the identification parade (TIP) was found to be improperly conducted. The appellant argued that the TIP was unreliable, the electricity was cut off during the assault, and that the offence should be reduced to culpable homicide not amounting to murder (IPC §304 II). The Court examined the credibility of the witnesses, noted the procedural flaws in the TIP, but held that PW‑5’s testimony was reliable and sufficient to establish intent to kill. Consequently, the Court affirmed the conviction for murder, rejecting the appellant’s contentions. The appeal and the connected interim application were dismissed.
Issues considered
- Whether the identification parade (TIP) was conducted in a manner that renders the witness identifications unreliable.
- Whether the evidence on record establishes the requisite mens rea for murder under IPC §302 or merely culpable homicide not amounting to murder under IPC §304 II.
- Whether the hostile witnesses’ testimonies can be disregarded and the conviction sustained on the basis of the remaining evidence.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 164, 428
- Indian Penal Code, 1860 — s. 143, 144, 147, 148, 149, 302, 304(II), 307, 324
Subjects
- murder
- IPC §302
- identification parade
- hostile witnesses
- criminal appeal
- evidence reliability
- culpable homicide
Judgment
Gokhale 1 of 41 912-apeal-1376-23 (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1376 OF 2023
Akash Dilip Uttekar ..Appellant
Versus
The State of Maharashtra ..Respondent
WITH
INTERIM APPLICATION NO. 3333 OF 2025
IN
CRIMINAL APPEAL NO. 1376 OF 2023
__________
Mr. Sachin Hande a/w. Poonam Pal for Appellant.
Ms. Supriya Kak, APP for State/Respondent.
__________
CORAM : SARANG V. KOTWAL &
SANDESH D. PATIL, JJ.
DATE : 29 & 30 APRIL 2026
JUDGMENT : (PER SARANG V. KOTWAL, J.)
1. The Appellant has challenged the Judgment and order
dated 08.09.2023 passed by the learned Additional Sessions
Judge, Thane, in Sessions Case No.251 of 2016. There were eight
accused in the trial. The Appellant was the original Accused No.2.
2. At the conclusion of the trial, all the accused, except the
present Appellant i.e. the Accused No.2, were acquitted. The
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2026.05.06
11:35:21
+0530
2 of 41 912-apeal-1376-23 (J)
Appellant was convicted for commission of the offence punishable
U/s.302 of the IPC and was sentenced to suffer imprisonment for
life and to pay a fine of Rs.500/- and in default to suffer S.I. for 15
days. He was also convicted for commission of the offence
punishable U/s.324 of the IPC and was sentenced to suffer R.I. for
one year and to pay a fine of Rs.500/- and in default to suffer S.I.
for 15 days. Both the sentences were directed to run concurrently.
He was given set off U/s.428 of the Cr.P.C. The Appellant was
acquitted from the charges of commission of the offences
punishable under sections 307, 143, 144, 147, 148 and 149 of the
IPC.
3. Heard Mr. Sachin Hande, learned counsel for the
Appellant and Ms. Supriya Kak, learned APP for the State.
4. The prosecution case, in brief, is as follows:
One Gulchand Nikam had frequent quarrels with his
wife. He was addicted to liquor. He was staying on the second floor
of his building. On 14.04.2016, there was an incident where
Gulchand had slapped his wife. On 15.04.2016, his wife’s relatives
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i.e. her father, brother, sister and brothers in law came to the house
of Gulchand. They started questioning him. Gulchand was
assaulted with fist blows. His brother Jayesh was residing on the
5th floor. He called his friends to resolve the dispute. It is the case
of the prosecution that, at least four to five friends of Gulchand’s
brother Jayesh entered the room and tried to pacify the quarrel.
The Appellant was brother of Gulchand’s wife. He picked up a
scissor lying in that room. He assaulted some of Jayesh’s friends.
He gave a forceful blow to one Sameer who suffered grievous
injury on his chest. The witnesses took Sameer to a hospital, but he
succumbed to the injuries. Jayesh then lodged his F.I.R. at Mumbra
police station vide C.R.No.188 of 2016. It was registered in the
night between 15.04.2016 to 16.04.2016 at about 1:35a.m. The
investigation was carried out. The dead body was sent for the
postmortem examination. The Accused were arrested, the spot
panchanama was conducted, the statements of the witnesses were
recorded and the 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.
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5. During trial, the prosecution examined 19 witnesses,
including Gulchand, his brother Jayesh who had lodged the F.I.R.,
the injured eye witnesses, other eye witnesses including the father
of the deceased, panchas, the Medical officers and the
investigating officers. Some of the eye witnesses turned hostile and
did not support the prosecution case. The defence of the Appellant
was of total denial. According to him, the police had falsely
implicated him and his family members.
6. The learned trial Judge considered the evidence on
record. He observed that the evidence of PW-1 Jayesh was
sufficiently corroborated by the evidence of PW-5 Gulchand. The
learned Judge also relied on the evidence of PW-4 Akash Raut and
PW-2 Pradeep Tambe. Based on their evidence, he reached his
conclusion. At the same time, the learned Judge observed that,
there was no convincing evidence against the other accused. No
witnesses had taken their names properly and had not attributed a
specific role to a particular accused. The learned Judge then
acquitted the other accused and convicted the Appellant, as
mentioned earlier.
5 of 41 912-apeal-1376-23 (J)
7. PW-1 Jayesh was the first informant and an eye witness
to the incident. He deposed that, Gulchand was his elder brother.
