1 S.C.No.

35/2010(J)

Received on : 16/11/2010
Registered on : 16/11/2010
Decided on : 30/03/2015
Duration : 4­Y 04­M 14­ Ds.

IN THE COURT OF DISTRICT JUDGE­1

& ADDITIONAL SESSIONS JUDGE,
AT : Islampur.
(Before Mr.R.N.Sardesai, D.J.1 & Addl.S.J. Islampur)

SESSIONS CASE No.35 / 2010.

Exh.No.

The State of Maharashtra

Through P.I.Ashta Police Station,
Dist.Sangli (C.R. No.75/2010) ..Complainant.

Versus

1. Salim Hayatchand Nadaf,

Age 25 years Occu. Truck owner & driver
2. Sameer Hayatchand Nadaf,
Age 24 years Occu. Chicken centre
3. Hayatchand Bapulal Nadaf
Age 65 years Occu. Truck driver
(Died and hence case is abated against him)

All R/o. Aazad Mohalla, Nadaf Lane, Ashta

Tal. Walwa District Sangli ..Accused.

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­

For the complainant : APP Shri S.A. Patil,

For the accused : Advocate Shri S.T.Jadhav
­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
Offence punishable U/s. 302, 307 r.w. 34 of Indian Penal Code

JUDGMENT
(Delivered on this 30th day of March 2015)
 2 S.C.No.35/2010(J)

1. The accused stand prosecuted for committing murder

Majid Jiyauddin Shaikh and for attempting to commit murder of
Soyab Sallauddin Shaikh punishable under Section 302, 307 r.w. 34
of the Indian Penal Code.

2. The prosecution case, in short, is that Tousiff Salauddin

Shaikh resides at Azad Mohalla, Ashta along with his parents and his
brother Soyab Shaikh and his wife. The family of the informant is
having the truck and Soyab Shaikh who is brother of informant
drives the said truck. The accused are also residing at Azad Mohalla,
Ashta. There was enmity between the family of the informant and
the accused. On 11­07­2010 at about 7.00 p.m. Soyab Shaikh who is
brother of the informant went to Chawadi Chowk, Ashta. Informant
Tousiff Salauddin Shaikh was in the house. He heard the sound of
quarrel from Chavdi Chowk. Therefore, he went to Chawdi Chowk.
When he reached at Chavdi Chowk, he came to know that accused
Salim Nadaf and his brother Samir Nadaf assaulted Soyab Shaikh
and Majid Shaikh, who is cousin brother of informant. He also
came to know that the persons gathered at Chavdi Chowk,
separated the quarrel. Then informant Tousiff Salauddin Shaikh
along with his brother Soyab Shaikh and cousin brother Majid
Shaikh were at Chawdi Chowk. At about 7.30 p.m. they were
returning to their house. They came in front of the shop of Munir
Patvegar. Accused Salim Nadaf came with the weapon namely
Jambiya in his hand, his brother Samir Nadaf and his father
Hayatchand Nadaf also came from their house with sticks in their
hands. Accused Salim Nadaf threatened Majid Shaikh, "Tuje Aj
Zinda Nahi Chodunga". Accused Salim Shaikh dealt a blow of
weapon namely Jambiya on the neck and abdomen of Majid Shaikh.
Accused Salim Nadaf also dealt a blow of Jambiya on the head of
 3 S.C.No.35/2010(J)

Soyab Shaikh. Accused Samir and accused Hayatchand assaulted

Majid Shaikh and Soyab Shaikh by sticks. Informant Tousiff
Salauddin Shaikh was going to rescue the brothers, but the accused
Salim Nadaf rushed towards informant with Jambiya. Therefore,
informant Tousiff Salauddin Shaikh ran away towards his house. He
narrated the incident to his family members. While running to the
house Tousiff Salauddin Shaikh fell down and sustained the injury
over his face near the left eye. Then after some time, the informant
went to see his brother Soyab and Majid Shaikh to the spot of
incident. He came to know that Majid Shaikh and Soyab Shaikh are
taken to the hospital of Dr. Kabade. Then informant Tousiff
Salauddin Shaikh went to the hospital of Dr. Kabade. Condition of
his cousin brother Majid Shaikh was serious and therefore, Majid
Shaikh was shifted to Civil Hospital, Sangli for treatment. Tousiff
Salauddin Shaikh was in the hospital of Dr. Kabade till 9.00 p.m. At
9.00 p.m. he came to know about the death of Majid Shaikh. Then
he went to Ashta police station and lodged the FIR Exh.55. As per
the said FIR P.S.O. of Ashta police station registered the crime No.
75/2010 and the investigation was entrusted to API K. S. Patil. I.O.
K.S. Patil visited the spot of incident and has drawn the spot
panchanama Exh.136. PHC of Vishrambag police station has done
the inquest panchanama Exh.49 on the dead body of Majid Shaikh.
Medical officer of Civil Hospital, Sangli done autopsy on the dead
body of Majid Shaikh and submitted his autopsy report Exh.170 and
certificate Exh.171. I.O. arrested the accused. Then investigation of
this crime was entrusted to P.I. Indrajeet Katkar. P.I. Katkar seized
the Jambiya and bloodstained clothes of accused No.1 as per
memorandum Exh.174 given by accused No.1 and as per seizure
memo Exh.175. I.O. seized the sticks and the clothes of accused
Sameer Nadaf and accused Hayatchand as per the memorandum
 4 S.C.No.35/2010(J)

Exh.184 given by accused Hayatchand and as per the seizure memo

Exh.184. Dr. Kabade issued injury certificate Exh.148 about the
injuries sustained by Soyab Shaikh. I.O. sent seized muddemal
property to C.A. Pune along with letter Exh.151. I.O. received the
C.A. reports Exhs.176 to Exh.180. After completion of investigation,
I.O. filed chargesheet against the accused in J.M.F.C. Court,
Islampur. Judicial Magistrate F.C. Islampur committed this case to
this Court for trial.

3. My learned predecessor Shri D.G. Murumkar framed

the charge Exh.21 against the accused for the offence punishable
under Section 302, 307 read with 34 of I.P.C. Contents of the said
charge Exh.21 are read over and explained to the accused in
Marathi. The accused abjured the guilt. The defence of the accused
as explicit from the trend of cross examination of prosecution
witnesses and from their statements recorded under Section 313 of
Cr. P. Code is that Majid Shaikh and Soyab Shaikh assaulted the
accused. Majid Shaikh was holding weapon Jambiya. Majid Shaikh
caused injury on the thigh of accused No.1 Salim Nadaf by Jambiya.
During scuffle between accused Salim Nadaf and Majid Shaikh,
Majid Shaikh sustained the injuries due to the weapon Jambiya in
his hand and false case is filed against the accused.

4. To prove the charge against the accused prosecution

has examined PW­1 Anil Shivaji Sardeshmukh at Exh.44, PW­2
Pravin Kumar Madane at Exh.46, PW­3 Sunil Pratap Shinde at Exh.
48, PW­4 Mohasin Noormohamad Mujawar at Exh.51, PW­5 Toushiff
Salauddin Shaikh at Exh.54, PW­6 Soyab Sallauddin Shaikh at Exh.
111,PW­7 Imran Shiraj Rode at Exh.122, PW­8 Mayur Janardhan
Patil at Exh.130, PW­9 Ravindra Pratap Bhagwat at Exh.131, PW­10
 5 S.C.No.35/2010(J)

Vaibhav Bajirao Patil at Exh.135, PW­11 Murad Abdul Rahiman

Landge at Exh.140. PW­12 Manohar Nabhiraj Kabade at Exh.147,
PW­13 Shripad Pandurang Bondre at Exh.150, PW­14 Balwant
Ganpati Koli at Exh.154, PW­15 Vithal Uttamao Shinde at Exh.155,
PW­16 Ganesh Shankar More at Exh.160, PW­17 Milind Mahadeo
Kesharkhane at Exh.169, PW­18 I.O. Indrajeet Vasant Katkar at Exh.
172, PW­19 K. S. Patil at Exh.181 and PW­20 S.J. Rajput at Exh.189.

5. The documentary evidence mainly consists of FIR Exh.

55, inquest panchanama Exh.49, postmortem report Exh.170,
memorandum panchanama Exh.174 and seizure memo Exh.175,
the memorandum panchanama Exh.184 and seizure memo Exh.
185, arrest panchanama Exhs.173 and Exh.182, medical certificate
Exh.148, office copy of the letter Exh.151, seizure memo Exh.190,
C.A. reports Exhs.176 to Exh.180, copy of FIR dated 11­07­2010
lodged by accused Samir Nadaf Exh.202, certified copy of
memorandum panchanama Exh.203, certified copy of deposition of
accused Samir recorded in Sessions Case NO.19/2011 Exh.206 and
certified copy of injury certificate of accused Salim Shaikh EXh.207.
Statement of the accused Nos.1 and 2 are recorded under Section
313 of Cr. P. Code. The defence has not examined any witness in this
case.
6. Heard Additional Public prosecutor Shri S.A. Patil for
the State and learned advocate Shri S.T. Jadhav for the accused.

7. Under the above circumstances for just analysis of the

evidence and for determining the guilt of the accused following
points arise for my determination and I have recorded my findings
against those points for the reasons discussed below.
 6 S.C.No.35/2010(J)

Points Findings

1. Does the prosecution prove that death

of Majid Jiyauddin Shaikh is homicidal In the affirmative
death ?

2. Does the prosecution further prove that

on 11­07­2010 at about 7.30 p.m at Ashta
on the way Ashta to Walwa road, in front
of shop of Munir Patvegar, accused in Yes
furtherance of their common intention
committed murder of Majid Shaikh by the
weapon namely Jambiya and sticks ?
3. Does the prosecution further prove that
on the same date, time and place accused
in furtherance of their common intention
assaulted Soyab Shaikh with Jambiya and Yes
sticks with such intention and under such
circumstances that by that act you all had
caused the death of said witness, you
would have been guilty of murder and
accused thereby caused hurt to the said
witness ?
4. What offence if any is proved against U/s.302, 307, r.w. 34 of
the accused ? I.P.C.
5. What order ? As per final order.

REASONS

8. Point No.1 :­ In order to bring home the guilt against

the accused the prosecution has examined 20 witnesses in this case.
PW­1 Anil Shivaji Sardeshmukh, PW­2 Pravin Kumar Madane, PW­3
Sunil Pratap Shinde, PW­4 Mohasin Noormohamad Mujawar, PW­8
Mayur Janardhan Patil, PW­9 Ravindra Pratap Bhagwat, PW­10
Vaibhav Bajirao Patil, PW­14 Balwant Ganpati Koli and PW­15 Vithal
Uttamao Shinde are the panch witnesses. PW­5 Toushiff Salauddin
Shaikh is the informant and eye witness. PW­6 Soyab Sallauddin
Shaikh, PW­7 Imran Shiraj Rode and PW­16 Ganesh Shankar More
 7 S.C.No.35/2010(J)

are the eye witnesses of the incident. PW­11 Murad Landge is the
witness about the extra judicial confession of accused No.1. PW­12
Dr. M.N. Kabade examined the injured Soyab Shaikh. PW­13
Shripad Pandurang Bondre is carrier. PW­17 Dr. M.M. Kesharkhane
is the medical officer, who has done the autopsy on the dead body
of Majid Shaikh, PW­18 P.I. Indrajeet Katkar and PW­10 K. S. Patil are
the investigating officers and PW­20 S.J. Rajput was P.S.O. of Ashta
police station.

9. It is not in dispute that PW­5 Toushif Shaikh and PW­6

Soyab Shaikh are brothers and deceased Majid Shaikh was their
cousin brother. Learned advocate Shri Jadhav for the accused
vehemently submitted that in the present case the prosecution has
examined only interested witnesses and even though the incident
occurred at crowded area of Ashta on the day of fair of Ashta, local
independent witness has not been examined by the prosecution.
However, APP for State submitted that evidence of PW­5 Toushif
Shaikh, PW­6 Soyab Shaikh cannot be discarded only on the ground
that they are real brothers and deceased Majid was their cousin
brother. APP for State submitted that in the present case there is
direct evidence of eye witnesses as well as in the present case there
is circumstantial evidence against the accused. The prosecution is
also relying on the extra judicial confession of accused No.1 and the
medical evidence.

10. In criminal trials, onus is on prosecution to adduce

evidence and to prove guilt beyond reasonable doubt. It must be
remembered that there is presumption of innocence in favour of the
accused. Prosecution can not draw strength from weakness of
defence. It must stand or fall on its own leg. While considering the
 8 S.C.No.35/2010(J)

evidence of prosecution, due regards must be had to the defence of

the accused which has great relevance and significance in a
criminal trial. When two views emerge from record, the view
favourable to the accused takes precedence. Keeping this basic
principle concerning criminal jurisprudence we have to discuss the
evidence adduced in this trial.

11. The burden lies on the prosecution to prove that death

of Majid Shaikh is homicidal death. In the present case, the
prosecution has examined PW­3 Sunil Pratap Shinde at Exh.48. It
has come in the evidence of P­3 Sunil Shinde that on 11­07­2010 at
11.15 p.m. police called him near postmortem room situated in Civil
Hospital Campus, Sangli. At that time, Mohasin Shaikh shown the
dead body of Majid Shaikh, which was kept inside the postmortem
room. PW­3 Sunil Shinde saw the dead body. There was black
coloured jean pant and blue coloured half banian on the dead
body. He also saw green coloured under wear, white and yellow
coloured sports shoes and light pink coloured socks on the dead
body. PW­3 Sunil also saw incise wound on left shoulder, incise
wound on neck below left ear, incise wound on left upper hand
below shoulder and also on left elbow and right side chest on the
dead body. The prosecution has proved the inquest panchanama
Exh.49 through evidence of PW­3 Sunil Shinde. It is to be noted that
defence has not cross examined PW­3 Sunil Shinde. Thus, evidence
of PW­3 Sunil Shinde remained unchallenged. Therefore, there is no
reason to discard the evidence of PW­3 Sunil Shinde about the
inquest panchanama Exh.49. Through inquest panchanama Exh.49
the prosecution has brought on record the injuries which were on
the dead body of Majid Shaikh.
 9 S.C.No.35/2010(J)

12. The prosecution has examined PW­17 Dr. Milind

Kesharkhane at Exh.169. It has come in the evidence of Dr. Milind
Kesharkhane that on 12­07­2010 at 12.50 a.m. mid night
Vishrambag police station Sangli sent the dead body of Majid
Shaikh for doing autopsy. Dr. Kesharkhane examined the dead body
and he noticed following external injuries.
1. Oblique stab wound over right second intercostal space
medial to mid clavicular line measuring 3 c.m. in length 1 c.m. in
width and 8 c.m. in depth.

