Aniket @ Anni Mahendra Meshram vs State Of Maharashtra

ORAL JUDGMENT :- (PER : URMILA JOSHI PHALKE, J.)

These Appeals are preferred by the Appellants/accused against the judgment and order of sentence and conviction passed by the Additional Sessions Judge-9, Nagpur in Sessions Case No. 195/2017 dated 31.07.2023, by which the accused are convicted of the offence punishable under Section 302 of the Indian Penal Code (for short “IPC”) and sentenced to suffer life imprisonment and to pay a fine of Rs. 5,000/- each and in default to suffer simple imprisonment for one month. They are further convicted of the offence punishable under Section 4/25 of the Indian Arms Act and are sentenced to suffer rigorous imprisonment for 3 months and to pay a fine of Rs. 1,000/- each and in default to suffer simple imprisonment for 10 days.

Brief facts which are necessary for the disposal of the present Appeals are as under:

2(i). Deceased Gaurav Darwade, injured Abhishek Kamble and Samay Shende were friends. Deceased Gaurav was having dispute with accused No.1 Rajat Pali from about one year prior to the incident. On 05.01.2017, at about 10.00 p.m., the accused No.1/Rajat Pali, accused No.3/Rahul @ Kalya Khare and accused No.2/Aniket @ Anni Meshram had dispute with the deceased Gaurav near Sant Nirankari Chowk and it is alleged that, the deceased Gaurav was abused at the relevant time. On the same day at about 12.30 p.m., when the deceased Gaurav Darwade, Samay Shende and one Manjit Kartarsingh Sandhu had been to the house of Abhishek Kamble and they had told that Anni Meshram, Rajat Pali and Kalu Khare i.e. accused Nos. 1 to 3 want to settle the dispute and, therefore, they had called all of them near Gulshan pan stall, situated at Kamal Chowk, Nagpur. Therefore, deceased alongwith Anni Meshram and Samay Shende went near Gulshan pan stall. At about 01.00 p.m., when they were near the pan stall, accused No.1 alongwith his father came at the spot.

2(ii). It is alleged that, on the instigation of the father, the accused No.1/Rajat, other accused and one unknown person came at the spot. Thereafter, the deceased was assaulted by the accused No.1 by means of knife and given a blow of knife on his stomach. Due to the blow, the deceased had fallen on the ground. Therefore, Abhishek Kamble rushed towards Gaurav to rescue him, however, the accused No.3/Rahul @ Kalya Khare and other accused also assaulted the injured Abhishek Kamble. Anni Meshram accused No.2 had assaulted Abhishek Kamble by means of knife on his stomach and, therefore, Abhishek fled away from the spot of incident. Accused No.3/Rahul @ Kalya Khare had assaulted Abhishek Kamble by means of knife, due to which, he had sustained the injury on his thigh. At the relevant time, the accused No.1 had also given another repeated blows of knife on the chest of Abhishek and accused No.7/Satish Namdevrao Kumbhare had broken beer bottle on his head, due to which, the deceased has sustained the grievous injuries. Injured Abhishek has also sustained the injuries and they both have taken to the Hospital. During the treatment deceased succumbed to the death, whereas Abhishek has sustained the grievous injuries, for which he has undergone the surgery.

2(iii). The alleged incident has also witnessed by PW-1/Rohit Wankhede, who lodged the report about the said incident. Before lodging of the report, Pachpaoli Police Station has received the information about the incident. They immediately reached to the spot, however, the injured were already shifted to the Hospital. Therefore, they visited the Hospital. The Investigating Agency has attempted to record the statement of the injured, however, injured Gaurav made an incomplete statement. Thereafter, the First Information Report came to be lodged and on the basis of the said report Police have registered the crime against the accused persons.

2(iv). After completion of formality of investigation, the charge-sheet came to be filed.

2(v). The learned Trial Court has framed the Charge against the accused persons vide Exh.52. The contents of the charge were explained to the accused persons in vernacular, to which they pleaded not guilty and claimed to be tried.

2(vi). In support of the prosecution case, the prosecution has examined in all 20 witnesses, which are as follows:

2(vii). Besides the oral evidence, the prosecution placed reliance on Requisition to Medical Officer-Exh.112, CA Form prepared by Medical Officer-Exhs.113 to 116, Spot panchanama-Exh.170, Medical Certificate of Injured Abhishek Kamble-Exh.238, Requisition to Medical Officer-Exh.240, Query report to the Investigating Officer-Exhs. 241 & 255, Requisition to Medical Officer-Exh. 251, Medical Certificate of Injured Rohit Wankhede-Exh.252, Postmortem report-Exh.254, Requisition to Medical Officer-Exhs. 256 & 257, Requisition to CA dated 01.02.2022-Exh.277, CCTV footage analysis report by Forensic Lab-Exh. 278, Requisition to Deputy Director of Forensic dated 09.01.2017-Exh.283, Requisition to Deputy Director of Forensic dated 16.01.2017-Exh.284, Requisition to Deputy Director of Forensic dated 27.02.2017-Exh.285, DNA report-Exh.286, CCTV Camera footage seizure panchanama-Exh.290, CA reports-Exh.295 collectively, Dying declaration of deceased Gaurav-Exh. 301, Report-Exh.302, FIR-Exh.303, Station Diary Entry-Exh.315, Arrest Form-Exhs. 316 to 321, Seizure memos-Exhs.323 to 329, Seizure memos-Exhs. 352 & 353, Requisition to Medical Officer-Exh.354, Memorandum statement of accused Rajat Pali-Exh.358, Recovery panchanama-Exh. 359, Log Book entry-Exh. 360, Seizure memo as to the clothes of the accused Akhil Motghare-Exh.361, Seizure memo of clothes of accused Gaurao Pillewan-Exh. 362, Inquest panchanama-Exh.368, Memorandum statement of accused Rahul Anup Khare-Exh.376, Recovery panchanama-Exh.377, Log Book entry-Exh.378, Arrest form of the accused Satish Kumbhare-Exh. 380, Seizure memo as to the blood samples of accused Satish Kumbhare-Exh.383, Seizure memo as to the clothes of the accused Satish Kumbhare-Exh.384, Memorandum statement of accused Satish Kumbhare-Exh.394, Seizure memos-Exhs. 398, 400 and 402, Memorandum statement of accused Aniket Meshram-Exh.405, Discovery panchanama-Exh.406 and Log Book entry-Exh.407.

2(viii). After appreciating the entire evidence, the learned Trial Court held that the prosecution has established the guilt of the accused namely Rajat Bhagwandas Pali, Aniket @ Anni Mahendra Meshram and Rahul @ Kalya Anup Khare and thereby convicted as aforestated. Being aggrieved and dissatisfied with the same, the present Appeals are preferred by the Appellants/accused.

Heard Mr. Manohar, learned Senior Counsel for the Appellants in Criminal Appeal No. 604/2023, who submitted that PW-1/Rohit Wankhede and PW-4/Abhishek Kamble, who as per the prosecution are the injured eyewitnesses having not supported the prosecution case. Therefore, the prosecution placed reliance on the sole eyewitness PW-18/Sangita Darwade examined vide Exh.333.

3(i). He invited our attention towards the evidence of PW-18/Sangita Darwade and submitted that, her presence on the spot of incident itself is doubtful. Neither PW-1/Rohit Wankhede nor PW-4/Abhishek Kamble injured eyewitnesses have stated regarding her presence on the spot of incident. The CCTV footage which was collected by the prosecution during investigation also nowhere shows her presence on the spot of incident. The conduct of PW-18/Sangita Darwade is also doubtful as after the incident though according to her she has witnessed but she has not approached the Police Station and no efforts have been made to save the deceased. Thus, the entire act on the part of PW-18/Sangita Darwade is unnatural and she is in the category of wholly unreliable witness.

3(ii). He further invited our attention towards the dying declaration and submitted that, despite there is an endorsement that patient is not in a position to give statement, the Investigating Officer has attempted to record the statement which is incomplete. The deceased nowhere stated that, it was the accused persons who have assaulted him, which resulted into his death. He further vehemently submitted that, the prosecution placed reliance on the electronic evidence and examined PW-13/Nitesh Kanojiya who has not followed the due procedure, which is essential in view of Section 65(B) of the Indian Evidence Act. The evidence of PW-15/Dinesh Ambadkar the owner of photo studio from which place the CCTV footage was collected is also not trustworthy.

3(iii). As far as the scientific evidence is concerned, he submitted that, as per the prosecution’s case on the basis of memorandum statement of the accused Rajat Pali, Aniket Meshram and Rahul Khare, the weapons are recovered. The opinion was also sought from the Medical Officer as to the injuries on the person of the injured and the deceased. The weapons were seized in presence of the panchas. The panchas have not supported the prosecution case especially PW-2/Nagesh Wankhede, who acted as a panch on the spot panchanama. PW-5/Rahul Jarunde, who acted as a panch on the memorandum statements of the accused persons and discovery at their instance and PW-6/Gulshan Wankhede, who also acted as a panch on memorandum statements of the accused persons.