Gulchand was residing on the second floor of the building where
PW-1 himself was residing. There was occasional dispute between
Gulchand and his wife, and because of that reason Gulchand was
residing separately from PW-1 and his family. On 15.04.2016,
PW-1 returned from his job at around 9:00p.m. He was going to
his room by climbing the staircase. He heard the quarrel from
Gulchand’s house. He called his friend Akash Raut telephonically
and informed him about the quarrel. PW-1 called him and
suggested that they would go to the police chowky. PW-1 called
Akash to his residence. Accordingly, Akash came to his house. One
Pradip Tambe had accompanied Akash. PW-1 told them about the
quarrel. At that time, his mother Sarita also came there. She
informed that, Gulchand’s father in law was beating him. At the
same time, PW-1’s other friend Sunny Pawar also came there. They
all went to Gulchand’s house to see what was happening. The door
was closed. He knocked on the door. The door was opened. He saw
his brother’s father in law, two brothers in law, sister in law and
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two co-brothers were present inside. They abused PW-1 and his
mother. They were not willing to listen to him. Gulchand’s co-
brothers were beating him with belt and others were beating him
with fist and kicks blows. PW-1 then took Gulchand to the ground
floor. After that, PW-1, his friends and one of his friend’s father
again went to Gulchand’s house to have discussion with the
accused. Akash Raut was trying to speak with them. At that time,
the Appellant assaulted PW-1’s friend Akash Raut with a scissor on
his head causing bleeding injury.
Incidentally, name of the Appellant is Akash Uttekar
and name of PW-1’s friend was Akash Raut. While narrating the
incident in the deposition, PW-1 named the Appellant as ‘Akash’.
8. He further narrated that, his friend Sunny Pawar tried to
intervene, but the Appellant assaulted him with a scissor on his
chest. Gulchand’s sister in law sat on Sunny Pawar’s person and
started beating him. At that time, the other accused had caught
Sunny Pawar’s legs. At that time, PW-1’s friend Sameer (deceased
in this case) went there to save Sunny. At that time, the Appellant
7 of 41 912-apeal-1376-23 (J)
assaulted Sameer on his chest with a scissor causing bleeding
injury. At that time, Sameers’ father was behind Sameer. The
Appellant caused injury on the head of Sameer’s father. Sameer
started vomiting. PW-1 picked him up and saw that Sameer had
sustained bleeding injury on his chest. After that, PW-1 took
Sameer to Dhanwantari Hospital at Diva. The doctors advised
them to take Sameer to another hospital, therefore, he was taken
to Hardev hospital at Diva. But at that hospital, Sameer was
declared dead. PW-1 identified the Appellant before the Court. He
further deposed that, he lodged the report with the police station
against the accused. The F.I.R. is produced on record at Exhibit-68.
He added that, a day prior to the incident, there was a quarrel
between Gulchand and his wife. They had gone to the police
station. The police had told them to keep peace. On the next day,
Gulchand’s wife called her father and other accused and then this
incident had taken place. PW-1 also identified the scissor shown to
him in the Court. He identified the Appellant. He further deposed
that, he was called to the Central Jail for test identification parade
(for short ‘TIP’) held on 07.06.2016. He had identified all the
8 of 41 912-apeal-1376-23 (J)
accused including the present Appellant in the TIP.
In the cross-examination, he stated that, he was a
resident of village Khed and the accused were also from the same
village. They belonged to the same community. Gulchand’s wife
Priti was also one of the accused in this case; she was Accused
No.7. They had got married in 2011. Therefore, he knew the
accused since 2011. He used to meet the accused in public
functions and during festivals. He accepted that, in his F.I.R., he
has not named the Accused persons. But he had described them as
relatives of Gulchand. The other witnesses had accompanied him
for the TIP. His mother was also knowing the accused persons. His
friends had not seen the accused in any function prior to the
incident. Priti-Accused No.7 had lodged a complaint in the police
station on 14.04.2016. At that time, she had named PW-1’s mother,
as well. On the day of the incident i.e. on 15.04.2016, PW-1 had
reached his house at around 8:30p.m. A religious function was
going on in his building. About eight to nine families resided on
the ground floor. He got information about the quarrel at about
8:45p.m. The police chowky was at ten minutes walking distance
9 of 41 912-apeal-1376-23 (J)
from their building. He deposed that, his friends had no concern
with the quarrel between Gulchand and Priti. As per their
suggestion, he kept waiting on the ground, while his friends went
to Gulchand’s house. Other people from their building also came to
the spot. He had carried the injured Sameer with the help of his
friends from Gulchand’s house to the hospital. Therefore, there
was some blood on PW-1’s clothes which were seized by the police.
He deposed that, during the course of the quarrel, Gulchand had
left the house. He added that, at the time of the incident,
Gulchand was standing outside the door. At that time, Gulchand
was not assaulted by the accused. He further deposed that, at the
time of alleged incident, Gulchand came down from the building
and was standing there. The accused Dilip had sustained injury on
his hand, but other accused had not sustained any injury. The
weapon scissor was used in cutting the cloth. He accepted that, the
scissor was always available in Gulchand’s house because he was
doing stitching jobs. When he lodged the complaint, Gulchand was
present at Diva post police chowky. Gulchand had not lodged the
complaint in the police station before PW-1. He accepted that, he
10 of 41 912-apeal-1376-23 (J)
had not mentioned the Appellant’s name in the F.I.R., but had
stated that, Gulchand’s brother in law had assaulted the deceased.
