Bombay High Court
Shankar Akaram Doifode vs State Of Maharashtra on 10 June, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:23332-DB
Gokhale 1 of 40 205-apeal-780-14 & 132-15 (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 780 OF 2014
1. Shreekant Yallappa Doifode
2. Pravin Yallappa Doifode
3. Shankar Akaram Doifode ..Appellants
Versus
The State of Maharashtra ..Respondent
WITH
INTERIM APPLICATION NO. 4354 OF 2023
WITH
INTERIM APPLICATION NO. 4359 OF 2023
IN
CRIMINAL APPEAL NO. 780 OF 2014
..........
WITH
CRIMINAL APPEAL NO. 132 OF 2015
The State of Maharashtra ..Appellant
Versus
1. Jayashree Shrikant Doifode
2. Varsha Pravin Doifode
3. Madhuri Akaram Doifode ..Respondents
__________
Dr. Yug Mohit Chaudhary a/w. Anush Shetty for the Appellants in
Appeal/780/2014.
Mr. Himanshu J. Patil i/b. Alisha Mohite for the informant in
Appeal/780/2014.
Mr. Vinit A. Kulkarni, APP for the State/Respondent in
Appeal/780/2014 and for the Appellant/State in
Appeal/132/2015.
__________
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2025.06.13
19:04:48
+0530
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CORAM : SARANG V. KOTWAL &
SHYAM C. CHANDAK, JJ.
DATE : 10 JUNE 2025
JUDGMENT:
(Per Sarang V. Kotwal, J.)
1. Both these Appeals are decided by this common
Judgment because they arise out of the same Judgment and order
dated 26.08.2014 passed by the learned Sessions Judge, Kolhapur,
in Sessions Case No.124 of 2011. By the impugned Judgment and
order, the Appellants in Criminal Appeal No.780 of 2014 were
convicted and the Respondent Nos.1 to 3 in Criminal Appeal
No.132 of 2015 were acquitted. The convicted accused have
preferred Criminal Appeal No.780 of 2014 against the Judgment
and order of conviction and sentence and the State of Maharashtra
has preferred Criminal Appeal No.132 of 2015 against the
acquittal of the Respondent Nos.1 to 3. For the sake of
convenience, the Appellants in Criminal Appeal No.780 of 2014
and the Respondents in Criminal Appeal No.132 of 2015 are
referred to either by their names or by their status as particular
accused in the said sessions case. The original accused were as
follows:-
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i) Accused No.1 Shreekant Yallappa Doifode
ii) Accused No.2 Pravin Yallappa Doifode
iii) Accused No. 3 Shankar Akaram Doifode
iv) Accused No.4 Jayashree Shrikant Doifode
v) Accused No.5 Varsha Pravin Doifode
vi) Accused No.6 Madhuri Akaram Doifode
There was one more accused who was a child in
conflict with law. She was separately tried under the provisions of
the Juvenile Justice Act 2000 and she was acquitted under that
procedure.
2. By the impugned judgment and order, the accused Nos.1
to 6 were acquitted from the charges of commission of offences
punishable under sections 143, 144, 147, 148, 302 r/w. 149 of the
I.P.C. The Accused Nos.4 to 6 were acquitted from the charges of
commission of the offence punishable U/s.302 r/w. 34 of the I.P.C.
3. The Accused Nos.1 to 3 were convicted for the offence
punishable U/s.302 r/w. 34 of the I.P.C. and each one of them was
sentenced to suffer imprisonment for life and to pay a fine of
Rs.1000/- and in default to suffer further S.I. for one month. The
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convicted accused were given set off for the period they had spent
in custody as under-trial prisoners.
4. Heard Dr. Yug Mohit Chaudhary, learned counsel for the
Applicants in Criminal Appeal No.780 of 2014, Mr. Himanshu Patil,
learned counsel for the Informant in Criminal Appeal No.780 of
2014, Mr. Vinit Kulkarni, learned APP for the State/Respondent in
Criminal Appeal No.780 of 2014 and for the Appellant/State in
Criminal Appeal No.132 of 2015. Dr. Yug Mohit Chaudhary also
represented the Respondent Nos.1, 2 and 3 (the original accused
Nos.4, 5 and 6) in Criminal Appeal No.132 of 2015.
5. The prosecution case is that, one Sandip Doifode had an
agricultural land near village Ghunki, Taluka Hatkanangale,
District Kolhapur. For a few years, his land was given for
cultivation to the accused who were his relatives. After a few
years, he came back to his village and started cultivating his own
land. Therefore, the accused and their families were holding a
grudge against Sandip. There was one more incident after the local
election, wherein, there was some quarrel between Sandip on one
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hand and the accused on the other. The incident in the present
case took place on 05.07.2011 at around 6:30p.m. It is alleged that
the accused Nos.4, 5 and 6 along with the child in conflict with
law threw chilly powder in Sandip’s eyes. The Accused Nos.1 to 3
assaulted him with weapons like sickle and choppers. There were
two blows on his head and one on his chest. Sandip’s friend took
him to the hospital but he was declared dead. Accordingly, the
F.I.R. was lodged at Vadgaon police station vide the C.R.No.79 of
2011 under sections 302, 143, 147, 148 and 149 of the I.P.C. at
9:20p.m. on 05.07.2011 by one Anil Doifode. There was a cross
complaint lodged by the accused’ group against Sandip’s group
vide C.R.No.80 of 2011 at the same police station; mainly under
section 307 of the I.P.C. for causing grievous injuries to accused
No.2 Pravin. The investigation was conducted separately in both
these registered offences. Two separate trials were conducted
before the same court. The cross case lodged by the accused’ group
resulted in acquittal.