3(iv). He canvassed that, despite the blood samples of accused Rajat Pali was collected on 06.01.2017 and his clothes were also seized on 08.01.2017, however, all the articles are forwarded on 16.01.2017. The clothes of the deceased and the weapons recovered from the accused are though seized on 05.01.2017, 09.01.2017 and 12.01.2017, however, the same were forwarded on 27.02.2017. No evidence adduced by the prosecution to show that, the articles were in a proper custody during this period and there was no possibility of tampering of the said articles and, therefore, the evidence in the nature of scientific evidence is also not helpful to the prosecution.

3(v). Thus, he submitted that, the entire prosecution case fails, as the circumstances on which the prosecution has relied upon to establish the charges against the accused persons are not duly proved. Though prosecution has examined PW-5/Rahul Jarunde and PW-6/Gulshan Wankhede who acted as a panch on memorandum statements of the accused persons but they have not supported the prosecution case and the evidence of the Investigating Officer also falls short as it nowhere reveals that the accused persons made a voluntary statement and in pursuance of the voluntary statement recoveries were made. In the absence of any evidence, the learned Trial Court without considering that the recoveries are not proved properly convicted the accused persons.

3(vi). Thus, he submitted that, neither the eyewitnesses have supported the prosecution case nor the circumstances like CCTV footage, scientific evidence and the evidence of Police Officers establish the guilt of the accused persons. There was no linked evidence to the samples collected and forwarded to the analysis and, therefore, the Appeals deserve to be allowed by giving benefit of doubt to the accused persons.

Mr. Jaltare, learned Counsel for the Appellant in Criminal Appeal No. 649/2023 has adopted the submissions made by Mr. Manohar, learned Senior Counsel for the Appellants in Criminal Appeal No. 604/2023.

Ms. Haider, learned APP for the Respondent/State has supported the judgment of the Trial Court and submitted that, though PW-1/Rohit Wankhede and PW-4/Abhishek Kamble who were the eyewitnesses of the incident had turned hostile and not supported the prosecution case but the evidence of PW-18/Sangita Darwade, who is the natural witness being the mother of the deceased whose evidence sufficiently establishes the guilt of the accused persons.

5(i). She submitted that, PW-18/Sangita Darwade the mother of the deceased categorically stated about the manner in which the assault was made on the deceased and injured Abhishek. Her evidence is further corroborated by the medical evidence as well as the circumstantial evidence. The circumstances like the CCTV footage and the scientific evidence as to the blood stains of the blood group of deceased appeared on the weapons and clothes of the accused persons connects them with the alleged offence. The recovery at the instance of the accused persons of the weapons is proved by the Investigating Officer.

5(ii). Thus, though eyewitnesses PW-1/Rohit Wankhede and PW-4/Abhishek Kamble have not supported the prosecution case, PW-18/Sangita Darwade the mother of the deceased, medical evidence and the opinion given by the Medical Officers, recovery of the weapons at the instance of the accused, scientific evidence as to the examination of the clothes of the accused and weapons recovered, connects them with the alleged offence. Therefore, the learned Trial Court has rightly convicted the present Appellants/accused and no interference is called for.

5(iii). She placed reliance on the decision of Mitesh Alias T.V. Vaghela Vs. State of Gujarat, AIR 2026 SC 2407.

Whereas, Mr. Manohar, learned Senior Counsel, placed reliance on State of Haryana Vs. Ram Singh, (2002) 2 SCC 426; Anvar P.V. Vs. P.K. Basheer & Ors., (2014) 10 SCC 473; Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal & Ors., (2020) 7 SCC 1; Shwetabh Singhal Vs. J.K. and Sons & Ors., 2025 SCC OnLine Raj 4870; Jagdeo Singh alias Jagga Vs. The State, 2015 SCC OnLine Del 7229; Balasaheb Gurling Todkari & Ors. Vs. State of Maharashtra, 2015 SCC OnLine Bom 3360; Rahul Vs. State of Delhi & Anr., (2023) 1 SCC 83; Mohammad Iqbal @ Munna Abdul Sattar & Anr. Vs. State of Maharashtra, 2016 ALL. M.R. (Cri) 4530; Ganesh Bhavan Patel & Anr., Vs. State of Maharashtra, (1978) 4 SCC 371; Shahid Khan Vs. State of Rajasthan, (2016) 4 SCC 96; Laxman Bapurao Ghaiwane Vs. State of Maharashtra, 2012 SCC OnLine Bom 2313; Rajeevan & Anr. Vs. State of Kerala, (2003) 3 SCC 355 and Babu Sahebagouda Rudragoudar & Ors. Vs. State of Karnataka, (2024) 8 SCC 149.

Mr. Manohar, learned Senior Counsel, Mr. Jaltare, learned Counsel for the respective Appellants and Ms. Haider, learned APP for the Respondent/State have also taken us through the entire record.

After going through the entire record, the first and foremost question which requires to be answered is whether the prosecution succeeded in proving that the death of the deceased Gaurav Darwade is a homicidal death.

To establish the death of the deceased was homicidal death, prosecution mainly placed reliance on the evidence of PW-10/Dr. Rajesh Chintalwar who is examined vide Exh. 253. The evidence of Doctor though shows that, at the relevant time on 09.01.2017 he was posted as Assistant Professor at I.G.M.C. Nagpur. He has conducted the postmortem of deceased namely Gaurav Darwade. On postmortem examination, he found following injuries on the person of the deceased, which are as under:

9(i). All the said injuries, mentioned at Sr.No.1 to 9 were antemortem injuries except injury at Sr.No.10. He has also mentioned the corresponding injuries mentioned in para 17 in para 21 of his report. Para 21 shows that, he has observed sutured corresponding injuries at abdomen walls and peritoneum corresponding to injury Nos. 4 and 5 mentioned in column No.17. There was open drain wound cavity deep corresponding to injury No.6. He has also noted the anterior and posterior wall sutured corresponding to injury No.1 mentioned in Column 17. He has also noted the internal injuries in column No. 20 which shows that the perforation present corresponding to injury Nos. 1, 2, 3. Injury No. 3 perforated 9^th intercortal space. He opined that the probable cause of the death of deceased is due to stab injuries over trunk. Accordingly, he issued the postmortem report Exh. 254.

9(ii). His evidence further shows that, the Police had sent him in all six exhibits including Exhs. 1 to 3 knives, Exh.4 jacket, Exh.6 blue pant and he has examined weapons and clothes sent to him. The cut marks on Exh.4 i.e. jacket was possible by Exh.3 knife and injury Nos. 3 and 4 in column No. 17 are possible by Exh.3 knife. The cut Nos. 3 and 4 on Exh.4 jacket are possible by knife at Exhs. 1 and 2 and injury Nos. 1 and 2 of the postmortem report para 17 was possible by Exhs. 1 and 2. Thus, he again opined that, injury Nos. 1 to 4 of column No.17 of the postmortem report are sufficient to cause death. His evidence specifically shows that, on examination of these weapons and clothes he again sealed the same and handed over to Police Constable Sanjay of Pachpaoli Police Station Nagpur. His opinion is at Exh. 255.

The evidence of PW-10/Rajesh Chintalwar is remained unchallenged as the defence has not cross-examined the Medical Officer. Therefore, the evidence as regards to the cause of death and opinion of the Medical Officer to the extent of injuries which are possible by weapons which were forwarded to him remained unchallenged.

Besides the evidence of Medical Officer PW-10/Rajesh Chintalwar, prosecution placed reliance on the inquest panchanama, which was proved by the Investigating Officer. Admittedly, the Investigating Officer has not narrated about the injuries on the person of the deceased. Admittedly, the panch witness is not examined to prove the inquest panchanama. The substantial evidence which is deposed is in the Court. The contents of the panchanama are to be narrated by the Investigating Officer to prove the same. However, considering that the medical evidence which categorically states that, the death of the deceased is possible due to the injuries caused to him by means of weapons which are examined by him. Therefore, the prosecution succeeded in establishing that the death of the deceased is homicidal one.

Admittedly, the evidence of PW-10/Rajesh Chintalwar is not only an opinion evidence but he has witnessed the nature of injuries while conducting the postmortem and, therefore, his evidence is also a direct evidence to the extent of the nature of injuries are concerned.

A medical witness, who performs a postmortem examination, is a witness of fact though he also gives an opinion on certain aspects of the case. This proposition of law has been stated by the Hon’ble Apex Court in the case of Smt. Nagindra Bala Mitraand Vs. Sunil Chandra Roy and another, reported in 1960 SCR (3) 1, wherein the Hon’ble Apex Court observed that “the value of a medical witness is not merely a check upon the testimony of eyewitnesses; it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. If a person is shot, at close range, the marks of tatooing found by the medical witness would show that the range was small, quite apart from any other opinion of his. Similarly, fractures of bones, depth and size of the wounds would show the nature of the weapon used. It is wrong to say that it is only opinion evidence; it is often direct evidence of the facts found upon the victim’s person.” Thus, the testimony of medical witness is very important and it can be safely accepted. The evidence adduced by the Medical Officer corroborated by the inquest panchanama shows that the deceased died homicidal death.