He accepted that, names of the other accused were not mentioned
in the printed FIR. He came to know from others that Gulchand
was present at the spot. The names of other accused mentioned in
the printed FIR were told to him by others who had gathered at
the spot of the incident. He further deposed that, at the time of the
incident, the electricity in the passage near the spot of the incident
was switched off.
9. PW-2 Pradeep Tambe is another eye witness. He deposed
that on 15.04.2016 he was standing near his building along with
his friends. At that time, Sameer (the deceased) came there. PW-2
was talking with him. In the meantime, Akash Raut came there
running and told them that, there was a quarrel going on in the
house of PW-1 Jayesh. Sameer and Akash Raut went to the house
of PW-1 Jayesh. PW-2 also followed them. When they reached PW-
1’s building, they saw a crowd had gathered there. Jayesh’s mother
came down and told others that Gulchand’s in-laws were
quarreling and they had abused her. PW-2, Jayesh’s maternal uncle
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and others including Sunny Pawar and Akash Raut went to
Gulchand’s room on the second floor. They all entered Gulchand’s
room. Jayesh’s uncle tried to have conversation with Gulchand’s
father in law. PW-2 and others also started pacifying them, but
Gulchand’s in-laws were not willing to listen to them. Jayesh’s
uncle and Gulchand’s father in law exchanged abuses. There was a
scuffle between them. Akash Raut and Sunny Pawar tried to
intervene. He further deposed that the accused then assaulted
Akash Raut. The brother in law of Gulchand took out an iron
scissor and assaulted on the head of Akash Raut; causing bleeding
injury. Other accused overpowered Sunny Pawar. Gulchand’s sister
in law instigated others to kill him. Gulchand’s brother in law
started assaulting Sunny with an iron scissor and caused bleeding
injury. Sunny tried to save him. At that time, Sameer’s father came
there. He tried to intervene, but the accused tried to assault him
with the same weapon. After that, Sameer came to save his father,
but the Appellant (PW-2 named the Appellant as ‘Akash’) assaulted
Sameer with the same scissor on his chest causing bleeding injury.
After that, PW-2 and Akash Raut rushed to the police station to
12 of 41 912-apeal-1376-23 (J)
lodge the complaint. Initially, Sameer was taken to Dhanwantari
Hospital, then to Hardev Hospital; but he was declared dead. PW-2
was called for TIP on 07.06.2016. He identified all the accused.
After the TIP, the accused gave their names. PW-2 further deposed
that the person who had assaulted the deceased with a scissor was
present before the Court and his name was ‘Akash’. He similarly
identified the other accused and attributed roles to them.
In the cross-examination, he deposed that, at the time
of the incident, at least thirty to fourty persons were gathered near
the building. A quarrel was going on for about half an hour. He
himself had not sustained any injury in the incident. He did not
know the names of the accused, but he came to know their names
when he attended the TIP. He accepted that, when the police
recorded his statement, he had not given the names of the
accused. He added that, he was not knowing the names of the
accused during the period of those two months. His statement was
recorded by the police on 17.04.2016. Akash Raut had told the
names of the accused. He deposed that, at the time of the incident,
Gulchand was not present in the room and he did not know
13 of 41 912-apeal-1376-23 (J)
whereabouts of Gulchand at that time. Jayesh had tried to pacify
the quarrel. He denied the suggestion that, Sameer fell on an iron
scissor and sustained injury on his chest.
10. PW-4 Akash Raut is another injured eye witness. He
deposed that the deceased Sameer was his best friend. He
described the incident in the same manner as is described by PW-2
Pradeep. After describing how initially they gathered on the
ground near the building, he described the incident. He himself
and his friends went to Gulchand’s room No.201. A quarrel was
going on between Jayesh’s mother and one of the accused. PW-4
and others tried to pacify both of them. The accused rushed
towards PW-4 and others to beat them. PW-4 received a blow with
scissor on his head from the back side. According to him, the
assault was caused by the Appellant. PW-4 sustained bleeding
injury on his head. He saw that, Sunny was also assaulted by the
accused. Sameer entered the room. At that time, Gulchand’s
brother in law caught Sameer. PW-4 then described that the
Appellant assaulted Sameer on his chest with a scissor. Sameer’s
father tried to save him by dragging him out of the room, but the
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Appellant assaulted Sameer’s father on his hand with scissor
causing injuries. After that the injured was taken to the hospital.
The police came at the spot. They apprehended the accused who
was present in the room. PW-4’s statement was recorded by the
police. He also attended the TIP at Thane Jail. He deposed that, he
identified all the accused in the said TIP. He identified the accused
before the Court. He identified the weapon.
In the cross-examination, he stated that, he had seen
some of the accused persons before the day of the incident. At that
time, he was not knowing their names. Initially, when the quarrel
was going on they thought about going to the police station, but
nobody went to the police station. In the meantime, Jayesh’s
maternal uncle reached there and then all of them went to the
room where the incident took place. When PW-4 reached that
room, the door was closed. He knocked on the door. The door was
opened. PW-4 and Sunny entered the room. He deposed that, at
that time, Gulchand was not there. He deposed that, Gulchand was
addicted to liquor and it was the cause of the quarrel. At the time
of the incident, the electricity was not cut off. He was not knowing
15 of 41 912-apeal-1376-23 (J)
the names of the accused before the TIP was held. At the time of
TIP, the first witness was brought outside the room by the police
officers attached to the Jail. The remaining witnesses were also
taken by the police officers to the room one by one. He further
deposed that, Gulchand had sustained injury in the incident, but
Jayesh had not suffered any injury. PW-4 himself was admitted to
Haldar Hospital for one night. He denied the suggestion that, at
the time of the incident, his friends cut off the electricity and then
assaulted the accused and at that time, the deceased Sameer had
suffered injuries.
