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1 Judgment in S.C. No.
411/2016
MHAH010072142016 Presented on : 13-12-2016 .

Registered on : 08-08-2017.
Decided on : 11-11-2020.
Duration : Y.- M.- Ds.
03 - 10 -28.
Exh.No. :- 347.
THE COURT OF ADDITIONAL SESSIONS JUDGE AHMEDNAGAR

AT - AHMEDNAGAR
(Before: Manjusha V. Deshpande)
Sessions Case No. 411 of 2016
CNR No.- MHAH010072142016
The State of Maharashtra,
Through Police Inspector
M.I.D.C. Police Station,
Ahmednagar.
(C.R.No. I – 230/2016) ...COMPLAINANT .
VERSUS
1) Krushna Ashok Korade,

Age - 22 years, R/o. Indranagar,
Majalgaon, Tal.Majalgaon, Dist.Beed.
2) Somnath Bhanudas More,
Age - 27 years, R/o. Shinganapur,
Tal. Newasa, Dist. Ahmednagar.
3) Ajinath Raosaheb Thombare,
Age - 24 years, R/o.Jamgaon,
Tal. Gangapur, Dist. Aurangabad.
4) Ramchandra @ Raju Chimaji Shete,
Age - 40 years, R/o. Walan Pimpri,
Tal. Rahuri, Dist. Ahmednagar.
5) Sandip Bahirunath Thopate,
Age - 25 years, R/o. Krushi Vidyapith,
Rahuri, Tal.Rahuri, Dist. Ahmednagar.
6) Rahul Babasaheb Darkunde,
Age - 24 years, R/o. Morgavhan,
Tal. Newasa, Dist. Ahmednagar.
7) Javed Karim Shaikh,
Age - 32 years, R/o. Deogaon,
Tal. Newasa, Dist. Ahmednagar. ...ACCUSED.
2 Judgment in S.C. No. 411/2016
CHARGE : U/s. 302, 120-B, 34 of I.P.C. and u/s. 3(2)(v)

