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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPEAL NO.623 OF 2003

The State of Maharashtra

Through Police Station

Tq. Gangapur, Dist. Aurangabad.

...Appellant

(Ori. Complainant)

-Versus-

1. Barku s/o Devchand Shinde,

age 22 yrs., occu. Agri.,

R/o Bhindala, Tq. Gangapur,

Dist. Aurangabad.

2. Deochand Raghunath Shinde,

age 55 yrs., occu. Labour,

R/o as above.

3. Ramdas Deochand Shinde,

age 23 yrs., occu. Agri.,

R/o as above.

...Respondents

(Ori. Accused)

…

Shri S.J. Salgare, APP for the appellant/ State.

Mrs. Pooja V. Langhe, advocate for respondent Nos.1 to 3.

…

CORAM : KISHORE C. SANT

&

SUSHIL M. GHODESWAR, JJ.

Reserved on : 27 March 2026

Pronounced on : 10 April 2026 2026:BHC-AUG:15331-DB

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JUDGMENT ( Per Sushil M. Ghodeswar, J.) :-

1. By this appeal filed under Section 378(1)(3) of the

Code of Criminal Procedure (for short, ‘the CrPC’), the

appellant/ State challenges the judgment and order dated

13.06.2003 passed by the learned III Ad-hoc Additional Sessions

Judge, Aurangabad, in Sessions Case No.257/2001 by which, the

respondents/ accused have been acquitted for offences

punishable under Sections 302, 323, 324 r/w 34 of the Indian

Penal Code.

2. The brief facts leading to filing of the present appeal

are as under:

(a)The prosecution case is that on 10.7.2001 at about 8

p.m., Rukhmanibai wife of accused No.2/Deochand Shinde, had

thrown dirty water on the road infront of house of Ramesh

Damodar Shinde (deceased). The deceased Ramesh asked

Rukhmanibai as to why the water was thrown whereupon all the

accused i.e. accused No.1 Barku Deochand Shinde, accused No.2

Deochand Raghunath Shinde and accused No.3 Ramdas

Deochand Shinde, came there. Initially, the accused persons had

abused Ramesh and they had given fists and kick blows. Accused

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no.1 Barku went inside his house and brought knife and gave

knife blow on the right ribs of Ramesh, as a result of which,

Ramesh fell down. Eye witnesses Kakasaheb Shinde (PW-1

complainant), Balkrishna Shinde (PW-2), Badrinath Shinde (PW-

9) had come there. Accused no.3 Ramdas gave axe blow to

Balkrishna Shinde (PW-2) on his right hand palm and left

forearm of Kakasaheb Shinde (PW-1) whereas, accused no.1-

Barku gave knife blow on the wrist and thumb of Kakasaheb

Shinde (PW-1) and accused no.2 Deochand gave knife blow to

Badrinath Shinde (PW-9) on his chest and left hand thumb and

fingers.

(b)It is the case of the prosecution that injured Ramesh

Damodhar Shinde was brought by his wife Ranjana to Ghati

Hospital where, on examination he was declared dead.

Accordingly, A.D. No.27/2001 was entered. PSI Kalyan Superkar

(PW-14) started investigation, drew inquest on the dead body of

Ramesh, attached his clothes, he then recorded statement of

injured Kakasaheb Shinde (PW-1) on the basis of which, Crime

No.77/2001 was registered for the offences punishable under

Sections 302, 323, 324 r/w 34 of the Indian Penal Code and

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Section 135 of the Bombay Police Act.

(c)During the investigation, PW-14 Supekar PSI drew

spot panchanama and from spot attached one axe, took blood

stained earth sample, clothes of complainant and accused were

attached. He had also registered the crime at serial No.88/2001

on the complaint of accused. On 30/7/2001, he had handed over

investigation to PW-15 Chatrabhuj Rode, Investigating Officer,

who carried out further investigation. PW-15 Rode at the

instance of accused Badri and Deochand recovered two knives-

one from each, he recorded the statements of witnesses. He had

sent the muddemal to the Chemical Analyser.

(d)After completion of investigation, PW-15 I.O. filed

the chargesheet on 09/10/2001 and R.C.C. no.284/2001 was

registered. The learned Judicial Magistrate First Glass,

Gangapur, by his order dated 11/10/2001 committed the case for

trial to the Court of sessions.

(e)All the accused pleaded not guilty to the charge.

Their version is that the complainant Kakasaheb Shinde (PW-1)

had given axe blows to the accused Barku and the accused had

gone to the police Station but their complaint was not registered,

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and subsequently this false case came to be filed on the

complaint of Kakasaheb Shinde (PW-1).

(f)Accused no.1 Barku Deochand Shinde was singly

charged of the offence of murder of Ramesh Damodhar Shinde

whereas all the accused were charged for causing hurt to

deceased Ramesh, so also for causing hurt to the witnesses

Kakasaheb, Balkrishna and Badrinath Shinde.