In the recent judgment also, the Hon’ble Apex Court in the case of Anuj Singh @ Ramanuj Singh @ Seth Singh Vs. The State of Bihar, reported in 2022 Live Law (SC) 402, dealt with the evidentiary value of the medical evidence and observed that the evidentiary value of a medical witness is very crucial to corroborate the case of prosecution and it is not merely a check upon testimony of eyewitnesses, it is also independent testimony, because it may establish certain facts, quite apart from the other oral evidence. It has been reiterated by this Court that the medical evidence adduced by the prosecution has great corroborative value as it proves that the injuries could have been caused in the manner alleged.

Thus, in view of above discussion, we have no hesitation to hold that the prosecution has established that the death of the deceased is homicidal one.

As per the prosecution’s case, due to previous enmity between the deceased Gaurav and the accused persons, the accused persons have caused the death of the deceased.

To prove the involvement of the accused persons in the alleged offence, prosecution mainly placed reliance on the evidence of PW-1/Rohit Wankhede and PW-4/Abhishek Kamble. Both according to the prosecution are injured eyewitnesses. Admittedly, PW-1/Rohit Wankhede and PW-4/Abhishek Kamble both have not supported the prosecution case.

The evidence of PW-1/Rohit Wankhede shows that, the accident occurred about two years back at around 12.00 noon. He was present in his shop. He witnessed that, some people were running from the backside of the road. Therefore, he went to see what happened. He witnessed the deceased Gaurav was running. Therefore, he enquired with him and he disclosed that somebody had assaulted him and he took him to the Hospital. He has sustained the injury on his waist region which was bleeding. He took him to the Pachpaoli Police Station. Thereafter, he was taken to the Hospital. He specifically stated that, the deceased Gaurav was not in a position to speak. The Police have obtained his signature on a blank paper. He has not supported as far as the involvement of the accused persons are concerned. He denied that, he was present when the quarrel took place.

Though learned APP has cross-examined him at length but nothing incriminating reveals from the said cross-examination. He specifically stated that, he did not witness Gaurav and his two friends Abhijit Kamble and Samay Shende at the pan shop near his shop at the relevant time.

Another eyewitness examined by the prosecution is PW-4/Abhishek Kamble, who has sustained the grievous injuries in the said incident but he has also not supported the prosecution case. He stated that, deceased Gaurav was his friend, who died as somebody has assaulted him by means of knife on 05.01.2017, but he denied that, at the relevant time he was alongwith deceased Gaurav and the alleged incident has taken place when they were present at the pan stall of one Gulshan. As far as injuries are concerned which caused to him in the alleged incident, to which he stated that, as he met with an accident and, therefore, he sustained the injuries and he has undergone the surgeries for the said injuries. He specifically stated that, he has not discussed about the accident to anybody and he has not filed the complaint of his accident also. He has also shown his ignorance to the aspect of previous enmity between the accused Rajat Pali and the deceased.

During his cross-examination, the portion marks i.e. contradictions were brought on record but he specifically denied that, he has narrated those portion marks before the Investigating Officer. On perusal of the portion marks which shows that, he has witnessed the alleged incident. He attempted to save the deceased. He has also sustained the grievous injuries in the said incident. But these facts are not supported by him.

Another material eyewitness PW-19/Samay Shende, who also left the loyalty towards the prosecution. He has denied any acquaintance with the deceased. He completely left the loyalty towards the prosecution and stated that, he has not aware about the incident dated 05.01.2017. During cross-examination, the CCTV footage was shown to him but he denied his presence at the spot of incident which was shown to him from the CCTV footage. He stated that, he is not aware who is that person but it was not he. He has denied the presence of another witness Manjit Sandhu at the spot of incident.

Thus, all three eyewitnesses, out of which PW-1/Rohit Wankhede and PW-4/Abhishek Kamble are the injured eyewitnesses, have not supported the prosecution case.

Now, only eyewitness remains is PW-18/Sangita Darwade, who is the mother of the deceased and the alleged eyewitness of the incident.

Her evidence shows that, on the day of incident i.e. 05.01.2017 at about 11.00 to 11.30 a.m., she received a phone call of her son, who disclosed to her that he had dispute with accused Kalu Khare at Pachpaoli Flyover. Therefore, she immediately went at the said Pachpaoli Flyover, wherein she met her son as well as PW-19/Samay Shende, who is her nephew. When she was alongwith her son, accused No.1/Rajat Pali and accused No.2/Anni Meshram came on motorcycle and had exchange of words with her son.

25(i). Her evidence further discloses that, in her presence they asked her son Gaurav to come at Kamal Chowk. The mother of accused No.1/Rajat Pali also came there and disclosed to her son that she has made a complaint against him and thereafter they all left. After this incident she went at the house of PW-19/Samay Shende, and her son, Lucky and Samay proceeded towards Kamal Chowk. When she was at the house of PW-19/Samay Shende, she received a message that some boys having fight with her son. Therefore, she immediately proceeded to Kamal Chowk, wherein she has witnessed her son, Samay and Lucky. Accused No.1/Rajat Pali, accused No.2/Anni Meshram, accused No.3/Kalu Khare, accused No.4/Akhil Motghare, accused No.5/Pandya Pillewan and accused No.6/Bhagwandas alias Bhaggu Pali were present there. Accused No.1/Rajat, accused No.2/Anni Meshram and accused No.3/Kalu Khare were holding knives in their hands. She further stated that, accused No.6/Bhagwandas Pali instigated to other accused to assault her son Gaurav and thereafter accused Nos. 1 to 3 assaulted her son by means of knives by chasing him. At the relevant time, PW-1/Rohit Wankhede and PW-6/Gulshan Wankhede were also present there and they attempted to save the deceased and in that attempt PW-1/Rohit Wankhede sustained the injury on his hand.

25(ii). Her evidence further shows that, PW-1/Rohit Wankhede and PW-6/Gulshan Wankhede took Gaurav towards the Police Station. At the relevant time, accused No.2/Anni Meshram followed Lucky and accused No.3/Kalu Khare and accused No.7/Satish Kumbhre also followed him. She stated in her presence at the Hospital that Police Officers of Pachpaoli Police Station reached there and enquired with her son Gaurav and Gaurav has disclosed that he was assaulted by accused Nos. 1 to 3 by means of knives. Gaurav was treated for three days and on 08.01.2017 he succumbed to death. She has also identified all the accused persons when CCTV footage was shown to her. She also identified that, the friend of Gaurav i.e. Abhishek has also sustained the injuries in the said incident.

25(iii). Her cross-examination shows that, she was holding that, on 05.01.2017 she had been to the Police Station after the incident and informed them about the incident. She specifically stated that, the information given by her was not recorded by the Police. Thereafter, she went to the Meyo Hospital. She specifically admitted that, as she was disturbed on that day and, therefore, she is unable to tell actually what she has witnessed. Her cross-examination further reveals that, after the first incident of exchange of words between her son and accused Kalu, she has not lodged any complaint to the Police Station. She has also not restrained her son from proceeding towards Kamal Chowk.

It is pertinent to note that, though she has stated her relationship with PW-19/Samay Shende but PW-19/Samay Shende has denied any relationship with her or the deceased. She further admitted that, the spot of incident was surrounded are also brought on record during her cross-examination. The material omission that, accused Nos. 1 to 3 had swung their knives has not stated by her. She has also not stated that, in the alleged incident PW-1/Rohit Wankhede has sustained the injuries at his hand. She has also not stated in her statement that, Police Officer enquired with her son and her son has disclosed that it was the accused Nos. 1 to 3 who have assaulted him. She further stated that, during her cross-examination she is unable to tell whether the Police have enquired with her when she was in Meyo Hospital.

On the basis of this cross-examination, learned Senior Counsel submitted that, her admission during cross-examination that she was not seen in CCTV footage, there was no attempt by her to save her son, even no attempt to shout or call the Police shows her unnatural conduct. He submitted that, her statement was also recorded belatedly on 08.01.2017. He submitted that, the Investigating Officer was cross-examined on a belated statement of PW-18/Sangita Darwade who claims to be an eyewitness of the said incident. He submitted that, the Trial Court has already disbelieved the evidence of PW-18/Sangita Darwade. There was no natural conduct on her part. Her admission during her cross-examination that she was not seen in the CCTV footage though her evidence discloses that she worked as a social worker, she has not made an attempt to save her son. He submitted that, though the principle that different persons may react differently in the same situation even if it is taken into consideration than also the conduct of PW-18/Sangita Darwade is not reliable and, therefore, her evidence requires to be discarded.

In support of his contention, he placed reliance on the decision of this Court in the case of Mohammad Iqbal @ Munna Abdul Sattar (supra), wherein it is held that, the assault on the deceased by accused is witnessed by two witnesses i.e. brother of deceased and his wife but neither all witnesses in their respective testimonies has mentioned about the presence of each other on the place of occurrence.

