PINTYA @ SACHIN LAXMAN DUPATEversusSTATE OF MAHARASHTRA

2026:BHC-KOL:9486-DB

                                                                       Appeal-991-2024.doc


                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    CIRCUIT BENCH AT KOLHAPUR
                                   CRIMINAL APPELLATE JURISDICTION

                                  CRIMINAL APPEAL NO.991 OF 2024
                                              WITH
                             CRI-INTERIM APPLICATION NO.3657 OF 2024

               Pintya @ Sachin Laxman Dupate,
               Convict No.C – 8144,
               Adult, Aged 41 years,
               Address : Boudha Wasti,
               Atake, Taluka - Karad, Dist. - Satara.
               [Presently lodged at Kolhapur Central Prison]           … Appellant
                         VERSUS
               The State of Maharashtra,
               Through Karad Taluka Police Station,
               Taluka Karad, District - Satara.            … Respondent
               __________________________________________________________________
               Appearance :
               Mr. Satyajeet M. Mirajkar, Advocate for the Appellant
               Dr. Ashvini A. Takalkar, APP for the Respondent - State
               __________________________________________________________________
                                              Coram :    Sharmila U. Deshmukh &
                                                         Neeraj P. Dhote, JJ.
                                              Reserved on : 10th September, 2026
                                              Pronounced on : 1st October, 2026

               JUDGMENT : [PER NEERAJ P. DHOTE, J.]

               1.       This is an Appeal under Section 415 of the Bharatiya Nagarik

               Suraksha Sanhita, 2023 [hereinafter referred to as ‘BNSS’] against the

               Judgment and Order dated 09.07.2024, passed by the learned Extra Jt.

               District @ Sessions Judge, Karad [hereinafter referred to as ‘the learned



               Sameer                          1 of 22
                                                                 Appeal-991-2024.doc


Trial Court’], in Sessions Case No.51/2021, convicting and sentencing the

Appellant for the offence punishable under Section 302 of the Indian

Penal Code, 1860 [hereinafter referred to as ‘the IPC’]. The operative

order of the Judgment is reproduced below :

     “1)    Accused No.1 Pintya @ Sachin Laxman Dupate is hereby
            convicted, vide section 235 (2) of Criminal Procedure Code of
            the offence punishable under sections 302 of Indian Penal
            Code, 1860 and sentenced to suffer R.I. for life and to pay fine
            of Rs. 1000/- (One Thousand Rupees only) in default to suffer
            R.I. for three (3) months.
     2)     Accused Nos.1 is hereby acquitted for the offences punishable
            under Sections 201, 504, 506 of I.PC.
     3)     Accused No.2 is hereby acquitted for the offences punishable
            under Sections 302, 201, 504, 506 of 1.PC.
     4)     Bail-bonds of accused No 2 to stand cancelled.

     5)     Seized muddemal property Nos. 1 to 7 and 9 to 15 being
            worthless be destroyed after appeal period is over. Seized
            muddemal property No.8 i.e. motorcycle bearing registration
            No.10 MH-11/Q-5769 be returned to its registered owner, if
            already returned, then said bond stand cancelled after appeal
            period is over
     6)     Copy of this judgment be given to accused with free of cost.
     7)     Accused No.1 is made aware that he has right of appeal against
            his conviction and sentence before Hon'ble High Court,
            Bombay.”

2.         The case of Prosecution, as revealed from the police report, is

that, Ajay Dupate [hereinafter referred to as ‘Deceased’] was the

brother of Informant – Nagesh Dupate. They were resident of Atake,

Taluka – Karad, District – Satara. They were residing together. The

Deceased was working as a Driver on the JCB. The Appellant and his

father, i.e. acquitted Accused No.2 – Laxman Dupate, were suspecting


Sameer                                2 of 22
                                                      Appeal-991-2024.doc