11. PW-5 Gulchand Nikam is an important witness in this
case. His name is recorded as ‘Fulchand’ by the learned Judge in
his deposition. He deposed that the accused Dilip was his father in
law. The Appellant Akash Uttekar and Ganesh Uttekar were his
brothers in law. He also described the relations with other accused.
The accused Priti was his wife. He along with his wife and their
young daughter resided on the second floor in flat No.201 in the
building known as Om Sai Dham. His parents were residing on the
fifth floor. He got married with the accused Priti in 2012. There
16 of 41 912-apeal-1376-23 (J)
used to be quarrels between his mother and his wife. Therefore,
PW-5 and his wife started residing separately. Finally they came
back to stay on the second floor in the same building. There was a
quarrel between PW-5 and his wife when he had slapped his wife.
She went to the police chowky for lodging the complaint. This was
the precursor to the commission of the incident dated 15.04.2016.
On that day, when he returned home, the accused were already
present in the house. The Appellant questioned him about the
quarrel with PW-5’s wife. One of his co-brothers started beating
him with a belt. The Appellant and the other brother in law
Ganesh started beating him with kicks and fist blows. After some
time, PW-5’s mother, brother, uncle and others came to the house.
They questioned PW-5’s father in law. PW-1 Jayesh was
accompanied with his friends Sunny and Akash Raut (PW-4). They
tried to pacify the quarrel, but the accused were not willing to
listen. He then deposed that the Appellant assaulted Akash Raut
with a scissor on his head causing a bleeding injury. Sameer
entered the room. The Appellant assaulted Sameer with the scissor
on his chest. Sameer’s father Mangesh Devalkar was also assaulted
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by a knife by Ganesh. Sameer was then taken out of the room and
was taken to the hospital. After that, PW-5 went to the police
chowky. He narrated the incident to the police. Other injured were
in Haldar hospital. Sameer was declared dead. The police recorded
his statement. He identified the weapons i.e. scissor and belt in the
Court.
In the cross-examination, he deposed that, there were
strained relations between his wife and mother. A small dispute
was raised between himself and his wife. He admitted that,
occasionally he used to consume liquor. He was facing money
problem and, therefore, his wife’s ornaments were mortgaged. His
wife was doing stitching work to help him financially. His father in
law had given him some amount for paying the deposit of the
room. He accepted that on 14.04.2016 his wife had lodged a
complaint against him in the police chowky on the allegations that
their daughter was taken away from her. After that, he, his wife
and daughter had returned home together. He accepted that on
14.04.2016, he had slapped his wife. His statement was recorded
by the police on 16.04.2016. At the time of the incident, about
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twenty to twenty five people had gathered. Jayesh was one of
them. The quarrel went on for about twenty to twenty five
minutes. About thirty people had entered the hall. He admitted
that, the electricity was not available for near about fifteen
minutes. It was cut off only in his room. But he did not know the
reason. At the time of the incident, his daughter was with his
mother. After the incident, he was admitted in the hospital. He
admitted that Jayesh had brought his friends to save him from the
assault caused by the accused. He could not explain as to why his
police statement did not mention that Sameer entered the room
to save Sunny and that Sameer’s father Mangesh was assaulted
by the accused Ganesh. His statement was recorded by the
Magistrate U/s.164 of the Cr.P.C. on 05.05.2016. It is produced on
record at Exhibit-137. His statement sufficiently corroborates his
evidence.
12. Apart from these main eye witnesses who had supported
the prosecution case, there are other eye witnesses including some
injured eye witnesses who had turned hostile.
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13. PW-6 Mangesh Devalkar was the father of the deceased.
He was declared hostile. He deposed that, he received the
information about the quarrel. He went to Gulchand’s house. He
saw that his son Sameer had sustained injury on his chest. He
deposed that, he received the information from the people
gathered there. He also got information that his son was already
admitted in the hospital. He deposed that, he did not know as to
how his son sustained injury on his chest. He did not know who
caused that injury. When he entered Gulchand’s room to search for
his son Sameer, at that time, he himself had sustained injury on his
head. He was not supporting the prosecution case, therefore, he
was declared hostile.
Learned APP cross-examined him. He stuck to his
deposition that, he did not know who had assaulted his son
Sameer. The contrary portion marked ‘A’ from his police statement
was shown to him. He denied that the statement was true.
In the cross-examination conducted on behalf of the
accused, he stated that at the time of the incident there was
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darkness and, therefore, he did not know how the incident had
taken place. In short, he did not support the prosecution at all.
14. PW-12 Sunny Pawar was another injured eye witness
who was declared hostile. He described the quarrel. Because of
that, he and others went to the room on the second floor. He saw
the quarrel. He tried to intervene. At that time, suddenly the
electricity was switched off. For five minutes there was no
electricity. During that period he sustained injuries on his back and
on his head. His wound required stitches. He came to know that,
Sameer had also sustained injury. He did not describe as to how
the incident had taken place. Therefore, he was declared hostile.
