SWAPNIL UTTAM PADWALversusSTATE OF MAHARASHTRA AND ORS

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                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION

                                       CRIMINAL APPEAL NO.190 OF 2024
                                                    WITH
                                     INTERIM APPLICATION NO.1224 OF 2024
                                                     IN
                                       CRIMINAL APPEAL NO.190 OF 2024

                          Ramesh @ Dattu Gopal Pawar             .... Appellant/
                                                                      Applicant
                                     versus

                          The State of Maharashtra & Ors.        .... Respondents

                                                    WITH
                                       CRIMINAL APPEAL NO.189 OF 2024
                                                    WITH
                                     INTERIM APPLICATION NO.4376 OF 2025
                                                     IN
                                       CRIMINAL APPEAL NO.189 OF 2024

                          Kumar Bhimsingh Chavan & Anr.          .... Appellant/
                                                                      Applicant
                                     versus

                          The State of Maharashtra & Ors.        .... Respondents

                                                    WITH
                                       CRIMINAL APPEAL NO.980 OF 2024
                                                    WITH
                                     INTERIM APPLICATION NO.3599 OF 2024
                                                     IN
                                       CRIMINAL APPEAL NO.980 OF 2024

                          Swapnil Uttam Padwal                   .... Appellant/
MANUSHREE
NESARIKAR                                                             Applicant
Digitally signed
                                 versus
by MANUSHREE
NESARIKAR
Date: 2026.07.28
12:34:14 +0530            The State of Maharashtra & Ors.        .... Respondents
                                                       …....
              Nesarikar
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•     Mr. Veerdhaval Deshmukh a/w Mr. R. B. Patil, Advocate for
      Appellant/Applicant in APEAL/190/2024.
•     Mr. Mohammed Umar Kazi a/w Ms. Sonia Santis a/w Mr. Umar
      Nizami a/w Tehseen Shaikh, Advocate for Appellant/
      Applicant in APEAL/189/2024.
•     Mr. Sachindra B. Shetye a/w Mr. Irfan Shaikh a/w Mr. Atharva
      Pawar, Advocate for Appellant/Applicant in APEAL/980/2024.
•     Ms. Mahalakshmi Ganapathy, APP for the State/Respondent.
•     Mr. Rajas Naik, Advocate for Respondent Nos.2 and 3.

                      CORAM       : SARANG V. KOTWAL &
                                    ASHISH S. CHAVAN, JJ.
                      DATE        : 17th JULY, 2026

JUDGMENT : (PER : SARANG V. KOTWAL, J.)


1.            All these three Appeals are decided by a common

     Judgment today because they arise out of the same impugned

     Judgment and Order dated dated 17/01/2024 passed by the

     learned Additional Sessions Judge, Kalyan, in Sessions Case

     No.29/2016.



2.            For convenience the Appellants are described either by

     their names or status as accused before the Trial Court.



3.            The Criminal Appeal No.190 of 2024 is filed by the

     accused No.1 Ramesh @ Dattu Gopal Pawar. The Criminal
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     Appeal No.189 of 2024 is preferred by the original accused No.3

     Kumar Bhimsingh Chavan and the original accused No.4 Santosh

     Bhimsingh Chavan. The Criminal Appeal No.980 of 2024 is

     preferred by the original accused No.5 Swapnil Uttam Padwal.



4.            At the conclusion of the trial, the accused were

     convicted and sentenced as follows :



            (i)    All the Appellants were convicted for commission
                   of offence punishable u/s 302 r/w 149 of the
                   Indian Penal Code and were sentenced to suffer
                   rigorous imprisonment for life and to pay a fine of
                   Rs.5,000/- and in default of payment of fine to
                   suffer rigorous imprisonment for two months.


            (ii)   All of them were convicted for commission of
                   offence punishable u/s 120-B r/w 149 of the
                   Indian Penal Code and were sentenced to suffer
                   rigorous imprisonment for life and to pay a fine of
                   Rs.5,000/- each and in default of payment of fine
                   to suffer rigorous imprisonment for two months.


            (iii) All of them were convicted for commission of
                   offence punishable u/s 201 r/w 149 of the Indian
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      Penal Code and were sentenced to suffer rigorous
      imprisonment for seven years and to pay a fine of
      Rs.3,000/- and in default of payment of fine to
      suffer rigorous imprisonment for one month.


(iv) All of them were convicted for commission of
      offence punishable u/s 4 r/w 25 of the Arms Act
      and   were     sentenced      to   suffer   rigorous
      imprisonment for three years and to pay a fine of
      Rs.1,000/- each and in default of payment of fine
      to suffer rigorous imprisonment for 15 days.


(v)   All of them were convicted for commission of
      offence punishable u/s 143 of the Indian Penal
      Code and were sentenced to suffer rigorous
      imprisonment for six months.


(vi) All of them were convicted for commission of
      offence punishable u/s 147 of the Indian Penal
      Code and were sentenced to suffer rigorous
      imprisonment for two years.


(vii) All of them were convicted for commission of
      offence punishable u/s 148 of the Indian Penal
      Code and were sentenced to suffer rigorous
      imprisonment for three years.
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             (viii) All the substantive sentences were directed to run
                   concurrently.


             (ix) The Appellants were granted set off u/s 428 of
                   Cr.P.C.


             (x)   The fine amount, if deposited, was directed to be
                   paid to the first informant and her mother.


5.            Heard Mr. Veerdhaval Deshmukh, Mr. Mohammed

     Umar Kazi, Mr. Sachindra B. Shetye, learned counsel for

     Appellants and Ms. Mahalakshmi Ganapathy, learned APP for

     the State.



6.            The prosecution case in brief is as follows ;


              The deceased Ganesh knew accused No.4 Santosh

     Chavan. For his business purposes, the accused No.4 Santosh

     Chavan requested for financial assistance from the deceased

     Ganesh. It is the prosecution case that Ganesh pledged his

     ornaments and raised some money to help Santosh financially.

     After a few days Ganesh started demanding his amount. But

     Santosh was not willing to repay that amount. This created a rift
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in their relationship. Two days prior to the incident, Santosh and

the other accused met at a bar. P.W.2, Bali Jaiswal, was also

present with them. At that time, accused No.4, Santosh,

expressed his intention to commit murder of Ganesh. Bali was

earlier employed with Ganesh. He informed about this threat to

Ganesh. P.W.1, Jamuna Rathod, was the sister of Ganesh. She

was told by Ganesh about the threat. She was worried. In the

night of 26/09/2015, Ganesh did not return home for quite

some time. She went in search of him near his house. He was

talking with his friends Uday Raj and Naushad. Even Bali was

present with them. As she was going towards Ganesh, she saw

five to six persons coming in a Rikshaw. They were carrying

weapons. She saw that all of them assaulted Ganesh with their

weapons like chopper, knife and pointed iron weapons. She

raised shouts. People gathered there. The accused ran away. She,

along with others, took Ganesh to the hospital, but he

succumbed to his injuries. The police were informed. They

reached the hospital. They recorded statement of P.W.1, Jamuna,

in the hospital. It was treated as an FIR. The offence vide CR

No.I-538/2015 was registered at Manpada Police Station in the
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     midnight     at   around   12.35    a.m.   on   27/09/2015.     The

     investigation commenced. The dead body was sent for post-

     mortem examination. The Spot Panchanama was conducted.