the relations between the Deceased and the wife of Appellant and a

report in that regard was given by acquitted Accused No.2 – Laxman

Dupate against the Deceased to the Karad Police Station one (01) year

prior to the date of incident. The Appellant had sent his wife to her

parental house. The Appellant had asked the Informant to warn the

Deceased or else, he will cause grievous hurt to the Deceased. On

18.03.2021, the Deceased left the house in between 7:30 a.m. and 7:45

a.m. for going to attend his work. After some time, the nephew of

Informant by named Ganesh came home and informed that, the

Deceased was assaulted by the Appellant and acquitted Accused No.2 –

Laxman Dupate. The Informant immediately went to the spot and saw

that, the Deceased was in injured condition and was held by his cousin

brother – Bharat Dupate. The parents of the Appellant were seen

pulling the Appellant to take him home and the Appellant was holding a

wooden log. The Deceased was in an unconscious state and blood was

oozing from his head. The Informant with the help of his cousin brother

– Bharat Dupate and others removed the Deceased to the Hospital for

treatment. The Deceased was hospitalized in the Krishna Charitable

Hospital at Karad. The Informant went to the Karad Taluka Police

Station and lodged the report against the Appellant and Crime

No.155/2021 came to be registered for the offence punishable under

Section 307 of IPC.


Sameer                         3 of 22
                                                         Appeal-991-2024.doc


3.       The police went to the Hospital and to the spot of incident. The

spot panchnama was done. The clothes of the Deceased came to be

seized. The statements of witnesses were recorded. The Appellant came

to be arrested. The clothes of the Appellant were seized. The wooden

log came to be seized pursuant to the information disclosed by the

Appellant. The Accused No.2 – Laxman Dupate came to be arrested and

his clothes were seized. The statement of the Deceased could not be

recorded as he was not found fit and conscious to give statement. On

21.03.2021, the Deceased succumbed to the injuries during the

treatment. The Inquest was done and the dead body was referred for

postmortem. The postmortem was conducted and the dead body was

handed over to the relatives for the last rites. The offence punishable

under Section 302 of IPC came to be included in the crime along with

other Sections of IPC. After completion of investigation, the charge-

sheet came to be filed against the Appellant and acquitted Accused

No.2 – Laxman Dupate.


4.       As the offence punishable under Section 302 of IPC is exclusively

triable by the Court of Sessions, the learned Magistrate passed the

committal order. The learned Trial Court framed the charge for the

offence punishable under Sections 302, 201, 504 and 506 r/w Section 34

of IPC against the Appellant and acquitted Accused No.2 – Laxman



Sameer                            4 of 22
                                                          Appeal-991-2024.doc


Dupate below Exhibit – 8. The Appellant and acquitted Accused No.2 –

Laxman Dupate pleaded not guilty and claimed to be tried. To prove the

charge, the Prosecution examined in all eighteen (18) witnesses and

brought on record the relevant documents, such as report / FIR,

panchnamas, medical papers of the Deceased, photographs taken

during the course of investigation, postmortem report, reports of the

Chemical Anaylser (CA) etc. in the evidence of the witnesses. After filing

the evidence closure pursis by the Prosecution, the statements of the

Appellant and acquitted Accused No.2 – Laxman Dupate came to be

recorded under Section 313(1)(b) of Cr.PC. The Appellant and acquitted

Accused No.2 – Laxman Dupate stated that, they wanted to examine

the defence witness and examined two (02) witnesses as defence

witness. After hearing both the sides and on appreciating the evidence

available on record, the learned Trial Court passed the impugned

Judgment and Order convicting the Appellant and acquitting Accused

No.2 – Laxman Dupate as seen from the operative order referred above.


5.       Heard the learned Counsel for the Appellant and the learned APP

for the Respondent – State. Scrutinized the evidence on record.