He was not supporting the prosecution case.
In the cross-examination conducted by the learned APP,
he admitted that, he had attended the TIP in the jail and at that
time, he had identified the accused persons.
In the cross-examination conducted on behalf of the
accused, he stated that the police had shown him the photographs
of the accused and had informed him that the person in the first
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photograph had assaulted him.
15. PW-13 Balwant Sawant, according to the prosecution
case, was also present at the time of the incident, but he did not
support the prosecution case. He only stated that, in the incident
Sameer died, Sunny Pawar, Mangesh Devalkar and Akash Raut
sustained injuries. He deposed that, he had not seen the incident
personally. He did not identify the accused before the Court.
In the cross-examination conducted by the learned APP,
he denied having made the statement with reference to portions
marked ‘A’ and ‘B’ in his police statement.
16. PW-14 Narayan Shiravale was Gulchand’s maternal
uncle. But he had also turned hostile. He categorically deposed
that he did not know anything about the alleged incident.
In the cross-examination conducted by the learned APP,
he accepted everything as per the prosecution story. He also
described that Akash Uttekar i.e. the present Appellant assaulted
Akash Raut with a scissor and caused grievous hurt on his head.
Thereafter, he deposed that Akash Uttekar i.e. the present
22 of 41 912-apeal-1376-23 (J)
Appellant and Santosh Ghatage assaulted Sunny Pawar. But he
maintained that, he had not seen Akash Uttekar causing stab injury
on the stomach of Sameer. His statement was recorded U/s.164 of
the Cr.P.C. But the prosecution did not invite his attention
specifically to the contrary portion in his statement recorded
U/s.164 of the Cr.P.C.
In the cross-examination conducted on behalf of the
accused, he stated that, he had given his statement U/s.164 of the
Cr.P.C. as per the say of the police.
In short, he is an unreliable witness.
17. PW-15 Sarita Nikam was Gulchand’s mother. She did not
support the prosecution case and was declared hostile. She denied
having knowledge as to whether the Appellant assaulted Akash
Raut, Sunny Pawar and Sameer with a scissor. The contrary
portion in her police statement marked as portion marked ‘A’ was
denied by her in the Court. She accepted that her statement was
recorded U/s.164 of the Cr.P.C., but the contrary portion from that
statement was not shown to her. She admitted that, there was
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settlement between the accused and herself.
In the cross-examination conducted on behalf of the
accused, she stated that, during the incident the electricity was
switched off, therefore, there was darkness. Thus, it can be seen
that, even this witness is unreliable.
18. PW-9 Yogesh Khedekar was a pancha for seizure of
clothes of the injured Sunny Pawar, Mangesh and Akash Raut.
In the cross-examination, he admitted that he was a
friend of the deceased Sameer.
19. PW-3 Mahendra Jadhav was a pancha for the spot
panchanama. He has proved the spot panchanama. The spot
panchanama is produced on record at Exhibit-89.
20. PW-10 Deepak Patil was a pancha for seizure of the
clothes of the accused. That panchanama is dated 17.04.2016, but
he had turned hostile and did not support the prosecution case.
21. PW-11 Ajinkya Jadhav was a pancha for seizure of
clothes of the deceased. He had also turned hostile and did not
24 of 41 912-apeal-1376-23 (J)
support the prosecution case.
22. PW-7 Dr. Milind Patil had examined PW-5 Gulchand for
his injuries and the other accused for their injuries. He deposed
that, Gulchand had suffered the following four injuries:
i) Contusion below right eye 3 x 2 cm.
ii) Contusion inter-scapular region 4 x 3 cm.
iii) Contusion inter-scapular region back 4 x 3 cm.
iv) Contusion below left scapula 3 x 2 cm.
The injuries were simple, but the patient was referred
to Orthopedic expert. The medical certificate is produced on
record at Exhibit-101. He also produced the medical certificates in
respect of the accused Priti Nikam, Dilip Uttekar, Ganesh Uttekar,
Vijay Shinde and Swati Jadhav. More importantly, he produced the
injury certificate of the Appellant Akash Uttekar at Exhibit-104.
The Appellant Akash had sustained abrasion on the right palm of
the size 0.5 x 0.1 cm. It was a simple injury.
23. PW-19 Dr. Shashank Fanade had examined the injured
Sunny Pawar, Mangesh Devalkar, Akash Raut and also the
25 of 41 912-apeal-1376-23 (J)
deceased Sameer.
Sunny Pawar had suffered following injuries:
i) CLW over right side of chest of size 0.5 x 0.5 x
0.5 cm.
ii) CLW over left side of medial aspect of arm over
left axillary region of size 0.5 x 0.5 x 0.5cm.
iii) Abrasion over both right and left side of shoulder.
iv) CLW over left side of back of size 0.5 x 0.5 x 0.5
cm.
v) CLW over left side of forehead of the size 0.5 x
0.5 x 0.5cm.
Mangesh Devalkar had sustained CLW over left forearm
of the size 8 x 4 x 4cm.
Akash Raut had abrasion over parietal region of the
size 1 x 1cm.
Sameer Devalkar the deceased had suffered following
injuries:
i) CLW on left arm of the size 3 x 1 x 1cm.
ii) CLW over left index finger of the size 1 x 1 x 1cm.
iii) Stab wound at epigastric region of the size 2 x 2
x 4cm.
