Dattatraya Tambde vs State of Maharashtra - Criminal Appeal
Summary
The Bombay High Court issued a judgment in the criminal appeal case Dattatraya Tambde vs State of Maharashtra. The judgment, authored by Justice Bharati Dangre, was filed on March 26, 2026, and addresses appeals related to criminal proceedings.
What changed
The Bombay High Court has issued a judgment concerning criminal appeals, specifically Dattatraya Tambde vs State of Maharashtra. The document details the court's reasoning, precedents analyzed, and the final conclusion in the case. The judgment was filed on March 26, 2026, and is part of ongoing criminal appellate proceedings.
This judgment is a final determination of the appellate court. Legal professionals involved in this case or similar criminal matters should review the court's reasoning and conclusion for insights into the application of criminal law and procedure. No immediate compliance actions are required for entities outside of the direct parties involved in this specific appeal.
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Dattatraya Ramchandra Tambde vs The State Of Maharashtra on 26 March, 2026
Author: Bharati Dangre
Bench: Bharati Dangre
HEMANT
2026:BHC-AS:14711-DB
CHANDERSEN
SHIV
H.C. SHIV 912.app474.17.doc
Digitally signed by
HEMANT
CHANDERSEN SHIV
Date: 2026.03.27 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
12:27:18 +0300
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.341 OF 2017
Vinayak Madhav Chavan
Age 38 years,
R/o. 1122, Sadashiv Peth,
Pune 411 037
(At present detained at
Yerawada Central Prison, Pune) ... Appellant
(Org. Accused No.4)
V/s.
1. State of Maharashtra
Through Vishrambaugwada Police Station,
Pune City, Pune
2. Sughanda Maruti Kudale
R/o. Bandivan Maruti, Somanth Kachi Building,
Raviwar Peth, Pune
Currently R/o. Rashtrabushan Chowk,
2nd Floor, Khandakamal Bhaji Market, Pune
3. Sambhaji Shivlal Lahare
Age 60 years, Occ : Business
R/o Survey Nos.4, 5, Waghzai Pathak,
Dhanak Wadi, Pune
4. Sunil Narayan Chavan
Age 62 years, Occ : Painter,
R/o 737, Ganjpeth, Pune ... Respondents
WITH
CRIMINAL APPEAL NO.474 OF 2017
WITH
INTERIM APPLICATION NO. 1500 OF 2021
WITH
INTERIM APPLICATION NO.653 OF 2025
IN
CRIMINAL APPEAL NO.474 OF 2017
1/69
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H.C. SHIV 912.app474.17.doc
Ghansham Dattatraya Tambde
Age 22 years, Occ : Education
R/o. 1122, Sadashiv Peth,
Pune 411 037
(At present detained at
Yerwada Central Prison, Pune) ... Appellant
(Org. Accused No.3)
V/s.
State of MaharashtraThrough Vishrambaugwada Police Station,
Pune City, PuneSughanda Maruti KudaleR/o. Bandivan Maruti, Somanth Kachi Building,
Raviwar Peth, Pune
Currently R/o. Rashtrabushan Chowk,
2nd Floor, Khandakamal Bhaji Market, PuneSambhaji Shivlal LahareAge 60 years, Occ : Business
R/o Survey Nos.4, 5,
Waghzai Pathak, Dhanak Wadi, PuneSunil Narayan ChavanAge 62 years, Occ : Painter,
R/o 737, Ganjpeth, Pune ... RespondentsWITH CRIMINAL APPEAL NO.1540 OF 2018Dattatraya Ramchandra Tambde
Age 61 years, R/o.1122, Sadashiv Peth,
Pune 411 037.
(At present detained at
Yerawada Central Prison, Pune) ... Appellant
(Org. Accused No.1)
V/s.State of MaharashtraThrough Vishrambaugwada Police Station,
Pune City, Pune2/69::: Uploaded on - 27/03/2026 ::: Downloaded on - 28/03/2026 01:28:34 :::
H.C. SHIV 912.app474.17.docSughanda Maruti KudaleR/o. Bandivan Maruti, Somanth Kachi Building,
Raviwar Peth, Pune
Currently R/o. Rashtrabushan Chowk,
2nd Floor, Khandakamal Bhaji Market, PuneSambhaji Shivlal LahareAge 60 years, Occ : Business
R/o Survey Nos.4, 5, Waghzai Pathak,
Dhanak Wadi, PuneSunil Narayan ChavanAge 62 years, Occ : Painter,
R/o 737, Ganjpeth, Pune ... RespondentsWITH CRIMINAL APPEAL NO.908 OF 2024Sagar Dattatraya Tambde
Age 36 years, Occ : Education
R/o. 1122, Sadashiv Peth,
Pune 411 037
(At present detained at
Yerawada Central Prison, Pune) ... Appellant
(Org. Accused No.2)
V/s.State of MaharashtraThrough Vishrambaugwada Police Station,
Pune City, PuneSughanda Maruti KudaleAge : 70 years,
R/o. Rashtrabhushan Chowk,
2nd Floor, Khandakamal Bhaji Market, PuneSambhaji Shivlal LahareAge 60 years, Occ : Business
R/o Survey Nos.4, 5, Waghzai Pathak,
Dhanak Wadi, PuneSunil Narayan ChavanAge 62 years, Occ : Painter,
R/o 737, Ganjpeth, Pune ... Respondents3/69::: Uploaded on - 27/03/2026 ::: Downloaded on - 28/03/2026 01:28:34 :::
H.C. SHIV 912.app474.17.doc
Mr. Chaitanya Pendse with Ilsa Shaikh for the Appellant in Appeal
No.341/2017.
Mr. Satyavrat Joshi with Shivani Kondekar and Mr. Ishan Paradkar for
Appellant in Appeal Nos. 474/2017 and 1540/2018.
Dr. Yug Mohit Chaudhry with Mr. Hasan Nizami with Mr. Anush Shetty for
the Appellant in Appeal No.908/2024.
Mr. Tanveer Khan, A.P.P. for the Respondent-State.
CORAM : BHARATI DANGRE &
SHYAM C. CHANDAK, JJ.
RESERVED ON : 18th NOVEMBER, 2025
PRONOUNCED ON : 26th MARCH, 2026
JUDGMENT : [PER : SHYAM C. CHANDAK, J.]
"A criminal trial is not like a fairy tale wherein one is
free to give flight to one's imagination and phantasy. It
concerns itself with the question as to whether the
accused arraigned at the trial is guilty of the crime
with which he is charged. Crime is an event in real life
and is the product of interplay of different human
emotions. In arriving at the conclusion about the guilt
of the accused charged with the commission of a
crime, the court has to judge the evidence by the
yardstick of probabilities, its intrinsic worth and the
animus of witnesses. Every case in the final analysis
would have to depend upon its own facts. Although
the benefit of every reasonable doubt should be given
to the accused, the courts should not at the same time
reject evidence which is ex facie trustworthy on
grounds which are fanciful or in the nature of
conjectures."
State of Punjab Vs. Jagir Singh And Ors1,
1 (1974) 3 SCC 277
H.C. SHIV 912.app474.17.doc
1) A simple question to Accused No.1 by one of the three deceased as to why the former had installed his roadside business stall at
the business place of the latter, probably, as a concern to earn his bread-
and-butter, became reason of the anger of Accused No.2 leading him to
brutally kill the deceased and two other innocent to meet their maker, well
before their time. According to the prosecution, the Accused No.1, Accused
No.3 and Accused No.4 were also equally responsible for these barbaric
deaths. This Court is therefore called upon to examine the correctness of
the guilt of all four accused, because, as alleged, the murders were
committed in furtherance of the common intention of the all.
All these Appeals are being decided by this common judgment
as the Appeals arise from the same Judgment and Order dated 29/03/2017,
in Sessions Case No.830 of 2012, passed by the learned Additional Sessions
Judge, Pune. Thereby the Appellants - Original Accused Nos.1 to 4 ("A-1,
A-2, A-3 and A-4") were convicted for the offences punishable under Sections 302 and 34 of the I.P.C. and sentenced to suffer imprisonment for
life and to pay fine of Rs.5,000/- each and in default, to suffer R.I. for one
year, by giving benefit of set off under Section 428 Cr.P.C. Out of fine
amount, an amount of Rs.5,000/- was directed to be paid to the spouse of
each deceased as compensation under Section 357 Cr.P.C. If the deceased
had no spouse, the money to be paid to either of their parents.
H.C. SHIV 912.app474.17.doc
2) The prosecution case is, on 18/07/2012, the informant Ms.Sheetal Santosh Kudale (PW-4) filed a Report/Complaint (Exh.73) with
Vishrambaug Police Station, entered in the General Diary at 16:05 hours.
wherein it is stated that PW-4's husband Santosh and brother-in-law Sachin
were doing a ladies garment business in a tin-stall (pathari), on the road
side, at Tulshibaug. On 18/07/2012, at about 12 noon, PW-4 took her
children Sakshi and Smruti to Nutan Marathi Vidyalaya and son Sarthak to
Ranade Balak Mandir. She then came to their stall alongwith her brother
Sagar. There, Sachin's friend Kailas Chavan met them and told that A-1, a
fruit vendor, assaulted Sachin on face and neck, and that, Sachin was
seated in a corner of the footpath near Vishrambaug Chowk. Immediately,
they went to Sachin and noticed bleeding injuries on his neck and lip. On
enquiry, Sachin told her that when he asked Dattatray Tambde (A-1) as to
why he installed his roadside business stall (Pathari stall) at his place,
Dattatray Tambde (A-1) and his one associate, who was fat and wearing
specs, assaulted him. At about 12.30 pm, Dattatray Tambde (A-1), his son
Sagar Tambde (A-2), another son Ghanshyam Tambde (A-3) and one fat
person wearing specs (A-4) came near them at the corner of Vishrambaug
Wada and all the four accused started to abuse and threaten PW-4, Sagar
and Kailas. The fat person wearing specs namely Sagar Tambde (A-2)
removed a knife and stabbed Sagar in his stomach and neck. PW-4 and
H.C. SHIV 912.app474.17.doc
Kailas went to rescue him. However, they pushed her. Consequently, she
suffered a scratch to her hand. The accused persons then assaulted Kailas
by kicks and fist blows and the fat person wearing specs Sagar Tambde (A-
2) stabbed Kailas in his stomach and in the neck. PW-4 again tried to
resolve the quarrel by pushing A-2. But, Ghanshyam Tambde (A-3)
threatened her not to talk much, otherwise, he would kill her too. Sagar
Tambde (A-2) then stabbed Sachin in his chest and stomach, who was lying
at the said corner.
The traffic police (PW-5), who was nearby and present on duty,
rushed to the spot and informed the incident to the Police Control Room.
PW-4 phoned her father Sambhaji Lahare and informed him about the
incident. Around the same time, Vishrambaug Police arrived and removed
Sachin to Sassoon Hospital in an ambulance, which was passing from there.
At that time, PW-4's father came at the spot and removed deceased Sagar to
Surya hospital in an auto-rickshaw. She removed Kailas to Sassoon hospital
in another rickshaw where the police arrived. Later on, PW-4 learnt that her
father had admitted Sagar at Surya hospital. Therefore, she went there.
Meantime, the Police (PW-8) came to Surya Hospital. She then came to the
Police Station alongwith (PW-8) to file the Report. At that time, the A-1 to
A-3 were shown to her by the Police (PW-10). She pointed at them and
identified Dattatray Tambde as (A-1), Sagar Tambde as (A-2) and
H.C. SHIV 912.app474.17.doc
Ghanshyam Tambde as (A-3); that, said accused raised a quarrel on account
of they were asked as to why they occupied their place of pathari/stall;
that, said accused and one more person (A-4) associate with them assaulted
Sagar and Kailas with kicks and fists, abused and threatened them; that,
Sagar Tambde (A-2) stabbed them in the stomach and at waist, caused
them grievous injuries, attempted to commit their murder and committed
murder of Sachin by stabbing him in the neck, chest and stomach.
2.1) Arjun Sakunde (PW-8), then Senior Police Inspector recorded
the Report (Exh.73) as narrated by PW-4. The Police registered that Report
as FIR bearing Cr. No.199 of 2012 under Sections 302, 326 and 34 of I.P.C.
against A-1 to A-3 and one unknown fat person.