2. Stab wound over left 6th intercostal space extending from

midaxiliary line to posterior axillary line measuring 4 c.m. in length
x 1 c.m. width and 8 c.m. in depth.

3. Cut lacerated wound over the left inframastoid region over

the left sided stemomastoid muscle measuring 3 c.m. in length x 1
c.m. n width and muscle deep.

4. Cut lacerated wound over the lower one third of lateral

aspect of left arm measuring 4 c.m. in length x 1 c.m. in width and
muscle deep.

5. Cut lacerated wound over the left sided trapezius muscle

medial to lateral end of left clavicle measuring 5 c.m. in length x
0.5 c.m. in width and 0.5 c.m. in depth.

Above injuries are antemordem injuries.

13. On internal examination of dead body of Majid Shaikh

Dr. Kesharkhane noticed the following injuries.

1. Thoracic cavity is full of blood measuring approximately 700

to 800 C.C.

2. Right lung Stab wound present over anterior aspect of upper

lobe of right lung.

3. Left lung Stab wound present over lateral aspect of middle

lobe of left lung.

Dr. Kesarkhane preserved the viscera for chemical analysis. C.A

 10 S.C.No.35/2010(J)

report about viscera is nil. On separate paper he has drawn sketch

of injuries. The said sketch is in his handwriting. Sketch bears his
signature. The said sketch of injury is attached to postmortem
report and it is part of postmortem report. Dr. Kesharkhane has
duly proved autopsy report Exh.170.

14. Dr. Kesharkhane has given the opinion that final cause
of death of deceased Majid Shaikh is hemorrhagic shock due to
injuries to chest. Internal and external injuries mentioned by him
in autopsy report are sufficient to cause death of deceased. Dr.
Kesharkhane has given clear opinion that death of deceased Majid
Shaikh is homicidal death. The object of cause of injuries is sharp
and pointed weapon. Dr. Kesharkhane has given the opinion that
injuries sustained by deceased Majid Shaikh are possible by the
weapon Jambiya article A before the Court. Dr. Kesharkhane has
also given provisional certificate of cause of death which is at Exh.
171. Considering the evidence of medical officer Dr. Kesharkhane
and considering the postmortem report Exh.170 and provisional
cause of death certificate Exh.171 and considering the evidence of
PW­3 Sunil Shinde about the inquest panchanama Exh.49 I hold
that prosecution has proved beyond reasonable doubt that death of
Majid Shaikh is homicidal death. Accordingly, I answer point No.1
in the affirmative.

15. Point Nos.2 to 4 :­

APP for State submitted that in the present case there is
direct evidence against the accused. He submitted that PW­5
Toushif Shaikh is complainant and eye witness. PW­6 Soyab Shaikh
is also eye witness who has sustained the injuries at the time of
incident. PW­7 Imran Rode is also eye witness. PW­16 Ganesh More
 11 S.C.No.35/2010(J)

is also the independent eye witness. Thus, in the present case there
is direct evidence against the accused. Therefore, direct evidence
led by the prosecution needs to be discussed at this juncture.

16. PW­5 Toushiff Shaikh has deposed in his evidence at

Exh.54 that accused resides in his vicinity known as Azad Mohalla.
PW­5 Toushif along with his parents and his brother and his wife
jointly resides at Ashta. His brother Toushif used to drive truck
owned by their family. Their relations with accused are strained
since long period. Accused Salim and accused Samir were used to
give threats to them even then they did not file police complaint
against the accused.

17. It has further come in the evidence of PW­5 Toushif

Shaikh that on 11­07­2010 at 7.00 p.m. his brother had gone to
Chowk in front of Talathi Office (Chawadi) and he was present in his
house. He heard noise of quarrel from Chawadi chowk. PW­5
Toushif Shaikh rushed to Chawadi chowk to look the incident. He
heard from people that accused Salim and accused Samir quarreled
with his brother Soyab and his cousin brother Majid Shaikh and
assaulted them and people rescued them. PW­5 Toushif Shaikh
along his brother Soyab and cousin brother Majid Shaikh stood
waiting in that chowk for some time. Thereafter at 7.30 p.m. they
started to go to house through Mohalla road. When they reached
near the shop of Patwegar, accused Salim came running with
Jambiya and accused Samir and accused Hayatchand followed him
with sticks from their house. Accused Salim told his cousin brother
Majid that "Tuje Aaj Zinda Nahi Chodunga" and gave blows of
Jambiya on his neck and stomach. So also accused Salim gave blow
of Jambiya on the head of his brother Soyab. At that time, accused
 12 S.C.No.35/2010(J)

Samir and accused Hayatchand started beating his brother Soyab

and Majid with sticks. At that time PW­5 Toushif tried to interfere,
but accused Salim rushed towards him and brandished with his
weapon. PW­5 Toushif Shaikh frightened and went to his house by
running. He narrated the incident to his family members. While
returning to his home, he fell down and sustained injury on his face
near left eye.

18. It has further come in the evidence of PW­5 Toushif

Shaikh that he waited in his house for some time. Thereafter he
went near Chawadi chowk to see Soyab and Majid. He heard from
people that Soyab and Majid were taken to the hospital of Dr.
Kabade by people. He went to the hospital of Dr. Kabade. He heard
in the hospital that Majid Shaikh was serious and therefore, shifted
to Civil Hospital, Sangli. Soyab Shaikh was being treated in the said
hospital. PW­5 Toushif Shaikh remained in the hospital of Dr.
Kabade with Soyab. At that time, at 9.00 p.m. he came to know that
Majid Shaikh died. Then he went to Ashta police station and filed
FIR against the accused. PW­5 Toushif Shaikh has duly proved his
FIR Exh.55. PW­5 Toushif Shaikh has identified the seized Jambiya
which is before the Court. PW­5 Toushif Shaikh has also identified
two sticks before the Court.

19. From perusing the FIR Exh.55 it is seen that PW­5

Toushif Shaikh has lodged the FIR on 11­07­2010 at about 9.20 p.m.
From the recitals of FIR it is seen that the incident occurred on
11­07­2010 at about 7.30 p.m. Thus, FIR Exh.55 is lodged by PW­5
Toushif Shaikh within two hours from the incident. It is to be noted
that names of the accused are mentioned in FIR. The weapons
which were in the hands of accused at the time of incident are also
 13 S.C.No.35/2010(J)

mentioned in the FIR Exh.55. Names of witnesses are also

mentioned in the FIR. Name of the doctor who treated the injured
Soyab and deceased Majid is also mentioned in the FIR. Thus, in
the present case FIR Exh.55 is promptly lodged by PW­5 Toushif
Shaikh. There is no delay in lodging the FIR Exh.55. Version of PW­5
Toushif Shaikh is corroborated by his FIR Exh.55. In the FIR there is
also reference about the previous enmity between the family of the
informant and the accused. Thus, version of PW­5 Toushif Shaikh is
consistent with his FIR Exh.55.

20. PW­5 Toushif Shaikh has admitted in his cross

examination that Sessions Case No.19/2011 is pending against him,
his brother Soyab, his cousin brother deceased Majid, Ibrahim
Rode, Mohasin Shaikh and Samir Shaikh. Admittedly, Sessions Case
No.19/2011 pending against PW­5 Toushif Shaikh and above
referred persons for the offence punishable under Section 307, 326,
143, 147, 148, 149 and 504 of I.P.C. PW­5 Toushif Shaikh has also
admitted that accused no.2 Samir is complainant in Sessions Case
No.19/2011. Sessions Case No.19/2011 is counter case of this case.
PW­5 Toushif Shaikh has also admitted that police arrested him on
12­07­2010. Police also arrested other accused in Sessions Case No.
19/2011. PW­5 Toushif Shaikh has also admitted that case filed by
him against present accused and case filed against him and others
by accused No.2 Samir are in respect of the same incident occurred
at the same time and place on the same day of incident. PW­5
Toushif Shaikh has admitted in his cross examination that he alone
had gone to police station for filing the complaint. At that time,
there were bloodstains on his clothes. At the first he told the
incident to P.S.O. for about one hour to one hour and 15 minutes.
During this period his complaint was being reduced into writing as
 14 S.C.No.35/2010(J)

per his narration. He has also admitted that when injured Soyab
and Majid were taken to hospital, he was in home along with his
parents and sister in law. When he reached to the hospital of Dr.
Kabade one person from his lane was near Soyab. He was at
hospital till 9.00 p.m. and police did not come there during that
period. PW­5 Toushif Shaikh did not make inquiry with Soyab as to
who brought him to the hospital. PW­5 Toushif Shaikh did not
make inquiry as to names of persons who carried Soyab to the
hospital. PW­5 Toushif Shaikh has also admitted that nobody from
Majid's family had come to the hospital to see Soyab. Learned
advocate for the accused submitted that PW­5 Toushif Shaikh has
admitted in his cross examination that he does not know how
accused Salim sustained the injuries at the time of incident.
Learned advocate for the accused submitted that at the time of
incident accused Salim sustained the injuries. However, PW­5
Toushif Shaikh has not whispered in his evidence about the injuries
sustained by accused Salim. On the other hand, PW­5 Toushif
Shaikh has admitted that he does not know how accused Salim
sustained the injuries at the time of incident. Therefore, learned
advocate for the accused submitted that PW­5 Toushif Shaikh
should have given explanation about the injuries sustained by
accused Salim at the time of incident.

21. PW­5 Toushif Shaikh has admitted that he had not seen
the first incident of quarrel which occurred at 7.00 p.m. He inquired
about the said incident at 7.00 p.m. with Soyab and Majid. However,
PW­5 Toushif Shaikh does not know the cause of said quarrel. PW­5
Toushif Shaikh has also admitted that he had not seen clothes on
the person of Soyab and Majid Shaikh after incident at 7.00 p.m. in
torn condition. On the day of incident on the occasion of festival of
 15 S.C.No.35/2010(J)

fair there were police of Ashta Police Station at places for

maintaining law and order. He has also admitted that within area of
Chawadi chowk there is office of Talathi, temple of Maruti and one
Masjid. According to PW­5 Toushif Shaikh after the first incident of
7.00 p.m. there was discussion between him, Soyab and Majid for
lodging the report to police station. He told Soyab to lodge report to
police station about the first incident at 7.00 p.m. However, Majid
Shaikh and Soyab Shaikh told him that it was not necessary to
inform the police station about the said incident. PW­5 Toushif
Shaikh has further admitted that after the first incident people were
saying not to quarrel and do not stay at Chawadi Chowk. However,
Soyab and Majid were at Chawadi Chowk. According to PW­5
Toushif Shaikh there was no reason to stay at Chawadi Chowk after
the incident of 7.00 p.m. for Soyab and Majid. He has further
admitted that on the same day at about 9.40 p.m.to 10.00 p.m. he
along with police visited the spot of incident to show the spot of
incident.

22. According to PW­5 Toushif Shaikh when he saw

assailants from the distance of 30 ft. to 40 ft. he stopped there. Soyab
and Majid were ahead of him at that time. There was distance of 10
to 15 ft. between him and Soyab and Majid. PW­5 Toushif Shaikh,
Soyab and Majid were shouting when they saw assailants for first
time. They were trying to run away from the spot of incident, but
they could not run away. According to PW­5 Toushif Shaikh, Soyab
Shaikh and Majid Shaikh tried to run away from the side of the
accused. It has come on record during cross examination of PW­5
Toushif Shaikh that at the time of incident persons were near the
spot of incident, however, said persons could not come forward to
rescue them. PW­5 Toushif Shaikh has also admitted that at the time
 16 S.C.No.35/2010(J)

of lodging FIR, he did not state names of witnesses who have

witnessed the incident.

23. It has come on record during the cross examination of

PW­5 Toushif Shaikh that at the time of drawing the spot
panchanama there were blood stains at the distance of 4 ft. from the
shop of Patwegar. There was another large blood stains near the
shops namely Faruq and Saya. There were also blood stains on the
ramp of said shop of Faruq and Saya.

24. Learned advocate for the accused draws my attention to

the following admissions given by PW­5 Toushif Shaikh during his
cross examination.
"In his presence Majid did not try to ward off. PW­5 Toushif Shaikh
did not state before police on which side of neck there was assault
over Majid. According to PW­5 Toushif Shaikh he has stated before
police that there was assault over neck of Majid. PW­5 Toushif
Shaikh has admitted that there were repeated blows of weapon
namely Jambiya on the abdomen of Majid Shaikh which he had
seen. He had seen repeated blows of weapon on the neck of Majid
Shaikh. The incident of assault lasted within 2 to 3 minutes.
According to PW­5 Toushif Shaikh he was on the spot till completion
of assault"

25. Referring to the above admissions given by PW­5

Toushif Shaikh, learned advocate for the accused submitted that if
there were repeated blows of Jambiya on the abdomen of Majid
Shaikh, there must be more than one injuries on the abdomen of
Majid Shaikh. He also submitted that if there were repeated blows
of weapon on the neck of Majid Shaikh, there must be more than
 17 S.C.No.35/2010(J)

one injuries on the neck of Majid Shaikh. PW­5 Toushif Shaikh has
also admitted that assault by two sticks was constantly or
repeatedly. There was assault over Soyab Shaikh by stick. There was
assault by stick on the person of Soyab. There were forceful blows of
sticks on both the injured. Referring to the above admissions given
by PW­5 Toushif Shaikh, learned advocate for the accused
submitted that above version of PW­5 Toushif Shaikh is not
supported by medical evidence. PW­5 Toushif Shaikh has admitted
that Soyab was brought by many persons in the hospital of Dr.
Kabade, but he does not remember their names, however, those
persons were from their locality. Eight to 10 persona admitted
Soyab in the hospital. There was no talk between injured Soyab and
PW­5 Toushif Shaikh in the hospital. Till PW­5 Toushif Shaikh was
at the hospital of Dr. Kabade his parents did not come there. PW­5
Toushif Shaikh has also admitted that he does not remember who
carried injured Majid Shaikh to the hospital of Dr. Kabade from the
spot of incident and who carried him to hospital at Sangli. Learned
advocate Shri S. T. Jadhav for the accused submitted that as per the
version of PW­5 Toushif Shaikh at the time of incident due to fear he
was running to his house and at that time he fell and sustained the
injuries. However, PW­5 Toushif Shaikh has not brought his injury
certificate. Therefore, he submitted that there is no medical
evidence about the alleged injuries sustained by PW­5 Toushif
Shaikh while running to his house from the spot of incident.