     Various other Panchanamas were conducted. The accused were

     arrested one after the other. Some weapons were already found

     at the spot. Some other weapons and the blood stained clothes

     of the accused, were recovered at their instance. The statements

     of the witnesses were recorded u/s 164 of Cr.P.C. At the

     conclusion of the investigation, the charge-sheet was filed. The

     case was committed to the Court of Session.



7.              During trial, the prosecution examined 21 witnesses.

     The main witness was P.W.1, Jamuna Rathod, who had lodged

     the FIR. She was the sister of the deceased. The other

     eyewitness, Bali Jaiswal, was examined, but he turned hostile.

     Apart from them, the prosecution examined various Panchas, the

     Medical Officers, and the Investigating Officers.



8.              The defence of the accused was of total denial. The

     learned Judge relied mainly on the evidence of P.W.1. He
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     referred to the CCTV footage from the bar where the accused

     No.4, in the presence of P.W.2, had expressed his intention to

     commit murder of the deceased. Learned Judge also took into

     consideration the motive behind the murder. After considering

     the defence of the accused and the arguments advanced by both

     the sides, the learned Judge convicted and sentenced the

     Appellants, as mentioned earlier. One more accused, that is

     accused No.2, Jamir Hanif Shaikh, had also faced the trial.

     According to the prosecution case, he was the rickshaw driver in

     which the accused had reached the spot. The learned Judge gave

     him benefit of doubt, as no role was attributed to him, and

     acquitted the original accused No.2, Jamir Shaikh.



9.            P.W.1, Jamuna Rathod, was the first informant. She

     deposed that she was residing at Dawadi village with her

     brother (deceased in this case) and her mother. Her husband

     had deserted her three years prior to the incident. She was

     residing with her brother, Ganesh. He was in construction

     business. He had business in the name ‘Chavan Enterprises’. She

     knew the accused No.4, Santosh, as he was from the same
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community. She knew that accused No.4, Santosh Chavan, was

residing at Shelar Naka. Her mother had a house at Shelar Naka,

and P.W.1 also used to sell fish at Shelar Naka. Therefore, she

knew the accused No.4, Santosh, who was also in construction

business. According to her, the accused No.4 was in need of

money. He requested her       brother to lend him some money.

Accused No.4 needed Rs.2 lakhs. P.W.1's brother, Ganesh,

arranged Rs.2 Lakhs by pledging the gold chain and gold

ornaments of her mother. The amount of Rs.2 lakhs was paid to

the accused No.4, Santosh, who had requested time of four

months to repay the amount. After four months, Ganesh

demanded back his money, but Santosh declined. Ganesh even

sent his mother to the accused No.4’s house asking for money.

But he did not pay the amount. Ganesh then tried to call him

telephonically, but Santosh was not receiving his calls. One day,

they met on the road, and there was quarrel between them on

this count. This quarrel took place about two to three days prior

to the incident of assault on Ganesh. Ganesh returned home and

told about this quarrel with the accused No.4 to P.W.1.
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10.        P.W.1 further deposed that on 25/09/2015, the accused

  No.4 called Bali Jaiswal (P.W.2) to Savali Bar. Bali met the

  accused No.1 - Ramesh, accused No.4 - Santosh, and one Sagar

  Patil. Santosh told Bali that he would kill Ganesh. Bali in turn

  gave this information to Ganesh, and Ganesh narrated this back

  to P.W.1. Ganesh told her that he would talk to the accused No.4,

  Santosh, and settle the issue, but the issue was not settled. On

  26/09/2015, Ganesh left home in the morning at around 09.00

  a.m. At about 10.00 p.m. P.W.1 and her mother returned home

  after selling fish. They saw Ganesh's car parked under the

  building and Bali's motorcycle near the car. P.W.1 did not see her

  brother at home. Her mother then telephonically called Ganesh,

  who in turn told her that he was with Bali on the road near their

  house. Till about 10.45 p.m., Ganesh did not return home.

  Therefore, out of concern, P.W.1 went down to see him. She did

  not see Ganesh near the building. Therefore, she went ahead on

  the road. She saw her brother, Ganesh, standing with P.W.2 Bali,

  Naushad and Uday Raj in front of Dr. Palshetkar Hospital. She

  deposed that, at that time one rickshaw came from Dawadi

  Village. There were about 5 to 6 persons in the rickshaw. All of
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them rushed towards Ganesh. They were armed with weapons.

Accused No.4 Santosh was in the front. He had a big chopper in

his hand. She deposed that accused No.4 - Santosh, accused

No.1 - Ramesh, accused No.5 - Swapnil, accused No.3 - Kumar

and one Shaquil assaulted Ganesh. Ramesh and Swapnil had

knives in their hands. Kumar and one Chander had held the

hands of Ganesh. All of them started giving blows with the

weapons on Ganesh. P.W.1 started screaming. In the meantime,

the public gathered there. The assailants dropped the weapons

at the scene of incident and ran away. She caught her brother.

She deposed that all of them had come in the autorickshaw of

the accused No.2 Jamir, who also ran away from that place. The

aforementioned Shaquil and Chander were absconding and did

not face the trial. She further deposed that the people gathered

near the spot, took her brother to AIIMS Hospital, but the doctor

declared her brother dead on arrival at the hospital. Police came

to the hospital. They made inquiry with her. They recorded her

statement. That statement is produced on record at Ex.67. The

police treated that statement as the FIR. She deposed that the

police had read over and explained the contents of that
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  statement to her as she could not read and write Marathi. After

  that, she had signed the statement. At about 01.00 to 02.00

  a.m., the police took her to the spot of incident. Police seized the

  weapons lying at the spot. They prepared the Spot Panchanama

  in her presence. P.W.1 identified the clothes worn by the

  deceased at the time of the incident when those clothes were

  produced in the court. She identified the knife produced in the

  Court which was used by the accused No.5 - Swapnil. She

  identified the chopper used by accused No.4 - Santosh. She

  identified all the accused who were present before the trial court.



11.        P.W.1 was extensively cross-examined. She mentioned

  the phone number of her mother Shankari Chauhan. She

  accepted that she had a ration card of Trimurti Nagar, Shelar

  Chowk. It was in the name of her husband and two children,

  along with her. The house at Trimurti Nagar was owned by her

  mother. The distance between Trimurti Nagar and Dawadi Gaon

  was about 15 minutes by autorickshaw. She accepted that her

  mother sold country liquor in the room at Trimurti Nagar. She

  did not know whether there were CCTV cameras outside the
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hospital of Dr. Palshetkar. She deposed that her brother Ganesh

had two wives. She was specifically cross-examined from the

point of view to see whether the blood of the deceased could be

transferred on her clothes. She answered that when he was

falling down, she held Ganesh's head. She specifically deposed

that her brother's body did not touch her. Only his head touched

her. She further deposed that they had taken her brother to

AIIMS Hospital in a rickshaw. She went in a different

autorickshaw to AIIMS Hospital. Bali and 3 to 4 other persons

from the public had taken Ganesh in an autorickshaw to AIIMS

Hospital. She was present when her brother was shifted from

the autorickshaw to the hospital. The doctor at AIIMS Hospital

made enquiries with her. He reduced her narration into writing.