6. As far as the present case is concerned, the charge-sheet
was filed against all the accused and the case was committed to
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the Court of Session at Kolhapur. During trial, the prosecution
examined 24 witnesses; out of which three were the eye witnesses,
the other witnesses were panchas for recovery of weapons, seizure
of clothes, carrier of the articles to the F.S.L., and the medical
officers conducting postmortem examination and collecting
accused’ blood. The prosecution concluded the evidence by
examining the investigating officers. The C.A. reports were
produced on record.
7. In the examination U/s.313 of the Cr.p.c. the accused
took the defence that the complainant party had barged into their
house and had assaulted them. The complainant had good
relations with the police, therefore, the police had shown a wrong
scene of the incident. The police did not record the accused’
version correctly and a false case was lodged against the accused
at the instance of the first informant and his friends. In the cross-
examination of the eye witnesses, the defence was taken on similar
lines and it was also the case of the accused that, they were
assaulted by the informant’s group and had suffered grievous
injuries. Thus, by implication, the accused had taken a plea of
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exercising right of private defence through the cross-examination
of the eye witnesses.
8. The learned Trial Judge observed that, there was no
trace of chilly powder near the eyes or on the other body parts of
the deceased, and the prosecution case about the throwing of
chilly powder by the accused Nos.4 to 6 was not supported by the
medical evidence. The evidence of the eye witnesses, as far as, the
accused Nos.4 to 6 are concerned, was held to be not trustworthy
and, therefore, the accused Nos.4 to 6 were acquitted. As far as the
convicted accused are concerned, the learned Trial Judge observed
that the defence taken by the accused was not a probable defence.
The defence had not proved the case of attack on the person or on
the property of the accused. Though the explanation offered by the
prosecution witnesses was not entirely satisfactory; but their
version could not be said to be totally improbable. Having
observed thus, the learned trial Judge concluded that, failure of
the prosecution to account for the injuries of the accused, did not
militate against the credibility of the witnesses, on the core of the
occurrence. On this basis the conclusion of the guilt of the accused
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Nos.1 to 3 was recorded. It is significant that the investigating
officer himself had produced the injury certificates of the accused.
The accused No.2 Pravin and the child in conflict with law in
particular had suffered grievous injuries. The Accused No.2 had
suffered a temporal bone and ribs fracture and the child in conflict
with law had lost tip of one finger. Those grievous injuries were
not explained by any of the eye witnesses. However, as mentioned
earlier, the learned Trial Judge made his observations and reached
to the conclusion of guilt of the accused Nos.1 to 3.
9. As can be seen from this backdrop, the evidence of the
eye witnesses is the most crucial evidence in this case and the
conviction can be sustained only if their evidence inspires
confidence.
10. PW-1 Anil Doifode was the first informant. He has
deposed that the deceased was his cousin. He was about 25 years
of age. Even the accused were the relatives of PW-1. They were all
cousins. They were agriculturists. The deceased Sandip’s parents
had passed away eight to ten years prior to the incident. After the
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death of his parents, Sandip was residing with his sister at Mouje
Shirti, Taluka Walava, District Sangli. Sandip’s parents had an
agricultural land at village Ghunki. After Sandip had started
residing with his sister, the accused were cultivating that particular
land. Four years prior to the incident, Sandip returned to the
village Ghunki and started cultivating his own land. Since he took
back his land, the accused were not happy and were holding a
grudge against him. Their relations had become strained. On
28.03.2011 there was a by-election of Zilla Parishad at Ghunki.
There was victory procession for the elected candidate. At that
time, there was some quarrel between Sandip on one hand and the
accused Nos.1 to 3 on the other. The matter was reported to the
police. PW-1 has further deposed that, on 05.07.2011, in the
evening, he had received a phone call from Sandip expressing his
apprehension that the accused Nos.1 and 2 were likely to cause
harm to him. PW-1 returned to Ghunki. He reached there at
around 6:15p.m. He saw Sandip outside PW-1’s house. Sandip told
PW-1 that the accused Nos.1 and 2 would commit his murder. PW-
2 Avinash Harale came there. PW-3 Santosh Harale had also
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reached at the same spot on motorcycle. He was accompanied by
one Ajay Shinde. PW-1’s brother also came towards them. All of
them advised Sandip that they could hold a meeting with the
Sarpanch and then settle the matter. Sandip started walking
towards his house. At that time, all the accused came running
towards him. They came through a passage of their house towards
that particular lane. The Accused No.2 Pravin was holding a sickle,
the Accused No.1 Shreekant and the Accused No.3 Shankar were
having koyta in their hands. The Accused Nos.4 Jayshree and
Accused No.5 Varsha sprinkled chilly powder on Sandip’s face.