26. PW­6 Soyab Sallauddin Shaikh is the material eye

witness in this case because he has sustained the injuries at the time
of incident. It has come in the evidence of PW­6 Soyab Shaikh vide
Exh.111 that he is having truck and he himself ply the said truck.
The accused are also doing the truck business. Due to the truck
 18 S.C.No.35/2010(J)

business they are in cross terms with the accused. Accused Salim
and accused Samir were threatening to kill and assault, however,
they were not paying attention to the said threats. From the above
evidence of PW­6 Soyab Shaikh the prosecution has brought on
record the motive of the accused. APP for State submitted that due
to truck business there was enmity between the family of the
accused and Soyab Shaikh and deceased Majid Shaikh. Thus, from
the evidence of PW­5 Toushif Shaikh as well as evidence of PW­6
Soyab Shaikh prosecution has brought on record the motive of the
accused. Due to the truck business there was enmity between
family of the accused and familyof Soyab Shaikh and Majid Shaikh.

27. It has further come in the evidence of PW­6 Soyab

Shaikh that on 11­07­2010 there was fair of Godess Bhavai at Ashta
and on the day of incident there was ceremony of "Lot" due to said
fair. On the day of incident he was at Chawadi Chowk to see the
said ceremony of "Lot". At that time, accused Salim and accused
Samir came there and they pushed and kicked Soyab from his
backside. At that time, his cousin brother Majid was present there.
When Majid Shaikh came to rescue Soyab Shaikh, accused Salim
Nadaf and Samir Nadaf threatened Majid Shaikh and assaulted
Majid Shaikh. However, persons gathered on the spot separated the
quarrel. Accused Samir and accused Salim threatened them to kill
today while returning to their house. Then accused Salim Nadaf
and accused Samir Nadaf returned to their house. According to
PW­6 Soyab Shaikh this incident occurred at about 7.00 p.m. at
Chawadi Chowk. His brother Toushif came at Chawadi Chowk
when he came to know about this incident of quarrel Then they
stopped at Chawadi Chowk for some time.
 19 S.C.No.35/2010(J)

28. It has further come in the evidence of PW­6 Soyab

Shaikh that on the day of incident at about 7.30 p.m. he along with
his brother Toushif and his cousin brother Majid were returning to
the house from Chawadi Chowk. When they came in front of shop
of Munir Patvegar, at that time, from Nadaf lane accused Samir
Nadaf and accused Salim Nadaf and their father Hayatchand Nadaf
came towards them with running. At that time, weapon namely
Jambiya was in the hand of accused Salim and accused Hayatchand
and accused Samir were holding sticks. Accused Salim Nadaf
assaulted him and Majid Shaikh by the weapon namely Jambiya.
Accused Salim Nadaf dealt a blow of Jambiya on the head of Soyab.
Salim Nadaf dealt a blow of weapon Jambiya on throat, chest and
abdomen of Majid Shaikh. Accused Hayatchand and Samir Nadaf
assaulted Soyab and Majid by sticks. It has further come in the
evidence of PW­6 Soyab Shaikhthat when his brother Toushif Shaikh
came to rescue him, accused Salim Nadaf rushed towards Toushif
with the weapon Jambiya. Therefore, due to fear Toushiff Shaikh
ran towards house. PW­6 Soyab Shaikh sustained the injuries and
he sat on the road. At the time of assaulting accused Salim was
threatening "Tuje Aj Jinda Nahi Chodunga". At the time of incident
Imran Rode and Salim Balechand Nadaf were in front of shop of
Patvegar. They came to rescue them. At that time, accused Salim
Nadaf assaulted Salim Balechand Nadaf by Jambiya. Accused
Hayatchand Nadaf and accused Samir Nadaf assaulted Salim
Balechand Nadaf by sticks. Salim Balechand Nadaf sustained the
injuries at the time of incident. Majid Shaikh sustained severe
injuries over his left portion of neck, on chest and on abdomen.
Then from their house his uncle Jiyauddin, cousin brother
Mohasinkhan came on the spot with running. At that time, accused
Salim Nadaf, Samir Nadaf and Hyatchand Nadaf ran away.
 20 S.C.No.35/2010(J)

29. It has further come in the evidence of PW­6 Soyab

Shaikh that then their family members took him, Majid and Salim
Balechand Nadaf to the hospital of Dr. Kabade. As per the advise of
Dr. Kabade Majid Shaikh was taken to the civil hospital, Sangli.
Majid Shaikh expired at Sangli during medical treatment. Dr.
Kabade treated Soyab and Salim Balechand Nadaf. PW­6 Soyab
Shaikh has identified the weapon namely Jambiya article A. He has
also identified the two sticks, which are at article B and C. Thus, as
per the version of PW­6 Soyab Shaikh at the time of incident
accused Salim dealt a blow of Jambiya on his head. Thus, PW­6
Soyab Shaikh sustained the injuries at the time of incident on his
head. Dr. Kabade treated Soyab Shaikh.

30. PW­6 Soyab Shaikh has admitted in his cross

examination that their business and business of the accused were
separate. They and accused never done the truck business jointly.
They were doing the work of transporting the sand through the
truck. PW­6 Soyab Shaikh has not stated before police about the
nature of enmity between them and the accused. He has also
admitted that they did not lodge report against accused for the said
enmity. According to PW­6 Soyab Shaikh 5 to 6 months prior to this
incident quarrel took place between them and the accused. Accused
and family of PW­6 Soyab Shaikh reside in the same locality at
Ashta. PW­6 Soyab Shaikh has admitted that on the day of incident
there was ceremony known as 'Lot” on account of fair of Bhavai
Diety. The said function was at every square at Ashta on that day
and at the time of function of "Lot" there used to be crowd of people
at each square. On the day of incident, in between 6.30 a.m. to 7.00
p.m. there was function of “Lot” at Ashta city. The function of “Lot”
 21 S.C.No.35/2010(J)

is part of village fair of diety known as Ambabai. He has also

admitted that due to the said function of “Lot”, there was crowd at
Chawadi Chowk. The said fair is of Hindu community. Admittedly,
accused and the complainant and other witnesses are of Muslim
community. According to PW­6 Soyab Shaikh this incident started
when the ceremony of “Lot” was going on. Said ceremony of “Lot”
lasted upto 7.00 p.m. to 7.15 p.m. Therefore, as usual there was
crowd of people to see said ceremony. Learned advocate for the
accused submitted that version of PW­6 Soyab Shaikh that both
the accused pushed and kicked him from his back side while he was
seeing ceremony of Lot is omission. PW­6 Soyab Shaikh has also
admitted that his cousin brother Majid Shaikh asked accused why
they pushed him, however, he did not come to know about cause of
alleged assault and pushing him at the time of first incident. PW­6
Soyab Shaikh has also admitted that he has not stated before police
the names of persons who came to rescue him, and his brother at
the time of first incident. He has also admitted that he personally
did not take seriously due to the alleged threats given by the
accused, though his brother Majid was saying to lodge the report to
police station about the alleged threats given by the accused. It has
further come on record through the cross examination of PW­6
Soyab Shaikh that he never became unconscious during the entire
incident. He did not rush to his house at the time of incident to
save himself. His uncle Jiyauddin took him to the hospital for
treatment. At the time of incident his cell phone was lost on the
spot of main incident. According to PW­6 Soyab Shaikh he himself,
his bother Majid and Salim Balechand Nadaf were taken together to
the hospital for treatment. They all were taken in the hospital at the
same time. According to PW­6 Soyab Shaikh Dr. Kabade examined
him at about 7.45 p.m. Dr. Kabade did not inquire with him about
 22 S.C.No.35/2010(J)

the injuries sustained by him as well as he did not tell to Dr.Kabade

about the injuries sustained by him. PW­6 Soyab Shaikh has also
admitted that he did not tell to his uncle to inform police. In his
statement recorded by police he did not tell anybody about this
incident. Police recorded his statement on 13­07­2010 in the
hospital of Dr. Kabade. PW­6 Soyab Shaikh was admitted in the
hospital of Dr. Kabade for 19 days. Thus, according to PW­6 his
uncle Jiyauddin and his cousin brother Mohasinkhan were with
them when he was admitted in the hospital after the incident. After
some time, his uncle Jiyauddin and his cousin brother
Mohasinkhan left the said hospital. Then PW­6 Soyab Shaikh alone
remained in the hospital of Dr. Kabade. His father, his wife Nilofar,
his mother Sajida had come to the hospital to see him. They were in
the hospital for one hour. Then they left the hospital and they
returned to the house. According to PW­6 Soyab Shaikh on that
night police did not come to him for inquiry. He has further
admitted that PW­5 Toushif Shaikh had come to the hospital at 8.45
p.m. Toushif Shaikh left the hospital at 9.10 p.m. During the said
period of 30 minutes Toushif was not examined by the doctor.
Discussion took place between him and PW­5 Toushif during the
said period of 30 minutes. Toushif Shaikh asked him how the
incident occurred. After leaving the hospital by PW­5 Toushif Shaikh
his three friends had come to the hospital at 11.30 p.m. for taking
him to the hospital at Sangli for C.T.scan test. They took him to Ved
Diagnosis Centre for CT Scan test. PW­6 Soyab Shaikh has also
admitted that crime NO.76/2010 is registered at Ashta police station
against him and his brother. He obtained anticipatory bail in
crime No.76/2010 registered at Ashta police station. On the 4th day
after obtaining anticipatory bail order, PW­6 Soyab Shaikh is
discharged from the hospital of Dr. Kabade. PW­6 Soyab Shaikh has
 23 S.C.No.35/2010(J)

further admitted that there was no previous quarrel between

deceased Majid and accused persons. When he saw assailants from
the distance of 20 ft. to 30 ft. he tried to run away. Majid Shaikh also
tried to run along with him towards Chawadi Chowk, however, at
that time, he and Majid did not shout. Toushif Shaik has also tried
to run away towards Chawadi Chowk. According to PW­6 Soyab
Shaikh it did not happen that assailants assaulted all of them at the
same time. According to PW­6 Soyab Shaikh assailants assaulted
them one after another. However, it did not happen that when
assailants assaulted one victim, the remaining two tried to run
away. According to PW­6 Soyab Shaikh assailants assaulted him
first. He sustained the injuries on whole body by blows of sticks.
Assailants were assaulting him by stick with force. Assault over him
by stick blow lasted for much time. PW­6 Soyab Shaikh did not
sustain blow of stick over his head. Learned advocate for the
accused submitted that PW­6 Soyab Shaikh has admitted in his
cross examination that assailants assaulted him by sticks with
force. He sustained the injuries on whole body by blow of stick.
However, there is no medical evidence about the injuries sustained
by PW­6 Soyab Shaikh by blow of stick. Dr. Kabade has not
whispered in his evidence about the injuries sustained by PW­6
Soyab Shaikh by blow of stick. Therefore, the learned advocate for
the accused submitted that evidence of PW­6 Soyab Shaikh about
the injuries sustained by him by blow of stick is not at all
corroborated by medical evidence. Therefore, the learned
advocate for the accused submitted that in the present case medical
evidence is not at all corroborating the by version of PW­6 Soyab
Shaikh about the injuries sustained by him on his whole body by
blows of stick. APP for State submitted that when there is conflict
between the direct evidence and medical evidence, direct evidence
 24 S.C.No.35/2010(J)

of witness will prevail.

31. PW­6 Soyab Shaikh has admitted during cross

examination that he did not explain to police while recording his
statement how accused Salim sustained the injuries. He has also
admitted that he has not stated before police that assailants
assaulted him when his brother Toushif ran away. According to
PW­6 Soyab Shaikh it did not happen that at one and same time
there was assault over him and deceased Majid. PW­6 Soyab Shaikh
cannot assign any reason how police recorded portion marked B in
his statement before police which is at Exh.194. Referring to the
above admissions given by PW­6 Soyab Shaikh , learned advocate
for the accused submitted that sequence of incident narrated by
PW­5 Toushif Shaikh and sequence of incident narrated by PW­6
Soyab is not same. Their version about sequence of occurrence of
incident are not consistent with each other. APP for State submitted
that this incident occurred at Chawadi Chowk. There was
admittedly crowd of people due to function of Lot (fair). PW­6
Soyab Shaikh has categorically deposed in his evidence about
assault over him and about assault over Majid Shaikh. Therefore, he
submitted that alleged contradiction Exh.94 is not a material
contradiction which does not create suspicion about the version of
PW­6 Soyab Shaikh.

32. Learned advocate for the accused draws my attention to

the following admissions given by PW­6 Soyab Shaikh during his
cross examination.

"Through out the entire incident deceased Majid was on the spot in
front of shop of Patvegar and from the said spot he was taken to the
 25 S.C.No.35/2010(J)

hospital from the said place. Sequence of incident stated by me

before police and sequence of incident stated by me in
examination in chief and sequence of incident stated by me during
cross examination is true. I had seen 3 to 4 blows on the throat of
Majid. I have seen one blow on the chest of Majid. I have not seen
more than one blow on the chest of Majid. There were no
successive blows on the body of Majid. Assailants were assaulting
Majid forcefully by stick blow. I cannot say details of stab injuries
and cut injuries on the body of Majid. Till today I am not aware
whether there were such a blood stains or pool of blood opposite to
Faruk Gadi Centre”.

Referring to the above admissions given by PW­6 Soyab Shaikh,

learned advocate for the accused submitted that as per the above
admissions given by PW­6 Soyab Shaikh there is no medical
evidence about the injuries sustained by Majid Shaikh. Learned
advocate for the accused submitted that version of PW­6 Soyab
Shaikh that accused Salim dealt a blow of Jambiya on the throat of
Majid is also a omission which amounts to contradiction".

33. During the cross examination of PW­6 Soyab Shaikh

suggestion is put to him that deceased Majid was assaulting
accused No.1 by Jambiya and in scuffle Majid sustained the injury,
however, PW­6 Soyab Shaikh has denied above suggestion.
However, from the above suggestion put to PW­6 Soyab Shaikh by
defence, it is seen that defence of the accused is that Majid Shaikh
sustained the injuries in a scuffle while Majid was assaulting
accused No.1 Salim Nadaf by Jambiya. Therefore, APP for State
submitted that presence of accused Salim and accused Samir on the
spot of incident is not denied by the accused. From the trend of
 26 S.C.No.35/2010(J)

cross examination of PW­5 Toushif Shaikh and PW­6 Soyab Shaikh it

is seen that defence of the accused is that Majid was assaulting
accused No.1 by Jambiya and in scuffle Majid sustained the injuries.
Therefore, APP for State submitted that in the present case
admittedly there are counter cases and as per the defence of the
accused the presence of the accused Nos.1 and 2 at the time of
incident is not denied by the accused.