Police reached AIIMS Hospital after 15 to 20 minutes after P.W.1

had reached AIIMS Hospital. In that context, she deposed that

she had not signed any papers in AIIMS Hospital. She was in

that hospital for about half an hour after the police had come to

AIIMS Hospital. Some minor omissions from her FIR were

brought on record. Her FIR statement did not mention that the

accused had dropped the weapons at the scene of incident. She
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could not explain as to why it was not mentioned in her FIR. She

deposed that she had not gone to the police station in the night.

She had gone on the next day between 09.00 a.m. to 10.00 a.m.

She had gone to the police station for about 3 to 4 times in

connection with this case. On every visit, the police used to

make some inquiry and record something into writing and make

her sign it. But she clarified that they had taken her signature

only on one document on 27/09/2015. She had received a copy

of the FIR on the next day. She denied the suggestion that

Ganesh used to lend money on interest and there were various

cases pending against him in the nature of theft and extortion.

She denied that Ganesh and Bali had gone to jail on many

occasions. She deposed that the accused No.4, Santosh Chavan

had a construction site at Shelu. She did not know whether

Ganesh had purchased a room at Shelu from accused No.4 for

Rs.3 lakhs. The police did not seize her clothes. She deposed

that the police had detained Bali (P.W.2) on suspicion for about a

day. She did not know any other person detained by police. At

the time of her deposition, her husband was residing with her.
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12.        The FIR lodged by P.W.1, which is produced at Ex.67,

  substantially corroborates her deposition except on a crucial fact

  that the name of the accused No.3, Kumar was not mentioned

  by her in her FIR. She had mentioned the names of accused

  No.1, accused No.4 , accused No.5, and attributed specific roles

  to them. In addition, she had named one Chandar and Shaquil.

  Importantly, she had referred to one unknown person who was

  with the accused. That person had chased her brother and had

  held him. Thus, P.W.1 had not named the accused No.3, Kumar

  Chavan in her FIR. There is no other evidence to show that she

  had referred to the accused No.3, Kumar Chavan, as that

  unknown person. No Test Identification Parade was held to

  enable her to identify that unknown person or to show that it

  was none other than the accused No.3, Kumar Chavan.



13.        P.W.2, Bali Jaiswal, was another eyewitness, but he did

  not support the prosecution case. He was declared hostile. He

  stated before the Court that he knew the deceased Ganesh, as he

  had worked with Ganesh. Ganesh and P.W.2 himself, both were

  residing at Shelar Chowk in the past. P.W.2 had shifted his
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residence. He knew the accused because they were also residing

at Shelar Chowk. He had left working with Ganesh since about

six months prior to the incident. He deposed that he did not

know how Ganesh had died. Ganesh and accused No.4 both

were in construction business. They were known to each other.

He deposed that there was some money transaction between

Ganesh and Santosh. Ganesh had given a shop on rent to

accused No.1 Ramesh, who had not paid the rent to Ganesh. He

further deposed that Ganesh demanded that rent from accused

No.1 Ramesh, but the accused No.1, Ramesh, avoided to pay

that rent. He further deposed that Santosh had taken loan of

Rs.2 lakhs from Ganesh. Santosh had transferred a room in a

chawl in favour of Ganesh. There was some financial transaction

between Ganesh and Shaquil. He deposed that on 25/09/2015,

he was at Dombivali. In the afternoon, he was at railway station.

He had gone to Savli Bar to meet one Sagar Patil, who called

Santosh and Ramesh and asked them to come to the bar. P.W.2

further deposed that they had food and drinks, and then they

left. He denied that while they were in the bar, Santosh had said

that he was going to kill Ganesh. This was important because it
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was the prosecution case which he did not support. Therefore,

he was permitted to be cross-examined by the learned APP.



         In the cross-examination conducted by the learned APP,

he accepted that from Savli Bar they went to meet Ganesh. In

the same night, they celebrated Ganesh's birthday. He accepted

that on 26/09/2015, Ganesh narrated all these facts to one

Rajesh Srivastav and requested him to settle the matter between

Santosh and him. P.W.2 accepted that Rajesh told Ganesh that he

would meet them at Regency Circle at 06.00 p.m. and try to

settle the matter. P.W.2 along with Ganesh and 4 to 5 others met

at Regency Circle and decided to settle the matter. After that,

only Ganesh and P.W.2 waited there at the Regency Circle. The

others left. After narrating this portion, he denied all the

suggestions given by the learned prosecutor regarding the actual

incident of assault. He had narrated the said incident in his

statement before the police, naming the accused and attributing

weapons and roles to them. This particular portion in his police

statement was brought to his notice. He denied having made

that statement to the police. Subsequently, that portion was proved
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  by the prosecution through the evidence of the Investigating

  Officer who had recorded P.W.2's statement during investigation.

  That portion is marked as Ex.219. It substantially corroborates the

  version of P.W.1. It describes the names of the accused, the roles

  played by them and the weapons used by them.



14.        P.W.2 further admitted that his statement was recorded

  before J.M.F.C. at Kalyan. The statement was shown to him. He

  accepted that it had his signature. He further admitted that he

  had narrated the incident as it happened in that statement. The

  statement is taken on record at Ex.70. In that statement also, he

  had described the entire incident with the role played by each of

  the accused and the weapons used by them. He identified the

  accused present in the Court. He denied the suggestion that he

  was on friendly terms with the accused.



           In the cross-examination conducted on behalf of

  accused, he again supported the defence. He deposed that

  Ganesh used to lend money to people at Vashi. He had reached

  AIIMS Hospital at about 11.15 to 11.30 p.m. By that time, the
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police had already reached the hospital. According to him, police

did not inquire with him, and he did not state anything to them

about the incident. He did not remember whether P.W.1 was

present at the hospital when he reached there. He accepted that

he and Ganesh were co-accused in one case pending in Kalyan

Court. He further accepted that in the present case, the police

had arrested him as a suspect. He was detained for about three

days. About 5 to 6 persons were also arrested on suspicion. They

were known to him, but he did not give their further details. He

was not produced before any Court during those three days. He

deposed that he was brought to Court in police custody. His

statement was recorded by police. It was a handwritten

statement, and he had signed it. As soon as he gave his

statement, the police released him. He further deposed that he

was not produced before the Judge. He had signed Ex.70 at the

police station. He further deposed that it was true to say that the

police had told him that if he signed the statement, he would be

released, or else he would be implicated in the case. His

statement at Ex.70, as mentioned earlier, supports the evidence

of P.W.1. He described the incident in Savli bar when P.W.4 had
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  told him that they were planning to commit murder of the

  deceased. He also described the actual incident of assault on the

  deceased by naming the accused with the weapons. He had also

  stated that P.W.1 was present near the dead body at the spot.

  After that, they had taken Ganesh to AIIMS Hospital.



15.           P.W.3, Amit Kamble, was the Pancha for Inquest

  Panchanama. He deposed that the thumb of Ganesh’s right hand

  was severed. One knife was stuck near the right armpit. He was

  also extensively cross-examined. But nothing much turned on

  his evidence. The Inquest Panchanama was produced on record

  at Ex.72.



16.           P.W.4, Rajesh Chaudhary, was a Pancha for recovery of

  weapons and clothes of the accused No.3 Kumar Chavan. He

  deposed that he was called by Manpada police station on

  01/10/2015. The accused No.3 was present in the police station.