[A]      It is submitted by the learned Counsel for the Appellant that, the

case largely hinges on the testimony of a minor girl who is examined as

the eyewitness. There are discrepancies in the testimony of the minor


Sameer                            5 of 22
                                                       Appeal-991-2024.doc


witness and other witnesses examined by the Prosecution. There was

delay in recording the statement of the minor witness. On the sole

testimony of the minor witness, the learned Trial Court acquitted

Accused No.2 – Laxman Dupate and convicted the Appellant. The

evidence of Defence Witness No.2 goes to show that, the minor witness

was with her at the time of incident, and therefore the evidence of the

minor witness that, she witnessed the incident gets falsified. The

evidence on record do not prove the guilt of the Appellant beyond

reasonable doubt and the learned Trial Court committed an error in

convicting and sentencing the Appellant on the sole testimony of the

minor witness. He submitted that, the Appeal be allowed and the

conviction and sentence be set aside.


[B]      It is submitted by the learned APP that, the minor witness who

saw the incident, was examined by the Prosecution and she withstood

the cross-examination. The evidence of the minor witness remained

unshaken in the cross-examination. The minor witness gave the detail

account of the incident. The evidence of the father of minor witness

shows that, he also witnessed the incident after he was informed about

the incident by the minor witness. The medical evidence on record

proved that, the death was homicidal. There is corroborative evidence in

the nature of blood stained clothes of the Appellant, which support the



Sameer                           6 of 22
                                                           Appeal-991-2024.doc


case of Prosecution. The learned Trial Court has rightly passed the

impugned Judgment and Order and no interference is warranted in the

same and Appeal be dismissed. In support of her submissions, she relied

on the following Judgments:


[a]      In State of U.P. Vs. Hari Mohan and Others; AIR 2001 SC 142,

wherein, it is observed that, the defective investigation cannot be made a

basis for acquitting the accused if despite such defects and failures of the

investigation, a case is made out against the accused persons.


[b]      In Suryanarayana Vs. State of Karnataka; 2001 (1) Supreme 1,

wherein, it is observed that, the evidence of the child witness cannot be

rejected per se, but the court, as a rule of prudence, is required to consider

such evidence with close scrutiny and only on being convinced about the

quality of the statements and its reliability, base conviction by accepting

the statement of the child witness. Corroboration of the testimony of a

child witness is not a rule but a measure of caution and prudence. While

appreciating the evidence of the child witness, the courts are required to

rule out the possibility of the child being tutored. In the absence of any

allegation regarding tutoring or using the child witness for ulterior

purposes of the prosecution, the courts have no option but to rely upon the

confidence inspiring testimony of such witness for the purposes of holding

the accused guilty or not.


Sameer                            7 of 22
                                                        Appeal-991-2024.doc


6.       The witnesses examined by the Prosecution can be catogarized as

the Informant, eyewitnesses, panch witnesses, doctors and police

witnesses. The Prosecution’s case rests on the testimony of the

eyewitnesses and other corroborative evidence. When the charge is for

the offence punishable under Section 302 of IPC, it becomes necessary

for the Prosecution to prove that, the death is homicidal.


7.       To prove the homicidal death of Ajay Dupate, the Prosecution

relied on the evidence of the Informant, other witnesses and medical

evidence. The evidence of PW – 1 [Nagesh Dupate] shows that, he is the

brother of Deceased. In the morning of 18.03.2021, after the Deceased

left the house for work, he was informed by his nephew Ganesh Dupate

that, the Deceased was assaulted and so he reached on the spot of

incident. He saw the Deceased in an unconscious state having injury in

the head and blood oozing from the injury. He along with the help of

cousin brother – Bharat Dupate [PW – 10] and others shifted the

Deceased to the Krishna Charitable Hospital. The evidence of PW – 10

[Bharat Dupate] shows that, he is the cousin brother of the Deceased

and of PW – 1 [Nagesh Dupate]. He resides in the neighbourhood of the

Deceased. In the morning of 18.03.2021, he came to know from his

daughter – Pranita Dupate that, the Deceased was assaulted and so he

reached on the spot of incident. He saw the Deceased in an injured



Sameer                           8 of 22
                                                          Appeal-991-2024.doc


condition with injury on his head. He with the help of others removed

the Deceased to the Krishna Hospital for treatment.