3. The prosecution has examined in all 15 witnesses as

under:-

PW No.Name of witnessSignificance/ role

PW-1Kakasaheb ShindeComplainant- Eyewitness

PW-2Balkrishna ShindeHostile Eyewitness

PW-3Dr. Sitalal RathodPostmortem of dead body of

Ramesh

PW-4Shivaji Shinde Eyewitness

PW-5Sadashiv More Panch to spot panchnama

PW-6 Rameshwar TejinkarPanch to inquest panchnama

(eyewitness)

PW-7Anna Shinde Recovery (memorandum panch)

PW-8Ranjanabai wife of

deceased Ramesh

Eyewitness

PW-9Badrinath ShindeInjured eyewitness

PW-10Khandu More Recovery panch to knife

PW-11Sudam More Eyewitness

PW-12Babasaheb ShindePanch to seizure of cloth

PW-13Dr. Varsha Kalyankar

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PW-14 Kalyan Supekar Police Office who registered

A.D.

PW-15Chaturbhuj RodeInvestigating Officer

4. After recording evidence and hearing the accused

and prosecution side, the learned III Adhoc Additional Sessions

Judge, Aurangabad, was pleased to pass the impugned judgment

and order dated 13.06.2003 thereby, acquitting all three accused

for the offence punishable under Sections 302, 323, 324 r/w 34

of the Indian Penal Code and Section 135 of the Bombay Police

Act.

5. Hence, the State has filed this appeal against

acquittal.

6. The learned AGP Shri Salgare appearing on behalf

of the appellant/ State vehemently submitted that the learned

Sessions Judge committed grave error by acquitting the accused

persons although there is cogent evidence of seven eyewitnesses

corroborating each other. The learned Sessions Judge has not

properly appreciated evidence brought by the prosecution.

According to the learned AGP, seven eyewitnesses and their

testimonies inspire confidence and as such, their evidence is not

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shaken and, therefore, same was required to be considered by the

Trial Court in proper perspective.

7. The learned AGP has taken us through testimonies

of all eyewitnesses regarding assault given by accused No.1 on

the chest of deceased Ramesh and submitted that accused No.1

has been clearly witnessed by eyewitnesses while committing

murder of deceased Ramesh. Evidence brought on record clearly

indicates that other two accused persons also shared common

intention of committing murder of the deceased Ramesh. The

prosecution has established guilt of all accused persons beyond

all reasonable doubts, however, the learned Sessions Judge has

failed to appreciate evidence brought on record and has

erroneously acquitted the accused persons. The learned AGP,

therefore, prayed for allowing this appeal and convicting the

accused for the offences for which they were charged.

8. Per contra, the learned advocate Mrs.Langhe

appearing for the respondents/ accused vehemently supported the

impugned judgment and order of acquittal. According to her, the

prosecution suppressed injuries caused to the accused persons

during scuffle. Initially, the accused Barku approached to the

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Police Station for lodging the complaint against the deceased and

his company, however, he was referred to medical examination

and due to injury sustained by Barku, he was also hospitalized.

Since he was hospitalized, his complaint came to be registered

subsequently though he had approached to the Police Station in

first point of time. According to the learned advocate, such

suppression raises serious doubt as regards investigation and

therefore, the learned Sessions Judge has rightly appreciated

evidence on record and passed the impugned judgment, which

needs to be maintained by this Court.

9. The learned advocate for the respondents/ accused

further submitted that PW-11 Sudam More, who is eyewitness,

has specifically admitted that accused Barku had sustained head

injury and it was due to blow given by the deceased Ramesh.

Even the Investigating Officer PW-15 also admitted that all

accused persons also sustained injuries and according to I.O.,

accused persons were sent for medical examination. According to

the learned advocate, the record in respect of injuries sustained

by the accused persons was not produced during the trial.

10. The learned advocate for the respondents/ accused

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further submitted that there are several omissions and

contradictions in testimonies of eyewitnesses and as such,

eyewitnesses cannot be wholly reliable. According to the learned

advocate, the deceased alleged to have died due to severe blow

on his chest. There are no other injuries on the person of the

deceased.

11. Lastly, the learned advocate for the accused

submitted that accused No.1/ Barku is alleged to have gone

inside his house and brought axe and inflicted injury on chest of

the deceased Ramesh, however, there is no motive or intention to

commit murder. Even if it is presumed that the accused persons

have assaulted deceased Ramesh, however, at the most, same can

be considered under Section 304 Part II of the Indian Penal

Code. The learned advocate, therefore, prayed for dismissal of

the appeal and for confirming the impugned judgment.

12. After hearing the learned advocates at length and

with their assistance, after going through evidence on record

minutely, it is found that there was long standing dispute between

the accused side and the deceased side on different counts as they

are cousins and are residing adjacent to each other. On

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10.07.2001, wife of accused No.2 threw dirty water infront of the

house of the deceased Ramesh, which gave rise to quarrel

between the parties. In the said quarrel, accused No.1 Barku is

alleged to have brought knife/ axe from his home and in heat of

moment, inflicted injury by single blow on chest of the deceased

Ramesh.

13. Postmortem report at Exhibit 16 discloses that death

was due to stab injury on right side of chest. The chest injury was

caused due to the assault given by accused No.1 Barku. When

the incident of alleged assault took place, accused No.1 Barku

was of 22 years young. The alleged incident took place in 2001.