34. PW­7 Imran Rode is eye witness of the incident. It has

come in the evidence of PW­7 Imran at Exh.122 that on 11­07­2010
at Ashta there was fair of Bhavai and at that time there was function
of "Lot". As there were people in front of his shop, he had closed the
shop on that day. Imran Rode is doing the work of repairing mobile
hand set at Ashta and his said shop is near Hanuman temple in
front of Chawadi Chowk, Ashta. On the day of incident at 7.00 p.m.
function of "Lot" was completed. On the day of incident at about
7.30 p.m. PW­7 Imran Rode along with his friend Salim Balechand
Nadaf had gone to the pan shop of Munir Patvegar for eating leaf.
Patvegar was preparing the leaf. At that time from Chawadi Chowk
Majid Shaikh, Soyab Shaikh and Toushif Shaikh were going to their
house by walking. They had come in front of Patvegar pan shop. At
that time, Hayatchand Nadaf, Salim Nadaf and Samir Nadaf who
reside in Nadaf lane rushed from side of Patvegar pan shop. At that
time, accused Salim Nadaf was holding weapon namely Jambiya
and Samir Nadaf and Hayatchand Nadaf were holding the sticks and
by those weapons they assaulted PW­6 Soyab Shaikh and Majid
Shaikh. At that time Toushif Shaikh went to rescue them. At that
time, accused Salim Nadaf tried to assault by the weapon namely
Jambiya. At that time, Toushif Shaikh ran towards his house. When
accused Salim Nadaf was assaulting Majid Shaikh, Salim shouted,
 27 S.C.No.35/2010(J)

"Mai Aj Tuje Jinda Nahi Chodunga". At that time, PW­7 Imran along
with his friend Salim Balechand Nadaf went to rescue them. At that
time, accused Salim Nadaf, Samir Nadaf and Hayatchand Nadaf
assaulted Salim Balechand Nadaf and caused serious injuries. Majid
Shaikh was seriously injured and he was lying on the foundation
(Katta) which is in front of Faruk Gadi Centre. Majid Shaikh
sustained the injuries on his neck (Man), chest and abdomen.
Soyab Shaikh sustained the serious injury over his head.
Meanwhile, Jiyauddin Shaikh and Mohasinkhan Shaikh rushed to
the spot of incident from their house and accused Salim Nadaf,
Samir Nadaf and Hayatchand Nadaf ran away from the spot. It has
further come in the evidence of PW­7 Imran that then they took
injured Majid Shaikh and Soyab Shaikh and Salim Balechand Nadaf
in the hospital of Dr. Kabade for treatment. Dr. Kabade admitted
Soyab Shaikh, however, Dr. Kabade referred Majid to Government
Hospital at Sangli as Majid was seriously injured. Then PW­7 Imran
Rode came to know about the death of Majid Shaikh in Sangli. PW­7
Imran Rode identified the weapon namely Jambiya and article sticks
before the Court. According to PW­7 Imran Rode Hayatchand Nadaf
is expired.

35. Thus, during examination in chief PW­7 Imran Rode

has supported the prosecution case, however, during his cross
examination PW­7 Imran Rode has admitted that on 11­07­2010 at
about 7.00 p.m. to 7.30 p.m. he was at his shop and his shop was
open. He was discussing with his customers in his shop at about
7.30 p.m. Then he heard shouts and as people were running he
came outside the shop. He saw that Majid and Soyab were lying in
injured condition. He only saw Majid and Soyab who were lying in
injured condition. PW­7 Imran Rode has admitted in his cross
 28 S.C.No.35/2010(J)

examination that he does not know how the incident occurred.

According to him after the incident he went to the hospital and
police arrested him and took him to police station. He has further
admitted that police did not record his statement during
investigation and he did not state before police about this incident.
Thus, during cross examination PW­7 Imran Rode has denied the
fact that he has seen the incident while accused assaulted Majid
Shaikh and Soyab Shaikh. Therefore, APP for State filed an
application Exh.127 for permission to cross examine witness Imran
Rode after the cross examination of Imran Rode by defence counsel.
The said application Exh.127 filed by APP for State for cross
examination of witness Imran Rode is allowed and during cross
examination by APP for State PW­7 Imran Rode has admitted that
Sessions Case No.19/2011 is pending against him and others.
Accused No.2 Samir before the Court is complainant in Sessions
Case No.19/2011. Incident of this sessions case and incident of
Sessions Case No.19/2011 are arising out of the same incident. PW­7
Imran Rode has further admitted in his cross examination by APP
for State that he is selected as police constable on 17th June 2014.
He is under impression that pendency of Sessions Case No.19/2011
is an obstruction in his appointment as police constable. In
Sessions Case No.19/2011 he must be acquitted for his appointment
as police constable. PW­7 Imran Rode has further admitted that in
Sessions Case No.19/2011 both the accused deposed before the
Court on oath that he did not assault them. However, he has denied
that both the accused gave evidence in his favour in Sessions Case
No.19/2011 on condition that he will not depose against accused in
this case. Referring to the above admissions given by PW­7 Imran
Rode during his cross examination learned APP for State submitted
that examination in chief of PW­7 Imran Rode is recorded on
 29 S.C.No.35/2010(J)

5­05­2014. Then accused filed application Exh.123 for adjournment

and sought time to cross examine PW­7 Imran Rode. APP for State
submitted that after recording examination in chief on 5­05­2014
PW­7 Imran Rode is selected as police constable on 17­06­2014 and
he is under impression that in Sessions Case No.19/2011 he must be
acquitted for his appointment as police constable. APP for State
further submitted that as both the accused deposed in Session Case
No.19/2011 that PW­7 Imran Rode did not assault them, he is not
supporting the prosecution during his cross examination by
defence counsel. However, PW­7 Imran Rode has admitted in his
cross examination that he saw Majid in injured condition on the
spot of incident. He has also admitted that whatever he deposed
on 5th May, 2014 during his examination in chief, is deposed by him
on oath after taking oath. He has also admitted that after taking
oath it is necessary to depose true facts before the Court. PW­7
Imran Rode has also admitted that at the time of giving evidence in
this case on 5th May 2014 there was no pressure of anybody to give
evidence in such a way. Referring to the above admissions given by
PW­7 Imran Rode APP for State submitted that though PW­7 Imran
Rode has given admissions in his cross examination by defence
counsel that he has not seen the incident, his evidence i.e. in
examination in chief recorded on 5th May 2014 can be relied and
his entire evidence cannot be discarded only on the ground that he
turned hostile during his cross examination by defence counsel.

36. PW­16 Ganesh Shankar More is the eye witness of the

incident. It has come in his evidence that Aiyaj Najruddin Latif
resides at Azad Moyhalla, Ashta. Aiyaj Latif is his friend and also
friend of Diwakar Gade. Parental house of wife of Aiyaj Latif is
Karad. Therefore, Aiyaj Latif used to come to their house and he
 30 S.C.No.35/2010(J)

and Diwakar Gade used to go to the house of Aiyaj Latif. Therefore,

he and Diwakar Gade know the persons who reside near the house
of Aiyaj Latif at Ashta. On 10­07­2010 Diwakar Gade told PW­16
Ganesh More that he received phone call of Aiyaj Latif and Aiyaj
Latif called them to come to Ashta on occasion of fair of Bhavai.
Then on 11­07­2010 at about 11.00 a.m. he and Diwakar Gade went
to the house of Aiyaj Latif at Ashta. He and Diwakar Gade took
lunch on 11­07­2010 at 12.00 noon at the house of Aiyaj Latif. Then
on that day they moved in the said fair at Ashta. He and Diwakar
Gade were at Chawadi Chowk on 11­07­2010 by 6.00 p.m. to see the
ceremony of "Lot".

37. It has further come in the evidence of PW­16 Ganesh

More that he and Diwakar Gade saw the said ceremony of "Lot".
They decided to stop at Chawadi Chowk Ashta till 8.00 p.m.
because Aiyaj Latif was returning to house from his work of fire
brigade. At about 7.30 p.m. Majid Shaikh, Soyab Shaikh and Toushif
Shaikh met them. They asked them whether they have taken the
dinner and they were going to their house towards Azad Mohalla.
Diwakar Gade told them that they will take dinner after returning
Aiyaj Latif to his house. At that time, from Nadaf lane Salim Nadaf,
Samir Nadaf and Hayatchand Nadaf rushed there. At that time,
Salim Nadaf was holding Jambiya and Samir Nadaf and Hayatchand
Nadaf were holding sticks. At that time, Salim Nadaf assaulted
Majid Shaikh and Soyab Shaikh by Jambiya. Samir Nadaf and
Hayatchand Nadaf assaulted by sticks Majid Shaikh and Soyab
Shaikh. At that time, accused Salim Nadaf was shouting, "Mai Tuje
Aj Jinda Nahi Chodunga". Toushif Shaikh came to rescue them. At
that time, Salim Nadaf went towards Toushif Shaikh by the weapon
Jambiya. Therefore, Toushif Shaikh ran away towards his house.
 31 S.C.No.35/2010(J)

Imran Rode and Salim Balechand Nadaf were at pan stall and they
also came to rescue them. At that time, Salim Nadaf, Samir Nadaf
and Hayatchand Nadaf assaulted Salim Balechand Nadaf. Salim
Nadaf assaulted Salim Balechand Nadaf by Jambiya, and Samir
Nadaf and Hayatchand Nadaf assaulted Salim Balechand Nadaf by
sticks. Salim Balechand Nadaf sustained the injuries. Meanwhile
from the house of Majid his family members rushed on the spot.
Then Salim Hayatchand Nadaf, Samir Nadaf and Hayatchand Nadaf
ran away from the spot. It has further come in the evidence of
PW­16 Ganesh More that Majid sustained serious injuries over his
chest, neck and abdomen. Soyab also sustained the injuries . Family
members of Majid took three injured to the hospital. Then he and
Diwakar Gade went to the house of Aiyaj Latif and they took the
dinner. Then they came to know at night that Majid Shaikh expired
in the hospital at Sangli. Ganesh More has identified Jambiya article
A and he has also identified the sticks article B and C before the
Court.

38. PW­16 Ganesh More has admitted in his cross

examination that he has no documentary evidence in the form of
photographs, invitation card etc. for showing his friendly relations
with Aiyaj Latif. He has also admitted that police did not verify or
confirm his friendly relations with Aiyaj Latif. After the incident,
PW­16 Ganesh More did not call Aiyaj Latif on the spot of incident.
He has also admitted that he does not know house of the accused.
He as well as Diwakar Gade and accused never done business
together as well as they both are not visiting terms with the accused.
It has further come in his cross examination that on the day of
incident at about 7.00 p.m. in his presence quarrel took place at
Chawadi Chowk Ashta. Police did not inquire with him while
 32 S.C.No.35/2010(J)

recording his statement as to what happened in between 6.00 p.m.

to 8.00 p.m. on the day of incident. As per his statement before
police, there is reference of only one incident in between 6.00 p.m.
to 8.00 p.m. at Chawadi Chowk, Ashta. Therefore, learned advocate
for the accused submitted that PW­16 Ganesh More is silent in his
evidence about the incident which occurred at 7.00 p.m. on the day
of incident. PW­16 Ganesh More did not assist family members of
injured, while they were taking injured from the spot of incident.
He did not tell names of assailants to family members of injured
while they were taking injured from the spot of incident. No talk
took place between him and said family members of injured.
Neither he asked them, nor they told him where they are taking
injured witnesses. Thus, PW­16 Ganesh More has admitted that
today he feel that his statement before police is incomplete because
in his statement before police there is no reference about quarrel
which took place at 7.00 p.m. at Chawadi Chowk, Ashta.

39. PW­16 Ganesh More has admitted that he did not

explain about the injuries on the person of accused No.1 Salim at
the time of incident. He cannot explain about the injuries on the
person of accused No.1. Learned advocate for the accused
submitted that accused No.1 Salim sustained the injuries over his
right thigh at the time of incident. However, PW­16 Ganesh More is
totally silent about the injuries sustained by accused No.1 Salim
Nadaf. However, he has admitted in his cross examination that he
did not see injuries on the person of accused No.1 at the time of
incident. Therefore, learned advocate for the accused submitted
that as witness Ganesh More is not whispering in his evidence
about the injuries sustained by accused No.1 his version about the
incident is totally doubtful and no reliance can be placed on the
 33 S.C.No.35/2010(J)

testimony of PW­16 Ganesh More.

40. It has come on record during the cross examination of

PW­16 Ganesh More that two assailants were assaulting two injured
by sticks with force. Assailants assaulted on the head, back, hands
and legs of two injured. Assailants were assaulting by sticks
continuously. Two injured were not resisting and they were sitting
in squatting position to protect them. PW­16 Ganesh More and
Diwakar Gadel did not shout nor they both tired to intervene the
quarrel, nor they both inform Aiyaj Nadaf, nor family members of
injured on cell phone. The incident of beating by sticks lasted 10
minutes. While beating by sticks both the injured fell down and till
then assailants were beating injured. Both the injured were
shouting at the time of incident. First assault was by weapon
namely Jambiya on the injured.At the time of recording his
statement weapon was not shown to him. According to PW­16
Ganesh More there were 2 to 3 opportunities to dealt a blow of said
weapon (Jambiya). PW­16 Ganesh More has also admitted that he
did not see injuries on the person of Toushif Shaikh at the time of
incident. Learned advocate for the accused submitted that
admissions given by PW­16 Ganesh More that injured fell down on
the spot of incident and they did not fall at any other place where
there were no blood stains from the spot of incident. According to
PW­16 Ganesh More the injured fell down on the spot of incident
and they did not fall at any other place where there were no
bloodstains from the spot of incident. According to PW­16 Ganesh
More incident began and ended on the said spot and injured were
lifted from the said spot. He did not see the injured went from the
spot of incident. Learned advocate for the accused submitted that
there was pool of blood on the Katta which is in front of Faruk Gadi
 34 S.C.No.35/2010(J)

Centre. However, witness PW­16 Ganesh More has admitted that

the injured did not fall at any other place where there were no blood
stains from the spot of incident. However, witness Imran Rode has
deposed in his evidence that Majid was seriously injured and he was
lying on a stone foundation (Katta) which is in front of Faruk Gadi
Centre. Learned advocate Shri S.T. Jadhav for the accused
submitted that witness Ganesh More is not residing at Ashta. His
native place is Karad. His presence on the spot of incident at the
time of incident is totally doubtful. The prosecution should have
examined Aiyaj Latif who is alleged to be the friend of Ganesh More,
however, prosecution has not examined Aiyaj Latif. Therefore, he
submitted that in absence of evidence of Aiyj Latif, the version of
PW­16 Ganesh More that he is friend of Aiyaj Latif and he and
Diwakar Gade had come to Ashta on the day of incident as per the
invitation of Aiyaj Latif for the fair of Bhavai at Ashta cannot be
accepted.