26 of 41 912-apeal-1376-23 (J)
24. PW-8 Dr. Rajeshwar Pate had conducted the postmortem
examination. He found following external injuries on the dead
body of Sameer.
i) Stab wound present over chest at xiphisternal
region 9cm. below sternal angle at 6th and 7th
postal region on right side of size 3 x 1 x cavity
deep, obliquely placed, upper angle acute and
lower angle slightly blur, directed medially
upward, track of wound skin-subcutaneous-issue
through costal cartilage of 6th and 7th rib pierced
pericardium pierce to and through heart at right
ventricle.
ii) Stab wound over left arm lower 1/3rd laterally of
size 1 x 2.5cm x muscle deep oblique angle acute.
iii) Stab wound over left arm middle 1/3rd
posteriory of size 0.5cm x 0.2cm x muscle deep,
vertical angles acute.
iv) Incised wound over left palm at hypothenar
region 1.5cm x 0.5cm x muscle deep oblique.
v) Incised wound over base of index finger of left
hand palmar aspect 1cm x 0.5cm x bone deep
horizontal.
vi) Incised wound over palmar aspect of left ring
finger at middle phalanx 0.5cm x 0.3cm x muscle
deep.
Internal injuries on the dead body of Sameer are as
follows:
27 of 41 912-apeal-1376-23 (J)
i) Costal cartilage of 6th and 7th rib cut on right side
corresponding to injury No.1 on column No.17
with extravasation of blood in surrounding tissue.
ii) Pericardium – cut mark present on right side
corresponding to injury No.1 of column No.17.
iii) Cavity filled with blood and blood clots.
iv) Heart – purporting stab wound through and to
over right ventricle lateral surface with blood
infiltration at margin present, rest arteries and
valves patent cavity contains blood and blood
clots.
25. He deposed that the injuries were caused by a sharp
edged pointed weapon, and were sufficient to cause death in
ordinary course of nature. Internally, 6th and 7th rib was cut.
Pericardium was penetrated and cavity was filled with blood. The
stab wound passed through and over the right ventricle. There was
blood infiltration. The postmortem notes were produced on record
at Exhibit-109. He deposed that the injury No.1 was possible by a
scissor.
26. PW-16 Nilesh Bhosale was the Special Executive
Magistrate who had conducted the TIP on 07.06.2016. He deposed
that the police officers of the Jail had brought six witnesses for the
28 of 41 912-apeal-1376-23 (J)
TIP. He directed the authority to produce eight accused along with
six dummies. There were two accused who were ladies. He then
described the actual parade. He had put one accused with six
dummy persons. There were six such rows for male accused. The
witness PW-4 Akash Raut identified all the accused. PW-6 Mangesh
Devalkar identified the Accused Nos.1 and 4. PW-12 Sunny Pawar
and PW-13 Balwant Sawant identified all the accused.
In the cross-examination, he gave some important
admissions. He deposed that the witnesses and panchas had come
to the Jail together. He admitted that after identification the
witnesses left the spot, however, he could not verify as to whom
those witnesses met and what was discussed. This is an important
admission which shows that sufficient precaution was not taken.
He further admitted that the Jailor was identifying each accused
and each dummy. He also added that he himself, panchas and the
Jailor were knowing exactly at what place the accused were
standing. He had directed the Jailor to call a witness and the Jailor
asked the concerned police officer to bring that witness. But he
had not mentioned in the panchanama that the Jailor used to
29 of 41 912-apeal-1376-23 (J)
inform the police constable to bring the witness. He also admitted
that he used to direct the Jailor to call the witnesses and the Jailor
himself used to bring the witnesses.
27. At this stage, it is necessary to comment on the
procedure of the TIP. It is quite clear that the procedure adopted
was not above suspicion. PW-16 the Special Executive Magistrate
had not taken sufficient precaution to see that the witness after
identifying the accused did not meet the other witnesses outside
the identification room and did not have any discussion. This was
the basic precaution which was required to be taken. He had not
verified whether or not the identifying witness had informed the
other witnesses about the proceedings going on inside the room.
He admitted that the Jailor was bringing the witnesses in the
identification room. The panchas were not used for that purpose
and the Jailor knew exactly at what spot the accused were
standing. The other witnesses were brought by the police officer
and the Jailor inside the identification room. Thus, the prosecution
has failed to prove that sufficient precaution was taken to see to it
that the witnesses did not interact with each other after every
30 of 41 912-apeal-1376-23 (J)
identification by a particular witness. It is to be noted that, all the
six male accused persons were put in the same TIP in six rows. The
Special Executive Magistrate could have taken care to put only two
accused in one parade at a time with six dummies each for every
suspect. The cumulative effect of all these infirmities is that the TIP
evidence is not beyond reasonable doubt and, therefore, cannot be
used to assist the prosecution case.
28. PW-17 PSI Girish Gaikwad was the first investigating
officer. He deposed that, on receiving the information on
16.04.2016, he visited the hospital. He recorded the FIR of PW-1
Jayesh. He commenced the investigation. He carried out the
inquest panchanama and the dead body was sent for the
postmortem examination. The spot panchanama was conducted
and the articles were seized from the spot including the scissor.