8.       The evidence of PW – 5 [Dr. Priyanka Yashvantrao Hendre] shows

that, she was Casualty Medical Officer in Krishna Hospital, Karad. At

about 07:45 a.m. on 18.03.2021, injured – Ajay Dupate [Deceased] was

brought by his relatives to the Hospital with the history of assault. The

Deceased was having head injury and nasal bleed with history of loss of

consciousness. She recommended CT scan and shifted the Deceased to

the I.C.U. The CT scan showed subdural hemorrhage along right fronto-

temporo-parietal region with midline shift of about 12 mm. She issued

injury certificate below Exhibit – 37. She found the following injuries on

the patient : “1. CLW over occipital region measuring size 4 x 3 x 3 c.m. 2.

CLW over occipital region measuring 10 x 2 x 2 c.m. 3. CLW over lower lip

size measuring 2 x 1 x 1 c.m.”


9.       The evidence of PW – 13 [Dr. Burhanuddin K/ Bhindarwala] shows

that, he was attached to the Krishna Hospital, Karad in the General

Surgery Department. The injured – Ajay Dupate [Deceased] was

admitted for treatment. He was unfit for giving the statement. The

evidence of PW – 8 [Dr. Parth Saradhi Reddy] shows that, he was posted

in the Neurosurgery Department in the Krishna Hospital, Karad. On

18.03.2021, the patient – Ajay Dupate [Deceased] was admitted for


Sameer                           9 of 22
                                                                Appeal-991-2024.doc


treatment. The CT scan was done. The patient was treated. He also

found the above referred injuries on the patient. Injury Nos.1 and 2

were grievous in nature and Injury No.3 was simple in nature. On

21.03.2021, the patient was on ventilator and inotropic support and at

about 4:15 p.m., the injured – Ajay Dupate [Deceased] was declared

dead.


10.          The evidence of PW – 9 [Dr. Sheela Ashok Khairmode] shows that,

she was the Medical Officer at Sub-District Hospital, Karad. On

23.03.2021, she was on duty. The dead body of Ajay Dupate [Deceased]

was brought with Inquest panchnama by the police for postmortem. The

medical papers from the Krishna Hospital disclosed the history of

assault. She performed the postmortem and found the following

external and internal injuries mentioned in Column Nos.17 and 19,

respectively in the postmortem report :

      “i.     Curvilinear surgically stitched wound present over right fronto
              temporo parietal region extending to posterior of pinna of right
              ear of size 32 cm. In length with 53 stitches in situ S/O
              Craniotomy.

      ii.     Contusion present over left axillary region of size 4 cm X 1 cm,
              reddish in colour;
      iii.    Contusion present over left lumbar region of size 4 cm X 2 cm
              reddish in colour;
                                         AND
      i.      Underscalp haematoma present right fronto temporo parietal
              region of size 5cm X 6 cm, with corresponding subgaleal
              haemorrhage.




Sameer                                 10 of 22
                                                            Appeal-991-2024.doc


      ii.     Menninges 1. subdural haemorrhage present over right fronto
              temporo parietal of zie 6 cm X 5 cm, dark in colour.

      iii.    Subarachnoid haemorrhage present over right fronto temporo
              parietal region of size 6 cm X 5 cm, dark red in colour.

      iv.     Brain-intact and oedematous.

      v.      Tonsillar herniation present.”


10.1              PW – 9 [Dr. Sheela Ashok Khairmode] further deposed that,

the aforesaid injuries were ante-mortem in nature and were sufficient in

the ordinary course of nature to cause death. She opined the cause of

death as ‘Cranio cerebal injury as a result of hard and blunt impact on

head due to assault (unnatural)’. She prepared the postmortem report

below Exhibit – 59.