41. For proving the injuries sustained by Majid Shaikh at

the time of incident prosecution has examined medical officer Dr.
Milind Mahadeo Kesarkhane at Exh.169. Evidence of Dr.
Kesharkhane is already discussed by me while deciding the point
No.1. Dr. Kesharkhane has deposed in his evidence about five
external injuries which he noticed on the dead body of Majid
Shaikh. He has also deposed in his evidence about the injuries
which he noticed on internal examination of dead body of Majid.
According to Dr. Kesharkhane all the five external injuries are ante­
mortem injuries. Thus, autopsy report Exh.170 gives the details of
external injuries and injuries which are noticed by Dr. Kesarkhane
at the time of internal examination. According to Dr. Kesharkhane
cause of death of deceased Majid is hemorrhagic shock due to
 35 S.C.No.35/2010(J)

injuries to chest. It is to be noted that Dr. Kesharkhane has given

clear opinion that injuries sustained by deceased Majid are possible
by the weapon article A i.e. Jambiya which is shown to him.

42. Dr Kesharkhane has admitted in his cross examination

that two stab injuries mentioned at Sr.Nos.1 and 2 in column No.17
of postmortem report are possible by sharp cutting pointed weapon
and injury mentioned at Sr. Nos.3, 4 and 5 are possible by linear
weapon with blunt edge. Dr. Kesharkhane has admitted that by
examining five injuries mentioned in para No.17 of postmortem
report he cannot say whether the said injuries are possible by single
weapon or those injuries were possible by two weapons. It has
brought on record during the cross examination of Dr. Kesharkhane
that dimension of stab injury can give idea about the weapon
causing said stab injury. Length and width of the injury can be
measured on the basis of length and width of the weapon. The
length and width of the injury approximately tallies with length and
width of the weapon which is inside the body. The width of the
injury may be bigger than width of weapon. According to Dr.
Kesharkhane length of top of sharp portion of blade article A is 8
c.m. and width of sharp portion is 3 c.m. The depth of stab injuries
mentioned at Sr.Nos.1 and 2 in column No.17 of autopsy report is 8
c.m.The width of above referred injury Nos.1 and 2 is 1 c.m. Width of
injury nos. 3 and 4 is 1 c.m. and width of injury No.5 is 0.05 c.m.
According to Dr. Kesharkhane width of injury Nos.1 to 5 is
minimum than the width of the weapon article A shown to him.
Referring to the above admissions given by Dr. Kesharkhane learned
advocate for the accused vehemently submitted that as width of
injury Nos.1 to 5 mentioned in autopsy report is minimum than the
width of the weapon article A, the injuries sustained by Majid
 36 S.C.No.35/2010(J)

cannot be said to be caused by weapon Jambiya article A. Dr

Kesharkhane has also admitted in his cross examination that the
stab injuries mentioned at Sr. Nos.1 and 2 are not on fatty portion of
the body. He has denied that in case of injury on fatty portion of the
body, injury will get contracted. Contraction of injury is possible
when it is on muscle part of body. Dr. Kesrharkhane has admitted
that he has not used magnifying glass while examining the dead
body.

43. It has also come on record during cross examination of

Dr. Kesharkhane that incise wound and stab wounds are possible
due to sharp and scissor edge of the weapon Article A. Due to stab
of article A there will be no clean cut margin injury. Learned
advocate for the accused draws my attention to the following
admissions given by Dr. Kesharkhane. and he submitted that life of
Majid Shaikh could be saved if PW­12 Dr. M.N. Kabade had
immediately treated Majid Shaikh before sending Majid Shaikh to
civil hospital, Sangli. He draws my attention to following
admissions given by Dr. Kesharkhane in his cross examination.

"Injury to lung can be operated and life of patient can be saved. If

the doctor has dignoised properly and if sufficient operative system
is available the patient can be saved by operating about injury to
lung. To avoid damage to the lungs it was necessary to pump out
the blood accumulated in thorax cavity. Radiological examination is
necessary to dignoise about injury to lung. Radiological
examination was necessary to dignoise internal injuries of this
patient. Accumulated blood in thorax cavity may cause obstruction
to breathing system and it may result the patient will go in coma.
Loss of blood and oxygen to nervous system results into death and
 37 S.C.No.35/2010(J)

is caused due to accumulation of blood in thorax. According to Dr.

Kesharkhane blood accumulated in thorax cavity is not removed, it
may cause death. Thoracotomy tube needs to be inserted for
removing accumulated blood. Removing of accumulated blood is
necessary which will protect the life. In the present case, he did not
find stitches over external injuries. He also did not notice whether
Thoracotomy is used for removing accumulated blood at thorax
cavity".

44. Referring to the above admissions given by Dr.

Kesharkhane, learned advocate for the accused submitted that if the
blood accumulated at thorax cavity is removed either by Dr. Kabade
or by medical officer at Civil Hospital, Sangli, the life of Majid
Shaikh could be saved. Therefore, he submitted that in the present
case Dr. Kabade as well as medical officer who treated Majid at civil
hospital, Sangli could have saved life of Majid, if said doctors
dignoised properly and if they had removed accumulated blood at
thorax cavity.

45. According to Dr. Kesharkhane hemorrhagic shock

mentioned in autopsy report Exh.170 relates to accumulation of
blood in thorax cavity. If at earlier stage necessary precaution and
treatment are taken the patient could be survived. Delay and
negligence on the part of any person in connection with this injured
would be resulted into the death. Therefore, learned advocate for
the accused submitted that there is delay and negligence on the
part of Dr.Kesharkhane as well as concerned medical officer at Civil
Hospital while treating injured Majid and they could save life of
Majid if at earlier stage they dignoised properly and if they had
removed the accumulated blood in thorax cavity. However, APP for
 38 S.C.No.35/2010(J)

State submitted that as condition of Majid was serious Dr. Kabade

immediately referred him to Civil Hospital, Sangli without treating
him. He also submitted that as soon as Majid Shaikh was admitted
in the Civil Hospital, Sangli Majid was expired.

46. Dr. Kesharkhane has admitted in his cross examination

that injury Nos.1 to 5 mentioned in Exh.170 may be possible in
scuffle. The said injuries are not located at one and the same place.
He has also admitted that in the present case there is no possibility
of instant death. Referring to the above admissions given by Dr.
Kesharkhane, learned advocate for the accused submitted that it is
the defence of the accused that deceased Majid was holding
weapon namely Jambiya and he assaulted accused No.1 Salim by
said weapon and accused No.1 sustained injury over his right thigh.
It is also defence of the accused that in scuffle Majid sustained
injuries by the weapon in his hand. APP for State submitted that Dr.
Kesharkhane has given the opinion that injury Nos.1 to 5 may be
possible in a scuffle, however, he has not given opinion that the said
injuries are self inflected injuries. Therefore, APP for State
submitted that in the present case considering the serious nature of
injury Nos.1 to 5 sustained by deceased Majid, the said injuries are
not at all possible to be sustained by Majid Shaikh due to the
weapon in his hand and said injuries are not self inflected injuries.

47. The prosecution has examined Dr. M. N. Kabade at Exh.

147 for proving the injuries sustained by PW­6 Soyab Shaikh.
Evidence of Dr. M. N.Kabade is at Exh.147. It has come in the
evidence of Dr. Kabade that his education qualification is M.S.
General surgeon. Name of his hospital is Krishnamai Hospital,
Astha. On 11­07­2010 at 8.00 p.m. two patients came to his hospital.
 39 S.C.No.35/2010(J)

Their names are Majid Shaikh and Soyab Shaikh. Along with them
there was mob. Soyab narrated the history about the riot at Ashta.
Majid was unconscious. Majid Shaikh sustained multiple injuries
and his pulse and B.P. was not recordable. As he was serious patient,
Dr. Kabade referred him to civil hospital, Sangli immediately.

48. It has further come in the evidence of Dr. Kabade that

Soyab Shaikh was conscious and well oriented. His pulse and B.P.
was normal. Soyab Shaikh sustained the injury over left side of the
head parietal occipital region size 4.1/2 inch long and 1/4th inch
bone deep. It was bleeding and cut injury. It was incise wound.
The probable cause of injury is by any sharp object. It was fresh
injury. Dr. Kabade admitted Soyab in his hospital. Under local
anesthesia he sutured head injury.Dr. Kabade carried C.T.Scan test.
C.T.Scan test shows cerebral odema. Dr. Kabade treated Soyab
Shaikh accordingly. On 30­07­2010 Soyab Shaikh was discharged
from his hospital. Dr. Kabade issued injury certificate to Soyab
Shaikh. Dr. Kabade has proved the said injury certificate Exh.148.
Thus, injury sustained by PW­6 Soyab Shaikh is proved by the
prosecution by examining Dr. Kabade and by proving injury
certificate Exh.148.

49. Learned advocate for the accused submitted that Dr.

Kabade has not produced case papers of PW­6 Soyab Shaikh. Dr.
Kabade did not hand over the case papers to police. Dr. Kabade has
admitted that now he has no documentary evidence to show that
Soyab Shaikh had come to his hospital for medical treatment on
11­07­2010. There is no endorsement on injury certificate Exh.148
that it is prepared as per the case papers of Soyab Shaikh.
According to Dr. Kabade many patients used to visit his hospital and
 40 S.C.No.35/2010(J)

therefore he has not preserved the case papers of the patients. Dr.
Kabade did not inform Ashta police station before destroying M.L.C.
case paper of this patient. Thus, Dr. Kabade has admitted that now
he has no documentary evidence about diagnosis of this patient as
well as treatment given to this patient. Dr. Kabade has also
admitted that on 11­07­2010 in between 7.30 p.m. to 8.00 p.m. Salim
Nadaf had come to his hospital. As condition of Salim Nadaf was
serious he referred him to Mission Hospital, Miraj for further
treatment. Salim Nadaf has sustained incise wound on his thigh.
Dr. Kabade has admitted that injury certificate Exh.148 is in his
hand writing. More than 50 to 100 persons were along with injured
Soyab Shaikh. Name of any person who brought this patient to his
hospital is not noted at any where in his hospital. Dr. Kabade has
admitted that on the very day police did not visit his hospital.
According to Dr. Kabade condition of Soyab was not serious when
he was admitted in his hospital. Soyab has not voluntarily disclosed
the names of assailants to him. According to Dr. Kabade for
ascertaining cerebral odema C.T.scan test is necessary. In the
hospital of Dr. Kabade C.T.Scan test is not available. C.T.Scan
report along with relevant prints or papers are very relevant and
important and they are not produced by Dr. Kabade before police.
According to Dr. Kabade it is not his responsibility to preserve the
said papers of C.T.scan test. Except injury on parietal occipital
region no other injury is noticed by him on the person of Soyab
Shaikh. According to Dr. Kabade injury of Soyab is simple injury.
Such type of injury is possible during scuffle. Dr. Kabade has
further admitted that in case of injury due to weapon like scythe,
injury will be grievous injury. In case of blow of stick, there will be
wheel marks on the body of concerned patient. In case of Soyab
Shaikh, Dr. Kabade did not notice wheel marks on the body of Soyb.
 41 S.C.No.35/2010(J)

In case of injury by fist blows with force there will be tenderness and
contusions and which are visible. Dr. Kabade did not notice such
type of tenderness or contusions in case of Soyab. Referring to the
above admissions given by Dr. Kabade, learned advocate for the
accused submitted that version of Soyab that he sustained the
injuries due to blow of sticks and accused Samir and accused
Hayatchand Nadaf assaulted him by stick is not corroborated by
medical evidence on record. Dr. Kabade did not notice any wheel
marks on the body of Soyab. Learned advocate for the accused
submitted that in the present case evidence of Soyab about assault
over him by accused No.2 and deceased accused Hayatchand is not
at all corroborated by the medical evidence on record.

50. Prosecution has examined PW­11 Murad Abdul

Rahiman Landge at Exh.140 for proving the extra judicial confession
given by accused No.1. It has come in the evidence of PW­11 Murad
Landge that he is doing the job of agent at R.T.O. Sangli. Three
months prior to the incident accused Salim Nadaf had purchased
old goods carrier truck. Accused Salim asked PW­11 Murad Landge
to do the work of transfer of said second hand truck in his name in
R.T.O. record. Accordingly, PW­11 Murad Landge has done the work
of accused No.1 to transfer the said vehicle in his name. Due to said
work, accused Salim became his friend. During the relevant period
of said incident accused No.1 sold the said second hand truck and
accused no.1 purchased another second hand truck. Seven days
prior to the incident PW­11 Murad Landge received cell phone call
of accused Salim Nadaf and he talked with him to transfer his
another second hand truck which was purchased by him.

51. On 13­07­2010 at 9.45 a.m. he received phone call of

 42 S.C.No.35/2010(J)

Salim Nadaf. Accused No.1 asked him within how many days
another second hand truck purchased by him will be transferred in
his name. Accused No.1 also told him that he was admitted in
Mission Hospital, Miraj. Then PW­11 Murad Landge went to
Mission Hospital, Miraj to meet accused No.1. He met accused No.1
in Mission Hospital, Miraj and asked him why he is admitted in
Mission Hospital and what happened. Accused No.1 told PW­11
Murad Landge that Majid Shaikh and Soyab Shaikh resident of
Ashta are arrogant (Masti Ale Ahe). He further told him that they
are making hurdles in his truck business. Accused No.1 further told
him that for the same reason on previous night he and his brother
Samir and his father Hayatchnad assaulted Majid and Soyab by
weapon namely Jambiya and sticks. Accused No.1 further told him
that in the said incident they killed Majid. Accused No.1 further told
him that then they will kill other three persons in their family. At
that time, PW­11 Murad Landge convinced accused No.1 why he
quarreled and in the said quarrel there is his damage also. APP for
State submitted that through the evidence of PW­11 Murad Landge.
the prosecution has brought on record evidence about extra
judicial confession given by accused No.1 about this incident.