3) Before filing of the Report (Exh.73), Police Constables Gajanan
Jadhav (PW-6) and Mr. Naik, who were nearby and present on duty, had
received a massage from the Police Control Room. Immediately, PW-6 went
to the spot and apprehended the A-1 to A-3. PW-10 PI Khade went to the
spot, took the A-1 to A-3 into his custody from PW-6 and brought them to
the Police Station. After filing of the Report (Exh.73), A-1 to A-3 were
arrested by PW-10. The blood stained clothes on the person A-1 to A-3 were
seized by him under separate Arrest Panchnama. One mobile phone and
one blood stained knife found on the person of A-2 and one Nokia mobile
was found on the person of A-3 were also seized. Police Officer Mr.Nikumbh
H.C. SHIV 912.app474.17.doc
recorded the Spot Panchnama (Exh.49). PW-8 conducted the investigation
and recorded the statement of the witnesses. The blood stained clothes of
PW-4 came to be seized. Deceased Sagar died on the same day and Kailas
died in Surya Hospital on 29/07/2012. After Inquest Panchnamas of the
three bodies its postmortem examination was conducted. The clothes of the
three deceased were seized. PW-8 referred the muddemal articles to the FSL
for the purpose of CA. Investigation revealed that A-1 to A-3 alongwith A-4
committed the murder of the three in furtherance of their common
intention. Hence, charge sheet was submitted against A-1 to A-3 under Sections 302, 307, 326 and 34 of I.P.C. as A-4 was not arrested at that time.
4) On 26/02/2014, the trial Court framed the charge against A-1
to A-3 under Sections 302, 325 and 34 of I.P.C. Later on, A-4 was arrested
on 20/11/2014 and supplementary charge-sheet was filed against him.
Hence, fresh charge was framed on 22/12/2014. The accused pleaded not
guilty to the charge and claimed to be tried. The defence of the accused was
of denial and false implication. It was their specific defence that the
deceased used to collect hafta/extort money from the stall owners at
Tulshibaug with the aid of PW-4's husband. All the stall owners were
against the three deceased. Therefore, some unknown stall owners
committed their murder.
5) To prove the charge, the prosecution examined 10 witnesses
H.C. SHIV 912.app474.17.doc which include the informant, spot panch, seizure panch, the police who
immediately rushed to the spot, removed the injured to hospital and
apprehended the accused, medical officers and investigation officers.
After considering the oral and the documentary evidence
including the CA Report, the trial Court accepted that evidence, and hence,
convicted and sentenced the accused as noted in the paragraph 1 above.
6) We have heard Mr. Pendse, the learned Counsel for the
Appellant in Appeal No.341 of 2017, Mr. Joshi, the learned Counsel for the
Appellants in Appeal Nos.474 of 2017 and 1540 of 2018, Dr. Chaudhry, the
learned Counsel for the Appellant in Appeal No.908 of 2024 and Mr. Khan,
learned A.P.P. for the Respondent-State. Peruse the record.
7) Here it is necessary to note that the date, time and place of the
incident was not disputed by the defence. The defence has admitted the
Inquest Panchnamas and did not dispute the homicidal death of the three
deceased. However, they have disputed the weapon allegedly used by A-2.
8) PW-9 Dr. Jaysing Shinde has testified that he has done M.B.B.S.
& M.S. Since 1985, he was Founder Director and Chief Surgeon of Surya
Hospital Pune. Deceased Sagar Lahage was admitted in his hospital on
18/07/2012, at 1.30 p.m., with history of assault disclosed to the Casualty
Medical Officer. He was in a critical state. Accordingly, MLC was reported to
Vishrambaug Police Station at 1.45 p.m. He deposed that he had examined
H.C. SHIV 912.app474.17.doc
the patient at 1.45 p.m. He had multiple stab injuries as under :-
i) Cut throat 10 cm x 1 cm (stab muscles, strenomaltcidemastoid
cut open with bleeding from all superficial veins),ii) Penetrating chest wound 2 cm x 1cm,
iii) Open abdominal stab wound with bowel and omentum
protruding 10 cm x 3 cm,iv) Penetrating wound 2 cm x 1 cm on right hip.
9) PW-9 has deposed that the injuries were operated and sutured.
However, the patient expired at 5.30 p.m on the same day. In this regard,
PW-9 has referred the medical papers (Exh.145 colly.) and deposed that its
contents are in his handwriting, bears his signature and the same are true.
All the injuries referred above were sufficient in ordinary course of nature
to cause the death. The said injuries were possible by the knife (Art.2).
10) He has further deposed that deceased Kailas was admitted in
the same hospital on 23/07/2012, at about 10.50 a.m., with the history of
assault. Earlier, he was treated at Sassoon Hospital. At the time of the
admission, the patient was serious, unconscious, not responding and
painful stubbly. He had examined the patient and found following injuries :
stab wound over abdomen. (23 stitches in situ),
Wound near right shoulder (4 stitches in situ),
C.L.W. over Lt-index-finger, (8 stitches in situ),
C.L.W. just below occipital region Rt side (4 stitches in situ),
C.L.W over Rt-Neck (7 stitches in situ).
PW-9 has deposed that the patient succumbed to the injuries
H.C. SHIV 912.app474.17.doc
on 29/07/2012, at 4.55 a.m. In this regard, PW-9 has referred the medical
papers Exh.146 (colly). He has deposed that all the injuries referred above were sufficient in the ordinary course of nature to cause death. Said injuries
were possible by the knife (Art.2).
11) PW-7 Dr. Harish Tatiya has deposed that on 18/07/2012,
between 5.00 p.m. to 6.00 p.m., he and Dr. A. B. Shinde had jointly
conducted the postmortem examination of the dead body of Sachin and
noted following external injuries :
Nos. Particulars of the injuries
1 Stab wound over sternal region in mid line, size 3 x 2 cm cavity deep, oblique left inferior, 4cm below suprasternal notch, angles
acute underlying sternum cut, reddish, margins clean cut.
2 Stab wound over pectoral region, on left side 3cm above nipple, size
5 x 2 cm x cavity deep oblique right inferior, size 6 cm from mid line
underlying fourth and fifth ribs cut, margins clean cut, reddish,
angles acute.
3 Stab wound over pectoral region on left side, 1 cm lateral to injury
no.2, size 3.5 x 2 cm x cavity deep, underlying forth and fifth rib,
cut vertical margins clean cut, angles acute, reddish.
4 Stab wound over left side of pectoral region, 1 cm below and lateral
to nipple, 9 cm from mid line, size 3 x 2 cm by cavity deep, oblique
lateral inferior, underlying 6th rib cut, margins clean cut, reddish,
angles acute.
5 Incised wound 3 cm above and lateral to injury no.3, size 3 x 1 cm
by muscle deep oblique left inferior, margins clean cut, reddish.
6 Stab wound over left lateral of chest in anterior axillary line, 3 x 2
cms by cavity deep, vertical underlying 6th rib cut, margins clean cut,
reddish.
H.C. SHIV 912.app474.17.doc
7 Incised wound over left side of chest, 9 cm from mid line, 6cm above costal margins in mid-clavicular line, 2 x 1 cm by tissue deep,
margins clean cut, reddish.
8 Incised wound over right side of chest, horizontal 7 cm from mid
line, 10 cm from sub costal margin, in anterior axillary line, 3 x 1
cm by tissue deep, margins clean cut, reddish.
9 Stab wound over sternal region in mid line, 8 cm below injury no.1,
3 x 2 cm by cavity deep, oblique left inferior, underlying sternum
cut, margins clean cut, angles acute, reddish.
10 Incised wound over left elbow, antero laterally, 5 x 2 cm by tissue
deep, oblique lateral upwards, margins clean cut, reddish.
11 Incised wound over left forearm, middle third, ventrally, 2 x 1 cm by
tissue deep, vertical margins clean cut, reddish.
12 Incised wound over dorsum of right hand at base of fourth finger,
3 x 1 cm by tissue deep, oblique inferior medially margins clean cut,
reddish.
13 Incised wound over, occipital region, on right side, 2 x 1 cm by bone
deep, vertical margins clean cut, reddish.
12) The internal injuries noted by PW-7 were as under :
Nos. Particulars of the injuries
1 Ribs, sternum, and plura cut corresponding to external injuries, as mentioned under column no.17 of the postmortem report.
2 Stab wound was over lower lobe of left lung,
corresponding to said external injury no.6, 3 x 2 cm margins
clean cut, reddish, rest of lung pale. Pericardium cut
corresponding to said external injury nos.2 and 3, 5 x 2 cm and 3 x 2
cm respectively, margins clean cut, reddish.
3 Stab injuries over left ventricle corresponding to said external
injury nos.2 and 3, 5 x 2 cm and 3 x 2 cm respectively, cavity
deep, margins clean cut, reddish.
H.C. SHIV 912.app474.17.doc
4 Peritoneum and diaphragm cut corresponding to said external
injury no.9, 3 x 2 cm margins clean cut, reddish.
5 Stab wound over left lobe of liver, anteriorly 3 x 2 x 2 cm, margins clean cut, reddish, corresponding to said external injury no.9.
13) PW-7 has opined that, all the injuries were ante-mortem in
nature. The internal and external injuries were sufficient to cause death in
ordinary course of nature. Deceased Sachin had died because of shock and
haemorrhage due to multiple stab injuries. Accordingly, they had issued the
postmortem report (Exh.116). It bears his and Dr. Shinde's signature. The
contents are true and correct. They had preserved the viscera, finger nail
clippings and scalp hairs for chemical analysis. The aforesaid injuries were
possible by the knife (Art.2).
14) PW-7 has deposed that on 19/07/2012, from 10.45 am to
11.45 am., they had conducted the postmortem examination of the dead
body of Sagar Lahare and they had noted following injuries on his body :
Nos. Particulars of the injuries
1 Stitched wound over right lateral aspect of chest, in fifth intercostal space, 2 stitches in situ, in anterior axillary line, attached with 1 liter
blood bag, containing blood, (intercostal drain)
2 Stitched wound over abdomen in mid line, 1 stitch in situ in mid line
two liter blood bag attached containing blood (abdominal drain),
3 Stitched wound over left iliac region, one stitched in situ attached
with blood bag (pelvic drain),
4 Stitched wound over anterior of neck, horizontal, eight stitches in
H.C. SHIV 912.app474.17.doc
situ, 16 cm in length, 4 cm from adam's apple and 6 cm from
suprasternal notch on removal of stitches underlying muscles
stitched in layers underlying jugular vessels cut, trachea cut margins
clean cut, reddish
5 Stitched wound over right side of chest, below right nipple, four
stitches in situ, oblique upwards laterally, 4 cm in length, four
stitches in situ in fifth intercostal space, on removal of stitches
margins clean cut, reddish,
6 Stitched wound over abdomen in epigastric region and right
hypochoandriac region, horizontal 15 cm in length, eight stitches in
situ, on removal of stitches underlying muscles stitched in layers,
margins clean cut, reddish, cavity deep,
7 Incised wound over right gluteal region, laterally, size 4X3 cm by
muscle deep, oblique upwards laterally reddish,
8 Abrasion over right knee, size 3X2 cm irregular, reddish.
15) PW-7 has deposed that, on internal examination, they had
noted following injuries :-
Nos. Particulars of the injuries
1 Rib no.5 cut over upper margin, plura cut corresponding to said
external injury nos.1 and 5.
2 Trachea cut corresponding to said external injury no.4, margins
clean cut, reddish.
3 Stab wound present over lower lobe of right lung, laterally, size 2 x
1 cm and 2 x 2 cm clean cut, reddish, rest of lung pale.
4 Stitched wound present over, pyloric end of stomach and over duodenal part of small intestine, 5 stitches in situ reddish,
about 250 ml blood present in cavity, reddish.
16) In the opinion of PW-7, all the injuries were antemortem in
H.C. SHIV 912.app474.17.doc nature. The internal and external injuries were sufficient to cause death in
the ordinary course of nature. The deceased Sagar died due to shock and
hemorrhage due multiple injuries. Accordingly, they had issued the
postmortem report (Exh.118). It bears his and Dr. Shinde's signatures. The
contents are true and correct. They had preserved the viscera, finger nail
clippings and scalp hairs for chemical analysis. The aforesaid injuries were
possible by the knife (Art. No.2).