The accused and deceased sides are closely related to each other.

There are no other serious injuries suffered by the deceased

Ramesh. The accused persons also sustained injuries and they

were hospitalized. From evidence brought on record, it is clear

that the place of incident is near the house of accused persons

and there is also dispute between the parties regarding

agricultural land. The incident took place in heat of moment and

thus, the accused assaulted the deceased in sudden fight.

Evidence of eyewitnesses shows that during the said quarrel,

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accused No.1 Barku went inside his house and brought knife/ axe

and gave blow on chest of the deceased Ramesh. This itself

shows that there was no any premeditation or intention to kill the

deceased Ramesh. It is also brought on record that there are no

other injuries on the person of the deceased. Had there been any

intention to kill, there would have been multiple injuries on vital

part of body of the deceased Ramesh. Medical evidence shows

that the death was caused due to single blow on his chest.

14. We have also gone through testimonies of

eyewitness which cannot be brushed aside as they have clearly in

unequivocal terms stated that it was accused No.1/ Barku, who

went inside his home and brought knife/ axe and assaulted the

deceased Ramesh on his chest.

15.

In view of the aforesaid discussion, this Court is of

the considered opinion that the learned Trial Court has erred in

completely discarding the reliable portion of the prosecution

evidence insofar as the role of accused No.1 – Barku Deochand

Shinde is concerned. The evidence of the eyewitnesses, duly

corroborated by medical evidence, clearly establishes that

accused No.1 inflicted a blow on the chest of deceased Ramesh,

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which proved to be fatal. However, considering the

circumstances in which the incident occurred, namely, a sudden

quarrel between closely related parties, absence of premeditation,

a single blow inflicted in the heat of passion, and the fact that the

accused himself had sustained injuries, the act of accused No.1

would not fall within the ambit of murder punishable under

Section 302 of the Indian Penal Code.

16.

In the considered view of this Court, the case would

squarely fall under Section 304 Part II of the Indian Penal Code,

as the accused can be attributed with the knowledge that his act

was likely to cause death, but without any intention to cause

death or such bodily injury as is likely to cause death.

17.

Upon careful re-appreciation of the entire evidence

on record, this Court finds that the testimonies of the

eyewitnesses, to the extent they attribute a specific overt act to

accused No.1 – Barku Deochand Shinde, are consistent, cogent

and duly corroborated by the medical evidence. The presence of

accused No.1 at the spot, the nature of assault, and the resultant

fatal injury to the deceased stand proved beyond reasonable

doubt. The defence has failed to prove any circumstance which

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would discredit this material part of the prosecution case. In such

circumstances, no other view, except the one pointing towards

the culpability of accused No.1, is possible. The finding of

complete acquittal recorded by the Trial Court, insofar as accused

No.1 is concerned, is therefore unsustainable and calls for

interference.

18. While determining the quantum of sentence, this

Court has taken into consideration the mitigating circumstances

emerging on record. The incident in question is of the year 2001

and more than two decades have lapsed since then. At the time of

the incident, accused No.1 – Barku Deochand Shinde was a

young man aged about 22 years. There is nothing on record to

indicate that he has any criminal antecedents. It is also pertinent

to note that the accused has undergone the full-fledged trial and

appeal for a considerable length of time, which itself operates as

a mitigating factor. Having regard to the nature of the offence,

the manner in which it was committed, and the aforesaid

circumstances, this Court is of the considered opinion that

sentencing the accused to the period already undergone would

meet the ends of justice.

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19. Insofar as accused Nos.2 and 3 are concerned, the

evidence on record is not sufficient to establish their common

intention to commit the murder of the deceased. The role

attributed to them does not inspire confidence to the extent of

recording their conviction for the offence alleged. The view taken

by the Trial Court, insofar as acquittal of accused Nos.2 and 3 is

concerned, is a possible and reasonable view and, therefore, does

not warrant interference.

20.

Hence, the following order:

ORDER

(i)

 The Criminal Appeal is partly allowed.

(ii)

 The judgment and order dated 13.06.2003 passed by the

learned III Ad-hoc Additional Sessions Judge, Aurangabad, in

Sessions Case No.257 of 2001, is quashed and set aside to the

extent of acquittal of accused No.1 – Barku Deochand Shinde.

(iii)

 Accused No.1 – Barku Deochand Shinde is convicted for

the offence punishable under Section 304 Part II of the Indian

Penal Code and is sentenced to suffer imprisonment for the

period already undergone by him.

(iv)

 The acquittal of accused Nos.2 – Deochand Raghunath

Shinde and 3 – Ramdas Deochand Shinde is maintained.

(v)

 Accused No.1 – Barku Deochand Shinde be set at liberty

forthwith, if not required in any other case. His bail bonds, if any,

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shall stand cancelled.

(vi)

 Set-off under Section 428 of the Code of Criminal

Procedure be given to accused No.1.

kps (SUSHIL M. GHODESWAR, J.) (KISHORE C. SANT, J.)