Sandip started cleaning his eyes. At that time, the accused No.2
Pravin caught and pulled him. He gave a blow of sickle on his
chest. Sandip pushed the accused No.2 Pravin, who fell down on a
heap of stones. The Accused No.6 Madhuri and the child in conflict
with law held Sandip from either side and they were giving kick
blows. At that time, the Accused No.1 Shreekant and the Accused
No.3 Shankar gave blows of Koyta on Sandip’s head. Those blows
were given on both the sides of Sandip’s head. He fell down by the
side of a gutter in front of the house of one Dhondiram. PW-1 and
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others immediately rushed towards Sandip. The accused came
towards PW-1 and others by raising their weapons. PW-1’s group
then pelted stones towards the accused. The other persons from
the locality gathered there and they also started pelting stones
towards the accused. The accused started running towards their
house. While running, they fell in a lane. In the meantime, PW-1
Anil and others took Sandip to the hospital in a car. He was taken
to C.P.R. Hospital at Kolhapur, but he was declared dead. PW-1 and
others went to Vadgaon police station at around 9:15p.m. and
lodged his report. The F.I.R. is produced on record at Exhibit-79.
Raju and Avinash had accompanied PW-1. The police recorded
their statements, as well. PW-1 identified the weapons produced in
the Court.
In the cross-examination of this witness, the defence
counsel brought material omissions on record from this witness’s
police statement. PW-1 admitted that those material facts were not
stated by him to the police when his statement was recorded by
the police. He admitted that, he had not told the police that he had
returned to Ghunki at about 6:15p.m. He had not told the police
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that, Sandip and Raju had come to him and that Sandip had told
him that Shreekant and Pravin would not spare him. He had not
referred to the plan to have a meeting with the Sarpanch. He had
not told the police that the accused Pravin had given a blow with
full force over the left ribs of Sandip. He had not told the police
that the accused No.2 Pravin had fallen on a heap of stones or that
there was a wall of stones. He had not told the police that the
accused Madhuri and the child in conflict with law had assaulted
the deceased and had kicked him. He had not told the police that
the accused obstructed them and had threatened them when PW-1
and others tried to come near Sandip after the assault. He had not
told the police that they had pelted stones to save themselves and
that others had also pelted stones towards the accused. He
admitted that the accused had registered their own C.R.No.80 of
2011 under section 307 of the I.P.C. which had resulted in Sessions
Case No.141 of 2012 in the same Court.
11. The defence put certain suggestions to make out a case
of right of private defence available to the accused. PW-1 denied
those suggestions. He denied that the deceased Sandip, Raju
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Shinde and Ajay Shinde were having swords in their hands and
Avinash, Santosh and Sunil were having sticks in their hands and
that they went towards the house of the accused with weapons. He
further denied that, they entered the house of the accused and
attacked them. He also denied that the Accused No.2 Pravin
suffered fracture and injuries on his person and that the accused
Jayashree and the child in conflict with law had also suffered
injuries.
12. PW-2 Avinash Harale was another eye witness. He had
described the incident exactly in the same manner as was
described by PW-1. He was also shown as an accused in the
counter case filed by the accused. He admitted that when his
statement was recorded by the J.M.F.C. Vadgaon on 01.08.2011, he
might have not mentioned the name of the Accused No.3 Shankar
in that particular statement. He explained that he had not told the
police that Sandip had pushed the Accused No.2 Pravin forcefully
and that Pravin had fallen down on the stones. He also accepted
that he had not told the police or the J.M.F.C. that they had pelted
stones towards the accused. He denied the defence’s suggestion
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that he and the others had attacked the accused in the house of the
accused No.2 Pravin.
13. PW-3 Santosh Harale was the third eye witness
examined by the prosecution. His examination in chief and cross-
examination were exactly on the similar lines as the depositions of
PW-1 and PW-2. He also denied the suggestion that he and the
others had caused injuries to the accused by entering their house.
14. PW-4 Avinash Jadhav was a spot pancha. He proved the
spot panchanama on record at Exhibit-92/C. He admitted that, the
presence of heap of stones near Dhondiram’s house was not
mentioned in the panchanama. The police had seized the blood
stained earth, simple earth and chilly powder from the spot of
incident.
15. PW-5 Sunil Patil was a pancha in whose presence the
blood stained chopper was recovered at the instance of the
accused No.1 Shreekant, on 08.07.2011. The chopper was
recovered from a shrub near a service road adjoining to Pune
Bengaluru highway.
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16. PW-6 Praveen Desai was a pancha in whose presence the
sickle was recovered at the instance of the Accused No.2 Pravin, on
27.07.2011 from a spot near a service road adjoining to Pune
Bengaluru highway. It was taken out from a heap of sugarcane
crop.
In his cross-examination, he stated that he had not
seen any injuries on the accused No.2. This is significant because
the record shows that the Accused No.2 had suffered serious
injuries and his hand was in plaster.
17. PW-7 Mahadeo Hucchhe was a pancha in whose
presence the blood stained chopper was recovered at the instance
of the Accused No.3 Shankar on 11.07.2011. It was also recovered
from a shrub near a service road adjoining to Pune Bengaluru
highway.