11.          The cross-examination of the aforesaid witnesses examined by

the Prosecution goes to show that, the injuries found on the Deceased

and cause of death is not seriously disputed. The cross-examination of

the aforesaid witnesses could not create any dent in the evidence in

respect of the injuries on Deceased and the cause of death. The

evidence of Medical Officers / Doctors finds corroboration from the

medical papers and postmortem report [Exhibit - 59]. Thus, on the basis

of evidence on record, it is clear that, the Prosecution successfully

established that, the death of Ajay Dupate was homicidal.




Sameer                                  11 of 22
                                                       Appeal-991-2024.doc


12.      The evidence of PW – 1 [Nagesh Dupate] shows that, in the

morning of 18.03.2021, his nephew – Ganesh Dupate came to his house

and informed that, the Deceased was assaulted by the Appellant and

acquitted Accused No.2 – Laxman Dupate near the temple with the

wooden log. Thereafter, he reached on the spot of incident and found

the Deceased in an injured condition. His evidence shows that, he is not

the eyewitness to the actual incident. PW – 10 [Bharat Dupate] does not

speak of presence of PW – 1 [Nagesh Dupate] at the spot of incident.

His evidence in respect of assault on the Deceased by the Appellant and

the acquitted Accused No.2 – Laxman Dupate is hearsay. Undisputedly,

the Prosecution did not examine the Ganesh Dupate, who informed PW

– 1 [Nagesh Dupate] about the incident. After admitting the Deceased

to the Hospital, PW – 1 [Nagesh Dupate] lodged the report with the

police and set the criminal law in motion.


13.      The evidence of PW – 10 [Bharat Dupate], who is the cousin

brother of the Deceased and residing nearby, shows that, on 18.03.2021

in the morning, when he was at his house, his daughter – Pranita Dupate

[PW – 14] came home and informed him of assault on the Deceased by

the Appellant and acquitted Accused No.2 – Laxman Dupate and so he

went to the spot of incident. When he reached the spot of incident, he

noticed the Appellant and acquitted Accused No.2 – Laxman Dupate



Sameer                          12 of 22
                                                       Appeal-991-2024.doc


were assaulting the Deceased. The Appellant was having stick in his

hand and acquitted Accused No.2 – Laxman Dupate was having Gola

[iron ball]. He deposed that, he caught hold the Deceased and put the

cloth on the injury of Deceased. The Deceased was removed to the

Hospital by him with the help of others. His evidence shows that, after

admitting the Deceased in the Krishna Hospital, the police came in the

hospital. The police inquired with him and recorded his statement. The

said statement of PW – 10 [Bharat Dupate] being first in point of time

was the first information in respect of the incident. The said statement

is not brought on record by the Prosecution. Why the same is not

treated as First Information Report is best known to the Prosecution.

Thus, it can be presumed that, the said statement of PW – 10 [Bharat

Dupate] was not favorable the Prosecution.


14.      The evidence of PW – 1 [Nagesh Dupate] and PW – 10 [Bharat

Dupate] shows that, from the spot, the Deceased was removed and

admitted to the Krishna Hospital, Karad. The evidence of Doctors from

the Krishna Hospital examined by the Prosecution shows that, the

relatives had given the history of assault. Their evidence nowhere shows

that, the relatives had given the names of assaulters. The copies of the

medical case papers of the Deceased below Exhibit – 49 brought on

record in the evidence of PW – 8 [Dr. Parth Saradhi Reddy] shows that,



Sameer                         13 of 22
                                                       Appeal-991-2024.doc