  He showed willingness to show the place where he had

  concealed the chopper. That statement was recorded. It is

  produced on record at Ex.75. The accused No.3, Kumar led the
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police and the Pancha near a temple in village Golavali. He went

near the bushes and took out a chopper. P.W.4 deposed that the

chopper was seized and sealed. P.W.4 put his signature on the

sealed label. That Panchanama is produced on record at Ex.76.

He was again called at about 05.00 p.m.. This time, the accused

No.1, Ramesh Pawar, showed willingness to show the place

where he had burnt his clothes. That statement was reduced

into writing. It is produced on record at Ex.77. He led the

Pancha and the police behind a public toilet at Ambivali. He

showed the spot where he had burnt the clothes. Some ash was

lying there. The police collected that ash. That ash was produced

on record Ex.78. On 05/10/2015, again he was called at the

police station. This time the accused No.3 showed willingness to

point the place where he had thrown clothes of the accused

from a running train. That statement was recorded. It is

produced on record Ex.79. However, those clothes were not

found. On 12/10/2015, he was again called to the police

station. This time the accused No.5 Swapnil expressed

willingness to show the place where he had concealed the

clothes which he had worn at the time of incident. That
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  statement is produced on record Ex.81. They were recovered

  from his house. However, when this witness was asked to

  identify the accused, he stated that the accused were present

  before the court, but when he gave their names, the identity of

  the accused was wrongly stated by him. In short, he could not

  identify the accused in the Court properly. He was cross-examined

  regarding whether he had acted as a Pancha in the past. There

  were some other cases when he had acted as a Pancha.



17.        P.W.5 Narendra Jagtap was a Pancha for seizure of

  clothes of the deceased. He was also a Pancha for the arrest of

  the accused No.3 Kumar and accused Chandrakant on

  30/09/2015.    On   03/10/2015,     he   witnessed    the   arrest

  Panchanama of the accused No.4 Santosh. That Panchanama is

  produced on record at Ex.99. Accused No.4 Santosh had his

  hand fractured. It was bandaged with a plaster. The Panchanama

  mentions as to how he had suffered the fracture, but the

  narration is in the nature of confession. Therefore, we are not

  referring to that particular portion from the arrest Panchanama,

  Ex.99 of the accused No.4.
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18.        P.W.6 Surendra Hamgi, had installed CCTV setup at

  Savli Bar. On 29/09/2015, he was asked to copy the footage

  from Savli Bar. He accordingly copied the footage. He also

  issued a certificate. It is produced on record at Ex.108. It was

  u/s 65-B of the Evidence Act. In the cross-examination, he

  deposed that the box in which the DVR was kept, was locked

  and the key was with the owner of the restaurant.



19.        P.W.7 Ramesh      Rathod    was a Pancha        for   Spot

  Panchanama, which is produced on record at Ex.112. He

  described that there was a rickshaw at the spot. There were

  blood stains inside the auto rickshaw. There were blood stains

  on the windscreen of the rickshaw. There were blood stains on

  the back seat of the rickshaw. One knife was lying at the spot.

  There was also one mobile phone at the spot. There was a

  chopper, footwear, smartphone, and gold chain at the spot. One

  icepick and cover of knife was found at the spot. Apart from

  that, a broken left thumb had also fallen at the spot. He

  identified the articles produced in the Court as the articles which
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  he saw at the spot. The spot of incident and the articles found at

  the spot are hardly disputed.



20.        P.W.8, Prabhakar Shetty, was the owner of Savli Bar. He

  deposed about recording of the CCTV footage on 29/09/2015.

  He described as to how P.W.6, Surendra Hamgi was called and

  how the CCTV footage from camera No.5 and 9 were copied.



           In   the   cross-examination,   he   deposed    that   his

  statement was not recorded by the police u/s 161 of Cr.P.C.



21.        P.W.9, Hitesh Newadi, was a shop owner from whom an

  icepick was purchased by the accused, but he did not give details

  of the accused, neither he identified the accused in the Court.

  Therefore, his evidence is hardly of any significance.



22.        P.W.10, Dr. Sanjay Baranwal, deposed about the

  injuries, suffered by the accused No.4. He stated that he was

  attached to Satyam Hospital, Kalamboli, in the year 2015. The

  accused No.4, Santosh, was admitted in that hospital on

  27/09/2015. He was shifted from Taloja Central Hospital, where
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  the injury on his right upper limb was sutured. But on the next

  day, the doctors at Central Hospital did not find the radial artery

  pulse,    and    therefore,    the      accused   No.4,    Santosh,    was

  immediately rushed to Satyam Hospital. P.W.10 examined him

  and saw that the radial artery and multiple tendons were cut.

  Surgery was performed by him. The hand of accused No.4 was

  saved. Importantly, he deposed that the accused No.4 had told

  him that he had fallen on a broken beer bottle and had

  sustained the injury. He produced the medical papers on record.

  He further deposed that the injury to the patient was possible by

  a sharp-edged weapon like a chopper. The patient was

  discharged on 03/10/2015.



             In the cross-examination, he denied the suggestion that

      the accused No.4 had taken treatment since two days prior to

      coming to the hospital. He denied a suggestion that the injury

  was not possible by a sharp-edged weapon like knife or chopper,

                  but can only be caused by broken glass.



23.          P.W.11, Dr. Shashank Fanade, was attached to Hardev

  Nursing Home at Kalyan. He deposed that on 27/09/2015, he
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  had examined a person named Sandesh, who had a CLW on the

  left hand and an abrasion on the left shoulder. The said Sandesh

  had narrated a history of suffering the injury because of falling

  from a motorcycle. P.W.11 sutured the wound on OPD basis. The

  said person declined to get admitted in the hospital. According to

  the prosecution case, the said person was none other than the

  accused No.4. However, there is no linking evidence of this witness

  to show that he was describing about the accused No.4. He

  expressed his inability to identify the said Sandesh in the Court.



24.           P.W.12, Akhtar Hashmi, was a shop owner from whom

  accused had purchased two knives. However, he did not identify

  the accused in the Court. Therefore, his evidence does not take

  the prosecution case any further.



25.           P.W.13, Dr. Prashant Tingale, had conducted the

  postmortem examination. The deceased had suffered following

  injuries:



         1]     CLW over chin, measuring 6 × 3 × 4 c.m.
         2]     CLW over neck, measuring 5 × 3 × 4 c.m.
         3]     4 CLW over central to chest measuring 2.5 × 1 × 8 c.m.
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        4]     3 small wounds over central to the chest 4 × 1 m.m.
        5]     Left side lower chest anteriorly CLW 7 × 2 × 8 c.m.
        6]     Near to umbilicus (below) 2 CLW at 3 × 1 × 6 c.m.
        7]     Below to umbilicus CLW 5 × 1 × 8 c.m.
        8]     Left lower abdomen 2 × 1 × 4 c.m.
        9]     Right wrist 9 × 2 × 3 c.m. crush injury. Piece of
               thumb is chopped, present with the body.
        10]    Crushed middle right finger.
        11]    Left wrist and hand crushed 10 × 9 × 3 c.m. CLW
               with wound over palm and fracture of ring finger
               and middle finger.
        12]    Left shoulder CLW 4 × 3 × 4 c.m.
        13]    Right upper back 2 × 2 × 4 c.m. (2 CLW) present.
        14]    Left flank region 16 × 4 × 4 c.m. CLW with multiple
               bruises over backside.