52. Learned advocate for the accused submitted that

evidence of PW­11 Murad Landge is not reliable and he is got up
witness. Defence has produced the voters list of witness PW­11
Murad Landge at Exh.145. PW­11 Murad Landge has denied that
parental house of his wife is at Ashta. PW­11 Murad Landge has
admitted in his cross examination that each customer who comes in
his contact in the business cannot become his friend. Accused No.1
is not his relative. He and accused No.1 have not done any business
jointly. Except bare words of PW­11 Murad Landge there is no other
 43 S.C.No.35/2010(J)

evidence to prove that there were friendly relations with him and
accused No.1. Learned advocate for the accused submitted that
PW­11 Murad Landge has not produced any documentary evidence
about the work of accused No.1 done by him for transferring the
vehicle in the name of accused No.1. During cross examination of
PW­11 Murad Landge question was put to him by defence whether
your nature is to assist the friend or to bring him in trouble. PW­11
Murad Landge replied that he cannot answer in yes or no form the
above question. Suggestions are put to PW­11 Murad Landge
during his cross examination that his wife is aunt of Majid, however,
PW­11 Murad Landge has denied all the said suggestions put to him
about his alleged relations with deceased Majid Shaikh.

53. Prosecution has examined PW­4 Mohasin

Noormohamad Mujawar at Exh.51 who is the panch witness o spot
panchanama Exh.136. However, PW­4 Mohasin Mujawar has not
supported the prosecution case and he turned hostile.

54. Prosecution has examined PW­10 Vaibhav Patil at Exh.

135 for proving the spot panchanama Exh.136. Through the
evidence of panch witness Vaibhav Patil the prosecution has proved
the spot panchanama Exh.136. It has come in the evidence of
PW­10 Vaibhav Patil that on 11­07­2010 police called him at
Chawadi Chowk Ashta. At that time, PW­10 Vaibhav Patil and police
officers of Ashta police station were present. Toushif Shaikh shown
the spot incident to them. Spot of incident is in front of Patvegar
Pan Shop. One footwear and one T shirt of gray colour were lying
on the spot of incident. There were also dry bloodstains on the spot
of incident and there were also dry bloodstains on the steps of
house of Attar. Police took the sample of earth mixed with blood
 44 S.C.No.35/2010(J)

and also took sample of dry bloodstains from the spot of incident.
According to PW­10 Vaibhav Patil police sealed and seized the
articles and pested the labels bearing their signatures on it. Thus,
prosecution has duly proved the spot panchanama Exh.136
through evidence of PW­10 Vaibhav Patil. Learned advocate for the
accused submitted that evidence of PW­10 Vaibhav Patil is recorded
in Sessions Case No.19/2011 on 26­07­2012. On 26­07­2012 PW­10
Vaibhav Patil has deposed that police obtained his signature on the
panchanama which was already prepared. Therefore, learned
advocate for the accused submitted that in Sessions Case No.
19/2011 this witness PW­10 Vaibhav Patil has not supported the
prosecution case about the spot panchanama Exh.136, however, in
this case PW­10 Vaibhav Patil has supported the prosecution case
about the spot panchanama Exh.136. Therefore, learned advocate
for the accused submitted that as this witness has not supported the
prosecution case in Sessions Case No.19/2011 about the same spot
panchanama his evidence in this case about the spot panchanama
Exh.136 cannot be relied. However, APP for State submitted that
though Sessions Case No.19/2011 is counter case, the evidence of
PW­10 Vaibhav Patil cannot be discarded only on the ground that in
Session Case No.19/2011 he has not supported the prosecution case
about the spot panchanama Exh.136.

55. The prosecution has examined PW­1 Anil Shivaji

Sardeshmukh at Exh.44 and PW­2 Pravin Kumar Madane at Exh.46
for proving the seizure memo Exh.190 about seizure of clothes
which were on the dead body of Majid Shaikh. However, PW­1 Anil
Shivaji Sardeshmukh and PW­2 Pravin Kumar Madane have not
supported the prosecution case at all about the seizure memo Exh.
190 and they both turned hostile. However, prosecution has proved
 45 S.C.No.35/2010(J)

seizure memo Exh.190 through PW­20 S.C. Rajput who was on duty
as P.S.O. at Ashta police station on 12­07­2010. Evidence of PW­20
S.C. Rajput is at Exh.189. It has come in the evidence of PW­20 S.C.
Rajput that on 12­07­2010 police head constable Bhole Patil B.No.
1484 of Vishrambag police station came to Ashta police station for
producing the clothes which were on the dead body of Majid. After
doing autopsy on the dead body of Majid said clothes were
collected by him. PHC Bhole Patil produced said clothes before
Rajput and Shri Rajput seized the said clothes as per seizure memo
Exh.190. PHC Bhole Patil produced one jin pant, one underwear,
one sando banian and one pair of socks and one pair of shoes. Shri
Rajput seized the same as per seizure memo Exh.190. The learned
advocate for the accused submitted that description of the said
clothes about colour of seized underwear and colour of seized
socks do not talley with the description of clothes on the dead body
of Majid mentioned in postmortem report. PW­20 S.C. Rajput has
admitted that in seized clothes there was no underwear of green
colour. Seized underwear is of faint blue colour. Seized socks are
not of pink colour. Learned advocate for the accused submitted
that in postmortem report, medical officer has mentioned that
under wear was of green colour and socks are of pink colour.
Therefore, he submitted that description of seized underwear and
seized socks about their colour do not talley with the colour of socks
and underwear mentioned in postmortem report.

56. The prosecution has examined PW­8 Mayur Patil at Exh.

130 and PW­15 Vijay Uttamrao Shinde at Exh.155 for proving the
memorandum Exh.184 given by accused Hayatchand Nadaf and for
proving the seizure memo Exh.185. However, PW­8 Mayur Patil and
PW­15 Vijay Shinde have not supported the prosecution case about
 46 S.C.No.35/2010(J)

memorandum panchanama Exh.184 and seizure memo Exh.185

and they both turned hostile.

57. The prosecution has examined PW­9 Ravindra Pratap

Bhagwat at Exh.131 and also examined PW­14 Balwant Ganpati Koli
at Exh.154 for proving the memorandum panchanama Exh.174
about the memorandum given by accused Salim Nadaf and seizure
memo Exh.174. However, PW­9 Ravindra Bhagwat and PW­14
Balwant Koli have not supported the prosecution case at all and
they both turned hostile.

58. As above referred panch witnesses turned hostile, the

prosecution has proved the said memorandum panchanama and
seizure memos through I.O. The prosecution has examined PW­19
P.I. K.S. Patil at Exh.181. I.O. K.S.Patil has deposed in his evidence
about the spot panchanama Exh.136 which is drawn by him at the
time of his visit to the spot of incident on 11­07­2010. It has further
come in the evidence of I.O. K.S. Patil that he arrested accused Nos.
2 and 3 as per arrest panchanama Exhs.182 and 183. On 13­07­2010
I.O. K.S. Patil visited hospital of Dr. Kabade and he recorded
statement of injured witness Soyab Shaikh and Salim Balechand
Nadaf. It has come in the evidence of I.O. K.S. Patil that on
14­07­2010 accused No.3 Hayatchand Nadaf gave memorandum
before him and he expressed his willingness to produce two sticks
and bloodstained clothes of accused No.2 and his bloodstained
clothes. I.O. Patil has recorded the memorandum Exh.184 given by
accused No.3 Hayatchand Nadaf. It has further come in the
evidence of I.O. K.S. Patil that as per the direction of accused No.3
Hayatchand Nadaf he along with two panch witnesses and accused
Hayatchand Nadaf went to Nadaf lane of Ashta. Accused No.3 asked
 47 S.C.No.35/2010(J)

to stop the jeep at Nadaf lane. Accused No.3 alighted from the jeep.
Then I.O. Patil and panch witnesses alighted from the jeep. They all
followed accused No.3. Accused No.3 went in his house which is
facing towards east. Accused No.3 called his wife Surya. Then
accused No.3 took all of them in his house. In the room there was
wooden sofa (bed) and accused No.3 took sticks and clothes which
were concealed under the said wooden bed. Both the sticks were of
Bambu (Kalkache) Accused No.3 produced one open full shirt and
there were bloodstains. Accused No.3 told that said open shirt was
of himself. Accused No.3 produced one full pant of himself of faint
chocklet colour having bloodstains. Accused No.3 also produced
one full open shirt of having white square having bloodstains which
is of accused No. 2 Samir Nadaf. Accused No.3 also produced one
full pant of faint brown colour of accused No.2 Samir Nadaf having
bloodstains. I.O. Patil seized said two sticks and clothes as per
panchanama Exh.185. I.O. Patil has identified seized sticks and
seized clothes which are before the Court. The sticks are at article B
and C, seized pant and shirt of accused No.3 are at article H and I
and seized pant and shirt of accused No.2 Samir are at article J and
article K.

59. I.O. K.S. Patil has admitted in his cross examination that
on the same day crime No.76/2010 is registered against the
complainant and injured and others. I.O. Patil has further admitted
that he did not refer seized weapons to medical officer for obtaining
opinion whether alleged injuries are possible by such seized
weapons. He has also admitted that same weapons are seized by
him in both the crimes Nos.75/2010 and 76/2010.

60. The prosecution has examined PW­18 P.I. Katkar at Exh.

 48 S.C.No.35/2010(J)

172 who has also investigated this crime. It has come in the
evidence of I.O. Indrajeet Katkar that on 19­07­2010 investigation of
this crime was entrusted to him. On 21­07­2010 he arrested
accused No.1 and he has drawn the arrest panchanama Exh.173
about the arrest of accused No.1. From perusing the arrest
panchanama Exh.173 it is seen that there was injury on right side
thigh of accused No.1 and there was bandage on the said wound.
61. It has further come in the evidence of I.O. Katkar that on
26­07­2010 while accused No.1 Salim was in police custody he gave
memorandum to show the place where he had concealed the
weapon namely Jambiya and his bloodstained clothes. I.O. Katkar
recorded the memorandum Exh.174 given by accused No.1 Salim
Nadaf. It has further come in the evidence of I.O. Katkar hat then he
along with accused No.1, two panch witnesses came to Wagyani
Touring Talkies as per say of accused No.1 Salim by police jeep.
Then accused No.1 took them to open space which is behind
Wagyani Touring Talkies. Accused No.1 took them near one coconut
tree. There were bushes and congress grass and from the said
bushes and congress grass accused No.1 took one polythene bag
containing bloodstained clothes and weapon namely Jambiya.
Accused No.1 produced one pant of black colour and white shirt.
There were bloodstains on the said clothes and on said weapon.
I.O. Katkar seized said clothes and said weapon namely Jambiya.
I.O. Katkar has proved the seizure memo Exh.175. I.O. Katkar has
identified seized Jambiya which is at article A. He has also
identified pant which is at article F and seized white shirt which is at
article G. During the year 2012 I.O. Katkar received the C.A. reports.
Those C.A. reports are at Exhs.176 to Exh.180.
 49 S.C.No.35/2010(J)

62. I.O. Katkar has admitted during his cross examination

that recovery of weapon and clothes is from the open plot. He has
also admitted that today he has not brought any documentary
evidence to show that muddemal property was in intact condition
till it was received by C.A. Office. He has also admitted that he
demanded case papers of injured witnesses to Dr. Kabade, however,
he did not produce the case papers. I.O. Katkar has also admitted
that in both the crimes spot panchanama is one and the same. In
this case original spot panchanama is produced and in another
counter case copy of spot panchanama is produced.

63. From perusing the C.A. Report Exh.176 it is seen that

result of analysis of muddemal property is mentioned in C.A. Report
Exh.176. As per the said result of analysis mentioned in C.A. Report
cotton swab of blood collected from the Katta which is in front of
Faruk Gadi Centreis found to be of human blood of 'A' group. On
the full pant, underwear, sando banian of deceased Majid human
blood is detected and the group of said blood is 'A'. Seized bambus
were also sent to the C.A. Pune and as per the result of analysis Exh.
176 on both the Bambu sticks human blood is detected and out of
the said two sticks on one stick human blood of 'A' group is
detected. The full shirt and full pant of accused No.2 was also sent
to C.A. Pune and on the said full shirt and full pant human blood of
A group is detected. It is also to be noted that on the seized Jambiya
human blood of A group is detected. On the full shirt of accused
No.1 human blood of A group is detected. On the full pant of
accused No.1 human blood is detected. Thus, it is to be noted that
the blood group of deceased Majid is A because cotton swab of
blood collected from the Katta in font of Faruk Gadi Centre as well
as blood group detected on the full pant, underwear and sando
 50 S.C.No.35/2010(J)

banian of deceased Majid is of A group. Thus, on the seized

jambiya, on seized sando banian, sticks, seized full shirt and full
pant of accused No.2 and seized shirt of accused No.1 human blood
of A group is detected. Thus, blood group on the shirt of accused
No.1 as well as blood group on full shirt and full pant of accused No.
1 as well as on the seized Jambiya, seized Bambh sticks tallies with
the blood group detected on the cotton swab of blood collected
from the spot of incident and blood group found on the full pant,
sando banian of deceased Majid. Therefore, APP for State submitted
that seizure of sticks at the instance of accused No.3 as well as on
seized full shirt and full pant of accused No.2 as well as seizure of
full shirt of accused No.1 the blood group A detected on the above
mentioned articles tallies with the blood group collected from the
spot of incident by cotton swab as well as blood group detected on
the underwear, sando banian and full pant of deceased Majid.
Therefore, APP for State submitted that above evidence of result of
analysis i.e.as per C.A. Report Exh.176 is strong circumstantial
evidence against the accused.

64. APP for State submitted that in the present case there is
direct evidence against the accused. Evidence of PW­5 Toushif
Shaikh is fully corroborated by his FIR Exh.55. FIR Exh.55 is
promptly lodged. PW­5 Toushif Shaikh is complainant as well as eye
witness of the incident. APP for State submitted that evidence of
PW­5 Toushif Shaikh is free from doubts and there is no reason to
discard evidence of PW­5 Toushif Shaikh which is fully corroborated
by his FIR Exh.55.