He submitted that, in the present case also neither PW-1/Rohit Wankhede, PW-4/Abhishek Kamble nor PW-19/Samay Shende had disclosed about her presence on the spot of incident. The entire CCTV footage which is placed on record also nowhere discloses her presence at the spot of incident. Her statement was recorded after three days of the incident and no explanation regarding the same is given and, therefore, it creates a serious doubt about she being an eyewitness to the occurrence and, therefore, the Trial Court has rightly discarded her evidence.

In support of his contention he also placed reliance on the decision of Shahid Khan (supra), wherein it is held that, the statement of eyewitnesses when recorded belatedly creates a serious doubt about the occurrence as narrated by the witness. The Hon’ble Apex Court has observed that, the delay in recording the statement casts a serious doubt about there being eyewitnesses to the occurrence.

On appreciating the evidence of PW-18/Sangita Darwade, admittedly, her presence was neither stated by PW-1/Rohit Wankhede nor by PW-4/Abhishek Kamble. Her evidence shows that, she has witnessed the incident but there was no attempt by her to save her son and more particularly she was not witnessed in the CCTV footage. Thus, the aforesaid inconsistencies, improvements and unnatural conduct by PW-18/Sangita Darwade raises doubt about her presence at the spot of incident. Her statement was also recorded belatedly and no explanation came though the Investigating Officer is cross-examined.

The cross-examination of PW-17/Mansingh Dubal who is the Investigating Officer specifically shows that, when he reached at the spot of incident, PW-18/Sangita Darwade was not present there. He also admitted that, it was necessary to record the statement of the eyewitnesses immediately. He has not recorded the statement of PW-18/Sangita Darwade from 05.01.2017 to 07.01.2017. Thus, PW-17/Mansingh Dubal has not given any explanation as far as the delay in recording the statement is concerned.

Admittedly, on this aspect, the Investigating Officer was cross-examined and the opportunity was granted to the Investigating Officer to explain the delay. In the case of State of U.P Vs. Satish, (2005) 3 SCC 114, which is referred in the recent judgment by the Hon’ble Apex Court in The State of Madhya Pradesh Vs. Balveer Singh, Criminal Appeal No. 1669/2012 decided on 24.02.2025, wherein it is observed that, “it is to be noted that the explanation when offered by I.O. on being questioned on the aspect of delayed examination, by the accused has to be tested by the Court on the touchstone of credibility. If the explanation is plausible then no adverse inference can be drawn. On the other hand, if the explanation is found to be implausible, certainly the Court can consider it to be one of the factors to affect credibility of the witnesses, who were examined belatedly. It may not have any effect on the credibility of prosecution’s evidence tendered by the other witnesses.”

In case of Gunnana Pentayya alias Pentadu & Ors. Vs. State of Andhra Pradesh, 2008 ALL MR (Cri), wherein it is held by the Hon’ble Apex Court that, mere delay in recording the statements of witnesses is not fatal unless a specific question is put to the investigating officer regarding the reason for delay.

In another case Firoz Khan Akbarkhan Vs. State of Maharashtra, 2025 SCC OnLine SC 627, the Hon’ble Apex Court has held that, delay in recording the statements of witnesses more so when the said delay is explained, will not aid an accused. Of course, no hard and fast principle in this regard ought to be or can be laid down, as delay, if any, in recording statements will have to be examined by the Court concerned in conjunction with the peculiar facts of the case before it.

Thus, the evidence of PW-18/Sangita Darwade is not trustworthy in the light of the above discussed facts.

Admittedly, PW-1/Rohit Wankhede, PW-4/Abhishek Kamble and PW-19/Samay Shende alleged to be the eyewitnesses, out of them, PW-1/Rohit Wankhede and PW-4/Abhishek Kamble are the injured eyewitnesses. PW-1/Rohit Wankhede has sustained injuries which was simple in nature i.e. abrasion, whereas PW-4/Abhishek Kamble has sustained the grievous injuries. PW-4/Abhishek Kamble has explained that, he has sustained those injuries in an accident, however, considering the nature of injuries which are stab wounds on right shoulder, left shoulder, chest lumbar region and other parts of the body which are grievous in nature. Therefore, the explanation given by him appears to be improbable and unacceptable and liable to be discarded.

However, the question remains who has assaulted him and whether the prosecution has adduced any evidence to show that he has sustained the injuries due to the assault at the hands of the accused persons. Admittedly, he has not stated anything about the assault by the accused persons who have given knife blows on his person.

Law is settled as far as the hostile witness is concerned. In catena of decisions, it is held that, there is no legal bar to base a conviction on the evidence if corroborated by other reliable evidence. The law as to the hostile witness is also settled that, the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent of their version is found to be dependable on a careful scrutiny thereof.

In the case of Devraj Vs State Of Chhattisgarh, (2016) 13 SCC 366, wherein after referring the catena of decisions the Hon’ble Apex Court has held that, the evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. The evidence of a witness who has been declared hostile can be relied if there are some other material on the basis of which said evidence can be corroborated. More so, that part of evidence of a witness as contained in examination-in-chief, which remains unshaken even after cross- examination, is fully reliable even though the witness has been declared hostile.

Thus, the settled law is that, corroborated part of evidence of hostile witness regarding commission of offence is admissible. The fact that the witness declared hostile furnishes no justification for rejecting the evidence of such witness. However, the Court has to be very careful, as prima facie a witness who makes a different statement at different times, has no regard for the truth. His deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.

In the light of well settled legal position that, even if it is accepted that PW-4/Abhishek Kamble has sustained the injuries due to the assault on him but as far as the involvement of the present accused persons are concerned who had allegedly assaulted him, he has left the loyalty towards the prosecution.

PW-18/Sangita Darwade whose evidence is already discarded though it is stated that PW-4/Abhishek Kamble was assaulted by the accused Nos. 2 and 3 but as we have already observed that, her evidence is not reliable and trustworthy and her presence at the spot of incident itself is not proved. Therefore, now it has to be seen whether the assault on PW-4/Abhishek Kamble is proved by the prosecution by any other circumstantial evidence.

PW-7/Mahendra Kamble is examined to prove the injuries on the person of the injured PW-4/Abhishek Kamble. As per his evidence, PW-4/Abhishek Kamble was admitted in the Hospital at IGMC on 05.01.2017 as he has sustained the stab wounds. He was operated and given treatment under the supervision of Dr. Bansod. He had sustained stab wound over right shoulder approximately 3x2x1cm, stab wound over left neck approximately 3x0.5x0.5cm, stab wound over right chest in 4^th I.C. space approximately 3x0.1x3cm, stab wound over left lumbar region upper approximately 2x0.5x3cm, stab wound over right paraumbilical region approximately 3x1x3cm, stab wound over left medial aspect of mid fresh 2x1x cm (muscle deep), CLW over Right hand 1^st web space. The said injuries were grievous in nature and were caused by sharp and pointed object. Dr. Anil Chauhan has issued a certificate, which is at Exh. 238.

He further deposed that, after admission of the said patient, the casualty Medical Officer had taken history of injuries and thereafter the patient was referred to the surgery department. He has treated the said patient. The said patient was admitted with the history of assault and, therefore, he was operated and given treatment and thereafter he was discharged on 18.01.2017. His further evidence shows that, the patient had also sustained the internal injuries, such as, seven perforation in the small intestine, multiple mesendry tear in the intestine, the right lung was injured due to punctured wound on the chest, dyframe injury due to stab wound, there were stab wounds on the neck which were sutured. All the wounds were sutured by surgery. As far as his cross-examination is concerned, nothing incriminating is brought on record. It was only suggested that, the nature of internal injuries are not mentioned in the certificate.

PW-8/Prashant Saigaonkar is also a Medical Officer i.e. M.D. in Forensic Medicine. As per his evidence he received a letter on 06.02.2017 from the Investigating Officer of Pachpaoli Police Station and the weapons were forwarded to him to obtain the opinion whether the clothes of the injured were having the same cut marks as per the weapons recovered and also to examine the injuries on the body of PW-4/Abhishek Kamble and to opine about the injuries and the weapons recovered. Accordingly, he received one sealed packet containing the clothes of the injured and the other sealed packet of three weapons recovered. The said letter is at Exh.240. He further stated that, he had examined clothes as well as the weapons. He has also identified weapon Articles A to C before the Court. On examination of the clothes and weapons he opined that the cut marks on the clothes were possible by means of weapons Articles A to C. Accordingly, he has issued his opinion stating that the cut marks described on the clothes were possible by means of weapons like Article A to C. He has also examined the certificate issued by Dr. Anil Chauhan dated 03.02.2017 of injured PW-4/Abhishek Kamble and the injuries mentioned in the said certificate were possible by means of weapons Article A to C. He also prepared diagram of the weapons sent to him for examination and, therefore, issued the detailed report which is at Exh.241. The clothes he identified are at Articles D, E and F. His cross-examination shows that, he admitted that he has not seen the injuries on the body of PW-4/Abhishek Kamble and his report is based upon certificate issued by Dr. Anil Chauhan. He further admits that, the certificate Exh. 238 issued by Dr. Anil Chauhan does not show the ages and margins of the injuries mentioned in it.