the history of assault was given by the brother of the Deceased as

“patient had argument with some persons followed by fight”. The said

history is reflected from the copy of the head injury proforma and

summary sheet, which are part and parcel of Exhibit – 49. The said

medical documents which were prepared at the relevant point of time

nowhere mentions the names of assaulters. It is strange that, when PW

– 1 [Nagesh Dupate] and PW – 10 [Bharat Dupate], who are the full

blood brother and cousin brother, respectively, of the Deceased, who

admitted the Deceased to the Hospital, gave the history of assault as

‘argument with some person and fight’. When according to them, they

were knowing the names of the assaulters from the nephew – Ganesh

Dupate and daughter – Pranita Dupate, it is strange that, they did not

named the assaulters while giving the history of assault at the time of

admitting the Deceased in the Hospital. When both the said witnesses

had knowledge of the assaulters, nothing prevented them to name the

assaulters at that initial point of time when the history of assault was

narrated to the Hospital. Under such circumstance, the evidence of PW –

10 [Bharat Dupate] that, after reaching the spot of incident, he

witnessed the actual incident of assault is required to be seen with

serious doubt.




Sameer                         14 of 22
                                                        Appeal-991-2024.doc


15.      The evidence of PW – 1 [Nagesh Dupate] goes to show that, he

went to the Taluka Karad Police Station and lodged the report in

respect of the incident. The said report is at Exhibit – 20. The evidence

of PW – 15 [Ashok Bhapkar] shows that, from September – 2017 to

November – 2021, he was attached to Karad Police Station as the Police

Sub-inspector and Crime No.155/2021 was marked to him for the

investigation. The report below Exhibit – 20 and FIR format below

Exhibit – 21 goes to show that, the report was lodged at 13.13 p.m. on

18.03.2021 in respect of the incident of assault on the Deceased. In the

said report only, the Appellant came to be named as assaulter. Further,

it is clear from the evidence of PW – 1 [Nagesh Dupate] that, the

relations between their family and the family of the Appellant were not

cordial. His evidence shows that, since childhood, he had the knowledge

that, there was dispute between both the families, i.e. the family of

Deceased and the family of Appellant. This evidence clearly goes to

show that, both the sides were at loggerheads. The evidence of PW – 1

[Nagesh Dupate] goes to show that, after a period of six (06) hours, the

Appellant came to be named as the assaulter. In normal circumstance,

the said period of five (05) hours in reporting the incident along with

the name of the assaulter to the police would not have been fatal.

However, in light of the evidence of PW – 1 [Nagesh Dupate] and PW –

10 [Bharat Dupate] who had the knowledge of the assaulters, and did


Sameer                         15 of 22
                                                        Appeal-991-2024.doc


not named the assaulters in the alleged history of the assault and the

statement of PW – 10 [Bharat Dupate], which was recorded by the

police after the Deceased was hospitalized and was not treated as FIR,

and enmity between both the sides, naming the Appellant as the

assaulter after a period of six (06) hours is required to be seen with

doubt.


16.      There is no dispute that, the Appellant came to be arrested on

18.03.2021 after the crime was registered on the report lodged by PW –

1 [Nagesh Dupate]. According to the Prosecution, the wooden log

Article – P1 was seized at the instance of the Appellant pursuant to his

voluntary statement under Section 27 of the Indian Evidence Act, 1872

[hereinafter referred to as ‘the Evidence Act’]. For this, the Prosecution

relied on the evidence of PW – 3 [Dadasaheb Bhimrao Kasne], who

deposed that, in March – 2021, the police called him in the police station

and stated to show the wooden log and the Memorandum Exhibit – 31

came to be prepared, and the wooden log which was burnt at one side

was seized from one tin-shed. PW – 15 [Ashok S. Bhapkar], the

Investigating Officer also deposed that, the said Article – P1 was seized

at the instance of the Appellant from the place shown to him. Nowhere

the evidence of the said two (02) witness goes to show that, there was

blood on the said wooden log. There is nothing to show that, the said



Sameer                          16 of 22
                                                        Appeal-991-2024.doc


wooden log was sent for the Chemical Analysis for examination as there

is no reference of the wooden log in the articles which were referred for

examination vide Exhibit – 85. The CA report below Exhibit – 102

nowhere refers to the wooden log as the article received and examined.

Under such circumstances, the said discovery and recovery of the

wooden log will not be relevant.