17) PW-7 deposed that, on 29/07/2012, he and Dr. A.A. Taware
together had conducted the postmortem examination of the dead body of
deceased Kailas. The following external injuries were present on the body :
Nos. Particulars of the injuries
1 Stitched wound over the nape of neck on right side, obliquely with two stitches in situ, 2 cm below occiput, 1 cm from mid line,
2 Stitched wound over nape of neck, 2 cm below injury no.1
horizontal, four stitches in situ, 4 cm from mid line,
3 Stitched wound two stitches in situ present over posterior aspect of
right shoulder, 3 cm right to injury no.2, 7 cm from vertebra
prominence,
4 Abrasion present over, mid line forehead, over nasion, size 2X1 cm
brownish scab,
5 Stitched wound, five stitches in situ, 3 cm in length, 3 cm above
clavicle in right supra clavicular region,
6 Stitched wound of 3 cm, three stitches in situ, present over right
shoulder anteriorly,
7 Stitched wound of 3 cm over right anterior triangle of neck, four
stitches in situ,
H.C. SHIV 912.app474.17.doc
8 Stitched wound of 1 cm length, in right fifth intercostal space, in mid
axillary line, 15 cm from mid line, two stitches in situ, evidence of
intercostal drain,
9 Incised wound of one and half cm in length, in left intercostal space,
in mid axillary line, 14 cm from mid line, evidence of intercostal
drain,
10 Stitched wound with 16 stitches in situ, present over abdomen in
mid line, extending from xiphisternum to umbilicus 18 cm in length
vertical,
11 Stitched wound horizontal with 7 stitches in situ, starting from
middle of injury no.10 running towards right horizontally of length
11 cm,
12 Evidence of lumbar drain in right lumbar region of abdomen, 5 cm
above iliac crest in anterior axillary line, 2 cm in length, 10 cm from
mid line,
13 Stitched wound, three stitches in situ, two and half cm in length,
present 2 cm above injury no.12 in mid axillary line,
14 Stitched wound four stitches in situ, 3 cm in length, present
obliquely 1 cm above and posterior to injury no.13,
15 The evidence of lumbar drain in left lumbar region of abdomen 5 cm
above iliac crest, in anterior axillary line, 2 cm in length, 11 cm from
mid line,
16 Multiple abrasions present over back of left shoulder, over an area of
24 x 15 cm varying in sizes from 3 x 2 cm to 1 x 1 cm brownish
black with scab,
17 Multiple abrasions present over left anterior triangle of leg, varying
in sizes, from 1 x 1 cm to 1 x 0.5 cm brownish with scab,
18 Stitched wound with 8 stitches in situ, 5 cm in length. over left index
finger, dorso laterally,
19 Incised wound over the left index finger on medial aspect, 3 x 2 x
0.5 cm,
20 Abrasion over right knee, size 2 x 1 cm brownish scab present,
H.C. SHIV 912.app474.17.doc
21 Abrasion over lower third of right leg, medially, 2 x1 cm brownish
scab present,
22 Injection mark over, left forearm, extensor aspect of middle third,
(therapeutic),
23 Injection mark over right antecubital fossa, (therapeutic),
24 Injection mark present over left neck in anterior triangle
(therapeutic).
18) PW-7 has deposed that, on internal examination, they had
noted the following injuries:
There was evidence of laparotomy procedure with stitches over
right lobe of liver. All the injuries were ante-mortem, sufficient to cause
death in the ordinary course of nature, and individually, external injury
nos.10 and 11. In their opinion, the deceased Kailas died due to shock and
hemorrhage due multiple stab injuries. Accordingly, they had issued the
postmortem report (Exh.120). It bears his and Dr. Taware's signature. The
contents are true and correct. They had preserved the viscera, finger nail
clippings and scalp hairs for chemical analysis. The aforesaid injuries were
possible by the knife (Art.2).
19) The aforesaid testimonies of PW-9 and PW-7 are very consistent
with each other and the medical record they had referred in their evidence.
In the cross-examination of PW-7, an attempt was made to show that the
injuries sustained by the three deceased were not caused by the knife
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(Art.2) but by different weapons. However, in cross-examination of PW-7
itself, it has come that, while withdrawing the knife (Art.2) from the
injury/body, internal organs must have been drawn alongwith with the
blade. That is why, as deposed by PW-7, the bowel and omentum protruded
from the external injury No.4 sustained by deceased Sagar. Therefore, we
hold that the injuries sustained by the three deceased were possible by the
knife in question. Moreover, there is nothing in the cross-examination of
PW-9 and PW-7 to disagree with their expert opinion as to the weapon by
which the said injuries could have been caused. Looking at the nature of the
injuries of the deceased persons, it is apparent that, said injuries were
inflicted with an intent to cause the death of all three deceased but without
any excuse. As such, the finding recorded by the trial Court that their death
was homicidal and amounting to murder, cannot be disagreed with.
20) Now, the question is, whether it has been proved by the
prosecution that the Appellants in furtherance of their common intention
committed the murder of all the three.
21) In this regard PW-4 Sheetal Kudale has deposed that, since 5 to
6 years prior to the incident, she used to reside at Rashtra Bhushan Chowk,
Khadakmal Aali, Pune, alongwith her in laws and three children. Deceased
Sagar Lahare was her brother. Deceased Sachin Kudale was her brother-in-
law (husband's brother). Sachin used to reside with them and he was doing
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the business of ladies wear at Pathari Chowk/Chal, Tulshibaug, Pune.
deceased Sagar was running a fruit stall in Mandai and deceased Kailas was
running a stall at Tulshibaug. Deceased-Kailas was a friend of deceased-
Sachin. PW-4 has deposed that she knew all the accused.
PW-4 has deposed that, on 18/07/2012, at about 12 p.m., she
had taken her children Sakshi and Smruti to their school near S.P. College.
She then dropped her son Sarthak at Ranade Balak Mandir. On the way,
she and deceased Sagar met with deceased Kailas, who told them that, A-1
had assaulted deceased Sachin, he had sustained injuries behind the ear
and neck and Sachin was seated on the footpath, near Vishrambaug Wada.
She and deceased Sagar went there, and noticed that, Sachin had injuries
on his neck and his lip was torn. On inquiry, deceased Sachin told them that
when he had asked the accused as to why the stall was stationed on his
place, A-1 and A-2-Sagar Tambde, who was wearing specs, assaulted him.
PW-4 has deposed that, meanwhile, A-1 to A-4 came there and abused
them. A-2-Sagar Tambde then took out a knife and stabbed in the
abdomen and the neck of deceased Sagar. She and Kailas tried to intervene
but the accused pushed them, due to which she had sustained an abrasion
to her hand. She has deposed that the accused assaulted Kailas with fist and
kick blows. A-2-Sagar Tambde stabbed Kailas in his abdomen and the neck.
She again tried to intervene in the quarrel, but, A-3 threatened her to stay
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away, otherwise, he would kill her. A-2-Sagar Tambde then went to
deceased Sachin, who was lying at the corner of Vishrambaug Wada and
stabbed him in the chest and in the abdomen.
PW-4 has deposed that a traffic police (PW-5) came to the spot.
People had gathered there. She informed about the incident to her father
Sambhaji Lahare on mobile phone. PW-5 telephonically informed about the
incident to other police. PW-5 stopped one Ambulance that was passing by
the road and removed deceased Sachin to Sassoon hospital. Meanwhile,
her father Sambhaji Lahare came there and removed deceased Sagar to a
hospital in an auto-rickshaw. She removed deceased Kailas to Sassoon
hospital in another auto-rickshaw. At Sassoon hospital, she learnt that
deceased Sachin had expired and her brother Sagar was taken by her father
to Surya hospital. She, therefore, went to Surya hospital. The police were
present in Surya hospital. She then came to Faraskhana Police Station and
filed the Report (Exh.73), it bears her signature and, its contents are true
and correct. The printed report (Exh.74) bears her signature. PW-4 has
identified the A-1 to A-3 and deposed that they were shown to her in Police
Station. She had asked the police about the whereabouts of A-4. PW-4 has
deposed that after lodging the Report, she had shown the spot of the
incident to the police. The police recorded the spot panchnama. Her clothes
were stained with blood. She handed over her blood stained clothes to the
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police which the police had seized. She has identified the knife (Art-2) as
the same weapon of the offence and her seized clothes (Arts.23 to 25). She
has deposed that the Magistrate had recorded her statement.
22) In the cross-examination, PW-4 has deposed that, S.P. College is
at a distance of 10 to 15 minutes from Rashtra Bhushan Chowk, Khadakmal
Aali. She can not tell the distance between S.P. College and Ranade Balak
Mandir. She has admitted that, one requires about 10 to 15 minutes to
reach Tulshibaug from Ranade Balak Mandir. Mandai was at further
walking distance of 5 minutes from Tulshibaug. At the time of incident, the
school timings of her daughters were 12 noon to 5 p.m. and the timings of
the nursery of her son Sarthak were from 12 noon to 3 p.m.
PW-4 has admitted that, one year prior to the incident, her
husband Santosh was in jail. She used to be busy in household work,
looking after the children and their studies. Her occupation as 'housewife'
shown in the Report was correct. She has not stated in her Report (Exh.73)
and the statement u/ Sec.164 of Cr.P.C. that she used to assist in the
business of the brother of her husband. She has denied that, at the time of
incident, she and her children were dependent on the income of deceased
Sachin and her mother-in-law. She has admitted that her another bother-in-
law Sunil was running a tea stall. She had stated in her statement under Section 164 of Cr.P.C. that before her husband was in jail, he and his
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brother were running a stall (pathari). A contradiction has been brought on
record by confronting PW-4 that she had stated in her Report (Exh.73) that,
after her husband had gone to jail, their business was given on rent to one
Mr. Shagir. She has denied having stated that fact (portion 'A'), claiming
that, it was not correct, but, she cannot assign any reason as to why said
fact was recorded in the Report. She has denied that since the stall was
given to Shagir on rent, she had no occasion to go to Tulshibaug area.
PW-4 has admitted that, Tulshibaug area was connected with
three main roads. At places, there were traffic signals on the said roads.
There were footpaths abutting the three main roads. Stalls called as Pathari
were installed on the footpaths. The shops and stalls in Tulshibaug area
were adjacent to each other. Licences were given to the stall owners from
Tulshibaug area. She did not give the licence of her stall to the police. She
has voluntarily deposed that it was not issued at the time of the incident.
She has denied that she was not running the stall at the time of incident
and therefore she had no licence. She has denied that her husband and
deceased Sachin were not running any stall at Tulshibaug. She has denied
that A-1 was shown to her in the Police Station, by the police. She has
denied that she has falsely filed the Report against A-1 after police gave her
his name, address and occupation. She has denied that A-1 had not
assaulted with fists and kicks blows. She has denied that she has not
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witnessed the incident. She has denied that she has deposed false on the
say of police and her relatives.
23) PW-4 has admitted that her husband and deceased Sachin used
to run the stall at Tulshibaug. It was started about 10-12 years prior to the
incident. There was a stall of Shiva on one side of their stall, and of Sagar
Kamble, on the other. She daily used to go to the stall. PW-4 has admitted
that, on the day of the incident, she had left her house at about 11.00 to
12.00 hours. Deceased Sagar had come to her place by an auto-rickshaw
about half an hour before they had left the house. Deceased Sagar used to
come to her place daily and then he used to go to his stall. Deceased Sagar
used to proceed to start his stall at about 12.30 p.m. On the day of the
incident, she had gone to her son's school by an auto-rickshaw and after
dropping her son there, she and deceased Sagar came walking towards
their stall. Deceased Kailas had met her at Tulshibaug near her stall, which
was already opened. She cannot tell the distance between her stall and the
place where deceased Sachin was lying injured. She has admitted that
Kailas was running a garment stall near their stall. She did not give
attention whether Shagir was present near the stall. She cannot tell the
distance between her stall and the fruit stall of A-1, and since how may
years A-1 was running the stall in Tulshibaug. She has denied that A-1
alone was running the stall.