18. PW-8 Prakash Koli was a pancha in whose presence the
clothes of the deceased, the accused No.1 Shreekant and the
accused No.3 Shankar were seized by the police.
19. PW-9 Babaso Sidh was another pancha who was a
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witness to the seizure of clothes of the accused No.2, on
25.07.2011. Those clothes were produced by the police as they
were brought from the hospital. They were kept on a table and
then they were seized.
20. PW-10 Bharat Shirke was a pancha for the inquest
panchanama. PW-12 Santosh Mane was police naik who had
seized the clothes of the deceased. PW-13 ASI Maruti Patil had
conducted the initial investigation by conducting the inquest
panchamama and had issued letter for postmortem examination.
21. PW-11 Dr. Nilesh Shirgaonkar had conducted the
postmortem examination on 05.07.2011 between 10:50p.m. to
11:50p.m. He had seen the following injuries:
i) Bite marks on right cheek below ear.
ii) Incised wound over occipital bone on right side
about 13cm. in length.
iii) Incised wound over occipital bone below the
injury No.2 on the left side, about 12cm in
length.
iv) Incised deep wound over left lateral side of chest,
admeasuring 14cm x 5cm x 4cm. Muscles and
ribs were exposed.
v) Abrasion over right dorsum of hand.
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On the internal examination, it was found that there
was skull fracture of the occipital bone and the brain was
congested. There was fracture of 5th, 6th and 7th ribs exposing the
left lung and pleura. According to him, the cause of death was
head injury and injuries to vital organs.
22. PW-16 Dr. Preeti Bhosekar had first examined the
deceased at about 8:00p.m. But by that time Sandip had already
died. She had described the similar injuries.
23. PW-14 PSI Balasaheb Ambi and PW-15 PHC Raghunath
Yadav had carried the muddemal articles to F.S.L.
24. PW-17 Dr. Nootan Pore and PW-18 Dr. Rangrao Patil had
collected the blood samples of the accused.
25. PW-19 Anjum Shaikh and PW-20 Satish More were the
photographers who had taken the photographs of the dead body
and the spot respectively.
26. PW-21 Police Naik Salim Shaikh had conducted some
part of the investigation. He had conducted inquest panchanama
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and had seized the clothes of the deceased.
27. PW-22 Shankarrao Patil was the Circle Officer. He had
prepared the map of the spot.
28. PW-24 ASI Sanju Patil had recorded the statements of
some of the witnesses.
29. PW-23 API Anil Vibhute was the main investigating
officer. He has stated that he had recorded the statements of
Avinash Harale and Raju Shinde. He admitted that chilly powder
was seen at different parts in the lane. He arrested the accused
No.1 Shreekant on 06.07.2011 and two more accused were
arrested on 07.07.2011. He deposed about the recovery of
weapons. He arrested the Accused No.2 Pravin on 25.07.2011 after
he was discharged from the hospital of Dr. Joshi. On 30.07.2011
he caused the statement of witness Avinash Harale to be recorded
by the J.M.F.C. Vadgaon. He had sent the articles for the chemical
analysis. He filed the charge-sheet on 29.09.2011. He produced
the C.A. reports on record at Exhibits 137 to 141/C. He had sent
the accused to Vadgaon Primary Health Center because there was
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no primary health center at village Ghunki.
In the cross-examination, he admitted that the police
record shows that PW-1 Anil, PW-2 Avinash and PW-3 Santosh
Harale were arrested on 06.07.2011. That was in connection with
the cross complaint lodged by the accused in this case. Till this
cross-examination was conducted by the defence counsel, this
witness had remained silent about the injuries suffered by the
Accused. But, during the cross-examination he admitted that, he
was knowing that the accused had also received injuries and that
they were admitted in C.P.R. Hospital. However, he gave an
explanation that the said case was investigated by another police
officer. He admitted that, he knew that the house of the accused
were near the spot of incident, but he did not go to their house. He
also admitted that the Accused No.2 Pravin had plaster on his right
hand at the time of his arrest on 25.07.2011. This is significant
because the pancha for recovery at the instance of the Accused
No.2 had stated that he had not seen any injury on the accused
No.2. He admitted that, he was in-charge of the police station, but
he had not enquired about the injuries suffered by the accused. He
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admitted that, he had not produced the injury certificates of the
accused. But on specific cross-examination, he produced those
certificates before the Court. The learned Trial Judge took those
injury certificates on record and marked them as Exhibits-154 to
160. These injury certificates are very important in the context of
this case. Those injury certificates were duly proved through the
evidence of the I.O. himself. We will make a reference to those
certificates a little later.
30. Apart from this oral evidence, the prosecution has
produced the C.A. reports on record at Exhibits-137 to 141 which
show that the blood group on the clothes of the deceased was
mentioned as inconclusive. The blood found on the weapons was
of human origin but the blood group was inconclusive. There was
blood on the clothes of the accused, but even their blood group
was inconclusive.