26.          There were fractures of 3rd, 4th, 6th, and right 2nd rib.

  The tracheal ring was fractured. Lungs and pericardium were

  ruptured. The cause of death was mentioned as ‘death due to

  neurohemorrhagic shock by multiple stab wounds and multiple

  organ damage’. The postmortem report is produced on record at

  Ex.130. According to him, the injuries were possible by sharp-

  edged weapons, though he was extensively cross-examined that

  the injuries suffered by the deceased were due to use of sharp-

  edged weapons, which can hardly be disputed.



27.          P.W.14, Ankush Diwakar, was the owner of a mobile

  phone shop. He deposed that accused No.1, Ramesh Pawar, had
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  bought a mobile phone from his shop on credit. It was Nokia

  105 model. On 01/10/2015, P.W.14 was called by the police to

  identify the mobile phone. He identified the mobile phone

  produced at Article ‘S’ before the Court. He also identified the

  accused No.1 as the same person.



           In the cross-examination, he deposed that accused

  No.1's shop is next to his shop. He stated that he could not

  produce the purchase bill of the mobile phone.



28.        P.W.15 Deepak Chaplot was the jeweler with whom the

  deceased Ganesh had pledged his ornaments. He deposed that 3

  to 4 months prior to the incident, Ganesh had come to his shop.

  He pledged his ornaments and took Rs.2 lakhs. But no document

  was executed. He deposed that he had taken the money to give

  it to someone. He did not give the details to whom the money

  was to be paid. After about a month, P.W. 15 demanded his

  money. At that time, Ganesh told him that the money was given

  to accused No.4 Santosh Chavan. But Santosh was not repaying

  the money. Ganesh did not return the money till he was alive,
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  and therefore, P.W.5 did not return the ornaments. After

  Ganesh's death, his mother paid the money and took back the

  ornaments.



             In the cross-examination, he deposed that he had lent

  money to Ganesh in June 2015. He accepted that in the year

  2002, there was theft in his shop for which he had lodged a

  police complaint. But he denied that he was acquainted with the

  police.



29.          P.W.16 PSI Vinod Kadam, had pasted the prohibitory

  order     regarding   possession    of   arms   issued   by    Police

  Commissioner, Thane on 22/09/2015. He had pasted the order

  at conspicuous places. Copy of the prohibitory order is produced

  on record at Ex.143.



30.          P.W.17 Dr. Renu Shinde, produced the medical

  certificates regarding the injuries suffered by the accused. The

  medical certificate at Ex.148 shows that accused No.3 Kumar

  had injury on the left index finger. Accused No.4, Santosh, had
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  injury on his hand as mentioned earlier. The other accused did

  not have any injury.



31.         P.W.18, WPN Manisha Jadhav, was attached to

  Manpada Police Station. On 01/10/2015, API Dhikale handed

  over six sealed envelopes to her. She took them to FSL Kalina.

  On 14/10/2015, again six sealed parcels were given to her. She

  carried those articles to FSL, Kalina. Again, on 17/10/2015, six

  more sealed parcels were given to her which she took to FSL

  Kalina.



            In the cross-examination, she accepted that API

  Dhikale, took out the packets from his personal cupboard and

  gave them to her. The covering letters are produced at Ex.161,

  Ex.162 and Ex.163. The covering letters Ex.162 and Ex.163

  show that they bear different dates and outward numbers. On

  both these occasions, the endorsement of the FSL shows that

  these parcels were received. Significantly, both these covering

  letters are exactly the same and the same articles are mentioned

  in both these covering letters.
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32.        P.W.19, Suresh Ingle, was a photographer who had

  taken the photographs at the spot. They are produced on record.

  The photographs are as per the description of the Spot

  Panchanama.



33.        P.W.20, API Sagar Dhikle, was the main Investigating

  Officer. The investigation was handed over to him on

  27/09/2015. He carried out the Inquest Panchanama. He seized

  the knife stuck on the person of the deceased. He sent the dead

  body for postmortem examination. He conducted the Spot

  Panchanama. He described the three mobile phones the rickshaw,

  stains of blood, sandle, chopper, iron pointer, cover of the button

  knife, part of broken finger, and broken golden chain seen at the

  spot. The articles were seized. Two phones were of Samsung

  company and one was of Nokia company. He identified those

  articles which were produced in the Court. He seized the clothes

  of the deceased carried by Police Naik Katkar. He recorded the

  statements of witnesses. He procured CCTV footage from Savli

  Bar. He deposed that on 30/09/2015, PSI Vijay More arrested

  accused No.3 Kumar and accused Chandrakant. On 01/10/2015,
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a chopper was recovered at the instance of accused No.3. On

01/10/2015, ash of burnt clothes was recovered at the instance

of accused No.1. On 03/10/2015, accused No.4 was arrested.

He arrested accused No.1. On 01/10/2015, the accused No.3

produced the clothes of the accused. P.W.20 also arrested

accused No.5 Swapnil on 07/10/2015. On 12/10/2015, the

clothes of accused No.5 were found from his house under the

supervision of this witness. The articles were sent for chemical

analysis. He caused the statements of the witnesses to be

recorded u/s 164 of Cr.P.C. He collected the medical reports

regarding the treatment received by the accused No.3, accused

No.4, and Chandrakant. He conducted investigation regarding

the RTO papers of the seized Autorickshaw. The CCTV footage

from Savli Bar was recorded in a pen drive. It was deposited in

the Muddemal room, but it was not found. The copy in his

laptop was produced as secondary evidence. He took out the

hash value of the recorded footage. He gave certificate u/s 65-B

regarding the same. Both these documents are produced at

Ex.248 and 249. He described the meeting dated 25/09/2015

captured in that footage. He identified Sagar Patil, accused No.1
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  Ramesh Pawar, accused No.4 Santosh Chavan and and P.W.2 Bali

  Jaiswal. The contrary statement of P.W.2 Bali recorded by the

  police was proved through this witness, and it is marked as

  Ex.219.



34.         He was extensively cross-examined. He deposed that

  on 29/09/2015, when P.W.6 Surendra Hamgi gave a copy of the

  CCTV footage, at that time, P.W.6 had not taken the hash value.

  He admitted that the CCTV footage was not shown to other

  witnesses, including P.W.1. At about 11.00 to 11.30 a.m. in the

  night of the incident, API Avhad made a phone call to him and

  called him to the police station. He reached the police station at

  11.45 p.m. He then went to AIIMS hospital between 12.00 to

  12.30 p.m. At that time, API Avhad was taking down the

  statement of P.W.1. The relatives of the deceased were present.

  API Avhad had recorded a statement on his laptop and then

  went to the police station. This witness did not get to read the

  FIR in the hospital. He stated that though there were other

  relatives of the deceased present in the hospital, he did not

  record their statements. He was cross-examined about the
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  mobile phone handset found at the spot. He accepted that he did

  not seize the clothes of P.W.1 which he was wearing at the time

  of incident. The person who had admitted the deceased in the

  hospital was named Nazir Shaikh, but P.W.20 has not recorded

  his statement. He accepted that Nazir Shaikh was the cousin of

  the second wife of the deceased. His investigation did not reveal

  as to how much rent amount was due from the accused No.1

  payable to the deceased. He deposed in the cross-examination

  that there was not a single witness stating that the accused No.4

  had suffered injuries in the scuffle.