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An omission is elicited that PW-4 has not stated in her Report
(Exh.73) that she knew all the four accused and she cannot assign any
reason as to why the said fact was not specifically recorded in the Report.
She has admitted that she did not disclose the names of all the four
accused. She has voluntarily deposed that she had disclosed the names of
three accused. She had disclosed the description of the fourth accused that
he was wearing thick specs. She had given the names of the persons
(accused) whom she knew and she gave the description of the person
(accused) whom she did not know by name. She has admitted that the
other stalls were operating and there were people on the road. There was a
traffic signal at a distance of 50 ft. from their stall. There was a road
intervening/in-between the place where deceased Sachin was lying and the
stall of A-1 and their stall. She had talked with deceased Sachin for about
20 minutes at the place where he was lying injured, Sachin had bleeding
injuries and blood was oozing from it. People did not gather at the spot.
PW-4 has admitted that, at the time of incident, she was using
a mobile phone. But, she does not remember that it was 976****194. She
had given a phone call to her father before the lady police (PW-5) had
arrived at the spot. She did not tell her father that she was taking injured
Sachin to Sassoon hospital. She did not ask her father as to which hospital
he was taking the injured Sagar Lahare. She has admitted that police were
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not present in Sassoon hospital when she had reached there. She cannot tell
the time when she had reached at Surya hospital. The police had visited at
Surya hospital after she had reached there. She had immediately gone to
the Police Station from Surya hospital. She did not talk with the police in
Surya hospital. Her father was present at Surya hospital but she had no talk
with him. Besides her father, there was nobody of her acquaintance in
Surya hospital. Nobody was shown to her before recording her Report.
After filing of the report, she left the police station. She has admitted that
while lodging the Report she had stated that there was one fat person
wearing thick specs. She had asked the police about the fourth person. She
has admitted that her narration in the Report that the person wearing thick
specs was A-2-Sagar Tambde, was correct. She has admitted that she had
stated before the police that she knew the fourth assailant. She cannot
assign any reason as to why the said fact was omitted in her statement
before the Magistrate.
24) PW-4 has admitted that she was having the same clothes when
she had gone to Sassoon hospital and then to Surya hospital. The Police had
inquired with her as to how her clothes got blood stained. Her father was
present with her in Surya hospital. But the Police did not record her father's
statement. She does not remember whether she had given the description
of the fourth person to the Police while filing the Report and before the
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Magistrate. She has denied that she has identified the A-4 as he was shown
to her outside the Court by the Police. She has denied that deceased Sagar,
Sachin and Kailas used to collect hafta/extort money from the stall owners
at Tulshibaug with the aid of her husband. She has denied that all the stall
owners were against the three deceased. She has denied that some
unknown stall owners had committed the murder of the three.
25) The testimony of PW-4 is supported with the testimony of PW-5
Sandhya Kale. At the relevant time, PW-5 was attached to Faraskhana Police
Station at Traffic Branch. On 18/07/2012, from 9 a.m. to 9 p.m., she was
carrying out her duty on a tempo to lift the vehicles parked in "No Parking
Zone". She has deposed that, at about 12 to 12.30 noon, after fueling the
tempo, she was proceeding from Kulkarni Petrol Pump at Laxmi Road.
When the tempo had stopped at the signal in Seva Sadan Chowk, she saw
that people were running from Vishrambaug Wada side towards Seva Sadan
Chowk. She inquired with one person as to what happened, who told her
that some untoward incident took place near Vishrambaug Wada. She got
down from the tempo and went towards Vishrambaug Wada. PW-5 has
deposed that three persons were lying in pool of blood on the spot and four
persons were beating the said three persons. One of the four assailants had
specs, he was holding a knife and he was giving knife blows to the injured
persons. The assailants moved aside when they saw her. She called the
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Police Control Room with her mobile phone. PW-5 has deposed that she
stopped one auto-rickshaw and made two injured persons to sit in it. PW-4
was present there. PW-4 was requesting for help but nobody from the mob
helped her. PW-5 has deposed that the third injured was removed to the
hospital in an ambulance. The clothes of the assailants were blood-stained.
Vishrambaug Police arrived at the spot and took the assailants in custody.
PW-5 has deposed that she then went to her office as she was frightened.
On a phone call she had attended at Vishrambaug Police Station. The three
assailants who were caught at the spot, were brought to the Police Station.
Said assailants had told their names as Dattatraya Tambde, Ghanasham
Tambde and Sagar Tambde. The Police recorded her statement. PW-5 has
identified the accused persons before the Court including A-2, stating that,
A-2 was holding the knife.
26) In the cross-examination of PW-5, admissions have been
elicited that for the first time, she had seen such a horrifying incident; that,
she was little frightened but not disturbed; that, about 15 minutes time had
passed since her arrival at the spot till she went to Vishrambaug Police
Station; that, she did not give the description of the assailants in her
statement. She cannot assign any reason as to why it was not recorded in
her statement before the police and the Magistrate that she had inquired
with one person as what had happened. The four persons to whom she had
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seen at the time of incident, were not acquainted to her. She had seen them
for the first time at the time of incident. She was not called for a test
identification parade. She has denied that the accused were shown to her in
the Court, and therefore, she has deposed that the accused before the Court
were the same. She has denied that she did not witness the incident.
PW-5 has admitted that, after her call, Police Constables
Gavade and Jadhav had come to the spot. She did not give the description
of the clothes and age group of the assailants either before the police or the
Magistrate. An omission is elicited that she had not stated in her statement
before the Magistrate that the assailants were beating the three persons
when she had arrived at the spot. She has admitted that she had gone to
the Police Station at about 1.00 p.m. Her statement was recorded by Police
Shri. Sakunde at about 1.00 p.m. She had stated before the police that the
accused persons had given their names. She cannot assign any reason as to
why the said fact was not specifically mentioned in her statement. She has
admitted that huge crowd had gathered at Vishrambaug Wada Chowk.
PW-5 has admitted that always, there used to be traffic at
Vishrambaug Wada Chowk. Out of the four persons, only one had specs and
only one assailant had held a knife. Said four persons were from different
age group. There was one elderly/old person. It did not happen that the
person who was elder/old and had white clothes, was holding the knife. A
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contradiction has been brought on record that she had stated before the
Magistrate that one aged person had a knife and he had wore white colour
clothes. She cannot assign any reason as to why the said fact was recorded
in her said statement. She has admitted that the incident was going on for
about five minutes before her. The distance between two injured was about
15 to 20 feet. The third injured was at a distance of 4 to 5 feet from another
injured. She was at Vishrambaug Wada Chowk up-to 3.15 p.m., after she
had attended there. Immediately, she had called the control room after she
had reached there. She had informed the control room that three injured
persons were lying at Vishrambaug Wada and to send help. She does not
remember whether the two injured taken in the rickshaw were conscious or
unconscious. After removing the two injured to the Sassoon Hospital, police
from Shaniwar Chowky had come there. She had stopped one ambulance
which was passing from there. The third injured was sent in that ambulance
to Sassoon Hospital. No police officer was sent alongwith the ambulance.
27) Now coming to the testimony of PW-6 Gajanan Jadhav, who, at
the time of incident, was attached to Vishrambaug Police Station. PW-6 has
testified that, on 18/07/2012, from 9.00 hours to 21.00 hours, he and
Police Constable Mr. Naik were on Marching Duty at Mandai and Shaniwar
Police Chowky. When they were at Manda Lodge, at about 13.15 hours,
they received a call from the Police Control Room that some incident had
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occured at Vishrambaug Wada and directed them to immediately go there.
Accordinlgy, he and Police Gavade proceeded to the spot on a motorcycle.
When they arrived at Phadatare square on the way, there was traffic jam
and it was not possible to take the motorcycle ahead. So, he alighted from
the motorcycle and walked towards Vishrambaug Wada. There was mob of
people. One person was lying injured at the corner of Vishrambaug Wada.
He was sent to the hospital in an ambulance. One person with blood stains
on his clothes was present there. A-2 before the Court was the same person.
PW-5 was present there. PW-5 and others told him that A-2 and three others
with him had assaulted the injured person. He apprehended the A-1 to A-3.
They gave their names as Dattatray Tamble, Sagar Tambde and Ganesh
Tamble. The fourth person had fled away from the spot. He took the A-1 to
A-3 to Vishrambaug Police Station in the Government vehicle. He then went
to his patrolling duty. PW-6 has deposed that, on the same day, the police
recorded his statement. PW-6 has identified the A-1 and A-3 as the same
persons, who were present with A-2 at the spot. He could not identify the
fourth person because of the mob.
28) In the cross-examination, PW-6 has admitted that he had
arrived at Vishrambaug Wada at about 1.30 p.m. The distance between
Vishrambaug Wada and Shanipar Chowk was about 200 feet. The said road
was having heavy traffic. The ambulance was at Shanipar Square and the
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police were trying to move the other vehicles to give way to the ambulance.
He was at Vishrambaug Wada Square for about half hour. After about 15
minutes Constable Gavade came there. The accused were standing by the
side of the injured at a distance of about 5 feet. PW-5 was at a distance of
about 5 feet from the injured. He had apprehended the accused under the
belief that they had committed this crime. He himself had lifted the injured.
The distance between Mandar lodge to Vishrambaug Square was about half
a kilometer. He might have taken about 15 minutes to reach at the spot. He
had learnt that the other two injured were already removed to the hospital.
He remained at the spot till 2.30 p.m. to 2.45 p.m.
29) The testimony of PW-4, PW-5 and PW-6 is supported with the
testimony of PW-10 Lalchandra Khade, Police Inspector, who had taken the
A-1 to A-3 in his charge from the spot, brought them to the Police Station
and arrested. In this regard, PW-10 has deposed that on 18/07/2012 he
was working as Police Inspector at Vishrambaug Police Station. As ordered
by his superior, he had gone to the spot. PW-5 Ms. Kale, Bit martial Jadhav
(PW-6) and Mr. Gavade were present there. The injured were removed to
the hospital. At that time, PW-6 had apprehended the A-1 to A-3 at the spot.
PW-10 deposed that, he brought the three accused to the Police Station.
After about an hour, the Senior Police Inspector alongwith PW-4 came to
the Police Station. He then produced the A-1 to A-3 before them and later
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on arrested them in the presence of the two panchas. PW-10 has deposed
that first he had arrested the A-2 and conducted his body search. One knife
(Art.2) stained with blood and one mobile of Samsung Co. (Art.26) were
found on his person. The clothes on the person of A-2 (Arts. 3 to 5) were
stained with blood. He had seized the said knife, the clothes and the mobile
phone. He then arrested the A-1 and seized the clothes (Arts. 6 to 8) on his
person. Lastly, he had arrested the A-3 and seized the clothes on his person
and the mobile of Nokia Co. found in his possession (Arts. 9, 10 and 27
respectively). Accordingly, he had recorded the Arrest-cum-Seizure
Panchanamas in the presence of panchas (Exhs.68, 69 & 70 respectively).
He has deposed that the clothes of A-1 and A-3 were stained with blood. He
had packed and sealed the aforesaid articles with wax. He has deposed that
after carrying out the arrest and seizure procedure, he had submitted the
Report (Exh.149). He has deposed that, on 19/07/2012, PW-4 had
produced her blood stains clothes (Arts.23 to 25). He had seized the same
in presence of two panchas under Panchanama (Exh.150). PW-10 has
identified the aforesaid articles.
30) In the cross-examination, PW-10 has deposed that, in the
Report (Exh.149), there is no mention about receiving the information from
the Control Room at 1.50 p.m.; that, he had proceeded to the spot as per
the order of the superior; that, PW-8, the Senior Police Inspector had gone
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to the hospital from the spot; that, PW-8 alongwith PW-4 had come to the
Police Station after an hour; and that, he had then produced the A-1 to A-3
before them. He has denied that the said panchnamas were not recorded in
the presence of panchas and nothing was seized under said panchnamas.