of SCST Act and u/s.3/25, 3/27 of Arms Act.
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Ld. Advocate appeared :-
For the State :- Ld. A.P.P. Shri. K. G. Keskar.
For the accused No.1 :- Ld. Adv. Shri. V.B. Mhasepatil.
For the accused No.2 :- Ld. Adv. Shri. M.B. Tawale.
For the accused No.3 :- Ld. Adv. Shri. V.B. Mhasepatil.
For the accused No.4 :- Ld. Adv. Shri. C.N. Dubepatil.
For the accused No.5 :- Ld. Adv. Shri. S.V. Sudrik.
For the accused No.6 :- Ld. Adv. Shri. S.S. Tone.
For the accused No.7 :- Ld. Adv. Shri. S.V. Sudrik.
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JUDGMENT
(Delivered on 11/11/2020 )
1) The accused Nos. 1 to 7 are facing trial for the offences
punishable under section 302, 120-B, 34 of I.P.C. and under section 3(2)(v)
of the Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act 1989
and under section 3/25, 3/27 of the Arms Act.
2) Prosecution story in short is like this :-
The informant Santosh Shivaji Chavan resident of Walan, Tal. Rahuri,
Dist. Ahmednagar is doing service in Videocon company. The deceased
Himmat Abhimanyu Jadhav resident of his village is his friend.
3) On 13/09/2016, the informant woke up at 07.30 a.m. He was to
do servicing of his motorcycle. Therefore, he gave a mobile call to his friend
Himmat Jadhav and called him for tea. His friend Himmat Jadhav told him
that he is at Khedale, Tal.Newasa and asked him to come over there. The
informant on his motorcycle went to Khedale and asked Himmat Jadhav to
join him as he wanted to do servicing of his motorcycle at Rahuri. Himmat
Jadahav told him that he was to attend the Court date in Sessions Court,
Ahmednagar and after attending Court they would go to Rahuri. So, he along
with Himmat went to Sessions Court of Nagar on his motorcycle bearing
No.MH-17 BK-3019.
4) After doing the work in the Court, the informant and Himmat
Jadhav proceeded from Court at about 02.00 p.m. by their motorcycle to
their village. They were proceeding by Nagar-Aurangabad road. The
informant was driving the motorcycle and Himmat Jadhav was riding on
pillion seat. They crossed Jeur. In the way, the friend of Himmat by name
Anna Bharale passed by his car. After seeing Himmat Jadhav , Anna Bharale
took his car at the side and stopped the car. He asked Himmat Jadhav that
they will have tea at Pandharipul, after crossing the mountain range and he
proceeded ahead, by his car. The informant and Himmat Jadhav started
following him, on their motorcycle. The car has crossed some distance. The
informant and Himmat by their motorcycle had come at Imampur mountain
range near Hanuman hotel. Suddenly, the informant heard the firing of
bullets for three times at back side and Himmat fell down from the
motorcycle. The motorcycle was slipped. The informant also fell down. The
informant saw that Himmat was injured and somehow, Himmat ran towards
back side and thereafter, he fall on the side way. The informant got
frightened. He saw three unknown persons were going to Aurangabad side in
high speed. The informant got assured that those three unknown persons have
fired at Himmat Jadhav. The informant found that injured Himmat was lying.
To take him to the hospital, the informant took out the motorcycle and went
towards Anna Bharle at the hotel.
5) Anna Bharle and his friends were sitting in the hotel. The
informant narrated the incident to him. Thereafter, the informant on his
motorcycle and Anna Bharle, his friend by their vehicle, had come near
Hanuman Hotel. They found that people had gathered over there. They went
near Himmat and found that Himmat was dead. The mobile of Himmat was
lying near there. It was ringing. So, the informant picked up the mobile. The
brother of Himmat by name Nanasaheb was talking on mobile. The informant
narrated the incident to Nanasaheb. Thereafter, one call from Sunil Jadhav
was received on the mobile of Himmat. So, he handed over mobile to Anna
Bharle. Anna Bharle talked with Sunil. The person gathered there told them
that they have called the police and ambulance. The police and ambulance
came over there. Thereafter, the informant handed over mobile of deceased
Himmat to police. The police send dead body of Himmat to hospital by
Ambulance. The father of deceased, brother Nanasaheb and Sunil had come
over there. Thereafter, the informant filed the complaint against accused.
6) On filing the complaint, the offences were registered vide Crime
No.230/2016 offences punishable under section 302 of I.P.C. and under
section 3/27 of Arms Act at M.I.D.C. Police Station. The Investigating
Officer visited the spot and conducted spot panchanama. He seized two
empty cartridges and 3 caps of bullet, one motorbike, the soil, blood mixed
soil and sample of blood from motorcycle from the spot. He conducted
inquest panchanama of deceased Chandrakant Himmat Jadhav in presence of
panchas. He sent the dead body for post mortem. He recorded statements of
witnesses. Again on next day, the supplementary panchanama of spot of
occurrence was conducted. The search was made by team of FSL Nashik on
the spot. The percussion cap found on the spot was seized under
supplementary panchanama. Thereafter, again the Investigating Officer
recorded the statements of witnesses. Thereafter, the Accused Nos. 1 to 3
were arrested. The I.O. conducted memorandum panchanama and seizure
panchanama in respect of Accused No.2 Somnath More and seized a pistols
and live cartridges, shirt, blue pant at his instance.
7) Thereafter, the investigation was handed over to Investigating
Officer, SDPO Bhoite who visited spot of occurrence and found closed
circuit cameras on Baba Petrol Pump. He called out technician, expert and
panchas and seized CCTV footage. The hash value of CCTV footage was
taken. The CCTV footage was taken on pen drive. He collected certificate
under section 65B of Indian Evidence Act. Investigating Officer prepared