Admittedly, the contention of PW-4/Abhishek Kamble that he sustained the injuries due to the accident was not suggested during the cross-examination. There is no whisper by the learned Counsel for the Appellants/accused that PW-4/Abhishek Kamble has sustained the injuries accidentally.

PW-9/Dr. Mohnish Tiwari is the another Medical Officer who has examined PW-1/Rohit Wankhede. As per his evidence, on 05.01.2017 he was posted as Medical Officer in a Casualty ward. He examined PW-1/Rohit Wankhede and found injury on his body i.e. linear abrasion in size 6 cm on the left palm. Accordingly, he has issued the medical certificate. The medical certificate is at Exh. 250. He has also received a letter from the Police Station to issue the medical certificate. His cross-examination shows that, the injury sustained by PW-1/Rohit Wankhede is simple in nature and can be caused by fall on the ground. The patient has not narrated the history of the injury.

PW-10/Dr. Rajesh Chintalwar has conducted the postmortem. The evidence as to the injuries on the person of the deceased is already discussed in the earlier part of the judgment. His evidence further shows that, he has received in all six exhibits including Exh.1 knife having label USA SABER, Exh.2 is other knife having same label USA Saber, Exh.3 is other knife, Exh.4 was jacket having carbon black colour, Exh.5 was blue coloured lux veus underwear, Exh.6 is blue pant. He has examined the weapons and the clothes sent to him. The cut on Exh.4 is possible by Exh.3 knife and injury Nos.3 and 4 in column No.17 of his P.M. report are possible by use of Exh.3. The cut Nos.3 and 4 on Exh.4 are possible by knife at Exhs.1 and 2 and injury Nos.1 and 2 of the P.M. report para 17 are possible by Exhs.1 and 2. Injury Nos.1 to 4 of column No.17 of the P.M. report are sufficient to cause death. All the exhibits were again sealed packed and returned to P.C. Sanjay of Pachpaoli Police Station, Nagpur. The query report is at Exh. 255. Thus, the evidence was not challenged during cross-examination.

Another material evidence on which the prosecution has relied upon is the CCTV footage collected by the Investigating Officer during the investigation with the help of PW-13/Nitesh Kanojiya. As per his evidence he is doing the business of providing CCTV instruments. He is having deep knowledge as to the storage of footage, DVR system and how to obtain the footage in the pen drive. He has obtained the training from various companies and he runs the firm by name ‘Nitesh Technical Services’. He has received the communication from the Investigating Officer in connection with Crime No.11/2017. The said requisition is at Exh. 289. Accordingly, on 27.01.2017 he was called by the Investigating Officer to collect the CCTV footage from the various shops including Matruchhaya Photo Studio, Ghanshyam Hardware and Paints, clothe shop namely Paridhan Kids, Samadhan Fashion and Mundlikar Book Stall.

50(i). They firstly entered into the Matruchhaya Photo Studio which is owned by Shri Dinesh Ambadkar. He has attached the pen drive to the DVR of CCTV and obtained the footage of dated 05.01.2017. Thereafter, he entered into the shop of Ghanshyam Hardware and Paints by applying similar procedure. He has copied the data from the DVR of 05.01.2017. By applying the similar procedure, he has also collected the CCTV footage of dated 05.01.2017 from the shop of Paridhan Kids, Samadhan Fashion and Mundlikar Book Stall. He further stated that, while copying the CCTV footage he has examined CD/Micro S Card and Hard Drive which were in the working condition. He has initially copied the CCTV footage from the DVR in the pen drive and also used the laptop for copying the same. Accordingly, in view of Section 65(B) of the Indian Evidence Act, he has handed over the said CCTV footage in the pen drive to the Investigating Officer.

50(ii). His cross-examination shows that, he is not aware about the provisions of Section 65(B) of the Indian Evidence Act. He was also not aware regarding the footage which he has copied from the DVR. He specifically admitted that, he has not witnessed the entire CCTV footage before copying the same.

On the same aspect, the prosecution has examined PW-15/Dinesh Ambadkar, whose evidence shows that, he runs a shop by name Matruchhaya Photo Studio. He has installed 7 CCTV cameras inside the shop and one camera outside the shop. The said CCTV’s were installed by Ritesh Kanojiya i.e. PW-13. The CCTV footage recording was stored in DVR and it may be seen on LCD. His evidence further shows that, he was trained by Ritesh Kanojiya how to install the CCTV and DVR. On 05.01.2017, the Investigating Officer Mokase Madam approached to him to obtain the CCTV footage of dated 05.01.2017 from 09.00 a.m to 01.00 p.m. Accordingly, on 27.01.2017, Ritesh Kanojiya and Mokase madam visited his shop. They copied the said CCTV footage in the pen drive. As per the said CCTV footage of dated 05.01.2017 at about 01.00 p.m., some boys were seen running.

51(i). His cross-examination shows that, he knows how to copy the CCTV footage in pen drive. He personally has not copied the said CCTV footage. He admitted that, he has not stated before the Trial Court while recording the statement that he has witnessed in CCTV footage that some boys were seen by him running which was recorded in the said CCTV footage.

To corroborate the version of these two witnesses PW-13/Nitesh Kanojiya and PW-15/Dinesh Ambadkar, prosecution has also relied upon the scientific evidence of PW-11/Gopal Borkar, who deposed that, he was posted as Scientific Officer, Regional Forensic Science Laboratory, State of Maharashtra, Home Department, Nagpur. He is an Engineering Graduate in Computer Science and having experience in different kinds of computer application. On 17.01.2020 his office had received a letter from Pachpaoli Police Station Exh.276. They have also received one pen drive which was marked as Exh.Sr.No.1, one DVD i.e. annexure Exh.Sr.No.3 and five photographs of the accused persons marked as Exhs.A to E. A query was raised by the Investigating Officer in the said letter whether Exhs. A to E do match with Sr. Nos. 1 and 3 i.e. CCTV footage copied in pen drive as well as in DVD. The said letter alongwith exhibits were taken into safe custody and he has analyzed on 12.10.2021. As per his evidence, he has used the forensic tools and forensic acquisition of the exhibits. He has also seen the contents of the pen drive and those were video files. As the contents of the pen drive and DVD were same, the same was analyzed as both the said devices were having same hash value. There were in all ten video files out of which 1/1 to 1/6 files were able to be run and displayed and other files were corrupt.

Thereafter on 01.02.2022, he has received a letter from the Investigating Officer, wherein the queries were made for the purpose of analysis which is at Exh.277. Alongwith the said letter he has received in all reference photographs for the purpose of comparing it with the video footage sent to him. He has conducted the video analysis in the light of the questionnaires sent by the Investigating Officer. He has prepared the examination report. The said report is at Exh. 278. The pen drive is at Exh. 279 and DVD is at Exh. 280. The said pen drive and DVD are played on laptop before the Court which contains video files 1/1 to 1/6. He stated that, the videos which he has seen in the Court are used by him for the purpose of analysis and accordingly he has submitted his report. He has opined that, as per his report he has played Exh.1/2 the video file displayed in the time stamp dated 05.01.2017 12.22.05. He has taken the frame in his report and he has analyzed all the files which were visible. On analysis he has mentioned that, due to the long distance and low resolution comparable features could not be extracted. Hence, no opinion could be derived for person in reference photographs sent to him marked as Exhs. A to E in Exh. 276. He has mentioned the said reasons in his report.

In the light of the above evidence, Mr. Manohar, learned Senior Counsel, canvassed that the evidence of PW-13/Nitesh Kanojiya who has copied the said CCTV footage is not in compliance of Section 65(B) of the Indian Evidence Act. He submitted that, in catena of decisions the Hon’ble Apex Court has clarified the manner in which the electronic evidence is to be adduced.

He placed reliance on the decision of Anvar P.V. (supra), wherein the Hon’ble Apex Court held that, electronic record produced for the inspection of the court is documentary evidence under Section 3 of the Evidence Act, 1872. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B of the Evidence Act. The purpose of these provisions is to sanctify secondary evidence in electronic form generated by a computer. The very admissibility of electronic record which is called as “computer output”, depends on the satisfaction of the four conditions prescribed under Section 65-B(2) of the Evidence Act.

Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

The person concerned occupying the responsible official position concerned need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., which contains the statement which is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc., without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.

He also placed reliance on the decision of the Hon’ble Apex Court in the case of Arjun Panditrao Khotkar (supra), wherein also by relying upon the judgment of Anvar P.V. (supra), the Hon’ble Apex Court observed that, the subject matter of Sections 65A and 65B of the Evidence Act is proof of information contained in electronic records. The marginal note to Section 65A indicates that “special provisions” as to evidence relating to electronic records are laid down this provision. The marginal note to Section 65B then refers to “admissibility of electronic records”.

Under Sub-section (4), a certificate is to be produced that identifies the electronic record containing the statement and describes the manner in which it is produced, or gives particulars of the device involved in the production of the electronic record to show that the electronic record was produced by a computer, by either a person occupying a responsible official position in relation to the operation of the relevant device; or a person who is in the management of “relevant activities”, whichever is appropriate. What is also of importance is that it shall be sufficient for such matter to be stated to the “best of the knowledge and belief of the person stating it”. Here, “doing any of the following things” must be read as doing all of the following things, it being well settled that the expression “any” can mean “all” given the context. This being the case, the conditions mentioned in Section 65B(4) must also be interpreted as being cumulative.