29. PW-18 P.I. Manikrao Jadhav was the second investigating
officer. He recorded the statements of the witnesses. He deposed
that the accused were already arrested by PSI Gaikwad and PSI
Agam. He seized the clothes of the deceased. He proved the
31 of 41 912-apeal-1376-23 (J)
contrary portions of the witnesses from their police statements.
Those contrary portions are produced on record at Exhibits-158 to
161.
All these statements show that these hostile witnesses
had seen the incident and some of them had even suffered injuries.
The other important aspect is that in none of the statements the
names of the accused are mentioned. But the incident is described
in detail even by the hostile witnesses in their police statements.
30. PW-18 then sent all the articles for CA examination. He
collected the injury certificate. He identified all the accused before
the Court.
In the cross-examination, he stated that, he visited the
spot of the incident in the evening. He accepted that the names of
the accused persons were not mentioned in the FIR. The seized
scissor was kept near the sewing machine in the house where the
incident had taken place.
31. The prosecution also produced the CA report on record
which shows that the scissor showed presence of human blood, but
32 of 41 912-apeal-1376-23 (J)
the blood group was inconclusive. The clothes of the deceased had
blood of ‘A’ group. The clothes of the Appellant showed presence of
human blood, but the blood group was inconclusive.
This, in short, is the evidence led by the prosecution.
32. The learned Judge relied on the evidence of the eye
witnesses. He held that, there was no common object and held that
the accused No.2 i.e. the present Appellant was solely responsible
for committing the offence punishable U/s.302 of the IPC. He thus,
convicted and sentenced him.
SUBMISSIONS OF MR. SACHIN HANDE, LEARNED COUNSEL
FOR THE APPELLANT
33. There are too many contradictions interse between the
depositions of the eye witnesses. The important eye witnesses i.e.
the father of the deceased, the uncle and the mother of Gulchand
have not supported the prosecution case. They were the aggrieved
persons, and since they have not supported the prosecution case,
an adverse inference is required to be drawn against the
prosecution case. He submitted that the TIP was not conducted
properly and, therefore, the identification of the accused by the
33 of 41 912-apeal-1376-23 (J)
witnesses loses its significance. It is an admitted fact that, except
Gulchand none of the eye witnesses had given the names of the
accused, and, therefore, the identification of the accused by those
witnesses assumes great importance. There is evidence to show
that during the crucial period of the actual assault, the electricity
was cut off and, therefore, there was total darkness in the room. In
that case, it was not possible for the witnesses to have seen the
incident. Even assuming that the in-laws of Gulchand including the
Appellant being the brother in law were present in the room, that
does not mean that the accused/Appellant himself had caused the
assault. There were other people in the room and any one of them
could have committed the assault. The witnesses could not have
seen that, because there was no light in the room and the
electricity was cut off for some time. Alternatively, he submitted
that the offence could not be that of murder, because there was no
intention to commit murder. The Appellant did not have enmity
with the deceased, therefore, there was no motive.
34. Learned counsel for the Appellant relied on the
Judgments of the Hon’ble Supreme Court in the case of Surain
34 of 41 912-apeal-1376-23 (J)
Singh Versus State of Punjab1 and Atul Thakur Versus State of
Himachal Pradesh and others2. Based on these judgments, he
submitted that, it would not be a case U/s.302 of the IPC, but it
would be the case U/s.304(II) of the IPC, as at the highest
knowledge can be attributed to the Appellant and not the
intention.
SUBMISSIONS OF MS. SUPRIYA KAK, LEARNED APP FOR THE
STATE
35. Learned APP submitted that, while it is true that, the
other witnesses had not named the accused, but the evidence of
PW-5 Gulchand is important. He was knowing the Appellant and
other accused. His presence at the spot cannot be doubted because
the incident had taken place in his room, though, other witnesses
at some place have deposed that Gulchand was not there. It is
clear that the accused have tried to settle the matter, some of the
witnesses have turned hostile and the witnesses may have wanted
to help the accused. In any case, she submitted that the evidence
of PW-5 Gulchand is strong enough on which the conviction can be
safely based.
1 (2017) 5 Supreme Court Cases 796
2 (2018) 2 Supreme Court Cases 496
35 of 41 912-apeal-1376-23 (J)
REASONS AND CONCLUSION
36. We have considered these submissions. As discussed
above, there are many eye witnesses to the incident, but five eye
witnesses i.e. PW-6 Mangesh Devalkar, PW-12 Sunny Pawar, PW-13
Balwant Sawant, PW-14 Narayan Shiravale and PW-15 Sarita
Nikam have turned hostile. They have not supported the
prosecution case. The prosecution has proved the contrary portions
from their police statements. The other witnesses have not named
the accused, but PW-15 Sarita was Gulchand’s mother, and hence,
was knowing the accused by names. She had given the names of
the accused in her police statement. In her contrary portion proved
by the I.O., she had described the incident in detail. She has
elaborately described the incident by ascribing the role of assault
with the scissor to the Appellant. However, the hostile witnesses
are not reliable witnesses.
37. The prosecution case, therefore, rests on the evidence of
PW-1 Jayesh Nikam, PW-2 Pradeep Tambe, PW-4 Akash Raut and
PW-5 Gulchand. Out of them, except PW-5 Gulchand, none of the
36 of 41 912-apeal-1376-23 (J)
witnesses including PW-1 Jayesh had named the accused in their
police statements. Therefore, their evidence will have to be tested
in the background of the TIP. As we have already discussed above,
the evidence of TIP in this case is not beyond reasonable doubt.