           In further cross-examination, P.W.20 stated that the last

  conversation between the deceased and the first informant was

  at around 05.48 p.m. The mobile number mentioned by this

  witness matched with the phone number of P.W.1's mother as

  deposed by her.



35.        P.W.21 API Vijay More had arrested the accused Nos.3

  and 4 on 21/09/2015 and 30/09/2015 respectively.
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36.        Besides this ocular evidence, the prosecution produced

  the CA report on record at Ex. 254. The clothes of the accused

  Nos.1, 2 and 5 showed presence of human blood. But the blood

  group was inconclusive. The chopper also showed presence of

  blood, but the blood group was inconclusive.



37.        This in short is the evidence led by the prosecution.



38.        Learned counsel Mr. Shetye, appearing on behalf of

  accused No.5, made the following submissions.



           The main evidence in this case is that of P.W.1. She

  claims to be an eyewitness, but she is not a trustworthy witness.

  She was a close relative of the deceased and hence, an

  interested witness. Therefore, her evidence is required to be

  scrutinized minutely. The evidence shows that she may not be

  present at the time of incident. The material witnesses were not

  examined. P.W.1 herself refers to the presence of one Uday Raj

  and Naushad. But these witnesses are not examined. Even their

  statements were not recorded by the police. Therefore, adverse
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inference needs to be drawn. Her evidence shows that public

had gathered at the spot at the time of incident, and yet none of

the people who had gathered at the spot were examined. P.W.1

did not give the basic details regarding the incident. Her clothes

were not seized by the police. If she was near the deceased, then

naturally his blood could have stained her clothes. That would

have established her presence, but her clothes were not seized,

and therefore, the prosecution deliberately did not seize her

clothes.



           Since P.W.1 never stated that after the incident, the

accused went inside the rickshaw. therefore, there was no

occasion for there being any bloodstains inside the rickshaw.

Finding of bloodstains inside the rickshaw shows that she was

not describing the incident correctly. That would also mean she

was not present at the spot.



           The admission papers of the deceased to the hospital

show that one Nazir Shaikh had admitted him to the hospital,

but he was not examined. He would have been the best witness
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to show as to how the deceased was admitted in the hospital

and as to whether P.W.1 was really present at the spot until the

deceased was taken to the hospital. The last phone call was

made by the mother to the deceased at around 05.48 p.m. as is

deposed by the Investigating Officer. Therefore, the theory of the

prosecution that P.W.1 had made her mother call the deceased in

the night is a false theory. Mr. Shetye submitted that P.W.1 had

deposed that the deceased had not returned home till 10.45

p.m. and therefore, she got worried as per the prosecution case.

According to Mr. Shetye, 10.45 p.m. in Mumbai is not such an

odd hour which would have made P.W.1 worried about the safety

of the deceased. The recording of the FIR in the hospital is also

doubtful. There is only reference to a laptop. There is no

reference to any printout. At one point, the witness P.W.1 has

stated that she signed the FIR in the police station, but she has

not deposed that she had gone to the police station in the night.

Therefore, the FIR is a manipulated document. Mr. Shetye

referred to her cross-examination where she had stated that she

had not signed documents in the hospital. He invited our

attention to the station diary entry made at Ex.251. He
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specifically referred to the station diary entry made at 11.20

p.m. on 26/09/2015 and at 12.35 a.m. on 27/09/2015. He

submitted that this was a short period. The first entry shows that

at 11.20 p.m. API Avhad was at the police station. Then he went

to the hospital. Then he recorded the FIR and came back to the

police station. This was not possible within a short time between

11.20 p.m. to 12.35 a.m. Therefore, the FIR is manipulated. As

far as accused No.5 is concerned, the panchnama of recovery of

clothes does not show that the clothes were sealed, though P.W.5

in his deposition states that the clothes recovered at the instance

of the accused No.5 were sealed. He invited our attention to the

covering letters sent with the carrier P.W.18 to FSL. Those

covering letters, as mentioned earlier, mention different dates

and outward number but their contents are exactly the same.

Therefore, there is doubt regarding the parcel received by the

FSL. He relied on the admission given by P.W.18 in her cross-

examination that API Dhikle took out the articles from his own

cupboard and handed them over to this witness. He submitted

that there was no motive for the accused No.5 to have

committed this offence. Learned counsel also submitted that
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  finding of blood inside the rickshaw and on the windscreen of

  the rickshaw is contrary to the evidence of P.W.1.



39.        Learned counsel Mr. Kazi, appearing for the accused

  Nos.3 and 4 adopted the entire argument made by Mr. Shetye.

  In addition, he made the following submissions:



           There were CCTV cameras installed outside Dr.

  Palshetkar’s Hospital, and yet the investigating agency did not

  bother to get the footage from that hospital, which would have

  shown the exact occurrence of the incident. He submitted that

  P.W.2 was admittedly detained by the police as a suspect in this

  case. In addition, there were 5 to 6 other persons detained, but

  there are no further details given by the investigating agency

  during the trial. The statement of P.W.2, which is proved through

  the Investigating Officer, loses its significance because obviously

  that statement was given under duress. In any case, P.W.2, is not

  a reliable witness. He has not supported the prosecution case. As

  far as P.W.1 is concerned, he relied on the submissions made by

  Mr. Shetye regarding, the lesser value of P.W.1's evidence to
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  contend that, there are indications that P.W.1 was not present at

  the spot when the incident took place. He submitted that

  according to the prosecution case, there was a dispute for Rs.2

  lakhs, but there is evidence to show that the accused No.4 had

  given a room at Shelu to the deceased, and therefore, there was

  no due payable by the accused No.4 to the deceased, and hence,

  there is no motive in this case. The recovery attributed to the

  accused Nos.3 and 4 is effected from an open space, and

  therefore, it loses its significance. One chopper was already

  found at the spot. There is no reference to any other chopper.

  Therefore, the recovery of chopper at the instance of accused

  No.3 has no meaning. He submitted that the investigation was

  not honest, and there is a strong possibility of concoction of the

  prosecution case and planting of evidence.



40.        Mr. Kazi submitted that the FIR does not make

  reference to accused No.3 at all. What is referred to in the FIR is

  that along with the named accused, there was one unknown

  person. A specific role is attributed to him. There was no test

  identification parade conducted to enable P.W.1 to identify that
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  unknown person. After that, only during the deposition, P.W.1

  has directly named the accused No.3, Kumar Chavan. This

  clearly is an afterthought, and P.W.1 has attributed a role to him

  after four years, when her deposition was recorded in the year

  2019.



41.        Learned counsel, Mr. Deshmukh, appearing for the

  accused No.1, adopted the submissions made both by the both

  the learned counsel, Mr. Shetye and Mr. Kazi. In addition, he

  submitted that there is no witness examined by the prosecution

  to corroborate the version of P.W.1 that she had left her house in

  the night to go in search of her brother. Her conduct is

  unnatural. If she was present at the spot and if her brother was

  being assaulted in front of her, it is unnatural that she did not

  intervene and did not try to protect him. She did not even travel

  in the same rickshaw in which the deceased was taken to

  hospital. The police did not record statements of the witnesses

  who had taken the deceased to the hospital. Those witnesses are

  not examined during the trial. Therefore, adverse inference is

  required to be drawn. The investigation regarding the ownership
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  of the rickshaw is vague. The owner of the rickshaw could have

  thrown light as to how the rickshaw was taken by accused No.2.