31) PW-5 and PW-6 both have deposed that when A-1 to A-3 were
apprehended at the spot, their clothes were blood stained. In support of this
evidence, PW-3 Chandrashekhar Sangulkar has deposed that on
18/07/2012 the Police had called him and co-panch Vishal Dhumal. A-1 to
A-3 were arrested in his presence. First, Police had arrested the A-2 and
took his person search. There were no injuries on the person of A-2, but,
the clothes on his person were blood-stained, i.e., blueish pant, brown
colour shirt and banian (Arts.3 to 5). One blood stained knife (Art.2) and
mobile handset of Samsung co. (Art.26) were found on the person of A-2.
The police seized the said knife, clothes and the mobile phone, packed it in
separate papers, sealed the same with label bearing signature of the
panchas and recorded the seizure Panchnama (Exh.68), accordingly. He has
identified the seized articles. He deposed that in the similar manner the
Police had carried out the arrest of the A-1 and A-3, seized the blood
stained clothes which were on their person (Arts.6 to 8 and Arts. 9 & 10)
including a Nokia mobile phone (Art.27) found on the person of A-3. He
has deposed that those articles were also packed and sealed in the same
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manner, and accordingly, separate Panchanams were recorded (Exh.69 &
Exh.70). He has identified the A-1 to A-3, their seized clothes and the
mobile phones. This evidence of PW-3 is very consistent with the evidence
of PW-10, who had effected the arrest and the seizure.
In the cross-examination, PW-3 has deposed that the area of
Tulshibaug was of heavily trafficked and crowded. Approximately, there
were 3 signals from Tulshibaug to Vishrambaug. Vishrambaug Police Station
is not abutting the road, but one has to go inside from the road. He was
called by the police at about 3.00 p.m. to 3.15 p.m. He has denied that he
was well acquainted with Lehare and Kudale families from Vishrambaug;
that, the Panchanamas Ex.68, 69 and 70 were not prepared in his presence;
that, he has signed the same on the say of the relatives of the deceased; and
that, he has deposed false. There is no cross-examination of PW-3 on behalf
of A-2 and A-3 since the adjournment was refused and the cross-
examination for the A-4 was declined. It is not pointed out from the record
that thereafter PW-3 was recalled for the cross-examination.
32) The testimony of the spot panch PW-1 Prashant Pangal shows
that on 18/07/2012, the police had recorded the spot Punchnama (Exh.49)
in presence of him and co-panch Shankar. The spot was shown by PW-4.
The Police took the samples of the blood found at the spot and seized one
broken goggle lying there. Said samples and the goggle were packed and
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sealed with wax and signature of the panchas. PW-1 has identified the Spot
Panchnama and the signatures thereon.
In the cross-examination, PW-1 has admitted that a CCTV
camera was installed on the pole near the spot. There was a traffic signal
near the spot. The place of the occurrence was visible from Chitale Shop.
Traffic Police used to stay in front of Chitale shop. He knew Santosh Kudale
and deceased Sachin Kudale. However, he has denied that he has signed the
Spot Panchanama in the Police Station on the say of Santosh Kudale.
33) PW-2 Vinayak Mahendre, the panch, has proved the seizure of
the blood stained clothes (Arts.19 to 22) of deceased Sagar under Seizure
Panchnama (Exh.66).
34) PW-8 Arjun Sakunde, then Sr. Police Inspector has deposed that
on 18/07/2012 he was present at the Police Station. At about 1.15 p.m., he
had received the information of this incident from the Police Control Room.
He had visited the spot. Traffic Police and Marshal were present there. PW-8
has deposed that, there he came to know that the injured were removed to
the hospital; that, the injured had quarreled with A-1, A-2, A-3 and one
unknown person; and that, A-2 had assaulted the injured persons with a
knife. He then went to the Sassoon Hospital. PSI Khade (PW-10) had
apprehended the A-1 to A-3 and taken them to the Police Station. After
visiting the Sassoon Hospital, he went to see the injured at Surya Hospital.
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PW-4 was present there. He took her to the Police Station and recorded her
Report (Exh.73) and sent that Report for registration of the crime with his
letter (Exh.124). Accordingly, this crime was registered. PW-8 has deposed
that PW-10 arrested the accused and recorded the Arrest Panchanamas. He
had seized the knife from A-2. This evidence of PW-8 appears very natural
and it is in line with the testimonies of PW-4, PW-5, PW-6 and PW-10.
35) PW-8 has deposed that, as directed by him, PSI Nikumbh had
visited the spot and recorded the Spot Panchanama (Exh.49). On the same
day, Police Naik Mr. Gavade had produced the clothes of deceased Sachin
(Arts.11 to 14) and of Kailas (Arts.15 to 18) and Police Naik Mr. Pathan had
produced the clothes of deceased Sagar Lahere (Arts.19 to 22). He had
seized the said clothes in the presence of panchas under the Panchanama
(Exhs.76 and 66 respectively). He has identified the said clothes. On
20/07/2012, he had referred the accused persons to the hospital alongwith
his letter (Exh.127) to obtain their body samples. On 21/07/2012, he had
forwarded the seized muddemal articles to the FSL alongwith his letter
(Exh.128), for purpose of C.A. On 23/07/2012, he wrote a letter (Exh.129)
to the Sassoon Hospital and obtained the samples of nail clippings, blood
and hair of A-1, A-2 and A-3. He then sent the said samples for C.A. with
his letter Exh.130/131.
36) PW-8 has deposed that on 24/07/2012, A-4 Dablya @ Vinayak
H.C. SHIV 912.app474.17.doc Chavan was called at the Police Station through staff. PW-4 was also called
at the Police Station. PW-4 had identified to A-4. Therefore, he recorded her
supplementary statement. However, A-4 was not arrested as he had
complained of blood pressure and giddiness. On 25/07/2012 he had called
for the CDR of the mobile phone of PW-4 and her father Sambhaji. He had
obtained the duty register extract of the traffic police from P.I. Traffic
Branch, Pune City along with his letter (Exh.133). He had recorded the
statement of the witnesses from time to time and obtained the statements
of witnesses recorded under Section 164 of the Cr.P.C. He received the C.A.
Reports (Exhs.134 to 137). On completion of investigation, he had filed the
charge-sheet. Another police officer had filed the additional charge-sheet.
37) In the cross-examination, PW-8 has admitted that he had
referred the medical papers of deceased Sagar which he had obtained from
Surya Hospital. He does not know whether the injured had narrated the
history of the assault to the doctor. He has denied that, on the basis of the
history of the assault, he had opined that, initially, the FIR of the injured
was against unknown persons. He has denied that after reading the medical
paper (Exh.138), it was transpired that, the FIR was against unknown
persons. He has denied that after reading the Inquest Panchnama (Exh.80),
it was transpired that deceased Kailas had died due to stabbing by 7 to 8
persons. He had recorded the statement of Munna Shaikh, who was witness
H.C. SHIV 912.app474.17.doc
to the incident. He had tried to obtain the CCTV footage. He has denied
that the CCTV footage was not favourable to the prosecution, therefore, he
has not produce the same. He has denied that A-1 has been falsely
implicated in this case.
38) PW-8 has admitted that the information of this incident was
received from the Police Control Room through wireless. The entry of
information received from the control room was taken. When information
of a cognizable offence is received, the Police Station Officer has to enter it
in the station diary. He has not obtained the copy of the such station diary.
The copy of extract "K" was not enclosed with the charge-sheet. He has
denied that the said information was not favourable, therefore, he has not
produced it on record. He has admitted that the Bank of Maharashtra was
in front of the spot of the offence. But he has not recorded the statement of
the bank employees and the employees of Chitale Sweet Mart. He had not
taken the identification parade of the A-4. He has denied that he has
deposed false that on 24/07/2012, he had called the PW-4 and she had
identified to A-4. He has admitted that in the report PW-4 had not stated
that she had identified the A-4; that, the A-4 had come near her at Vishram
Baug Wada; and that, she had seen blood stains on the person of A-4. PW-6
Gajanan Jadhav had not stated in his statement that the fourth
person/accused had ran away and he was not found.
H.C. SHIV 912.app474.17.doc
39) PW-8 has admitted that the spot of the incident was at a walking distance of 5 to 10 minutes from Vishrambaug Police Station. He
stayed at the spot for about 10 to 15 minutes. After leaving the Sassoon
Hospital, within half an hour he had reached at Surya Hospital. There, he
had stayed for about 30 to 45 minutes. He had met with PW-4 in Surya
Hospital. She was in a position to give a statement. He then reached to the
Police Station within 15 - 20 minutes alongwith PW-4. He did not verify the
timing of bringing the accused at the Police Station by PW-10 PSI Khade
and its entry in the station diary. PW-10 had not reported him about the
arrest. He has admitted that the description of the fourth accused was given
as "fat person having specs". It is true that he had received the information
that the said person had stabbed the victims. He has admitted that while
recording the FIR, the informant pointed at accused, the accused disclosed
their names and those names were recorded in the FIR. It is true that based
on the description of the fourth accused, he was traced. The "Portion A"
marked in the Report (Exh.73) was narrated by PW-4. Her occupation was
recorded as per her say. She did not state that she knew all the accused
since long. He has admitted that the CCTV cameras were installed at the
spot of the offence by the Corporation. He did not call for its footage from
the concerned authority, in writing. He has denied that he has charge-
sheeted the accused without any material.
H.C. SHIV 912.app474.17.doc
40) In view of the aforesaid evidence, the learned Counsel for the
Appellants have made the following submissions :
In the Report (Exh.73), PW-4 stated that she was a 'housewife',
and that, the place of the business of her husband was given on
rent to one Mr. Shagir. As such, PW-4 had no reason to come to
the spot the incident, a place of business. Therefore, PW-4 has
falsely deposed her occupation was a 'housewife' and 'business'.
The evidence of PW-4 and PW-5 indicates that, prior to the
incident, they were not acquainted with any of the accused. As
mentioned in the admission history (Exh.138) of deceased Sagar,
recorded at Surya Hospital on dated 18/07/2012, at 1.15 p.m.,
the following report submitted to PW-8/the Police Station
(Exh.139) and the Inquest Panchnama dated 29/07/2012
(Exh.80) in respect of deceased Kailas, 7 to 8 unknown persons
had assaulted the deceased Sagar and committed his murder. Said
history was given by the father of PW-4 before she filed the
Report (Exh.73). That was the neutral and first information in the
case. Said history was maintained even till 29/07/2012 (11 days)
vide Exh.80. Thus, it clearly contradicted the evidence of PW-4.
The father of PW-4 was not examined as witness, for the best
reasons known to the prosecution. The CCTV footage of the CCTV
installed on the pole near the spot of the incident is suppressed.
As such, an adverse inference is permissible that the said history
was given by PW-4 to her father and it was only the fact.
There is material inconsistency in the testimony of PW-4 and the
medical evidence.
PW-4 has admitted that, PW-5 had arrived at the spot after the
H.C. SHIV 912.app474.17.doc
incident was over. Moreover, the timeline given by PW-5 that she
had fueled the tempo at about 1:00 p.m. and then came to the
spot at about 1:10 p.m. does not match with the evidence of PW-
- Therefore, PW-5 cannot be accepted and relied as the eyewitness.
There is inconsistency in the evidence of PW-4, PW-5 and PW-6 as
to whether the three deceased were removed to the hospital in
two vehicles or three vehicles. PW-4 was available to record the prompt Report/FIR, however,
her Report (Exh.73) was recorded belatedly at 16.05 hours of
18/7/2012, that too after showing her the A-1 to A-3. But before
that, PW-5's statement was already recorded at about 1.00 p.m.
Yet, the said statement was not treated as the FIR. Thus, the delay
in filing the FIR makes the prosecution version doubtful.
Admittedly, the incident had occurred in the broad day light and
at a crowded place. However, not a single independent witness is
examined in by the prosecution. Considering the evidence as a
whole, PW-4, PW-5 and PW-6 were interested witnesses.
PW-4 is relative of the two deceased and had vested financial
interest in the place of the business of A-1 to A-3. Said interest
was to be easily served with the conviction of the accused.
Therefore, PW-4's evidence needs to be treated with great
caution, carefully scrutinized and subjected to corroborated. Her
evidence has failed on these tests. Mr. Joshi, the learned Counsel for the A-1 submitted that there is
no evidence that A-1 had assaulted to any of the deceased.