65. PW­6 Soyab Shaikh is injured eye witness. He has faced

searching cross examination by learned advocate for the accused,
 51 S.C.No.35/2010(J)

however, PW­6 Soyab Shaikh being injured eye witness his evidence
is very material in this case and presence of PW­6 Soyab Shaikh at
the time of incident on the spot of incident is not challenged by the
accused. Evidence of injured PW­6 Soyab Shaikh has greater
evidentiary value and unless compelling reasons exists his
testimony is not to be discarded lightly. When PW­6 Soyab Shaikh
is himself injured during the occurrence there can be hardly any
doubt regarding his presence on the spot. It is well settled that when
injured witness is found not wholly reliable to base the conviction
on his evidence corroboration is needed. While appreciating the
evidence of PW­6 Soyab Shaikh who is injured witness this Court
should bear in mind that his presence at the time and place of
occurrence cannot be doubted. He does not have any reason to
omit the real culprits and implicate falsely the accused person.
Evidence of injured witness is of great value and it cannot be
doubted merely on some supposed natural conduct of person
during the incident or after the incident because it is out of imagine
how the witness would act or react to particular incident is again
depends upon number of imponderable aspects. If there is any
exaggeration in his evidence then exaggeration is to be discarded
and not his entire evidence. APP for State submitted that as the
presence of injured PW­6 Soyab Shaikh is beyond shadow of doubt
on scene of offence as he had received injuries at the time of
occurrence of incident in assault by accused and his evidence is
supported by medical evidence and his evidence regarding identity
of accused is not doubtful and therefore, conviction can be based
on the statement of PW­6 Soyab Shaikh. He also submitted that
when presence of injured PW­6 Soyab Shaikh at the scene of
occurrence cannot be doubted and when even if there is some
exaggeration in this respect then it by itself would not be ground to
 52 S.C.No.35/2010(J)

doubt his testimony and veracity. While appreciating evidence of

injured witness PW­6 Soyab Shaikh the Court must not attach
undue importance on minor discrepancies but must consider
spectrum of the prosecution version. The discrepancies may be
due to normal errors of perception or due to lapse of memory or
due to faulty or stereotype investigation.

66. Learned advocate for the accused vehemently

submitted that evidence of PW­6 Soyab Shaikh is not at all reliable
even though he is injured eye witness. He submitted that there are
contradictions Exhs.193 and Exh.194 in the evidence of PW­6 Soyab
Shaikh. APP for State submitted that said two contradictions Exh.
193 and Exh.194 are of minor discrepancies and said discrepancies
cannot go to the root of the prosecution case. Contradiction Exh.
193 is about the threats given by the accused at the time of incident.
In respect of contradiction Exh.193 it is seen that said contradiction
is about sequence of assault. It has come on record during cross
examination of PW­6 Soyab Shaikh that while recording his
statement police asked him about sequence of assault. He has not
stated before police that assailants assaulted him when his brother
Toushif Shakh ran away. He has not stated before police that
assailants assaulted him and deceased Majid by Jambiya and sticks
at the same time. According to him it did not happen that at one
and same time there was assault over him and deceased Majid and
in this context PW­6 Soyab Shaikh has admitted that he cannot
assign reason how police recorded portion marked B Exh.194. Thus,
from perusing above version during the cross exaggeration of PW­6
Soyab Shaikh, it is seen that according to him it did not happen that
at one and same time there was assault over him and deceased
Majid. Therefore, there is substance in th submission of APP for
 53 S.C.No.35/2010(J)

State that contradiction Exh.194 is minor discrepancy about the

sequence of assault and the said contradiction Exh.194 cannot go to
the root of the prosecution case. Contradiction Exh.193 is in respect
of whether accused Salim and accused Samir uttered the words
jointly or separately. From perusing version of PW­6 Soyab Shaikh
during his cross examination vide para No.9 it is seen that according
to PW­6 Soyab Shaikh accused Salim and accused Samir did not
utter jointly, “threatened us to kill today”. Therefore, he has given
admission that he has not stated before police that accused Salim
and accused Samir jointly threatened him “Threatened us to kill
today” while returning to the house. Thus, contradiction Exh.193 is
whether threat is given jointly or separately by the accused Salim
and accused Samir. According to PW­6 Soyab Shaikh accused Salim
and accused Samir did not utter jointly the words of threatening.
Thus, contradiction Exhs.193 and 194 which are brought on record
during the cross examination of PW­6 Soyab Shaikh are minor
discrepancies and only on that ground entire evidence of PW­6
Soyab Shaikh cannot be discarded. APP for State has relied on the
following authority in support of his submission.

Atmaram and others Vs. State of Madhya Pradesh 201`2 ALL

MR (Cri.) 2091 (S.C.)

In above referred authority Hon'ble Apex Court has observed

that every variation or discrepancy in statement of witness cannot
belie case of prosecution per se. Merely because some other
witnesses have turned hostile, evidence of injured eye witnesses
who are reliable cannot be rejected more particularly when their
presence at place of occurrence has been established beyond
reasonable doubt.
 54 S.C.No.35/2010(J)

Relying on above referred authority learned APP for State submitted

that there are certain variations in the statement of PW­6 Soyab
Shaikh, but all of them are of minor. Even if for the sake of
argument, they are taken to be as some contradictions or variations
in substance, they are so insignificant and mild that they would in
no way fatal to the case of prosecution. He submitted that
statements of witnesses have to be read in their entirety to examine
their truthfulness and the veracity or otherwise. It will be neither be
just nor fair to pick up just a line from the entire statement and
appreciate that evidence out of context and without reference to the
preceeding lines and lines appearing after that particular sentence.
It is always better and in the interest of both the parties that the
statements of the witnesses are appreciated and dealt with by the
Court upon their cumulative reading. Thus, in the light of above
judgment it is clear that every variation of discrepancy in the
statement of a witness cannot belie the case of prosecution per se.

67. APP for State submitted that in the present case as per
evidence of medical officer Dr. Kesharkhane and as per the autopsy
report Exh.170 the cause of death of Majid Shaikh is hemorrhagic
shock due to injuries to chest. Therefore, he submitted that direct
evidence of PW­5 Toushif Shaikh and PW­6 Soyab Shaikh, as well as
evidence of witness Imran Rode and Ganesh More is fully
corroborated by medical officer Dr. Kesharkhane and their evidence
cannot be discarded and same is sufficient to convict the accused.
APP for State has relied on following authority in support of his
submission.

Vilas Vasantrao Purke Vs. State of Maharashtra, 2012 ALL

MR (Cri.) 879
 55 S.C.No.35/2010(J)

In above referred authority appeal was filed against

conviction in a murder case. The cause of death due to
haemorrhage and shock as a result of injury to major blood vessels
in neck as well as injury to spinal cord by sharp and heavy weapon.
Offence against accused established by prosecution beyond
reasonable doubt. Appeal is dismissed.

68. Learned advocate for the accused submitted that

prosecution has examined only interested witnesses and even
though incident occurred in day light in crowded area of Chawadi
Chowk, not a single local independent witness is examined.
Therefore, he submitted that examination of only interested
witnesses even though the independent witnesses are available
creates doubts about the prosecution case. He relied on following
authority in support of his case.

Benguli and others Vs. State of Orissa, 1985 CRI.L.J. 580

In above referred authority Hon'ble Orissa High Court has

observed that “in criminal trial examination of only interested
witnesses when disinterested witnesses are available. It casts
serious reflection on fairness of trial”.

69. APP for State submitted that evidence of PW­5 Toushif

Shaikh, evidence of PW­6 Soyab Shaikh as well as evidence of Imran
Rode and Ganesh More cannot be discarded because PW­5 Toushif
and PW­6 Soyab Shaikh are relatives of deceased Majid. He
submitted that as the evidence of PW­5 Toushif Shaikh and PW­6
Soyab Shaikh is trustworthy and natural and their presence on the
 56 S.C.No.35/2010(J)

spot is not disputed, their evidence cannot be discarded only

because they both are cousin brothers of deceased Majid. APP for
State has relied on following authority in support of his submission.
Gautam @ Munna s/o. Parasram Ramteke Vs. State of
Maharashtra, 2012 ALL MR (Cri.) 840.

In above referred authority Hon'ble Bombay High Court has

observed that “in a murder case prosecution witnesses were
interested witnesses. Merely because witnesses are family members
of the deceased. Held that there is no reason to discard the versions
of these witnesses, which are reliable, trustworthy and natural”.

70. Learned advocate Shri S.T.Jadhav for the accused

submitted that in the present case defence has brought on record
that accused No.1 Salim has sustained the injury over his right
thigh. He submitted that prosecution has not given explanation
about the injuries sustained by accused Salim. Therefore, he
submitted that failure on the part of prosecution to explain the
injuries sustained by the accused Salim on his right thigh fatals the
prosecution case and on this ground accused are entitled to
acquittal. He relied on following authorities in support of his
submission.

(i) Lacchiram Vs. State of Madhya Pradesh, 1990 Cri. L.J. 2229.

In above referred authority Hon'ble Madya Pradesh High

Court has observed that when witnesses suppress the fact that the
accused had sustained injuries which are quite apparent and the
investigating officer does not even record the fact in the case diary,
it reflects on both the veracity of the witnesses and fairness of
investigation. No intrinsic reliance can be placed on such a witness,
 57 S.C.No.35/2010(J)

who suppresses the injuries sustained by accused.

(ii) Sonpal and another Vs. State of U.P. 1991 CRI.L.J. 1597
In above referred authority Hon'ble Allahabad High Court has
observed that persons from both sides suffered injuries. Case of
bilateral fight. Failure on the part of prosecution to explain how the
event sparked of and how accused suffered injuries. Accused
entitled to be acquitted.

71. Learned advocate for the accused has also relied on

following authority in support of his submission.

Durga Singh and others Vs. State of U.P. 2001 CRI.L.J. 2522.

In above referred authority injuries suffered by accused side

not explained. Injuries also not shown self inflected. Defence
version that assault was launched by prosecution side and accused
fired at deceased to defend his property found more probable.
Accused held entitled to benefit of doubt.

72. Relying on all above referred authorities learned

advocate Shri S,.T. Jadhav for the accused vehemently submitted
that in the present case also prosecution has not at all explained the
injuries sustained by the accused Salim and PW­5 Toushif Shaikh
and PW­6 Soyab Shaikh are totally silent in their evidence about the
injuries sustained by accused No.1. Therefore, he submitted that
failure on the part of prosecution to explain the injuries sustained
by accused No.1 Salim fatals the prosecution case.
 58 S.C.No.35/2010(J)

73. Learned APP for State submitted that facts of above

referred cases relied on by learned advocate for the accused and
facts of this case are totally different. He submitted that in the
present case the injuries sustained by Majid are of very serious
nature and those injuries are on vital part of the body. He submitted
that stab injury sustained by deceased Majid was on vital part of the
body. From perusing autopsy report it is seen that stab injury
present over anterior aspect of upper lobe of lung. Stab injury was
present over lateral aspect of middle lobe of lung. He also
submitted that witness Soyab Shaikh has also sustained the injury
over his head. In the present case prosecution has produced
certified copy of injury certificate of accused Salim at Exh.207.
From perusing the said injury certificate Exh.207 it is seen that
accused No.1 was examined by Dr. Satish Khade of Wanless
Hospital, Miraj on 11­07­2010. Dr. Khade noticed incised wound
over lateral aspect of right thigh. The said injury is simple injury.
Thus, as per the injury certificate Exh.207 incise wound on the right
thigh of accused No.1 Salim was simple injury. However, injuries
sustained by deceased Majid are on the vital part of the body and
those injuries are of serious nature and Majid Shaikhdied due to the
said serious injuries. Injury sustained by PW­6 Soyab Shaikh is also
on vital part of the body i.e. head and said injury is also of serious
nature. Therefore, learned APP for State submitted that failure on
the part of the prosecution to explain injuries sustained by accused
No.1 Salim no way fatals the prosecution case. He relied on
following authority in support of his case.

Sadanand Shivaji Kadam Vs. State of Maharashtra, 2012 ALL

MR (Cri.) 3502.
 59 S.C.No.35/2010(J)

In above referred authority Hon'ble Bombay High Court has

observed that in a murder case no explanation of injuries on
accused, entire prosecution case cannot be disbelieved on account
of alleged failure to explain injury sustained by the accused.
Evidence of witness that in a scuffle between accused and deceased,
complainant son of deceased hit a stone on head of accused who
suffered bleeding injury. It cannot be said that there is a failure to
explain as to how head injury was suffered by accused.

74. In Onkarnath Singh and others Vs. State of U.P. (1975)

3 SCC 276 Hon'ble Apex Court considered the effect of failure to
explain the injuries on the accused in a case where there was a plea
of exercise of private defence.

Hon'ble Apex Court has observed that the question is what is

the effect of this non­explanation of th injuries of Parasnath ? This a
question of fact and not one of law. Answer to such a question
depends upon the circumstances of each case. Apex Court has
repeatedly pointed out that the entire prosecution case cannot be
thrown overboard simply because the prosecution witnesses do not
explain the injuries on the person of the accused.

75. APP for State has also relied on following authority.

Amar Malla and others Vs. State of Tripura, AIR 2002

SUPREME COURT 3052.

In above referred authority Hon'le Apex Court has

observed that non­explanation of the injuries on accused person
cannot ipso­facto be ground for throwing out prosecution case
 60 S.C.No.35/2010(J)

especially when it is supported by eye witness including the injured

eye witness.

76. APP for State has also relied on following authority.

Abdul Rashid Abdul Rahiman Patel Vs. State of
Maharashtra, 2007 ALL MR (Cri.) 2940 (S.C.)

In above referred authority Hon'ble Apex Court has

observed that if injuries on the accused are not explained by the
prosecution , the same may be taken to be a ground to discard the
prosecution case, in case the truthfulness of prosecution case is
otherwise doubted. But, in cases like the present one, where there is
consistent evidence of the injured eye witnesses apart from
evidence of independent eye witnesses, even if it is assumed that
prosecution has failed to explain the minor and simple injuries on
the defence, the same cannot be taken to be a ground to reject the
testimony of such witnesses.

77. I have gone through the above referred authorities of

Hon'ble Apex Court and Hon'ble Bombay High Court. In the
present case as per the copy of injury certificate Exh.207 accused
No.1 Salim sustained single simple injury on the right thigh.
However, deceased Majid has sustained serious injuries on the vital
part of the body due to which his death is occurred. Similarly,
witness Soyab Shaikh has also sustained the injury on his head
which is on vital part of the body. Therefore, I am of the opinion that
in the present case failure of prosecution to explain the injuries on
the person of accused Salim no way fatals the prosecution case.
Thus, evidence of PW­5 Toushif Shaikh and evidence of PW­6 Soyab
Shaikh cannot be discarded only because they both are cousin
brothers of deceased Majid. Their presence on the spot of incident
 61 S.C.No.35/2010(J)

during the relevant time of incident is not disputed. Soyab Shaikh

has sustained the injury at the time of incident. Evidence of PW­5
Toushif Shaikhis fully corroborated by his FIR Exh.55. His evidence
is further corroborated by PW­6 Soyab Shaikh who has sustained
the injuries at the time of incident.