panchanama accordingly. The photographs were taken by pausing screen of
CCTV. Thereafter again the I.O recorded supplementary statements of some
of witnesses.
8) The I.O. conducted memorandum panchanama aand seizure
panchanama in respect of accused No.3-Ajinath Thombre and seized a pistol
and two live cartridges in megazine, T shirt, blue pant and mobile handset of
samsung of white colour and one motorbike No. MH-16-U-1009 at his
instance.
9) The I.O. conducted memorandum panchanama and seizure
panchanama in respect of Accused No.1-Krushna Korde and seized a pistol
along with two bullets, T shirt, blue pant and mobile handset of Nokia at his
instance. While recording those panchanamas the photographs were taken.
The seized muddemal property was sent for Forensic examination.
Thereafter, the I.O recorded the statements of witnesses from the spot. The
I.O conducted the memorandum panchnama of Accused No.3, Ajinath
Thombre, whereby Accused No.3, Ajinath Thombre, discovered the spot i.e.
the office of Accused No.4 Raju Shete, where the accused hatched conspiracy
to commit murder of Himmat Jadhav. The two photographs were seized from
the office of accused No.4 Raju Shete. Thereafter, the Accused No.3 Ajinath
Thombre took the I.O and panchas at the places of Imampur ghat where they
were waiting for Himmat Jadhav on Ahmednagar-Aurangabad highway,
where Himmat Jadhav spoke with somebody and where they committed the
crime.
10) The I.O conducted test identification parade of the accused. He
collected details of motorbike No.MH-16-U-1009 and MH-17-BK-3019.
During investigation, it was found that at the time of incident, the accused
No.4 Raju Shete was admitted in Kalamkar Hospital. The I.O collected the
details of the same from medical officer of Kalamkar Hospital. Thereafter, he
got recorded statement of informant under section 164 of Cr. P.C. Thereafter,
he collected the call details ( CDR)of mobiles seized from possession of
accused and mobiles of informant Santosh Chavahan,and deceased Himmat
Jadhav and mobiles of the other accused. As the accused were charged with
the offences punishable u/s 3/25 of Arms Act,the I.O applied to D.M.
Ahmednagar, through D.S.P. Ahmednagar for obtaining sanction to file
charge sheet against Accused. The chargesheet was filed against Accused
Nos. 1 to 3, and absconding Accused No.4 to 7 in Sessions Court. As the
accused were charged with the offence punishable under section Sec.3(2)(b)
(va) of the Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act
1989 along with other offences punishable under section 120-B, 302 of I.P.C.
and Sec. 3/25 of Arms Act, he filed charge-sheet against the accused, in the
Sessions Court, Ahmednagar.
11) Thereafter, accused No.6 was arrested. On the direction of the
I.O. Anand Bhoite, P.S.I. Devadkar recorded the memorandum panchanama
of accused No.6 Rahul Darkunde wherein he gave memorandum that he
would show the spot where he met the deceased Himmat Jadhav and the
spot from where he shared location of Himmat Jadhav with accused Nos. 1 to
3. Thereafter, the I.O filed supplementary charge sheet against accused No.6
Rahul Darkunde in Sessions Court.
12) On transfer of I.O. Bhoite, the I.O. Kalwaniya investigated into
the matter. He arrested accused No.7 Javed Shaikh. On the direction of the
I.O. Manish Kalvaniya, P.S.I. Gore recorded the memorandum panchanama
of accused No.7 Javed Shaikh wherein he gave memorandum that he
produced SIM card, with the help of which he and accused No.6 Rahul
Darkunde shared location of deceased as per directions of accused No..4 Raju
Shete. Accused No.7 Javed Shaikh produced mobile handset of MIDO
Company with SIM card of Idea and Airtel. Accordingly seizure panchanama
were prepared. The accused No. 7 Javed Shaikh gave the memorandum that
he has rented his house to accused Nos. 1 to 3 and showed the house of
village Devgaon. Accordingly panchanama was prepared. Thereafter the I.O
Kalwaniya recorded statements of witnesses.
13) Thereafter, I.O Kalwaniya arrested Accused No.4 Raju Shete and
Accused No.5 Sandip Thopate. I.O Kalwaniya conducted memorandum
panchanama of Accused No.4 Raju Shete, wherein he gave the memorandum
that ,he would show the place where he met accused nos.1 to 3 and where he
hatched conspiracy with other accused and gave them money and weapon for
commission of murder of Himmat Jadhav. The I.O. Kalwaniya recorded
memorandum panchanama of Accused No.4 Raju Shete wherein he showed
readiness to show the place where he threw mobile handset. The accused
No.4 Raju Shete showed streamlet in the vicinity of Vilad and stated that he
threw mobile in the said streamlet.The I.O by hiring labours got searched the
mobile handset in the streamlet but handset was not found. On completion of
investigation, the I.O filed supplementary chargesheet against accused No.4
Raju Shete, accused No.5 Sandip Thopate and accused No.7 Javed Shaikh.
The I.O. filed supplementary charge-sheet against the accused, in the
Sessions Court, Ahmednagar.
14) Charge was framed against accused No.1 to 7 under section 120-
B of the I.P.C., 302 read with 120-B of I.P.C. u/s. 3(2)(b)(va) of the
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act 1989,
under section 3/25 of the Arms Act vide Exh.19. They pleaded not guilty and
claimed to be tried. The prosecution has examined total twenty five
witnesses. In the cross examination as well as in statement u/s. 313 of Cr.
P.C. the defence of the accused was of total denial.
15) The accused Nos. 1 to 3 filed their written statement at Exh.325
and submitted that the deceased was their good friend. They were not having
any enmity with the deceased. They used to visit house of deceased. The
sister of deceased Dipali Jadhav used to serve meal to them. The deceased
was murdered and assailants were not traced out. The community of deceased
was pressurizing the police to arrest the assailants. The police in combing
operation arrested them and obtained their signatures on blank forms and
blank papers. The police has not seized any muddemal from them.
16) The accused No.4 filed his written statement below Exh.326 and
submitted that he is falsely involved in the crime. There were no disputes in
between deceased and him. He was not involved in business of sand. There
are no such documents filed along with charge sheet,showing that accused
no.4 was doing the business of sand. None from family members of deceased
were in politics. So, no election was contested in between deceased and the
accused No.4. The false cases are filed under Atrocities Act, so, accused No.4
along with his companions have agitated the same. So, the community of
backward class involved them in false cases. One false case was filed against
him u/s. 307 of I.P.C. from which he was acquitted. The prosecution has not
adduced the evidence showing that the accused No.4 participated in criminal
conspiracy. Nothing is recovered from him. At the time of incident, the
accused No.4 was admitted in Hospital of Dr. Kalamkar. The documents are
filed to that effect. So, also PW-24 Manish Kalwaniya has also deposed to
that effect. As accused Nos. 1 to 3 were acquainted with the deceased, the
false identification parade panchanama is prepared. There is no evidence of
witnesses showing that the accused No.4 was using the mobile. So, also the
mobile used in the offence, was not belonging to accused No.4.
17) The I.O. seized the weapons from the spot and showed the false
recovery u/s. 27 of Indian Evidence Act. The prosecution failed to prove
motive. The evidence of PW-18 father of the deceased and PW-19 sister of
deceased is hearsay evidence, therefore, not reliable. The prosecution has not
examined material witnesses. There is no eye witness in the present case. The
police prepared forged documents in this case. The evidence of PW-19 Dipali
Jadhav clearly reveals that Jaggu Jadhav committed the crime. The Court has
allowed anticipatory bail of accused and for one year the accused was on
anticipatory bail. The prosecution has not produced any evidence showing
use of vehicle in commission of offence. The PW-18, father of deceased has
exaggerated his evidence. The accused No.4 has not committed any offence
and he is falsely implicated in the offence. So, requested to acquit him.
18) Any other accused have not submitted any written statement.
19) Following points arise for my determination and I record my
findings thereon along with the reasons as under -
Sr.No. Point Findings
1) Does the prosecution prove that the : In the affirmative.
death of Chandrakant @ Himmat
Abhiman Jadhav was homicidal death ?
2) Does the prosecution prove that accused : In the affirmative.
Nos.1 to 7, prior to 13/09/2016, agreed
to do or caused to be done an illegal act
i.e. to commit murder of Chandrakant @
Himmat Abhiman Jadhav and that
thereby committed an offence
punishable u/s. 120-B of I.P.C.?
3) Does the prosecution prove that accused : In the affirmative.