31. The injury certificates of the accused, as mentioned
earlier, are the most crucial piece of evidence in this case. The
Accused No.1 Shreekant had local swelling of the size 2cm x 2cm
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on the occipital region. It was a simple injury. The injury certificate
of the child in conflict with law showed that she had suffered CLW
on tip of left thumb. There was loss of finger and it was described
as a grievous injury caused by a sharp weapon. There was swelling
on the right finger and abrasion on the head. The Accused
Jayashree had suffered C.L.W. of the size 7 x 2 x 0.2cm on the right
parietal bone. It was described as simple injury. The Accused No.2
Pravin had suffered grievous injuries. His medical certificate is
produced on record at Exhibit 154. He had suffered fracture over
temporal region and C.T. scan of brain showed subgaleal
hematoma. The injury was described as a grievous injury. There
was abrasion on the left elbow joint and there was fracture of the
right hand elbow. It was also a grievous injury. He had suffered
fracture of right temporal bone as was mentioned in Exhibit-156.
Thus, he had suffered grievous injuries.
This, in short, was the evidence led by the prosecution.
32. Dr. Yug Mohit Chaudhary, learned counsel for the
Appellants made the following submissions:
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The prosecution case depends on the evidence of the
eye witnesses PW-1 Anil, PW-2 Avinash and PW-3 Santosh. Their
evidence is not trustworthy at all. The record itself shows that they
have suppressed the material facts. The serious injuries suffered by
the accused are neither explained nor even referred to by these
witnesses. The learned Trial Judge has given benefit of doubt to
the accused Nos.4, 5 and 6, based on the same evidence of PW-1,
PW-2 and PW-3. That means, those three eye witnesses were
disbelieved by the learned Trial Judge so far as the role attributed
to the Accused Nos.4 to 6 are concerned. Therefore, their evidence
against the Accused Nos.1 to 3 is also not reliable.
The seizure of blood stained clothes of the accused
itself is disbelieved by the learned Trial Judge in paragraph-87 of
the Judgment. The reasoning is proper and, therefore, this is not
an incriminating piece of circumstance. The recovery of weapons
from the Accused Nos.1 to 3 is doubtful. The choppers were
recovered at the instance of the Accused Nos.1 and 3 from the
bushes near a service road which was accessible to all. There was
no element of concealment of these weapons, so that, no one could
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have seen those weapons till they were recovered on 08.07.2011
and 11.07.2011 respectively. The recovery at the instance of the
Accused No.2 on 27.07.2011 is not reliable considering the gap
between the date of the incident and the date of recovery. Blood
stains on these weapons do not conclusively show that the blood
was of the deceased’s blood group. There was no connection
between the blood group of the deceased and the blood found on
those weapons.
33. The investigation was unfair and malafide. It proceeded
only in one direction to somehow implicate the accused falsely.
The I.O. had admitted that he did not even enter the house of the
accused for investigation when it was the specific case of the
accused that the complainant’s group was the aggressor and that
they had entered the house of the accused and had caused attack
on the accused. The investigating agency and the prosecution did
not care to produce the injury certificates of the accused before the
Court. It was only during the cross-examination that the I.O. was
left with no option but to produce those injury certificates. This
shows that there was an attempt to deliberately suppress the
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material facts.
34. The absence of chilly powder in the eyes or near the eyes
or on any part of the body of the deceased shows that the
prosecution case to that extent is definitely false. He submitted
that, the approach of the learned Trial Judge was erroneous
because even after considering the fact that the prosecution
witness had suppressed the injuries suffered by the accused, the
learned Trial Judge has not given benefit of doubt to the accused.
From the evidence led by the above witnesses, it was quite clear
that they had suppressed the true occurrence and had projected
the incident only from one angle to implicate the accused falsely.
Learned counsel relied on the judgment of the Hon’ble Supreme
Court in the case of Lakshmi Singh and others etc. V. State of
Bihar1.
35. Dr. Chaudhary further submitted that, from the record
itself the defence has sufficiently brought on record the defence
version which is probabilized by the evidence led by the
prosecution itself. He submitted that, specific defence can be
1 AIR 1976 SUPREME COURT 2263
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gathered from the evidence led by the prosecution itself. A plea of
self defence can be taken by introducing such plea in the cross-
examination of the prosecution witness or in the statement of the
accused recorded U/s.313 of the Cr.p.c. In support of this
contention, Dr. Chaudhary relied on the Judgment of the Hon’ble
Supreme Court in the case of Kashi Ram and others V. State of
M.P.2.