Dr. Chaudhry and Mr. Pendse, the learned Counsel for A-2 and A-4 submitted that as stated in the Report (Exh.73), initially, A-1
H.C. SHIV 912.app474.17.doc
and one fat person wearing specs had assaulted Sachin. And later
on, A-2 Sagar Tambde, who was fat and wearing specs, had
assaulted the three deceased and one fat person wearing specs,
i.e., A-4 was associated with A-1 to A-3. However, in the cross-
examination, PW-4 has admitted that she had described the
fourth accused/person as the person wearing thick spectacles.
PW-4 has admitted that her narration in the Report that the
person wearing thick specs was A-2-Sagar Tambde, was correct.
As admitted by PW-5, out of the four persons (assailants), only
one had spectacles and only one assailant was holding a knife.
The said four persons were from different age group. Before the
Magistrate, PW-5 had stated that he was aged man wearing white
clothes who was holding a knife, which fact completely
contradicts the evidence of PW-4. However, this ambiguity was
not removed by holding a TIP during the investigation, although,
A-4 was unknown to PW-4 and PW-5. Nor the prosecution
evidence is of any help to remove that ambiguity.
The claim of PW-4 that she knew the accused persons is omission
in the Report and her statement u/ Sec.164 Cr.P.C. This fact
couples with the other circumstances indicate that the assailants
were unknown to PW-4. The accused were not acquainted with
PW-5 prior to the incident. There is no dock identification of the
accused persons by PW-4 and PW-5 during the course of their
deposition. In the absence of such identification and TIP
evidence, the prosecution case is collapsed. The remaining evidence as to the seizure of the clothes of the
accused persons and the knife in question is not sufficient to
convict them because there is no evidence of proper sealing of theH.C. SHIV 912.app474.17.doc
muddemal parcels and the result of the CA for blood grouping
was inconclusive. The learned Counsel for A-1, A-3 and A-4 submitted there is no
sufficient evidence by the prosecution to establish that the A-1, A-
3 and A-4 had directly or indirectly participated in the assault and
the murders. Hence, they cannot be convicted taking aid of Sec.
34 I.P.C. Thus, according to the learned Counsel for the accused PW-4, PW-
5 and PW-6 are not "sterling witnesses". There are various
infirmities in the prosecution case and it created a reasonable
doubt about the involvement of the accused persons in this crime.
The trial Court, however, ignored the said weaknesses and
shortcomings in the persecution evidence. As such, the impugned
Judgment and Order is not sustainable in law and it may to be
quashed and set aside.41) In contrast, Mr. Tanveer Khan, the learned APP submitted that
there is sufficient evidence by PW-4 that when she had arrived at her stall,
deceased Kailas met her and told that deceased Sachin was assaulted by A-1
at his stall. PW-4 then went to deceased Sachin and inquired with him.
Deceased Sachin told her that the A-1 and A-2 had assaulted him. Soon
thereafter, as deposed by PW-4 and PW-5, the A-1 to A-4 jointly attacked on
deceased Sagar and Kailas during which, A-2 gave them stabs leading to
fatal injuries. Lastly, the A-2 again stabbed deceased Sachin and caused his
death. This testimony of PW-4 is supported with the testimonies of PW-5,
H.C. SHIV 912.app474.17.doc
PW-6 and other witnesses including the C.A. Reports. The accused persons
have not explained their presence at the spot and the human blood found
on the clothes which were on their person at the time of the incident. All
this evidence was properly considered by the learned Judge of the trial
Court before handing over them the conviction and the sentence. Thus, in
short, according to the learned APP, interference with the impugned
Judgment is unwarranted in view of the abundant evidence on record.
42) We have considered these submissions and carefully scrutinized
the oral and the documentary evidence adduced by the prosecution. On
such a scrutiny, we find that, the testimony of PW-4 is very consistence with
her Report (Exh.73), which was lodged very promptly. This aspect is also
supported with the testimony of PW-8 who had recorded her Report.
Considering the testimony of PW-4, her presence at the time and spot of the
incident appears natural. Because, her children were small. The schools
were little far from their home and the children were required to pass
through traffic/crowd to reach the schools. It is natural that small children
need their mother's help to safely reach the school. The school timing stated
by PW-4 was not disputed. As come in the cross-examination of PW-4, there
was just 10 to 15 minutes walking distance from Ranade Balak Mandir to
Tulshibaug, where the incident had occurred.
43) Attempt was made in the cross-examination of PW-4 to show
H.C. SHIV 912.app474.17.doc that, as her husband was in jail, his business place was given to one Mr.
Shagir on rent. This fact was stated by PW-4 in the Report (Exh.73).
However, the Report also mentions that, deceased Sachin was doing the
garments business at Tulshibaug. In the cross-examination of PW-4, it has
come that, her husband and deceased Sachin used to run the stall at
Tulshibaug. It was also suggested to PW-4 that, at the time of incident, she
and her children were dependent on the income of the deceased Sachin and
her mother-in-law. Thus, the defence has conceded that Sachin was running
the business stall to earn. Just 8 days before the incident, PW-4's husband
was released from jail. Therefore, and looking at the size of the family of
PW-4, it was probable that, she/her family would do some business to earn
their livelihood. Otherwise, PW-4 had no reason to unnecessarily go to
Tulshibaug.
44) The testimony of PW-4 that deceased Kailas had met her and
deceased Sagar and Kailas told them about the first assault on deceased
Sachin by A-1 and his associate appears very probable. Because, as came in
the cross-examination of PW-4, Kailas was running a garment stall near
their stall. So, naturally, Kailas would be the first person to witness that
assault on deceased Sachin and inform to his close relatives.
45) As noted in the admission history (Exh.138) of deceased Sagar
recorded at Surya Hospital on dated 18/07/2012, at 1.30 p.m., the episode
H.C. SHIV 912.app474.17.doc
of the assault on the three had occurred in the presence of PW-4 and it was
seen by her. Same fact was recorded in the following report (Exh.139)
submitted to PW-8/the Police Station. Said two documents were referred to
PW-8 in his cross-examination by the defence, hence, were admitted in the
evidence. Thus, said documents also confirmed that at the time of the
incident, PW-4 was present at the spot and she had witnessed the incident.
46) No doubt, the admission history and the following police report
(Exhs.138 & 139) mention that the alleged history of the assault was given
by Sambhaji Lahare that said assault was made by 7-8 unknown persons at
around 1.15 p.m. Even the Inquest Panchnama dated 29/07/2012 (Exh.80)
in respect of deceased Kailas mentions that 7 to 8 unknown persons had
assaulted the three deceased at the time and place of the incident. In view
thereof, the learned Counsel for the accused persons submitted that said
history was supplied to Sambhaji Lahare by PW-4, and accordingly, the
former had told to the doctor on duty. It was the first contemporaneous
record made without deliberation. Although PW-4 has deposed that she
knew all the four accused, she has omitted that fact in her Report (Exh.73).
In the backdrop, the learned Counsel urged that since the assailants were
unknown to PW-4, therefore, it was not possible for her to file the Report
naming the A-1 to A-3 therein with their alleged role in the crime. But to
salvage this difficulty, first, the accused were shown to PW-4 and were
H.C. SHIV 912.app474.17.doc
required to tell their name, and accordingly, the Report (Exh.73) was
recorded. According to the learned Counsel, this inference is permissible,
because, PW-8 has candidly admitted that while recording the FIR (Report),
the informant (PW-4) had pointed at the accused, the accused disclosed
their names and those names were recorded in the FIR. Therefore, the
learned Counsel submitted that the claim of PW-4 that the accused were the
assailants, is not reliable. To buttress these submission Dr. Chaudhry has
relied upon the decision in Gurja Bedia And Others Vs. State of Bihar2.
Therein, there was a possibility to state the name of the assailants in the
FIR, but, they were not so named. The FIR was filed against 5/6 unknown
persons. Therefore, the prosecution case was not accepted on account of
that infirmity. Additionally, reliance is placed on the decision in [Ram Kumar
Pande Vs. The State of M.P.3](https://indiankanoon.org/doc/1330888/). Therein it is held that omission of important
facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.
These submission look attractive at the first blush, however, we
are not agreeable to said submissions, because, in the case in hand, in the
Report (Exh.73) PW-4 has specifically stated the names of the A-1 to A-3
and their role in the occurrence. In the cross-examination of PW-4 it has
come that she had disclosed the names of the persons whom she knew and
1990 (Supp) SCC 521
(1975) 3 SCC 815
H.C. SHIV 912.app474.17.doc
she had given the description of the person whom she did not know.
Further, she has voluntarily deposed that she had disclosed the names of
the three accused. This is what exactly intelligible on a simple reading of
her Report (Exh.73). Considering the evidence, it appears that, since
deceased Sachin knew the A-1, he could, therefore, tell PW-4 that, initially,
A-1 and his associate had assaulted him. And soon after that first assault,
the three deceased were assaulted during which A-1 was present at the spot
with the other accused. The Report (Exh.73) was filed very promptly and
was entered in the General Diary at 16.05 hours.
As against this, the history of the assault recorded in the
admission history (Exh.138), was given to the doctor by the father of PW-4
and not by her. Considering the timings recorded in the admission history
(Exh.138), it appears that, the said history was given by the father of PW-4
before she had reached Surya hospital from the Sassoon hospital. However,
since her father was not running any business stall near the disputed place
at Tulshibaug, probably therefore, he could not reproduced the names of
the assailants before the doctor. In view thereof, we find it difficult to
accept that the deceased were assaulted by 7-8 unknown persons.
47) PW-4 has deposed that deceased Sachin had injury over lip.
This assertion does not find support from the evidence of the doctors PW-7
and PW-9. Highlighting this inconsistency, Dr. Chaudhry, the learned
H.C. SHIV 912.app474.17.doc
Counsel submitted that it is doubtful that PW-4 was present at the spot and
she had talked with deceased Sachin. To accept this submission, he has
relied upon the decision in State of Rajasthan Vs. Bhanwar Singh 4. Therein
the medical evidence was at total variance with the ocular evidence.
Therefore, it is held that, though ocular evidence has to be given
importance over medical evidence, where the medical evidence totally
improbables the ocular version that can be taken to be a factor to effect
credibility of the prosecution version.
However, this principle cannot be applied here for a simple
reason that deceased Sachin had sustained a serious injury over the
occipital region (near the neck), and therefore, it was probable that blood
oozed from that injury had flown up-to his lips, due to which, PW-4 might
have confused that deceased Sachin had the injury on his lip.
48) It is apparent that the testimony of PW-5 is very consistent with
the testimony of PW-4 and the Report (Exh.73). The evidence of PW-5
indicates that, when the incident occurred, she had come close to the spot
of the incident. Therefore, she could reach at the spot, when the assault on
the victims was going on. PW-5 was an independent Police who had neither
any closeness with the victim side nor any enmity with the accused persons.
PW-5 had not reason to depose false against the accused. As such, the claim
- (2004) 13 SCC 147
H.C. SHIV 912.app474.17.doc
of PW-5 is reliable that in all four persons were involved in the assault on
the three deceased.
In the cross-examination of PW-4, it has come that the Police
Constable had reached at the spot after the incident was over. Therefore,
the learned Counsel for the accused submitted that PW-5 was not an
eyewitness. However, this admission cannot be related to PW-5, because, no
further question was put to PW-4 to clarify as to who was the said Police
Constable as both PW-5 and PW-6 were the Police Constable. Moreover,
from the evidence it is clear that it was PW-6 who had come to the spot
after the assault was over.
49) The learned Counsel pointed that, according to PW-4, two
deceased were removed to the hospital in separate auto-rickshaw and one
in the ambulance. PW-5 has deposed that two deceased were removed in
one auto-rickshaw and one deceased by ambulance. However, considering
the evidence as a whole, this inconsistency is not material because it relates
to the post incident situation, and therefore, it is not sufficient to disbelieve
the presence of PW-4 and PW-5 at the spot at the time of the incident.
Moreover, while appreciating the evidence, it is necessary to keep in mind
that there is bound to be some discrepancies between the narrations of
different witnesses when they speak on details, and unless the
contradictions are of material dimension, the same should not be used to
H.C. SHIV 912.app474.17.doc
jettison the evidence in its entirety. In other words, trivial discrepancies
ought not to obliterate an otherwise acceptable evidence.