Thus, the question involved in the present Appeals now is no more res integra as the same has been settled by the Hon’ble Apex Court in the case of Anvar P.V. (supra) as well as in the case of Arjun Panditrao Khotkar (supra), which states that, under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record the following conditions requires to be satisfied, which are already reproduced. Thus, the mandatory requirement under this Section is that, it should be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities. The electronic evidence thus produced i.e. accompanied by such certificate “shall be deemed to be also a document” dispensing with further proof of production of the original- the signed certificate by a person occupying a responsible official position in relation to the operation of the relevant device or the management of relevant activities has to be produced.

In the instant case, there is no certificate issued in terms of the said Section. The certificate under Section 65B of the Indian Evidence Act given by PW-13/Nitesh Kanojiya, which is reproduced as under:

Thus, the certificate nowhere contains the description of the device which is the requirement in view of Section 65B of the Indian Evidence Act. In short, the said certificate does not complies with the conditions enumerated in Section 65B(4) of the Indian Evidence Act.

In the present case, PW-13/Nitesh Kanojiya in his evidence admitted that, he has not witnessed what is recorded in the CCTV footage. His certificate is also not according to Section 65B(4) of the Evidence Act. The evidence of PW-15/Dinesh Ambadkar only shows that, he has seen in the CCTV footage that persons are running. Therefore, only evidence remains of the scientific evidence of PW-11/Gopal Borkar who is examined vide Exh. 275. He has analyzed the CCTV footage which was forwarded to him in DVD as well in pen drive. The photographs of the accused were also forwarded to him and on analysis he stated that, due to long distance and low resolution comparable features could not be extracted and hence no opinion could be derived for persons in reference photographs sent to him marked as Exhs. A to E in Exh. 276. Thus, he specifically stated that, he is not able to give any opinion in his report. Admittedly, the original hard disk could be the primary and the direct evidence. Such primary or direct evidence would be helpful to prove the charges.

Section 60 of the Indian Evidence Act states that, oral evidence must be direct i.e. if it refers to the fact which could be seen, it must be the evidence of a witness who says he had seen it; if it refers to the fact which could be heard, it must be the evidence of a witness who had heard it and if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner.

In the light of the above provision when the evidence of CCTV footage is appreciated, the prosecution could not prove through the electronic evidence also, the involvement of the accused as the images were from long distance and no opinion is given by the expert. Therefore, the evidence of CCTV footage is also not helpful to the prosecution to prove the charges against the accused persons.

PW-18/Sangita Darwade the mother of the deceased deposed that, when she reached to the Hospital the Police Officers were making enquiry with the deceased that how he sustained the injuries and the deceased disclosed that he was assaulted by the accused Nos. 1 to 3. The said statement is recorded by PW-16/Chetansingh Chauhan who also acted as an Investigating Officer in the present case.

On perusal of the evidence of PW-16/Chetansingh Chauhan it reveals that, he stated that he received the information at about 01.30 p.m., in the Police Station that some quarrel is going on at Kamal Chowk in front of Gungun General Store. He immediately alongwith Police staff proceeded towards the said place. When he reached there he witnessed the blood stains in front of Gungun General Store. It was also informed to him that, the injured was taken to the Hospital. Therefore, he immediately rushed to the Meyo Hospital, wherein there were two injured persons namely Abhishek Kamble i.e. PW-4 and Gaurav Darwade i.e. deceased. Gaurav Darwade was conscious. He has recorded the said statement. The said statement is at Exh. 301. As per the statement of Gaurav Darwade, on the day of incident there was exchange of words between accused Rajat Pali and Gaurav Darwade and after some time when Gaurav Darwade i.e. deceased had been to Kamal Chowk, the accused Rajat Pali, Rahul Khare and Aniket Meshram assaulted him and he has sustained the injuries.

On perusal of the dying declaration Exh. 301 which is only to the extent that when the deceased had been to Pachpaoli Bridge at about 12.30 p.m., alongwith Samay Rajesh Shende, Lucky and Kartarsingh Sandhu, at that time accused Rahul Khare and one boy came there and there was hot exchange of words between Rahul Khare and the deceased. Thereafter, when he was standing at Kamal Chowk, the accused Rahul Khare, Rajat Pali and Anni alias Aniket Meshram.... Further statement he could not give as he was taken for surgery urgently. Thus, as far as the evidence of PW-16/Chetansingh Chauhan as to the dying declaration is concerned, which is incomplete and it nowhere discloses that it was the accused persons who have assaulted them. It is only to the extent when he was there the accused persons came there.

The cross-examination of PW-16/Chetansingh Chauhan specifically shows that, the Medical Officer has disclosed that deceased Gaurav and injured Abhishek Kamble both are not in a position to give statement on Exh. 304. He further admits that, the statement which is to be treated as dying declaration nowhere discloses that Rahul Khare, Rajat Pali and Aniket Meshram assaulted him. Thus, the evidence of dying declaring is also not helpful to the prosecution as it is incomplete statement and there is no mention that it was the accused persons who have assaulted him. Moreover, the said statement was recorded against the medical advice without recording the satisfaction by PW-16/Chetansingh Chauhan that the deceased is in a position to give statement physically and mentally. Therefore, the evidence in the nature of dying declaration is also not helpful to the prosecution.

The another circumstantial evidence which requires to be discussed is the evidence of panch witnesses. PW-2/Nagesh Wankhede acted as a panch on spot panchnama but he has not supported the prosecution case and only stated that his signature was obtained on the panchanama. He is not aware about the contents of the panchanama and nothing was seized in his presence. During his cross-examination he admitted that, the panchanama of spot of incident was carried out in front of his shop but he denied that in his presence the blood stained soil and simple soil was collected by the Investigating Agency. The said panchanama was drawn on 05.01.2017 at about 13.40 to 14.55 and then examined PW-5/Rahul Jarunde who acted as a panch on the memorandum statements of accused Rajat, accused Rahul, accused Satish and accused Aniket. He has also not supported the prosecution case and denied that, any statement was made in his presence by these accused persons and anything was recovered at their instance. PW-6/Gulshan Wankhede is the another panch witness was also examined but he has also not supported the prosecution case.

Thus, these panchas turned hostile and not supported the prosecution case. Therefore, to prove the aspect of recovery of weapons under Section 27 of the Indian Evidence Act, prosecution placed reliance on the evidence of PW-20/Mangla Mokashe.

On perusal of the evidence of the Investigating Officer i.e. PW-20/Mangla Mokashe who testified that accused Rajat Pali on 08.01.2017 shown his willingness to give statement and also discloses that he would produce the clothes and weapon and, therefore, she recorded the statement in presence of panchas and thereafter as per the statement of the accused they proceeded at Kamal Chowk to Awade Babu Chowk near MSEB Office. At the said place, the accused took them in two storied building and by opening the shutter of one shop he has produced the clothes, one black colour jerkin, black colour pant, one grey colour underwear, one white colour sando baniyan and one knife which was seized in presence of panchas. She has identified the said articles. Thus, her evidence nowhere discloses that, the said articles were sealed at the spot of incident itself. Similarly, her evidence as far as the recoveries at the instance of the accused Rahul Khare, accused Aniket Meshram and Satish Kumbhare are concerned, the evidence nowhere discloses that as the accused persons have voluntarily shown their desire to make statements and, therefore, their statements were recorded and articles were recovered.

The nature of evidence which required to be established the recoveries, is explained by the Hon’ble Apex Court in the case of Ramanand alias Nandlal Bharti Vs. State of Uttar Pradesh, (2023) 16 SCC 510, wherein the Hon’ble Apex Court held in para 56, which reads as under:

It is further held by the Hon’ble Apex Court that, we are conscious of the position of law that even if the independent witnesses to the discovery panchnama are not examined or if no witness was present at the time of discovery or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the discovery evidence unreliable. In such circumstances, the Court has to consider the evidence of the investigating officer who deposed to the fact of discovery based on the statement elicited from the accused on its own worth.

Thus, the requirement of law that needs to be fulfilled before accepting the evidence of discovery is that by proving the contents of the panchnama. The investigating officer in his deposition is obliged in law to prove the contents of the panchnama and it is only if the investigating officer has successfully proved the contents of the discovery panchnama in accordance with law, then in that case the prosecution may be justified in relying upon such evidence and the trial court may also accept the evidence. There is a reason why the contents of the panchnama are to be proved at the end of the investigating officer. More particularly when the independent panch witnesses though examined yet have not said a word about such discovery or turned hostile and have not supported the prosecution case. In order to enable the Court to safely rely upon the evidence of the investigating officer, it is necessary that the exact words attributed to an accused, as statement made by him, be brought on record and, for this purpose the investigating officer is obliged to depose in his evidence the exact statement and not by merely saying that a discovery panchnama of weapon of offence was drawn as the accused was willing to take it out from a particular place.