78. Learned advocate Shri S.T. Jadhav for the accused

submitted that evidence of PW­7 Imran Rode cannot be relied. He
has clearly admitted in his cross examination that he has not seen
the incident of assault over deceased Majid and PW­6 Soyab Shaikh.
He further submitted that PW­7 Imran Rode has admitted that at
the time of incident he was in his shop. Therefore, learned
advocate Shri S.T. Jadhav for the accused submitted that evidence of
PW­7 Imran Rode is no way helpful to the prosecution. However,
APP for State submitted that PW­7 Imran Rode has fully supported
the prosecution case during his examination in chief. After
recording his examination in chief adjournment is sought by the
accused to cross examine PW­7 Imran Rode. APP for State
submitted that after recording examination in chief of Imran Rode,
he was selected for the post of police constable. PW­7 Imran Rode
has clearly admitted that pendency of Sessions Case No.19/2011 is
an obstruction in his appointment as police constable and he must
be acquitted in counter case filed against him. APP for State
submitted that in the present case prosecution has produced the
certified copy of deposition of witnesses in Sessions Case No.
19/2011.Those certified copies of depositions of witnesses in
Sessions Case No.19/2011 are at Exhs.204, 205 and 206. Certified
copy of deposition of accused No.1 Salim in Sessions Case No.
19/2011 is at Exh.206. From perusing Certified copy of deposition of
accused No.1 Salim it is seen that accused No.1 Salim has deposed
 62 S.C.No.35/2010(J)

in Sessions Case No.19/2011 that on 11­07­2010 his relatives had

come to his house as there was fair of Bhavai at Asha. On the day of
incident he had gone to S.T.bus stand for sending his relatives.
Accused No.1 was alone with his said relatives at that time. After
sending his relatives he was returning from bus stand Ashta and at
that time due to slip of wheel of his motorcycle, he sustained the
injury. Thus, accused No.1 has given the evidence in Sessions Case
No.19/2011 vide Exh.206 for acquittal of PW­7 Imran Rode.
Therefore, APP for State submitted that though PW­7 Imran Rode is
turned hostile, his evidence cannot be discarded totally. He relied
on following authority in support of his submission.

Paramjit Singh Vs. State of Uttarakhand, 2011 Cri.L.J.663

In above referred authority Hon'ble Apex Court has observed

that evidence of hostile witness need not be rejected en bloc but
should be considered with caution. The Court should look for
corroboration.

79. APP for State further submitted that from perusing

autopsy report Exh.170 as well as from perusing injury certificate
Exh.148 it is seen that deceased Majid and PW­6 Soyab Shaikh have
sustained the serious injuries on the vital part of the body. However,
from perusing the certified copy of injury certificate Exh.207 it is
seen that accused No.1 has sustained only single injury on his right
thigh. Therefore, APP for State submitted that it is defence of
accused that at the time of incident Soyab Shaikh and Majid Shaikh
assaulted accused Nos.1 and 2. Along with statement of the accused
recorded under Section 313 of Cr. P. Code, accused have given their
written say vide Exh.122. In the said written say accused have
 63 S.C.No.35/2010(J)

mentioned that at the time of incident deceased Majid assaulted

accused No.1. Thus, defence of the accused is that complainant
Toushif Shaikh and deceased Majid Shaikh assaulted accused at the
time of incident and due to previous enmity false case is filed
against them. It is also defence of the accused that accused No.2
has filed FIR against the complainant and other witnesses, to give
counter blast to the said case this false case is filed against the
accused. Thus, considering defence of the accused, injuries
sustained by accused No.1 and injuries sustained by PW­6 Soyab
Shaikh and deceased Majid Shaikh are necessary to be considered.
APP for State submitted that considering serious injuries sustained
by deceased Majid and Soyab Shaikh, the accused are aggressive
and accused assaulted deceased Majid Shaikh and Soyab Shaikh.
APP for State relied on following authority in support of his
submission.

M/s. Loke Nath Tola Ram Vs. B. N.Ramani, AIR 1974 S.C. 156.

In above referred authority Hon'ble Apex Court has observed

that when the injuries on the person of the accused were of trival
nature, but the complainant injured had 11 injuries, mostly on the
head and the forehead then it was held that it is clear from he
nature of these injuries that accused are aggressors.

80. I have gone through the above referred authority.

Considering the observations of Hon'ble Apex Court in above
referred authority, in the present case also injuries sustained by
accused No.1 vide Exh.207 is simple injury. However, injuries
sustained by deceased Majid Shaikh and Soyab Shaikh are on vital
part of the body and those injuries are of serious nature. Therefore,
 64 S.C.No.35/2010(J)

there appears to be substance in the submission of learned APP for

State that considering the injuries sustained by deceased Majid and
Soyab Shaikh and considering the injury sustained by accused No.1,
it is very clear that accused were aggressors.

81. APP for State further submitted that in the present case
there is extra judicial confession of accused No.1 Salim. Prosecution
has examined PW­11 Murad Landge at Exh.140 and has proved extra
judicial confession of accused No.1. He submitted that PW­11
Murad Landge is independent witness and his evidence cannot be
discarded for proving extra judicial confession of accused No.1. APP
for State has relied on following authority in support of his
submission.

Vilas Shankar Bhilare Vs. The State of Maharashtra, 2012

ALL MR (Cri.) 980.

In above referred authority Hon'ble Bombay High Court has

observed that extra judicial confession in all cases does not require
corroboration. The value of extra judicial confession depends upon
trustworthiness of the witness before whom the confession is made.

In the present case also though PW­11 Murad Landge is cross

examined at length by defence counsel, he has totally denied that
he is related to deceased Majid Shaikh and Soyab Shaikh. Under
such circumstances the extra judicial confession of accused No.1
which is proved by prosecution through PW­11 Murad Landge is
incriminating evidence against the accused.
 65 S.C.No.35/2010(J)

82. Learned advocate for the accused submitted that in the

present case I.O. K.S. Patil and I.O. Indrajeet Katkar have not fairly
investigated this crime and the investigation is faulty. Therefore, he
submitted that as all the panch witnesses of memorandum
panchanama and recovery panchanama are turned hostile, no
reliance can be placed on the evidence of I.O. PW­18 Indrajeet
Katkar and PW­19 K.S. Patil because their investigation is faulty.
Therefore, he submitted that due to faulty investigation by PW­18
Indrajeet Katkar and PW­19 K.S. Patil the accused are entitled to
acquittal. However, APP for State submitted that accused cannot be
acquitted only on the ground that there are some lacunas on the
part of investigating officers. I.O. has not shown seized weapon to
medical officer and have not obtained their opinion during the
course of investigation about the injuries sustained by injured
witnesses. I.O. K.S. Patil has investigated this case as well as he has
investigated the counter case. Learned advocate for the accused
submitted that both the cases should have been investigated by
separate investigating officers. Learned advocate for the accused
submitted that evidence of PW­20 S.S. Rajput about the seizure of
clothes on the dead body of Majid is also not reliable because there
is discrepancy in his evidence about colour of seized clothes which
were on the dead body of Majid Shaikh. However, APP for State
submitted that accused cannot be acquitted on the ground of some
defects in investigation by investigating officers. APP for State has
relied on following authority in support of his submission.

Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR
2004 SUPREME COURT 1920.

In above referred authority Hon'ble Apex Court has observed

about effect of faulty investigation in a murder case. Hon'ble Apex
 66 S.C.No.35/2010(J)

Court has observed that Court has to circumspect in evaluating the

evidence. However, accused cannot be acquitted solely on account
of defective investigation. To do so would tantamount to playing
into hands of investigating officer if investigation is designedly
defective.

83. Thus, in the present case after perusing entire evidence

it is seen that evidence of PW­5 Toushif Shaikh, evidence of PW­6
Soyab Shaikh, evidence of PW­7 Imran Rode and evidence of PW­16
Ganesh More proves the presence of the accused at the time of
incident. After scrutinizing their evidence it is seen that their
evidence cannot be discarded. Evidence of PW­5 Toushif Shaikh is
fully corroborated by FIR Exh.55. The evidence of PW­5 Toushif
Shaikh is further corroborated by PW­6 Soyab Shaikh. Evidence of
witness Soyab Shaikh is totally believable because he has sustained
the injuries at the time of incident. Evidence of PW­7 Imran Rode
through his examination in chief cannot be discarded only because
he has turned hostile during his cross examination. Evidence of
PW­16 Ganesh More cannot be discarded only because he is
residing at Karad. He had come to Ashta on the day of incident as
per the invitation of his friend Aiyaj Nadaf on account of fair of
Bhavai at Ashta. Though panch witnesses turned hostile,
prosecution has proved the memorandum given by accused No.1
and memorandum given by deceased accused No.3 Hayatchand
Nadaf and subsequent seizure panchanama Evidence of PW­11
Murad Landge about extra judicial confession also connect accused
No.1 with this crime. The prosecution has proved the spot
panchanama Exh.176 through the evidence of PW­10 Vaibhav Patil.
PW­17 Dr. Milind Kesharkhane has proved the injuries sustained by
deceased Majid Shaikh and medical evidence of Dr.Kesharkhane is
 67 S.C.No.35/2010(J)

fully corroborated by oral evidence of PW­5 Toushif Shaikh and

PW­6 Soyab Shaikh. Evidence of Dr. M.N. Kabade also corroborates
version of PW­6 Soyab Shaikh. Dr. M.N. Kabade has proved the
injuries sustained by PW­6 Soyab Shaikh by proving the injury
certificate Exh.148. C.A report Exh.176 also discloses that seized
sticks and seized Jambiya as well as seized clothes of accused No.1
and 2 are having bloodstains of A group. C.A. Report Exh.176 also
discloses that group of blood collected by cotton swab from the spot
is of A as well as blood group on seized clothes of deceased Majid is
of A. There is no reason to discard this evidence. There is common
intention in between accused Nos.1 and 2 to commit murder of
Majid Shaikh and there is also common intention of accused Nos.1
and 2 for attempting to commit murder of Soyab Shaikh.
Considering all these facts and evidence on record I held that
prosecution has proved beyond reasonable doubt that on
11­07­2010 at 7.30 p.m. at Chawadi Chowk, in front of shop of Munir
Patvegar accused Nos.1 and 2 in furtherance of their common
intention with deceased accused Hayatchand Nadaf committed
murder of Majid Shaikh by weapon namely Jambiya. The
prosecution has further proved that on the same date, time and
place accused in furtherance of their common intention with
deceased accused Hayatchand Nadaf assaulted Soyab Shaikh with
Jambiya and sticks with such intention and under such
circumstances that by that act they all had caused the death of said
witness, they would have been guilty of murder and accused
thereby caused hurt to the said witness. Thus, offence punishable
under Section 302,307 r.w.34 of I.P.C. is proved against accused Nos.
1 and 2. Accused No.3 is expired during the pendency of this suit.
Hence case is abated against accused No.3. Accordingly, I answer
point Nos.2 to 4 in the affirmative,
 68 S.C.No.35/2010(J)

As the accused Nos.1 and 2 are liable to be convicted for

the offence punishable under Section 302,307 rw.34 of I.P.C.I stop
the Judgment at this juncture to hear the accused on the point of
sentence.

Islampur. (R.N. Sardesau)

Date:-30-03-2015 Addl. Sessions Judge, Islampur

84. Accused Nos.1 and 2 prays for leniency on the ground

that their father Hayatchand Nadaf is expired and their old mother
is depending upon them. They also pray for leniency on the ground
that they are having small children and there is no other earning
member in their family. Learned advocate Shri S.C. Jadhav for the
accused submitted that accused No.3 is expired who is father of
accused Nos.1 and 2. Accused Nos.1 and 2 are not having criminal
antecedents and previously they are not involved in any criminal
activities. Therefore, learned advocate S.C. Jadhav for the accused
submitted that leniency be shown to accused Nos.1 and 2.

85. Heard APP for State. He submitted that this incident

occurred at a public place at Ashta and during the day time. He
submitted that present case is of brutal murder. The manner in
which accused have committed murder of Majid Shaikh requires
deterrent punishment. Therefore, APP for State submitted that this
is not a fit case to show the leniency and deterrent punishment may
kindly be passed in this case.

86. Punishment for the offence punishable under Section

302 of I.P.C. is death or imprisonment for life. Present case does not
come within the ambit of rarest of rare case. As the case is not rarest
 69 S.C.No.35/2010(J)

of rare case, this is not a fit case to pass sentence of death. As the
case does not come within the purview of rarest of rare case, this
Court has no alternative than to pass sentence of imprisonment for
life. Considering the submission of learned advocate S.C. Jadhav for
the accused and APP for State and considering the facts and
circumstances of the case, I pass following order to meet ends of
justice.

ORDER

(1). Accused No.1 Salim Hayatchand Nadaf and accused

No.2 Sameer Hayatchand Nadaf are hereby convicted under Section
235(2) of Cr. P. Code of the offence punishable under Section 302
r/w 34 of Indian Penal Code and they are sentenced to suffer
imprisonment for life and to pay fine of Rs.2000/­ each, in default
to suffer simple imprisonment for 1 month.

(2). Accused No.1 and 2 are hereby convicted under Section

235(2) of Cr. P. Code, of the offence punishable under Section 307
r.w. 34 of I.P.C. and they are sentenced to suffer rigorous
imprisonment for 7 years and to pay fine of Rs.1000/­ each, in
default to suffer simple imprisonment for 15 days.

(3). The substantive sentences of imprisonment shall run

concurrently.

(4). The pre­conviction detention undergone by accused

No.1 and 2 shall be set off against the substantive sentence of
imprisonment under Section 428 of Cr. P. Code.
 70 S.C.No.35/2010(J)

(5). The seized muddemal property being worthless be

destroyed after appeal period is over.

(6). Certified copy of this judgment be supplied to the

accused No.1 and 2 free of costs.

Sd/­xxx
Islampur. ( R.N. Sardesai )
30th March, 2015. Addl. Sessions Judge, Islampur