50) PW-5 has clearly deposed that, as soon as she arrived at the
spot, she had informed the incident on phone to the Police Control Room.
The testimony of PW-6 shows that, like PW-5, he and another Police with
him were not far from the place of the occurrence. Therefore, PW-6 could
immediately reach the spot on getting the wireless message of the incident.
Further, PW-6 apprehended the A-1 to A-3 at the spot and detained them.
This evidence is well supported with the evidence of PW-10 who has
categorically deposed that, when he had arrived at the spot, said accused
were in charge of PW-6 and he took them in his charge and brought them
to the Police Station. Said evidence of PW-10 has remained unchallenged in
the cross-examination and received support from the testimony of PW-8. In
fact, there is no denial to PW-10's evidence that, immediately after the
incident, he went to the spot, took the A-1 to A-3 in his custody from PW-6
and he then brought them to the Police Station. Even a suggestion of
denying said fact was not put to PW-5 and PW-6. In the cross-examination
of PW-6, it has come that he had apprehended the accused persons on the
belief that they had committed this crime. Thus, the defence has conceded
the fact of apprehending the A-1 to A-3 at the spot. The A-1 to A-3 have not
explained as to why they were present at the spot when PW-5, PW-6 and
H.C. SHIV 912.app474.17.doc
PW-10 had come there. It is not the case of the A-1 to A-3 that, at the
relevant time, they were at different place/s, they were apprehended from
different place/s and then brought to the Police Station. Therefore, the said
testimony of PW-6 and PW-10 cannot be brushed aside.
51) No doubt, PW-5 has admitted that her statement was recorded
at about 1.00 p.m. by Shri.Sakunde/PW-8. But, in further cross-examination
of PW-5, it has come that she was at Vishrambaug Chowk till 3.15 p.m. and
she was called at Vishrambaug Police Station at about 3.45 p.m. to 4.00
p.m. Around the same time the Report (Exh.73) was recorded and entered
in the General Diary at 16.05 hours. As deposed by PW-8, he had received
the information of the occurrence at about 1.15 p.m. and he then went to
the spot. As such, till 1.15 p.m. recording of the statement of PW-5 was not
possible. Hence, on the basis of such a stray admission by PW-5 it cannot be
held that there was delay in filing the Report (Exh.73).
52) Now coming to the circumstantial evidence. On the strength of
the testimonies of PW-3 and PW-10 the prosecution has proved the seizure
of the clothes of A-1 to A-3. The panch witness to the Panchnama (Exh.150)
as to seizure of the clothes of PW-4 was not examined and that Panchnama
was proved by PW-4. Nevertheless, Mr. Chaudhry, the learned Counsel
submitted that there is no evidence as to sealing the alleged clothes parcels
with wax. He submitted that the contents of the panchnama (Exh.150)
H.C. SHIV 912.app474.17.doc
were in form of a statement recorded u/ Sec.161 Cr.P.C. and proving its
contents through PW-10 was in violation of Section 162 Cr.P.C. Therefore,
the evidence as to the proof of the seizure of the said clothes is not lawful
and of no avail to the prosecution.
To make these submissions acceptable, first, reliance is placed
on the decision in Arjun Rangrao Patil Vs. State of Maharashtra 5. Therein
there was no satisfactory evidence that the clothes of the accused on their
seizure were immediately sealed and were in the same condition in which
they were received by the C.A. The panch witness has admitted that the
wax seal had not been put on the clothes which have been seized.
Therefore, the Division Bench of this Court observed that the prosecution,
did not rule out the possibility of the clothes being tampered with. There
was no evidence on record to indicate that the clothes, which were seized,
were, in fact, the clothes belonging to the accused and were the same
clothes which had been worn by the accused at the time of the incident.
None of the eye witnesses had identified the clothes of the accused to be
the same clothes which were worn by the accused at the time of the
incident. Therefore, it was held that mere discovery of the clothes would
not lead to an irresistible inference or hypothesis that there were the same
clothes which the accused had worn at the time of the incident. As such,
- 2015 SCC OnLine Bom 184
H.C. SHIV 912.app474.17.doc
and in the absence of strong and satisfactory evidence regarding sealing of
the clothes, it was held that implicit reliance on the report of the C.A.
cannot be placed. Another decision cited is [Rajesh And Another Vs. State of
Madhya Pradesh6](https://indiankanoon.org/doc/2113703/). Therein it is held that a panchnama would be
inadmissible in a Court of law if it is recorded by the Investigating Officer in
a manner violating Section 162 Cr.P.C. as the procedure requires the
Investigating Officer to record the search proceedings as if they were
written by the panch witnesses themselves and it should not be recorded in
the form of examining witnesses, as laid down in Section 161 Cr.P.C.
However, it is also observed that, the entire panchnama would not be liable
to be discarded in the event of deviation from the procedure and if the
deviation occurred due to a practical impossibility, then the same should be
recorded by the Investigating Officer so as to enable him to answer during
the time of his examination as a witness in the Court of law.
Yet, in the facts of the case in hand, we have to disagree with
the said submissions. Because, the testimonies of PW-3 and PW-10 on the
point of seizure of the blood stained clothes of A-1 to A-3 is very consistent
with the Arrest Panchnamas of the respective accused. There is nothing in
the cross-examination of PW-3 and PW-10 to reject the seizure of the
clothes as aforestated. Even no specific suggestion of denying the fact that
- (2023) 15 SCC 521
H.C. SHIV 912.app474.17.doc
said clothes were on the person of A-1 to A-3 and said clothes were
seized, was put to these witnesses. PW-10 has specifically deposed that he
had sealed the said clothes with wax seal and said fact was specifically
recorded in the respective Seizure Panchnamas. As noted above, PW-3 was
not cross-examined on behalf of A-2 and A-3. That apart, unlike in the case
of Arjun Rangrao Patil (supra), the clothes of A-1 to A-3 were seized
immediately after the incident. Said clothes were identified by PW-3 and
PW-10. In so far as the seizure of the clothes of PW-4 is concerned, her
testimony to that effect and identification of her clothes by herself, is not at
all challenged in her cross-examination. Moreover, PW-10 has supported
her. There is nothing indicating that it was a created evidence.
53) PW-8 has specifically deposed that on 21/07/2012, he had
forwarded the seized muddemal articles to the FSL alongwith his letter at
Exh.128, for CA purpose. The Report of the CA (Exh.136) clearly mentions
that human blood was found on the clothes of the PW-4, A-1 to A-3 and the
seized knife. The A-1 to A-3 had not explained the presence of human blood
on their clothes and the A-2 on seized the knife. Theses circumstances
supported the testimonies of PW-4, PW-5 and PW-6. In the backdrop, it is
safe to conclude that the A-2 had assaulted the three deceased by the said
knife; that, during said assault, A-1 and A-3 had pushed PW-4 and Kailas
and assaulted Kailas with fist and kick blows, therefore, the clothes on the
H.C. SHIV 912.app474.17.doc
person of A-1 to A-3 and the said knife got stained with the human blood.
54) Considering the evidence of PW-4, it is acceptable that there
are some omissions and contradictions in her evidence. As held in the cited
decision between [Ramesh Baburao Devaskar And Others Vs. State of
Maharashtra7](https://indiankanoon.org/doc/1204394/), when the FIR contradicts the subsequent statement before
Police and the evidence, it raises doubt on the entire investigation.
However, it is significant to note that minor embellishment, there may be,
but that itself cannot be allowed to be a foundation to discard the evidence
of the eye witnesses when it is confidence inspiring and quite dependable.
55) PW-4 is close relative of deceased Sagar and Sachin. Deceased
Kailas was friend of deceased Sachin. In the decision [State of Maharashtra
Vs. Ahmed Shaikh Babajan And Others8](https://indiankanoon.org/doc/472534/), cited by the learned Counsel Dr.
Chaudhry, it is held that a close relative, though not characterised as an
interested witness, may be held so, if he had oblique and animus motive to
somehow convict the accused. However, in the another cited decision [Anil
Phukan Vs. State of Assam9](https://indiankanoon.org/doc/1308991/), it is enunciated that, in the normal course a
close relation would be the last person to spare the real assailant and
implicate a false person. However, the possibility that he may also implicate
some innocent person alongwith the real assailant cannot be ruled out.
(2007) 13 SCC 501
(2009) 14 SCC 267
(1993) 3 SCC 282
H.C. SHIV 912.app474.17.doc
Therefore, as a matter of prudence, Court should look for some
independent corroboration of his testimony to decide about the
involvement of the other accused in the crime. Dr. Chaudhry, emphatically
submitted that looking at the quality of the evidence on record, PW-4
cannot be rated as a "sterling witness" as enunciated by the Hon'ble
Supreme Court in Rai Sandeep Alias Deepu Vs. State (NCT of Delhi) 10 in
paragraph 22 and it reads :
"22. In our considered opinion, the "sterling witness" should
be of a very high quality and caliber whose version should,
therefore, be unassailable. The Court considering the version of
such witness should be in a position to accept it for its face
value without any hesitation. To test the quality of such a
witness, the status of the witness would be immaterial and
what would be relevant is the truthfulness of the statement
made by such a witness. What would be more relevant would
be the consistency of the statement right from the starting point
till the end, namely, at the time when the witness makes the
initial statement and ultimately before the Court. It should be
natural and consistent with the case of the prosecution qua the
accused. There should not be any prevarication in the version of
such a witness. The witness should be in a position to withstand
the cross-examination of any length and howsoever strenuous it
may be and under no circumstance should give room for any
doubt as to the factum of the occurrence, the persons involved,
as well as the sequence of it. Such a version should have co-
relation with each and every one of other supporting material
such as the recoveries made, the weapons used, the manner of
offence committed, the scientific evidence and the expert
opinion. The said version should consistently match with the
10. (2012) 8 SCC 21
H.C. SHIV 912.app474.17.doc
version of every other witness. It can even be stated that it
should be akin to the test applied in the case of circumstantial
evidence where there should not be any missing link in the
chain of circumstances to hold the accused guilty of the offence
alleged against him. Only if the version of such a witness
qualifies the above test as well as all other such similar tests to
be applied, can it be held that such a witness can be called as a
"sterling witness" whose version can be accepted by the Court
without any corroboration and based on which the guilty can be
punished. To be more precise, the version of the said witness on
the core spectrum of the crime should remain intact while all
other attendant materials, namely, oral, documentary and
material objects should match the said version in material
particulars in order to enable the Court trying the offence to
rely on the core version to sieve the other supporting materials
for holding the offender guilty of the charge alleged."
In the case in hand, when we tested the testimony of PW-4 on
the touchstone of the aforestated principles, we find that, she has passed all
the said tests. Because, her testimony is very consistent with her Report
(Exh.73), which was lodged very promptly, thus, completely ruled out the
possibility of deliberation and concoction. Secondly, her testimony was
corroborated with PW-5, PW-6, PW-10, PW-8 and the Report of C.A. None
of these witnesses had an Axe to grind against the accused. The A-1 to A-3
have failed to explain their presence at the spot, in particular, the A-2 with
the knife in the hand and human blood stains on his clothes. Thus, PW-4
can be rated as the "sterling witness", and therefore, she cannot be
disbelieved merely because she was close relative of the deceased.
H.C. SHIV 912.app474.17.doc
56) It is fact that besides relative witness PW-4, no other civilian who had seen the incident was examined by the prosecution. However, in
view of Section 134 Evidence Act, no particular numbers of witness shall in
any case, be required for the proof of any fact. Evidence to be weighed and
not counted. The testimony of single witness is sufficient to establish any
fact, if it inspires confidence. In the case in hand, the testimony of PW-4 has
been strongly supported by two police - PW-5 and PW-6, who were neutral
to both sides. Therefore, non-examination of any member from the crowd
who had witnesses the incident is of no consequence in this case or say fatal
to the prosecution case.
57) It is obvious from the evidence that PW-4 was not acquainted
with A-4 and PW-5 was not acquainted with any of the four accused. Dr.