36. Learned APP, as well as, Mr. Himanshu Patil, the learned
counsel for the first informant opposed these submissions. They
submitted that the facts of this case which support the prosecution
are brought on record by the defence through cross-examination
itself. The incident was described by the prosecution witnesses in
the examination in chief. The description was further elaborated
by these witnesses during cross-examination. There is no reason to
disbelieve the version of the prosecution witnesses. There is no
dispute about the fact that the deceased had suffered two blows on
his head and one blow on the chest which has resulted in his
death. The accused has not explained as to how those injuries
2 AIR 2001 SUPREME COURT 2902
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were caused to him. Apart from the direct evidence of the eye
witnesses, there are corroborative pieces of evidence in the nature
of recovery of weapons at the instance of the accused, as well as,
the recovery of blood stained clothes from the person of the
accused. There was a motive for the accused to commit murder of
the deceased. The cross case lodged by the accused has resulted in
acquittal. The very fact that the chilly powder was found at the
spot shows that there was preparation on the part of the accused
to commit murderous assault on the deceased; which is supported
by finding of the chilly powder at the spot. Therefore, it could not
be even suggested that the accused had acted in self defence while
causing fatal injuries to the deceased Sandip. The postmortem
reports show that the deceased had suffered homicidal death. No
one else was responsible but the accused for this offence. The
injuries to the accused, in fact, suggests that the accused were
present at the spot when the incident had occurred. The
prosecution case, therefore, cannot be disregarded in totality. They
submitted that the State has challenged the acquittal of the
accused Nos.4 to 6 and, therefore, the conclusion of their
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innocence reached by the learned Trial Judge is under
consideration before this Court. Hence, it cannot be said that, since
the Accused Nos.4 to 6 are acquitted, the benefit could also be
extended to the Accused Nos.1 to 3.
37. We have considered these submissions. With the
assistance of the learned counsel, we have perused the entire
record and the impugned Judgment. As far as the accused Nos.4 to
6 are concerned, they are acquitted by the learned Trial Judge
mainly because the prosecution evidence through the eye
witnesses is not supported by the medical evidence. It is the
specific case of the prosecution that the Accused Nos.4 to 6, as well
as, the child in conflict with law had thrown chilly powder on the
face of the deceased Sandip. He tried to clean his eyes. During that
time, the accused Nos.1 to 3 inflicted fatal blows on him. However,
the postmortem notes and the evidence of PW-11 Dr. Nilesh who
had conducted the postmortem examination show that, there were
no trace of chilly powder either in the eyes, near the eyes or on
any body part of the deceased. The learned Trial Judge has,
therefore, rightly disbelieved the prosecution version, as far as, the
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roles attributed to the accused Nos.4 to 6 are concerned.
Therefore, we have no reason to interfere with that finding. It is a
possible view. Hence, we uphold the acquittal of the Accused Nos.4
to 6.
38. Having observed thus, regarding the nature of evidence
against the Accused Nos.4 to 6, resulting in their acquittal, the
prosecution evidence against the other accused will have to be
considered very carefully as they have clearly implicated at least
three accused i.e. the Accused Nos.4, 5 and 6 falsely. Apart from
this, the main consideration which weighed with us is about the
non explanation of grievous injuries caused, in particular, to the
accused No.2 and the child in conflict with law. The female minor
accused who was also supposed to have taken part in the incident
had lost the tip of one finger. This injury could have been caused
only by a sharp weapon. The accused No.2 had suffered fracture to
the temporal bone and fracture of right hand. Thus, these three
grievous injuries i.e. two suffered by the Accused No.2 Pravin and
one suffered by the child in conflict with law have remained totally
unexplained by the prosecution witnesses. Significantly, the
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prosecution witnesses Nos.1 to 3 claimed to have seen the incident
right from the beginning till the deceased Sandip was taken to the
hospital. At no point, these witnesses have described any part of
the incident which could have led to causing these grievous
injuries to the Accused No.2 and to the child in conflict with law.
This is a very serious lacuna in the case of the prosecution. In this
context, Dr. Chaudhary has rightly relied on the Judgment of the
Hon’ble Supreme Court in the case of Lakshmi Singh. The relevant
portion from this judgment is reflected in paragraphs-2 and 11. It
was observed that, in that case, the accused Dasrath Singh had
suffered three injuries, out of which, two were serious injuries
which were inflicted by a sharp cutting weapon. There was
fracture of right forearm and puncture wound on the left thigh.
The Hon’ble Supreme Court observed that, in those circumstances,
it was the bounden duty of the prosecution to give a reasonable
explanation for the injuries sustained by the accused Dasrath Singh
in the course of the occurrence. The witness had deliberately
suppressed the injuries on the person of the accused which was the
most important circumstance to discredit the entire prosecution
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case. It was further observed that, non explanation of such injuries
by the prosecution was a manifest defect in the prosecution case
and shows that the origin and genesis of the occurrence had been
deliberately suppressed which led to the irresistible conclusion that
the prosecution had not come out with a true version of the
occurrence. It was observed that, though, it was an unfortunate
case in which two persons had lost their lives, since the
prosecution had not come out with the true version, the result was
that the murderer of the two persons had to go unpunished. But if
the prosecution did not choose to put forward the true version, it is
to be itself squarely blamed for the failure of the case.
Paragraph-2 of the case of Lakshmi Singh reads thus:
“2. This is an unfortunate case in which two
persons appear to have lost their lives over a very
petty and trivial dispute. On a perusal of the
evidence and the circumstances of the case, we feel
that the prosecution has not come out with the true
version and the result is that the murder of the two
persons has to go unpunished, and this is yet
another misfortune of the case, but if the
prosecution does not choose to put forward the true
version it is to be itself squarely blamed for the
failure of the case.”