  Though use of a weapon is attributed to the accused No.1 by

  P.W.1, the knife was never recovered at his instance. He

  submitted that the prosecution has not brought out any motive

  as far as the accused No.1 is concerned. He, therefore, submitted

  that considering all these submissions, benefit of doubt be given

  to the accused.



42.        The learned APP Ms. Mahalakshmi Ganapathy made

  the following submissions -:



           The prosecution has proved the motive and preparation

  through the evidence of P.W.1. She submitted the contradictory

  portion of P.W.2 in his police statement is proved through the IO.

  Moreover, he has admitted that he had given his statement

  before the learned JMFC, Kalyan, u/s 164 of Cr.P.C. Therefore,

  that statement can be read in evidence. The said statement

  describes the entire evidence in detail. She submitted that there

  is no force in the submissions of the defence counsel that P.W.1

  has not given that FIR, since, P.W.1 has categorically stated that
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  it was her FIR and her signature appeared on that FIR, she

  supported the recovery evidence. She submitted that the

  weapons and clothes were concealed by the accused. It was

  within   their   exclusive     knowledge,   and   therefore,   those

  recoveries are incriminating. The ocular evidence is supported

  by the medical evidence.



43.        Learned counsel Mr. Rajas Naik appearing for the sister

  and mother of the deceased adopted the submissions made by

  the learned APP.


           Reasons and Conclusion -:


44.        Before referring to the evidence of P.W.1, a reference

  can be made to the other corroborative pieces of evidence. The

  prosecution has tried to prove that the weapons and the blood

  stained clothes were recovered at the instance of different

  accused, as referred to hereinabove. In this context, the

  prosecution has examined P.W.4 Rajesh Chaudhary. The main

  feature of his deposition is that he was unable to identify the

  accused. Though he tried to identify the accused in the court, his
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  identification was wrong. This is a very significant aspect as far

  as his evidence is concerned.



45.        Apart from that, we find force in the submissions of Mr.

  Shetye that the recovery evidence will have to be discarded

  because the carrier, i.e. P.W.18, has admitted that the

  Investigating Officer had taken out all those articles which were

  sent to FSL from his own cupboard. Therefore, right from their

  alleged seizure, the articles remained in the custody of the

  Investigating Officer. The prosecution had to rule out the

  possibility of tampering with the evidence. This is a serious lapse

  in the investigation. Apart from that, we find force in his further

  submission that the covering letters were casually written. They,

  bear different dates and different outward numbers, but their

  contents are exactly the same. Both the covering letters show

  endorsement that six articles each were received by the

  authorized person from FSL on two different dates. These are all

  loose ends as far as recovery evidence and those articles are

  concerned. Therefore, the prosecution has failed to prove that

  the recovery of the clothes and weapons at the instance of the
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  accused was connected with the offence of murder in this case.

  In any case, the CA report shows that the blood group was

  inconclusive. Thus, taking all these circumstances cumulatively,

  we are of the opinion that the prosecution has not connected the

  recovery of articles viz. weapons and clothes with the offence of

  murder in this case beyond reasonable doubt.



46.        The prosecution has examined two eyewitnesses in this

  case. The first one is P.W.1, Jamuna Rathod, and the other one is

  P.W.2, Bali Jaiswal. P.W.2 has turned hostile, but he was cross-

  examined by the learned APP, and as mentioned earlier, he

  admitted having given his statement before the learned

  Magistrate. That statement u/s 164 of Cr.P.C. is produced on

  record. At the same time, his contrary version from the police

  statement which supports the prosecution case is also produced

  on record at Ex.219. Having said this, we find that since he has

  turned hostile, he is not a reliable witness. From his examination

  and cross-examination, it appears that he is not a reliable

  witness. However, some part of the prosecution case brought out

  on record through his evidence, is corroborated by the CCTV
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footage produced on record. It is the prosecution case that on

25/09/2015, in the night, the accused had met Bali and Sagar

Patil at Savli Bar. At that time, the accused No.4 had expressed

his intention to commit the murder of the deceased. The CCTV

footage is produced on record, though learned counsel, Mr.

Deshmukh, submitted that the hash value of the original CCTV

footage is not produced on record. The evidence of P.W.6,

Surendra Hamgi and P.W.8 Prabhakar Shetty read together

shows that the CCTV was properly preserved. It was copied by

P.W.6, who was in-charge of the CCTV setup, and the copy was

given to the police. P.W.6 had given a certificate u/s 65-B of the

Indian Evidence Act. Thus, copy of the CCTV footage was

properly made. Subsequently, the pen drive was not found, but

the secondary evidence was permitted by the learned Judge, and

the Investigating Officer was permitted to produce the copy

from his laptop. We do not find any fault in that procedure. The

description of the said CCTV footage supports the prosecution

case that there was a meeting at Savli Bar, where P.W.2 Bali was

present, along with Sagar Patil. He was joined by accused Nos.1

and 4, and at that time, accused No.4 had expressed his
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  intention. The CCTV footage to that extent supports the

  prosecution case.



47.        The main evidence in this case is obviously the

  deposition of P.W.1, Jamuna Rathod, who was the sister of the

  deceased. She had given the history of enmity between the

  deceased and accused No.4. She was informed by the deceased

  himself that the accused No.4 had expressed a threat to

  eliminate him. She was told about the earlier quarrel. Mr. Shetye

  tried to contend that, as far as the deceased was concerned, his

  information was hearsay. The fact remains that the deceased had

  expressed his apprehension to P.W.1, Jamuna Rathod, as is

  clearly deposed by her and therefore, when the deceased did not

  return home till about 10.45 in the night, she naturally got

  worried. We do not find force in the submissions of Mr. Shetye

  that 10.45 in the night was not an odd hour to cause any worry

  to P.W.1. The record shows that P.W.1 was aware that there was

  threat to the life of the deceased, and therefore, when she did

  not find her brother at home at around 10.45 p.m., it was not

  unnatural that she would get worried. In that state of mind, she
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tried to search for him, and when she came on the road, she saw

the deceased talking with Bali, Naushad and Uday Raj.

Immediately, within a short time, the accused came there and

this incident took place in front of her. The most important

feature in this case is that this incident took place at around

11.00 p.m. The deceased was immediately removed to the

hospital. P.W.1 had followed him to the hospital. The police were

informed at around 11.30 p.m. as per the station diary entries.

They reached the hospital and immediately recorded her

statement. The FIR was lodged at about 12.35 a.m. Thus, there

was immediate disclosure by P.W.1 about the incident to the

police, which is recorded in the FIR. There was no scope for

deliberation and concoction. Hence, we do not find any reason

to disbelieve her case that she was present at the spot. Merely

because her clothes are not seized by the police, is not a reason

to discard her evidence. In the cross-examination, she was

specifically asked a question from that angle. She had deposed

that the body of the deceased had not touched her. She had only

held his head. As can be seen, all the injuries were on the chest,

abdomen, and the hand of the deceased. Thus, we find that her
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  presence at the spot was natural. She was residing nearby. She

  had gone in search for her brother, as there was danger to his

  life, and he had not returned home, though his vehicle was

  parked in the building. As far as the narration of the actual

  incident is concerned, she has given sufficient details. She has

  named the accused in her deposition and has also attributed

  weapons and a particular role to each of the accused.