17.      The other evidence is in respect of blood stained clothes of the

Appellant. The CA report below Exhibit – 102 shows that, human blood

of group ‘B’ was found on the full shirt and full pant marked as C1 and

C2, respectively. The CA report at Exhibit – 101 goes to show that, the

blood of the Deceased was of group ‘B’. There is inconsistency in the

evidence of panch witness and Investigating Officer in respect of

seizure of the said clothes. The evidence of panch witness PW – 6 –

Amol shows that, on 18.03.2021, he was called by the police and at that

point of time, the Appellant made available one white shirt and blackish

pant. On the contrary, according to PW – 15 [Ashok Bhapkar],

Investigating Officer, on 18.03.2021, the clothes which were on the

person of the Appellant, i.e. white shirt and blackish pant came to be

seized by giving him another clothes. Apart from the said inconsistency,

there is no CA report in respect of the blood group of the Appellant.

The learned Trial Court as seen from the observations in Paragraph



Sameer                           17 of 22
                                                               Appeal-991-2024.doc


No.63 of the impugned Judgment, completely discarded the evidence in

respect of recovery of the wooden log and clothes of the Appellant by

observing that, it was highly suspicious and doubtful. The said

Paragraph No.63 is reproduced below :

   “63. According to prosecution, clothes on the person of accused were
       seized in Karad Taluka Police Station in between 5.30 p.m. and 6.10
       p.m. on 18/03/2021 i.e. on the day of incident. It is further according
       to prosecution that on the very day i.e. on - 18/03/2021 in between
       4.27 p.m. and 4.42 p.m. accused gave disclosure statement in
       presence of I.O. and panch witnesses in connection with recovery of
       muddemal weapon wooden stick at Baudh Vasti, Atake. It is stated
       that at the time of disclosure statement while in police station,
       photographs were taken. Prosecution has referred photographs Exh.
       P-26/5 and Exh. 26/6. Similarly prosecution has referred
       photographs Exh. P-26/7 and 26/8 stating those are the
       photographs of the spot at Atake where accused showed muddemal
       weapon. In photographs exh. P 26/5,7, and 8 it is seen that yellow
       colour full sleeve shirt and blue colour jeans pants were clothes on
       the person of accused. These photographs are earlier point of time
       of the clothes seizure panchanama exh. P-45. If the seizure
       panchanama and photographs are read together, it is evident that
       at the time of disclosure statement i.e. 4.27 p.m. yellow colour full
       sleeve shirt and blue colour jeans were on the person of accused. In
       the circumstance, necessarily at 5.30 p.m. very clothes should have
       been seized from the person of accused. But there seems the clothes
       seized under panchanama Exh. P-45 are yellow colour full sleeve
       shirt and blackish colour full pant. This evidence, therefore, seems
       to be highly suspicious and doubtful. Same is the thing so far
       recovery of crime weapon. As per disclosure statement, it seems to
       have been taken place at the place of Baudh Vasti, Atake, whereas
       evidence and photographs show, accused gave disclosure statement
       while in police station. In the circumstance recovery of crime
       weapon as well as recovery of cloths stated to be that of accused,
       cannot be relied upon.”

17.1         In the light of the above discussion, the evidence in respect

of blood stained clothes of the Appellant will not be of any assistance to

the Prosecution.




Sameer                             18 of 22
                                                        Appeal-991-2024.doc