As the evidence of panch witnesses as well as the evidence of Investigating Officer did not comply with the above said requirements and, therefore, the evidence of panch witnesses as well as the evidence of Investigating Officer is not helpful to the prosecution to prove the recoveries also.

The evidence on record shows that, the blood samples of injured PW-4/Abhishek Kamble were collected on 13.01.2017. The blood samples of the accused Aniket were collected on 06.01.2017 and hair samples were collected on 12.01.2017, blood stained clothes of accused Aniket were seized on 12.01.2017. Similarly, blood samples of accused Rajat Pali were collected on 06.01.2017. His hair samples were collected on 12.01.2017 and blood stained clothes were collected on 08.01.2017. Blood samples of accused Rahul Khare was seized on 06.01.2017 and hair samples was collected on 12.01.2017. His blood stained clothes were seized on 08.01.2017. Blood and hair samples of accused Akhil were seized on 06.01.2017 & 12.01.2017 and his blood stained clothes were seized on 08.01.2017. Similarly, blood samples of accused Gaurao Pillewan was collected on 06.01.2017 and his clothes were seized on 08.01.2017. The blood samples of accused Bhagwandas was collected on 06.01.2017 and his clothes were seized on 08.01.2017. The blood samples and clothes of accused Satish were seized on 10.01.2017. Similarly, soil collected from the spot of incident i.e. blood stained soil and simple soil, one pair of slippers having blue belt and one pair of slippers collected from the spot having multi colour belt and blood collected from the spot with the gauze piece on 05.01.2017. They were forwarded on 16.01.2017. The clothes of the deceased were seized on 05.01.2017. The knife was seized from accused Rajat Pali on 08.01.2017, knife seized from accused Aniket on 12.01.2017 and knife seized from accused Rahul on 09.01.2017 and blood stained clothes of injured Abhishek on 05.01.2017. Thus, all articles were forwarded to CA on 27.02.2017. The evidence is in the nature of CA certificate and DNA report. The above articles were received on 16.01.2017 and 27.02.2017.

PW-14/Shweta Gaiki analyzed the articles by obtaining the DNA. Her evidence shows that, she is qualified as M.Sc. (Bio-Chemistry) and posted at Nagpur as Assistant Chemical Analyser, Regional Forensic Science Laboratory, State of Maharashtra, Home Department, Nagpur in the year 2019. Her office has received three different letters Exhs.283, 284 and 285 alongwith sealed plastic packet containing blood soaked cloth piece of Gaurav Hemraj Darwade. As per letter Exh.284 dated 16.01.2017, they have received different samples in sealed conditions and as per the said letter Exh.284 they have received in all 21 sealed packets and other 11 tape sealed parcels. As per letter Exh.285 they have received 9 sealed parcels from Pachpaoli Police Station and carrier was Police constable B.No.5745. She has received the said samples on 08.01.2017 for analysis. She has examined the number type and seal of every parcel and the said samples were found in a sealed condition. Thereafter, the said sealed packets were opened as per sequence and she has carried out the chemical analysis as to see whether containing human blood or not.

As per CA report Exh. 295/12 blood detected on Exh.1 jeans full pant of accused Aniket Meshram, Exh.3 full jurkin with cap of accused Rajat, Exh.7 full shirt of accused Rahul Khare, Exh.8 jeans full pant of accused Rahul Khare, Exh.9 full shirt and Exh. 10 jeans full pant of accused Akhil, Exh.18 cotton swab containing earth, Exh. 19 pair of slippers and Exh.21 cotton swab stained with human blood. The said CA report also discloses that underwear, full shirt and jeans full pant of injured Abhishek Meshram was also stained with human blood. Thus, the blood group on the incriminating articles was not determined and, therefore, the articles were forwarded for DNA analysis.

PW-12/Amulya Pande was examined to prove the DNA report. As per his evidence, he is qualified with Master in Science (Chemistry) and he was posted at Nagpur as Assistant Director, Regional Forensic Science Laboratory, State of Maharashtra, Home Department, Nagpur. On 16.01.2017, they have received letter from Pachpaoli Police Station alongwith the samples as mentioned in the letter Exh. 284. Their laboratory has received the said samples and queries were raised regarding that whether the blood on the said samples was human blood and blood group. It was also enquired whether DNA of the samples as mentioned in column No.2 of the said letter did match with the other samples sent for analysis as mentioned in the letter. Certain samples were sent to their laboratory asking for queries. He has conducted the DNA analysis of the samples on which human blood was detected and some hairs were found. He has submitted his detailed report.

As per the said report the articles Bn/100/17 i.e. blood soaked cloth piece labelled Bn100/17/1 Gaurav Hemraj Darwade (deceased), sample Bn/179/17 and the samples labelled as Bn/179/17/1/3/7/8/9/10/18/19/21/22/23 and 24 Sample Bn 180/17/labelled as Abhishek Kamble. Sample Bn 849/17 labelled as Bn/849/17/1,2,3,4,5,6,7,8,9. DNA was extracted from all those samples from the blood detected and hair found on those samples. Accordingly, he prepared a chart. The DNA profiles obtained from blood detected as exhibits 1,8,9,10, exhibited 24 in Bn/179/17 and blood detected on exhibits 1,2,3 in Bn/849/17 are identical and from one and the same source of male origin and matched with DNA profile obtained from exhibit 1, Blood soaked gauze piece of Gaurav Hemraj Darwale in Bn/100/17. His evidence shows that, DNA profiles obtained from blood detected on exhibits 7,8,9 in Bn/849/17 are identical and from one and the same source of male origin and matched with DNA profile obtained from exhibit 1, prepared blood stain of Abhishek Kamble in Bn/ 180/19. Mixed DNA profiles obtained from blood detected on exhibit 3 in Bn/179/17 and the blood detected on exhibits 4 and 5 contains DNA profiles obtained from exhibit 1, blood soaked gauze piece of Gaurav Hemraj Darwale in Bn/100/17 and DNA profile obtained from exhibit 1, prepared blood stain of Abhishek Kamble in Bn/180/19. Similarly, mixed DNA profile obtained from exhibit 23 in Bn/179/17 contains DNA profile obtained from exhibit 1, blood soaked gauze piece of Gaurav Hemraj Darwale in Bn/100/17 and one unknown male DNA profile which matched with unknown male DNA profile obtained from exhibit 22 in Bn/179/17. Despite the cross-examination of this witness nothing incriminating is brought on record.

On perusal of the DNA Exh.286 which shows that, Bn/100/17 is blood soaked cloth piece of Gaurav Hemraj Darwale, whereas Exh.1 is the jeans full pant, Exh.3 full jerkin with cap, Exh.8 jeans full pant, Exh.9 full shirt, Exh.10 jeans full pant, Exh.22 hair, Exh. 23 hair and Exh. 24 hair. Bn/180/19 is blood stains of Abhishek Kamble, Exh.1 full jacket, Exh. 2 underpant, Exh.3 jeans full pant, Exh.4 knife, Exh.5 knife, Exh.7 underpant, Exh.8 full shirt and Exh.9 jeans full pant. The DNA profiles collected from all these articles matched with DNA profiles obtained from the blood of the deceased as well as blood samples of the injured.

Thus, the DNA report disclosed that, blood stains obtained from the incriminating articles seized at the instance of the accused i.e. blood stained clothes of the accused Rajat, accused Aniket, accused Rahul Khare having blood stains matching with the blood stains found on the gauze piece having blood stains of the deceased and injured Abhishek Kamble. Thus, the DNA report is positive and prosecution placed reliance on it to establish the guilt of the accused persons.

Now, only aspect which requires to be considered whether the chain of custody of the said articles is established by the prosecution. Undisputedly, the clothes of the deceased and the clothes & weapons at the instance of the accused are seized on 05.01.2017, 12.01.2017, 08.01.2017 and 09.01.2017. No evidence is adduced that after seizure of the said weapons and the clothes of the deceased the said articles were sealed. Admittedly, the panch witnesses have not supported the prosecution case and evidence of PW-20/Mangla Mokashe Investigating Officer is also silent on the aspect of sealing of the articles. After seizure of the articles whether the said weapons and the incriminating articles were handed over to the muddemal clerk or not and if handed over then when it was handed over, no link evidence is adduced by the prosecution.

The evidence of PW-10/Dr. Rajesh Chintalwar Medical Officer shows that, he has received the weapons and his report is dated 06.02.2017 and the opinion given by him is also on 06.02.2017, whereas the said articles were forwarded for analysis on 27.02.2017. The prosecution has not adduced any evidence that since 06.02.2017 to 27.02.2017 in whose custody the said articles were kept and in which condition the said articles were kept.

Thus, as far as the chain of custody is concerned from seizure till forwarding to the analysis is not established by the prosecution.