39. In paragraph-11, the Hon’ble Supreme Court went on to
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make important observations, as follows:
“……. It seems to us that in a murder case, the non-
explanation of the injuries sustained by the accused at
about the time of the occurrence or in the course of
altercation is a very important circumstance from which
the Court can draw the following inferences:
(1) That the prosecution has suppressed the genesis
and the origin of the occurrence and has thus not
presented the true version:
(2) that the witnesses who have denied the presence
of the injuries on the person of the accused are lying on a
most material point and therefore their evidence is
unreliable;
(3) that in case there is a defence version which
explains the injuries on the person of the accused it is
rendered probable so as to throw doubt on the
prosecution case.
The omission on the part of the prosecution to
explain the injuries on the person of the accused assumes
much greater importance where the evidence consists of
interested or inimical witnesses or where the defence
gives a version which competes in probability with that of
the prosecution one. …….”
These observations of the Hon’ble Supreme Court in
the case of Lakshmi Singh are squarely applicable to the present
case.
40. The prosecution witnesses made a feeble attempt to get
over this lacuna of non explanation of injuries to the accused by
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introducing a theory of fall of the accused on a heap of stones. It is
significant to note that the spot panchanama does not show
presence of any heap of stones at all. In any case, it is most
unlikely that the injuries suffered by the two persons from the
accused’ group could have been caused due to the fall on a heap of
stone. Importantly, the child in conflict with law had lost tip of her
finger through a sharp weapon; that has nothing to do with the fall
on a heap of stones. Another aspect of the matter is that the theory
of fall of the accused on the stones is introduced by the
prosecution witnesses for the first time during their deposition
before the Court. They had not mentioned so in their police
statements. This fact was admitted by them when those omissions
were specifically put to those witnesses by the learned counsel for
the defence during the cross-examination. All these factors lead to
an inescapable conclusion that the prosecution witnesses and, in
particular, the eye witnesses have deliberately suppressed the
genesis of the incident. A true occurrence of the incident is not
brought before the Court. Therefore, we do not find it safe to rely
on the evidence of these eye witnesses to reach a conclusion of
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guilt, as far as, even the Accused Nos.1 to 3 are concerned.
41. Another aspect of this case is about the probable defence
of the accused that they could have acted in exercise of their right
of private defence. As mentioned earlier, in this context, the
suggestions were given to the prosecution witnesses, and, the
accused had answered specifically in that behalf in response to the
questions put by the learned Trial Judge during their examination
u/s.313 of the Cr.P.C. In this context, Dr. Chaudhary relied on the
Judgment of three Judges Bench of the Hon’ble Supreme Court in
the case of Kashi Ram. The relevant portion is in paragraph-24 of
the said Judgment; which reads thus:
“24. The High Court was also not right in criticising
and discarding availability of plea of self defence to the
accused persons on the ground that the plea was not
specifically taken by the accused in their statements
under Section 313 Cr. P.C. and because the accused
Prabha did not enter in the witness box. Though
Section 105 of the Evidence Act enacts a rule regarding
burden of proof but it does not follow therefrom that
the plea of private defence should be specifically taken
and if not taken shall not be available to be considered
though made out from the evidence available in the
case. A plea of self defence can be taken by introducing
such plea in the cross-examination of prosecution
witnesses or in the statement of the accused persons
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34 of 40 205-apeal-780-14 & 132-15 (J)introduced in any one of these three modes still it can
be raised during the course of submissions by relying
on the probabilities and circumstances obtaining in the
case as held by this Court in Vijayee Singh Vs. State of
U.P. : AIR 1990 SC 1459. It is basic criminal
jurisprudence that an accused cannot be compelled to
be examined as a witness and no adverse inference can
be drawn against the defence merely because an
accused person has chosen to abstain from the witness
box.”
Based on these observations, we have seriously
considered the defence taken by the accused.
42. Section 100 of the I.P.C. reads thus:
“100. When the right of private defence of the body
extends to causing death. – The right of private defence
of the body extends, under the restrictions mentioned
in the last preceding section, to the voluntary causing
of death or of any other harm to the assailant, if the
offence which occasions the exercise of the right be of
any of the descriptions hereinafter enumerated,
namely:-
First.- Such an assault as may reasonably
cause the apprehension that death
will otherwise be the consequence of
such assault;
Secondly. – Such an assault as may reasonably
cause the apprehension that grievous
hurt will otherwise be the
consequence of such assault;
Thirdly. – An assault with the intention of
committing rape;
Fourthly. – An assault with the intention of
gratifying unnatural lust;
Fifthly. – An assault with the intention of
kidnapping or abducting;
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Sixthly. – An assault with the intention of
wrongfully confining a person, under
circumstances which may reasonably
cause him to apprehend that he will
be unable to have recourse to the
public authorities for his release.
Seventhly. – An act of throwing or administering
acid or an attempt to throw or
administer acid which may
reasonably cause the apprehension
that grievous hurt will otherwise be
the consequence of such act.”
This provision mentions that a person can exercise his
right of private defence even to the extent of causing death if there
is even an apprehension as mentioned in that section. In the
present case, the facts indicated that it was not a mere case of
apprehension, but in fact, grievous injuries in the nature of skull
fracture, fracture to the hand and severing of the tip of a finger
was actually a result of the incident. Therefore, there is sufficient
force in the submission of Dr. Chaudhary that the defence taken by
the accused was a probable defence which ought not to have been
brushed aside by the learned Trial Judge.