Chaudhry, submitted that, therefore, TIP was necessary to be held by PW-8
during the investigation. However, no such TIP was held. He submitted that
during their deposition PW-4 and PW-5 have not identified the accused
persons in the dock by pointing at them. The evidence of PW-4 that she
knew all the four accused is an omission in her Report (Exh.73) as well as
the statement before the Magistrate. Therefore, there is no substantive
identification of the individual accused in the Court. As a result, the entire
prosecution case has collapsed. To support this submission Dr. Chaudhry
has relied upon the decision in Tukesh Singh And Others Vs. State of
H.C. SHIV 912.app474.17.doc
Chhattisgarh11. Therein it is held that in the situation where the eyewitness
did not know the accused before the occurrence, in the normal course, it is
necessary to hold the TIP. If it is not held, the identification of such an
accused by the eyewitness in the Court becomes vulnerable. Another
decision cited is [Renuka Prasad Vs. State Represented by Assistant
Superintendent of Police12](https://indiankanoon.org/doc/6370981/). If there was an identification at the stage of
investigation, as per the precedents, it only aids the investigation and
cannot lead to conviction, unless the accused are identified in the box at the
time of trial in Court.
In this context we have noticed that PW-4 has not stated in her
Report (Exh.73) and in the statement before the Magistrate that she knew
all the four accused. Similarly, PW-5 was not acquainted with any of the
accused. Nevertheless, these circumstances are not sufficient to hold that
the identity of A-1 to A-3 was not established. Because, PW-4 has
specifically deposed that, just before the assault, all the four accused had
come close to her and to the three deceased. PW-5 has specifically deposed
that she had seen all four accused while assaulting the three deceased and
identified the accused persons before the Court as the same persons whom
she had seen at the spot. The incident had occurred in the broad day light.
It is common experience that such incidents create a long lasting impression
2025 SCC OnLine SC 1110
2025 SCC OnLine SC 1074
H.C. SHIV 912.app474.17.doc
on one's mind. PW-6 has specifically deposed that when he had arrived at
the spot, A-1 to A-3 were present there. PW-5 had told him that A-2 and
three others with him had assaulted the injured persons. He, therefore,
apprehended the A-1 to A-3. They gave their names as Dattatray Tamble,
Sagar Tambde and Ganesh Tamble respectively. PW-6 has identified the A-2
as the same person who was present at the spot holding a knife and had
blood stains on his person and that, the A-1 and A-3 were the same persons
who were present there with the A-2. It is significant to note that PW-5 and
PW-6 both were police. Hence, they must have seen the A-1 to A-3 for
sufficient time. Therefore, according to us, it cannot be maintained that the
identity of the A-1 to A-3 was not established before the trial Court.
58) As noted above, deceased Sachin was attacked twice. As
regards the first attack, PW-4 has deposed that, when she had enquired
with deceased Sachin about the first attack, he had told her that A-1 and A-
2-Sagar Tambde who was wearing specs had assaulted him. This evidence,
however, is not sufficient to conclude that, it was A-2 who was associated
with A-1 when deceased Sachin was assaulted for the first time. Because, in
the Report (Exh.73), PW-4 had stated that when she had enquired with
deceased Sachin, he had told her that as he had asked Dattatray Tambde
(A-1) as to why he installed his stall at his place, Dattatray Tambde (A-1)
and his one associate, who was fat and wearing specs, assaulted him. At
H.C. SHIV 912.app474.17.doc
this part of the Report (Exh.73), PW-4 has not referred to the name of A-2.
Secondly, in the said Report, both A-2 and A-4 were referred to as the fat
person with specs. However, there is no evidence to establish the identity of
the fat person wearing specs who was associated with A-1 at the time of the
initial assault on Sachin.
59) PW-4 has admitted that she had described the fourth accused
as the person wearing thick spectacles. PW-4 has admitted that, her
narration in the Report that the person wearing thick specs was A-2, Sagar
Tambde, was correct.
Nevertheless, the said admissions are not sufficient to hold that
the prosecution has failed to establish as to who from the A-2 and A-4 had
assaulted the three deceased during the subsequent assault. Because, on a
careful reading of PW-4's Report (Exh.73), it can be seen that, when A-2
had assaulted deceased Sagar with the knife, PW-4 had referred the A-2 as
"the fat person wearing specs namely Sagar Tambde ( चष्मा घातले ल्या जाड
इसम सागर तांबडे याने )". Similarly, when A-2 had assaulted deceased Kailas
with the knife, PW-4 had referred the A-2 as "fat - specs wearing Sagar
Tambde (जाड चष्मे वाल्या सागर तांबडे याने )". Thus, never PW-4 had referred
the A-2 with/using words "thick specs". As such, in our view, the mistaken
admissions stated in the opening of this paragraph are of no avail to the
defence. In this regard following observations in case of Jayshri Yadav Vs.
H.C. SHIV 912.app474.17.doc
State of U.P.13 are relevant and it reads: "When a witness is subjected to
lengthy and arduous cross-examination over a lengthy period of time, there
is always a possibility of his committing mistakes which can be termed
'omission', 'improvements' and 'contradictions'." Thus, in the words of the
Hon'ble Supreme Court, those infirmities have to be appreciated in the
background of the entire relevant material and not in isolation.
As admitted by PW-5, the said four persons (assailants) were
from different age group. Before the Magistrate, PW-5 had stated that he
was aged man wearing white clothes who was holding a knife. However,
these circumstances are also not sufficient to doubt the veracity of the
prosecution case. Because, the evidence of PW-4, PW-5, the Report (Exh.73)
and the C.A. Reports only pointing at A-2, who was fat, had specs and had
assaulted the three deceased and committed their murder. Moreover, A-2 is
son of A-1 and the dispute about the place of the business had arisen
between the A-1 and the deceased Sachin.
60) However, we find it difficult to accept that the identity of A-4
was satisfactorily proved by the prosecution as one of the co-accused who
had accompanied with the rest accused and shared the common intention
to commit the murders. Because, in the report (Exh.73) PW-4 had not
stated that she knew the A-4. Admittedly, A-4 was unknown to PW-4 and
- AIR 2004 SCC 1443
H.C. SHIV 912.app474.17.doc
PW-5. However, the prosecution has not clarified as to on what basis PW-4
has deposed that she knew the A-4. Although PW-5 has identified the A-4,
he had fled away before he could be apprehended. In this background, the
PW-8 should have held the TIP to confirm the identity of the A-4 as one of
the co-accused. However, the TIP was not held. On the contrary, as deposed
by PW-8, after apprehending the A-4 he was shown to PW-4 to confirm his
involvement in the crime and then charge-sheet was filed against him. This,
according to us, was not proper. Therefore, it would be risky to hold that
the A-4 was the same person who was associated with the other accused at
the time of the assault on the three deceased and that he had also
participated in the assault.
61) In view of the above discussion, we conclude that, at the
relevant time and place of the incident, first, deceased Sachin was assaulted
by A-1 and his associate who was fat and wearing specs and later on all the
three deceased were assaulted by A-2 and at that time, A-1, A-3 and an
unknown accused were present with him.
62) Now, the question is whether the A-1 to A-3 and the unknown
accused in furtherance of their common intention had committed the
murder of the three. As noted from the evidence of PW-4, in the first
assault, Sachin had sustained only one injury on the neck. It should be the
external injury No.13, i.e., "Incised wound over, occipital region, on right
H.C. SHIV 912.app474.17.doc
side, 2 x 1 cm by bone deep, vertical margins clean cut, reddish." The
statement made by deceased Sachin before PW-4 immediately after the first
assault was in the nature of a dying declaration as against A-1 and his
associate who was fat and wearing specs. Independently, the said injury was
not sufficient to cause the death of Sachin in the ordinary course of nature.
However, it must be noted that when Kailas met PW-4, he had also told her
that A-1 had assaulted deceased Sachin. Said disclosures by deceased
Sachin and Kailas were relevant u/Sec. 6 of The Evidence Act. Soon after,
the first assault, all three deceased were assaulted by A-2 when A-1 was
also present there. This presence is relevant u/ Sec.8 of the Evidence Act.
62.1) Next, we have noted that, immediately after the first assault,
when PW-4 and Kailas were enquiring with deceased Sachin, the A-1 to A-3
and the unknown accused came there and abused to PW-4, deceased Sagar
and deceased Kailas. At that very juncture, A-2-Sagar Tambde took out a
knife and stabbed deceased Sagar in the abdomen and the neck. However,
the rest accused persons did not stop the A-2 and he continued inflicting
the injuries which are 8 in numbers including one abrasion. Additionally,
the attempt of PW-4 and Kailas to rescue deceased Sagar was foiled as the
accused persons had pushed them and assaulted Kailas with fist and kick
blows. And A-2, Sagar Tambde stabbed Kailas in the abdomen and the neck.
Therefore, PW-4 again tried to intervene in the quarrel, but now, A-3 had
H.C. SHIV 912.app474.17.doc
stopped her threatening to stay away, otherwise, he will kill her. A-2 Sagar
Tambde then stabbed Sachin in the chest and abdomen. However, the other
accused persons even did not think it to intervene and stop him from
causing the fatal injuries to Kailas and Sachin. Consequently, Kailas and
Sachin had suffered large number of knife injuries. In other words, the rest
three accused let the barbaric murder happen in their presence, thus,
abetted the A-2 for the same. The testimony of PW-5 also indicates that
when the A-2 was assaulting the three deceased, the rest accused were
beating them. Therefore, we are of the considered view that the A-1, A-3
and the unknown accused had shared the common intention with the A-2
for committing the murder of deceased Sagar, Kailas and Sachin.
63) The conspectus of the above discussion is that A-2 was guilty of
offence of Section 302 I.P.C. for committing murder of the three deceased
and the A-1 and A-3 were guilty under Section 302 and 34 I.P.C. as they
alongwith an unknown accused had shared the common intention with the
A-2 to commit the murders. However, there is no sufficient evidence to hold
that A-4 was the same unknown accused who was associated with A-1 to A-
- Yet, the trial Court failed to appreciate the evidence on record with that
perspective and therefore, erroneously held the A-4 guilty of the three
murders by virtue of Section 34 I.P.C. As such, the impugned Judgment is
H.C. SHIV 912.app474.17.doc
suffering from infirmity to that extent and liable to be set aside, accordingly.
In the result, the Appeals by A-1, A-2 and A-3 are liable to be
dismissed and the Appeal by A-4 deserve to be allowed. Hence, we pass the
following Order :-
(a) Criminal Appeal No.1540/2018 filed by Dattatraya
Ramchandra Tambde (Accused No.1), Criminal Appeal
No.908/2024 filed by Sagar Dattatraya Tambde (Accused
No.2) and Criminal Appeal No.474/2017 filed by Ghansham
Dattatraya Tambde (Accused No.3) are dismissed.(b) Criminal Appeal No. 341/2017 filed by Vinayak Madhav
Chavan (Accused No.4) is allowed.(c) The impugned Judgment and Order of conviction and sentence
dated 29/03/2017, passed in Sessions Case No.830/2012 by
the learned Additional Sessions Judge, Pune is upheld against
Accused Nos.1 to 3 and quashed and set aside to the extent of
Accused No. 4.(d) The Appellants - Vinayak Madhav Chavan (Accused No.4) is
acquitted of the offence punishable under Sections 302 and 34 of the I.P.C.
The fine amount, if paid by Accused No. 4, shall be returned.
(e) Record indicates that, presently Appellant - Vinayak Madhav
Chavan (A-4) has been lodged in Yerwada Central Prison,
Pune.
Hence, the Appellant - Vinayak Madhav Chavan (A-4),
shall be released from the prison forthwith, if not required to
be detained in any other crime/case.
H.C. SHIV 912.app474.17.doc
(f) Appellant - Vinayak Madhav Chavan (A-4) shall execute a P.R.
Bond in the sum of Rs.50,000/- each with one surety in the like
amount under Section 437A of the Cr.P.C.(corresponding to
Section 481 of the Bharatiya Nagarik Suraksha Sanhita, 2023)
for his appearance, in case an Appeal is preferred.
64) The Appeals are disposed of. As a result, pending Interim
Applications does not survive and stand disposed off, accordingly.
(SHYAM C. CHANDAK, J.) (BHARATI DANGRE, J.)
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