Similarly, the evidence on record shows that, blood samples of injured Abhishek Kamble i.e. PW-4 were collected on 13.01.2017, blood and hair samples of accused Aniket were collected on 06.01.2017 and 12.01.2017, his clothes were seized on 12.01.2017. Blood and hair samples of accused Rajat were collected on 06.01.2017 and 12.01.2017 and his clothes were seized on 08.01.2017. Blood and hair samples of accused Rahul Khare were collected on 06.01.2017 and 12.01.2017 and his blood stained clothes were seized on 08.01.2017. Blood and hair samples of accused Akhil were collected on 06.01.2017 and 12.01.2017 and blood stained clothes were seized on 08.01.2017. The blood stained clothes of accused Gaurao Pillenwar were collected on 08.01.2017. The blood samples and clothes of accused Satish Kumbhare were collected on 10.01.2017. Soil from the spot of incident was collected on 05.01.2017. Pair of slippers and blood was collected on gauze piece on 05.01.2017, however, the same were forwarded on 16.01.2017.

In the case of Pooranmal Vs. State of Rajasthan & Ors., MANU/SC/0213/2026, the Apex Court by referring the judgment in the case of Karandeep Sharma alias Razia alias Raju Vs. State of Uttarakhand, MANU/SC/0446/2025, the Hon’ble Apex Court emphasised that for a DNA/FSL report to be acceptable and reliable, the prosecution must establish an unbroken chain of custody and demonstrate that the samples remained duly sealed and untampered throughout, and held as follows:-

In view of the analysis of evidence made above, we are of the firm view that the requisite link evidence essential to prove the safe-keeping and sanctity of the muddamal articles is lacking and the chain of custody has been breached beyond reprieve, thereby, making the FSL report redundant and a worthless piece of paper.

The Hon’ble Apex Court in the above said judgment also referred its another judgment Allarakha Habib Memon Vs. State of Gujarat, MANU/SC/0856/2024 : 2024 : INSC : 590 : (2024) 9 SCC 546, expounded that even if the FSL report establishes that the blood group detected on the article recovered at the instance of the accused matches that of the deceased, such circumstance by itself is not sufficient to link the said accused with the crime. The Hon’ble Apex Court observed as follows:-

In the present case, the evidence of PW-12/Amulya Pande and PW-14/Shweta Gaiki though stated that the articles were received in a sealed condition but CA report nowhere discloses that the articles on which the blood stains are found having blood group of the deceased. The DNA analysis discloses that, the articles on which the blood of the deceased and blood of the injured was collected matches with the blood stained articles recovered at the instance of the accused. It is already observed that, the chain of custody since its seizure till it is forwarded to FSL was not established by the prosecution. The prosecution failed to establish that, since the date of seizure it was kept in a safe custody and there was no possibility of tampering with the said samples. Therefore, mere appearance of blood of the blood group of the deceased is not sufficient to connect the present Appellants/accused with the alleged offence.

As far as the collection of the samples for forwarding DNA analysis is concerned, the Hon’ble Apex Court in the case of Kattavellai Vs. State of Tamilnadu, MANU/SC/0917/2025, issued the guidelines in para 44, which reads as under:

In the light of the above guidelines, we have no hesitation in holding that the prosecution has not established the chain of circumstances, the due care and caution is not taken by the Investigating Officer. The Investigating Officer is responsible for the transportation of the DNA evidence to the concerned Police Station or the Hospital concerned as the case maybe and he is the responsible person for ensuring that the samples so taken shall reach the concerned Forensic Science Laboratory in any case not later than 48 hours from the time of collection. It is also not followed. In fact no evidence is adduced by the prosecution to show that, the said samples were kept in a safe custody to avoid any deterioration of the samples or any tampering of the samples. In absence of the evidence regarding the safe custody of the samples, it is difficult to accept the said DNA evidence also.

The learned Trial Court has considered the circumstantial evidence though discarded the evidence of PW-18/Sangita Darwade. Now it has to be seen whether the circumstances on which the prosecution is relied upon establishes that the circumstances forms the chain and only inference requires to be gathered from the said circumstances is the guilt of the accused.

Now, only issue which is to be examined that whether the accused persons are perpetrators of the crime. It is not in dispute that, there is no direct evidence as all eyewitnesses turned hostile and evidence of PW-18/Sangita Darwade is not trustworthy, therefore the entire case of the prosecution is rested on the circumstantial evidence. In such a case, the prosecution is under obligation to establish the chain of circumstances so complete that it unerringly points out the guilt of the accused and does not lead any scope for any inference consistent with the innocence of the accused. The circumstances relied upon by the prosecution must be incompatible with the hypothesis consistent with the innocence of the accused and should negate all possibilities of the innocence of the accused.

The law is settled regarding the circumstantial evidence which is as under:

Accordingly, to Sir Alfred Wills in his admirable book “Wills’ Circumstantial Evidence” (Chapter VI) lays down the following rules specially to be observed in case of circumstantial evidence which are as under :

As already observed that, the prosecution placed reliance on various circumstances like dying declaration which is already observed is incomplete and, therefore, not helpful to the prosecution. Though medical evidence proves that the death of the deceased is homicidal death, however, the evidence adduced by the prosecution falls short to connect the present accused persons to show that they are the perpetrator of the crime. The medical evidence also sufficiently shows that, PW-4/Abhishek Kamble has sustained the injuries due to the assault. To prove the involvement of the present accused persons, the prosecution relied upon the CCTV footage but the evidence of PW-13/Nitesh Kanojiya is not satisfactory and not in compliance of Section 65B(4) of the Indian Evidence Act. Thereafter, prosecution placed reliance on the scientific evidence. Admittedly, the blood stains found in clothes of the accused persons and the weapons recovered at their instance having human blood but no blood group is detected. The scientific evidence shows that, the DNA extracted from the gauze piece having blood stains of the deceased and blood stains of injured Abhishek matches with the articles seized allegedly at the instance of the accused persons, however, as observed earlier that the chain of custody of the said articles is not followed. Therefore, the scientific evidence is also not helpful to the prosecution to establish the guilt of the accused persons.

Despite prosecution has examined PW-20/Mangla Mokashe Investigating Officer, in the light of the circumstances that all the panch witnesses in whose presence the recovery of the weapons and recovery of blood stained clothes at the instance of the accused persons was done, turned hostile and, therefore the prosecution relied upon the evidence of the Investigating Officer but the evidence of the Investigating Officer is also not establishes that in view of the voluntary statements of the accused persons, the incriminating weapons were recovered. The aspect of recovery in the light of Section 27 of the Indian Evidence Act is not established.

The appreciation of testimony of a witness, admittedly, is a hard task and there is no fixed or straight-jacket formula for appreciation of the ocular evidence. However, in catena of decisions the principles for appreciation of ocular evidence are laid down, which are as follows:

Thus, while assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence.

It is well settled that, the prosecution must stand on its own legs and it cannot derived any strength from the weakness of the defence where various links in the chain are in themselves to be established by the prosecution beyond reasonable doubt. The failure of the prosecution to establish the guilt of the accused beyond reasonable doubt would result in the acquittal of the accused.

Proof beyond reasonable doubt does not mean proof beyond any doubt. It cannot be considered as if a mathematical formula. The phrase ‘beyond reasonable doubt’ has been often referred to and is well understood. However, attempts to define this term precisely have been held to be not advisable or practical. The Ld. Author Glanvile Williams in his book ‘The proof of Guilt’ has said, “To say that the burden of proving a crime is generally on the prosecution does not conclude all questions. What degree or quantum of proof is needed, is it mere likelihood, or certainty, or something in between these two extremes? This question in turn raises a fundamental issue of penal policy.”

Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course it is possible, but not in the least probable’ the case is proved beyond reasonable doubt.

In the present case, no such evidence is brought on record by the prosecution to show that the evidence is so strong against the accused persons to prove their guilt.

This aspect is also considered by the Hon’ble Apex Court in the case of Yogesh Singh Vs. Mahabeer Singh & Ors., AIR 2016 SC 5160, reiterated the said principle, which are as under:

Keeping in mind the aforesaid position of law and on perusal of the record it has been noticed by us that the eyewitnesses PW-1/Rohit Wankhede and PW-4/Abhishek Kamble has not supported the prosecution case. PW-19/Samay Shende is also one of the eyewitness and friend of the deceased has also not supported the prosecution case. PW-18/Sangita Darwade is the mother of the deceased though examined but her presence at the spot of incident is doubtful. The circumstantial evidence in the nature of recovery of the weapons and dying declaration is also not established. The medical evidence though shows that the deceased died homicidal death and PW-4/Abhishek Kamble has sustained the injuries in the said incident but it nowhere discloses that it was the accused persons who killed the deceased and caused the injuries to PW-4/Abhishek Kamble. The scientific evidence is also not helpful to the prosecution as the chain of custody of incriminating articles since seizure till it is forwarded to analysis is not established. The electronic evidence is also not adduced by following the principles laid down under Section 65B(4) of the Indian Evidence Act.

Thus, there are not only actual but substantial doubt as to the guilt of the accused persons, we therefore, unable to find any evidence to show that, the accused persons have caused the death of the deceased. Unfortunately, the deceased succumbed to the injuries but the substantial doubt mentioned above sufficient to give benefit of doubt to the accused persons and, therefore, the Appeals deserve to be allowed. Accordingly, we proceed to pass the following order.