18.      What remains is the evidence of PW – 14 [Pranita Dupate], who is

the daughter of PW – 10 [Bharat Dupate] and the cousin-niece of the

Deceased. She is examined by the Prosecution as an eyewitness to the

incident. It appears that, the statement of this witness was recorded by

the police after a period of two (02) days. However, nothing has come in

the evidence in respect of delay. Her evidence goes to show that, at the

time of incident, she was 11 years old. She deposed that, on 18.03.2021,

she was cycling near the Naik Baba Temple near her house and she saw

the Appellant and acquitted Accused No.2 – Laxman Dupate assaulting

the Deceased. She deposed that, acquitted Accused No.2 – Laxman

Dupate kicked the two-wheeler on which the Deceased was travelling

and the Appellant assaulted the Deceased with wooden log on the head

and acquitted Accused No.2 – Laxman Dupate assaulted the Deceased

with an iron ball. She went to her house and informed the incident to

her father PW – 10 [Bharat Dupate]. She was subjected to cross-

examination. Her cross-examination shows that, when question was put

to her, as to what was the day on 18.03.2021, she deposed that, it was

Thursday. To the question as to what time she got up on 18.03.2021, she

deposed that, she woke up at 05:00 a.m. To the question as to what she

was doing from 05:00 a.m. to 07:00 a.m., she deposed that, she was

cycling. To the question as to what was the length of the stick, which

was in the hand of the Appellant, she deposed that, it was five [05] feet.


Sameer                           19 of 22
                                                        Appeal-991-2024.doc


To the question as to whether the said wooden stick was stained with

blood, she deposed in the affirmative.


19.      The date of the deposition of PW – 14 [Pranita Dupate] is

08.09.2023. She deposed before the Court after a period of two (02)

years and five (05) months from the date of the incident. Surprisingly,

she remembered the day of incident as Thursday, she knew the length

of the stick used in the assault. It appears improbable that, the child of

her age will remember each and every detail such as the date of

incident, the length of the stick used in the assault and the weekday of

the incident after a period of more than two (02) years. It does not

appear to be natural. Though it has come in her evidence that, Vilas

uncle was taking bath under the tap in the vicinity of spot of incident,

the evidence of PW – 12 [Vilas Dupate] shows that, his evidence in

respect of assault by the Appellant and acquitted Accused No.2 –

Laxman Dupate was hearsay. The evidence of PW – 14 [Pranita Dupate]

creates reasonable doubt as to whether she actually witnessed the

incident. It has come in her evidence that, her parents were present

when her statement was recorded by the police. Suggestions are given

that, she did not witnessed the incident and she was tutored. The

manner in which the said child witness deposed, creates a doubt in the

mind of Court about her being the eye-witness to the incident and it



Sameer                          20 of 22
                                                          Appeal-991-2024.doc


would be highly unsafe to maintain the conviction solely on her

evidence. Undisputedly, on the basis of the evidence of PW – 14 [Pranita

Dupate], the Accused No.2 – Laxman Dupate has been acquitted and the

Appellant is convicted. Admittedly, there is no Appeal against the

acquittal. Thus, the evidence of PW – 14 [Pranita Dupate] cannot form

the basis to prove the charge. Thus, it is not possible to uphold the

conviction on the sole testimony of PW – 14 [Pranita Dupate].


20.      There cannot be any dispute in respect of the settled legal

position as reiterated in the aforesaid decisions relied by the learned

APP. However, the said Judgments are of no assistance to the

Prosecution in light of the above discussion. The re-appreciation of the

evidence on record leads to the only conclusion that, the Prosecution

failed to prove the charge beyond reasonable doubt. Thus, the

impugned Judgment and order requires interference, and the Appellant

is entitled for acquittal. Hence, the following order :

                                   ORDER

  [a] The Criminal Appeal is allowed.

  [b] The conviction and sentence awarded by the learned Trial
         Court against the Appellant for the offence punishable under
         Section 302 of IPC, is quashed and set aside.

  [c] The Appellant stands acquitted for the offence punishable
         under Sections 302 of IPC.


Sameer                            21 of 22
                                                        Appeal-991-2024.doc


  [d] The Appellant is behind the bars. He be released, if not
         required in any other offence.

  [e] The Record and Proceedings be sent back to the learned Trial
         Court.

  [f] In view of disposal of Appeal, pending application, if any,
         stands disposed of accordingly.



 [Neeraj P. Dhote, J.]                       [Sharmila U. Deshmukh, J.]




Sameer                            22 of 22