43. As a result of this discussion, it is quite clear that the
evidence of the eye witnesses is doubtful and the prosecution has
not crossed the threshold of reasonable doubt to enable the court
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to reach a conclusion of guilt of the accused.
44. Even other corroborating circumstances did not favour
the prosecution. The learned Trial Judge himself has discredited
the evidence of seizure of clothes of the accused Nos.1 and 3. He
had rightly observed that, it was highly improbable that the
accused would roam around wearing the same clothes for a few
days till they were arrested. The clothes of the Accused No.2 were
actually seized on 27.07.2011 after his discharge from the
hospital. Those clothes were produced by a police officer and they
were not produced in front of the pancha in presence of the
accused No.2 from his person. The clothes of other two accused, as
mentioned earlier, were seized belatedly. In any case, the C.A.
report does not show that the blood found on those clothes was
that of the deceased.
45. The next circumstance which is brought on record by the
prosecution is the recovery of weapon. A chopper was recovered at
the instance of the Accused No.2 on 27.07.2011 which was after
more than 21 days of the occurrence. It was allegedly recovered
after the accused No.2 was discharged from the hospital. The
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pancha for this recovery i.e. PW-6 Praveen Desai had stated that he
did not see any injuries on the person of the Accused No.2 at that
time; which is contrary to the evidence of the I.O. because, at that
time, the right hand of the accused No.2 was in plaster.
46. The recovery of weapon at the instance of the Accused
Nos.1 and 3 was from a place which was accessible to all. The
weapons were just thrown in the shrub near a service road
adjoining to Pune Bengaluru highway. As mentioned earlier, the
C.A. report did not conclusively show that the blood found on the
weapon was that of the deceased. Thus, these are the weak pieces
of evidence on which it is unsafe to rely to reach the satisfaction
that the accused had committed this offence.
47. Dr. Chaudhary had rightly criticized the investigation
carried out by the I.O. PW-23 Anil Vibhute admitted that he was
in-charge of the said police station which had investigated both
these offences. But very conveniently, PW-23 has shown ignorance
about the investigation carried out in the cross case. He had not
even bothered to enter the house of the accused, though, it was
the specific case of the accused right from the time of lodging their
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F.I.R. that the informant’s group had entered their house and had
committed attack on the accused. The I.O. had not bothered to
produce the injury certificates of the accused till he was compelled
to do so during his cross-examination. All this shows that the
investigation was not fair. The record shows that PW-1 was taken
before the J.M.F.C., Vadgaon, but he had refused to give his
statement U/s.164 of the Cr.P.C. The photographs of the spot
shows that chilly powder was spread on quite some length of the
road which is quite contrary to the prosecution case that it was
thrown on the face of the deceased at the spot of the incident. All
these circumstances taken separately or even together raise serious
doubt about the prosecution case and, therefore, we do not think it
safe to convict the accused on the basis of this doubtful evidence.
As a result, the Criminal Appeal No.780 of 2014 succeeds and the
Criminal Appeal No.132 of 2015 fails. We are informed that the
original Accused No.1 Shreekant Doifode has passed away.
48. Hence, the following order:
ORDER
i) The Criminal Appeal No.780 of 2014 is allowed.
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39 of 40 205-apeal-780-14 & 132-15 (J)
ii) The Judgment and Order dated 26.08.2014
passed by the Sessions Judge, Kolhapur, in
Sessions Case No.124 of 2011, convicting the
Accused No.1. Shreekant Yallappa Doifode,
Accused No.2 Pravin Yallappa Doifode and the
Accused No.3 Shankar Akaram Doifode, and
sentencing them, is set aside.
iii) The Appellant No.2 Pravin Yallappa Doifode and
the Appellant No.3 Shankar Akaram Doifode in
Criminal Appeal No.780 of 2014 are in jail, they
shall be released forthwith if not required in any
other case.
iv) The Appellant No.2 Pravin Yallappa Doifode and
the Appellant No.3 Shankar Akaram Doifode in
Criminal Appeal No.780 of 2014 shall execute
P. R. Bonds in the sum of Rs.25000/- each,
U/s.481 of Bhartiya Nagrik Suraksha Sanhita,
2023 (correspondingly U/s.437A of the Cr.P.C.)
for their appearance, in case an Appeal is
preferred.
v) The Criminal Appeal No.132 of 2015 is
dismissed.
vi) The part of the Judgment and Order dated
26.08.2014 passed by the Sessions Judge,
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40 of 40 205-apeal-780-14 & 132-15 (J)
Kolhapur, in Sessions Case No.124 of 2011,
acquitting the Accused No.4 Jayashree Shrikant
Doifode, Accused No.5 Varsha Pravin Doifode and
the Accused No.6 Madhuri Akaram Doifode i.e.
the Respondent Nos.1 to 3 in Criminal Appeal
No.132 of 2015, is upheld.
vii) Both the Appeals are disposed of.
viii) With disposal of Appeals, all the interim
applications are also disposed of.
(SHYAM C. CHANDAK, J.) (SARANG V. KOTWAL, J.)
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