The TIP was not conducted with due care and caution. Therefore,
it is not possible to place reliance on the identification of the
accused, including of the present Appellant, by these witnesses i.e.
PW-1, PW-2 and PW-4. Having said that, the evidence of PW-5
Gulchand is the most important evidence in this case. It cannot be
said that PW-1, PW-2 and PW-4 have with reasonable certainty
identified the accused.
38. The fact remains that all these three witnesses have
specifically described that Gulchand’s wife’s relatives were present
in the room and that they had committed this offence. Therefore,
even if they may not know the names, but their description is that,
Gulchand’s in-laws had committed this offence. In addition, they
have identified those accused in the Court. In this background, the
evidence of PW-5 Gulchand is very important.
37 of 41 912-apeal-1376-23 (J)
39. PW-5 Gulchand is the most natural witness in this case.
The incident had taken place in his room. It started with the
accused quarreling with Gulchand for his aggressive approach
towards his wife. He was initially beaten by kicks and fist blows
and a belt. After that, PW-1 Jayesh and his friends entered the
room. Then this incident had taken place. Therefore, PW-5
Gulchand in this case is a natural witness. He has described the
incident right from the inception till the deceased was taken to the
hospital. He had given his statement U/s.164 of the Cr.P.C. which
sufficiently corroborates his deposition before the Court. We have
carefully perused his deposition and we do not find any infirmity
in his statement. Though, he had fairly accepted that for some time
there was no electricity in the room, but he has specifically
described the incident when the Appellant had given a blow with
scissor on the deceased. The defence could not bring out any
contradictions from his police statement. His statement U/s.164 of
the Cr.P.C. corroborates his deposition. Therefore, we do not see
any reason to disbelieve this important witness. His deposition, to
some extent, is supported by the version of PW-1, PW-2 and PW-4
38 of 41 912-apeal-1376-23 (J)
who have described that, the in-laws of Gulchand had committed
this offence. While it is true that PW-2 Pradeep Tambe and PW-4
Akash Raut at one place have stated that Gulchand was not
present, however, PW-4 has further deposed in the cross-
examination that, Gulchand had sustained injury in the said
incident, but Jayesh did not suffer any injury. Thus, even this
witness had accepted the presence of Gulchand at the time of the
incident. PW-1 Jayesh had not deposed that Gulchand was not
present. Thus, there is no reason to disbelieve PW-5 Gulchand,
whose evidence is sufficient to establish that the present Appellant
had assaulted the deceased with a scissor.
40. The next question is, whether the offence is of murder or
is a lesser offence. In both the judgments relied on by the learned
counsel for the Appellant, there was a sudden fight and, therefore,
the Hon’ble Supreme Court had considered Exception 4 to Section
300 of the IPC. In the present case, there was no sudden fight
between the deceased and the Appellant. In fact, the deceased had
no connection or no concern with the accused at all. The Accused
had come to question Gulchand about his behaviour with his wife.
39 of 41 912-apeal-1376-23 (J)
There was a quarrel between Gulchand and his in-laws. The other
witnesses including Jayesh, his friends and the deceased had
entered the room to pacify the quarrel. Therefore, it cannot be said
that the incident of assault was a result of sudden quarrel or fight.
The accused themselves had come to the room with intention to
question and assault Gulchand.
41. In this case, the nature of the injuries assumes
importance. The intention can be seen from the nature of injury in
this case. The murder weapon was easily available. The scissor was
regularly used by Gulchand as a part of their livelihood of stitching
clothes. There is absolutely nothing to show that the deceased
Sameer had anything to do with the dispute between Gulchand
and the accused. It is not the case of the Appellant that, Sameer or
any other witnesses posed any threat giving rise to apprehension in
his mind of causing any grievous hurt or serious injury to him. The
witnesses including the deceased were unarmed. In that case,
neither of the Exceptions mentioned in Section 300 of the IPC is
available in defence of the appellant. The assault on the deceased
was not an isolated assault. The Appellant, at the first instance,
40 of 41 912-apeal-1376-23 (J)
assaulted Akash Raut on his head, then he assaulted Sunny Pawar
and then he assaulted the deceased. There was blow on Akash
Raut’s head as well. The injury certificates corroborate the version
of the eye witnesses and in particular that of PW-5 Gulchand. The
postmortem notes show the severity of blow inflicted by the
Appellant on the deceased. It was quite a forceful blow cutting the
cartilages of two ribs. It penetrated the body of the deceased at
some length. The heart was pierced. Therefore, it is clear that the
Appellant did not have any other intention than to commit murder
of the deceased. While it is true that, there was no motive, but the
act itself falls within all the ingredients mentioned U/s.300 of the
IPC. In this view of the matter, it is difficult to hold that the offence
committed by the Appellant would not be that of ‘murder’ but
would be one possible U/s.304(I) or U/s.304(II) of the IPC.
42. The deceased was not carrying any weapon. He was
unarmed. He unnecessarily lost his life. He had not given any
provocation to the Appellant. In this view of the matter and in the
facts of the case, the offence of murder is proved by the
prosecution beyond reasonable doubt. With the result, we do not
41 of 41 912-apeal-1376-23 (J)
find any reason to interfere with the impugned judgment and
order.
43. The Appeal is accordingly dismissed. With the disposal of
the Appeal, the connected interim application is also disposed of.
(SANDESH D. PATIL, J.) (SARANG V. KOTWAL, J.)
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