48.        At this stage, we must note that though she has named

  accused No.3 in her deposition and has also attributed a role

  and weapon to him, his name is not mentioned in the FIR. The

  FIR mentions that apart from the named accused, there was an

  unknown person. No test identification parade was held. The

  prosecution did not take any precaution to establish that she had

  referred to accused No.3 as the unknown person. Therefore,

  there was a long gap after lodging the FIR and her deposition.

  Only at the time of deposition she had mentioned the name of

  the accused No.3. This is a strong circumstance against the

  prosecution as far as accused No.3 is concerned, and therefore,

  we are inclined to give him benefit of doubt.
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49.          However, as far as the other accused are concerned,

  she had described their role in detail. Their presence, the

  weapons used by them and other details are described by her.

  All of them had come together. They had formed an unlawful

  assembly. Two of the accused are absconding. One of them is

  acquitted, though there is no Appeal against the acquittal.

  However, in all, there are at least five accused who are

  attributed specific role and weapon. Thus, the prosecution has

  proved that those five accused had formed an unlawful

  assembly, and therefore, all of them are responsible for the

  offence, particularly referring to Section 149 of the IPC. Apart

  from that, in any case, P.W.1 has attributed a specific role to each

  of them.



50.          Mr. Shetye tried to contend that P.W.1 has not made

  any reference that the accused had entered the rickshaw after

  the incident, and therefore, finding of the blood inside the

  rickshaw and, on the windshield shows that the incident might

  have occurred in a entirely different manner than is described by

  P.W.1. We are not inclined to accept this submission. Just
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  because P.W.1 did not describe as to how the blood was found

  inside the rickshaw, it does not mean that her entire evidence is

  required to be discarded. She had deposed about the incident in

  detail. After describing the incident, she stated that as people

  had gathered there, the accused ran away from there. It was not

  expected from her to have described as to where and how the

  accused ran away. It was not expected that she could have

  described that they entered the rickshaw or tried to go in a

  rickshaw, or they just left from that spot. Considering the serious

  incident which she had to witness, wherein her brother was

  brutally assaulted by 5 to 6 persons with deadly weapons, she

  could only narrate what was imprinted on her mind at that point

  of time. All the other details were quite pale compared to the

  main incident. Therefore, we do not find any reason to give

  benefit to the accused and to hold that P.W.1 was not telling the

  truth just because blood was found inside the rickshaw.



51.        The contention that the prosecution did not record the

  statement of Nazir Shaikh, who had admitted the deceased in

  the hospital, shows that P.W.1 had never accompanied the
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  deceased to the hospital; is also not acceptable. She has clearly

  stated in her deposition that she did not travel in the same

  rickshaw in which the deceased was taken, but she traveled in a

  separate rickshaw by following the others. In that case, if

  somebody else admitted the deceased to the hospital, that does

  not make her deposition doubtful.



52.        She had admitted in the cross-examination that she

  had not signed anything in the hospital. However, that

  questioning in the cross-examination has to be read in the

  context of the questions put to her. The question was in respect

  of the inquiry made by the Medical Officer with her, and

  therefore, in that context, she had stated that she had not signed

  any document. However, she has emphatically stated that the

  signature on the FIR was her signature. She had admitted to

  have given that FIR. Therefore, we find no reason to disbelieve

  that she had immediately given the FIR statement to the police

  in the hospital and that she had signed it. As mentioned earlier,

  the station diary entries completely corroborate her version. The

  short gap in which the FIR was registered, and the entries were
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  made, shows that there was absolutely no scope for concoction

  of a false story. Therefore, we are satisfied that P.W.1 is a truthful

  witness and can be the sole basis for conviction of the accused

  who are named by her in her FIR.



53.         Apart from the direct evidence, as rightly submitted by

  the learned APP, her version is supported by the medical

  evidence. The post-mortem note shows the injuries caused by

  sharp weapons on the chest and abdomen, as described in the

  post-mortem notes.



54.         As far as motive part is concerned, P.W.2 to that extent

  has not denied that there was financial transaction between the

  accused No.4 and the deceased, as well as between the accused

  No.1 and the deceased. The evidence of P.W.15 to a certain

  extent supports the prosecution case that the deceased had

  pledged his ornaments to borrow Rs.2 lakhs.



55.         There is one more circumstance which needs some

  reference. The accused No.4 had suffered injury on his hand,

  which required surgery. Mr. Shetye has contended that the
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  prosecution has not explained this injury and therefore, the

  genesis is suppressed. However, the defence of the accused itself

  is of total denial. They do not admit their presence at the spot.

  In fact, the accused No.4 had given different history to the two

  doctors whom he had approached before he was arrested. At

  one place, he had told them that he had suffered injury because

  his motorcycle had slipped, and to the other doctor, he had told

  that he had suffered injury because of a beer bottle. In this

  situation, the burden was not on the prosecution to explain the

  injury suffered by the accused No.4. He was also arrested after a

  few days. There is nothing to show that as per the prosecution

  case, he had suffered the injury at the hands of the deceased or

  his friends.



56.         The learned counsel contended that the prosecution

  deliberately or otherwise, has not examined the independent

  witnesses. Admittedly, two persons were talking with the

  deceased, i.e. Uday Raj and Naushad, but they were not

  examined by the investigating agency during investigation.

  Though it is true that the prosecution has not examined any
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  other witness from that locality, it is also quite clear that a close

  friend and a former employee of the deceased (P.W.2 Bali) had

  turned hostile and had not supported the prosecution case. The

  incident had caused terror. Looking at the manner in which the

  deceased was assaulted showed that it was a terrifying act.

  Therefore, it was not unusual that the witnesses did not come

  forward. However, P.W.1, being the sister, was present at the

  spot; and has clearly deposed about the entire incident, leaving

  no room to disbelieve her deposition. As a result, we find that

  the prosecution has proved its case against all the Appellants

  except the Appellant Kumar Chauhan i.e. the Appellant No.1 in

  Criminal Appeal number 189 of 2024.


57.         Hence, the following order :


                               ORDER


            (i)    The Criminal Appeal No.190 of 2024 is dismissed.


            (ii)   The Criminal Appeal No.980 of 2024 is dismissed.


            (iii) The Criminal Appeal No.189 of 2024 is partly
                   allowed.
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       (iv)   The Appellant No.1 Kumar Bhimsingh Chavan in
              Criminal Appeal No.189 of 2024 i.e. the original
              accused No.3 is acquitted from all the charges.


       (v)    The Criminal Appeal No.189 of 2024 as far as
              the original accused No.4 Santosh Bhimsingh
              Chavan (Appellant No.2) is concerned, is
              dismissed.


       (vi)   The accused No.3 Kumar Bhimsingh Chavan is in
              custody. He shall be released forthwith if not
              required in any other case. However, before
              being released he shall execute a bond of
              Rs.15,000/- (Rupees Fifteen Thousand only) in
              consonance with the provisions of Section 481 of
              BNSS in case Appeal against acquittal is
              preferred.


       (vii) The Appeals are disposed of in the aforesaid
              terms.


       (viii) With disposal of the Appeals, the connected
              applications are also disposed of.




(ASHISH S. CHAVAN, J.)                (SARANG V. KOTWAL, J.)