Nos.1 to 7, in pursuance of the criminal
conspiracy, on 13/09/2016, at about
14.30 hours, on Nagar-Aurangabad road,
Imampur Ghat, near Hanuman Hotel
Tal. and Dist. Ahmednagar, did commit
murder by firing bullets and thereby
intentionally or knowingly, caused the
death of Chandrakant @ Himmat
Abhiman Jadhav and that thereby
committed an offence punishable u/s.
302 r.w. 120-B of I.P.C.?
4) Does the prosecution proves that : In the negative.

accused Nos. 1 to 7, on the aforesaid
date, time and place, not being the
members of scheduled caste, committed
an offence under the Indian Penal Code

(45 of 1860) punishable with
imprisonment for a term of ten years or
more against deceased Chandrakant @
Himmat Abhiman Jadhav knowing that
he is member of a Scheduled Caste or a
Scheduled Tribe and that thereby
3(2)(b)(va) of the Scheduled Caste and
Scheduled Tribe (Prevention of
Atrocities) Act 1989 ?
5) Does the prosecution proves that : In the negative.

accused Nos. 1 to 7, on the aforesaid
date, time and place, in contravention of
the provisions of Arms Act, were found
in possession of the weapon i.e. pistol
along with live cartridges, without any
license or permit and that thereby
3/25 of Arms Act ?
6) What order ? : As per final order.
REASONS
20) To bring home guilt of the accused, prosecution has examined

total twenty five witnesses. PW-1 Santosh Shivaji Chavan, the Informant at
Exh. 65, PW-2 Balasaheb Laxman Karale – the panch witenss of spot
panchnama,(seizure of two empty cartridges, three caps of bullet from spot),
memorandum panchnama and seizure panchnama of accused no.2, Somnath
More,(seizure of two pistols,four bullets, shirt and jean pant)at Exh.83, PW-3
Taktmal Kesharchand Gugale-panch witness of supplementary spot
panchnama,(seizure of percussion cap from spot) at Exh.92, PW-4 Bhausaheb
Yadavrao Ingale, the panch witness of memorandum panchnama and seizure
panchnama of accused no.3,Ajinath Thombre (seizure of one pistol, two live
rounds,one t-shirt, jean pant, one mobile and one sim card of Idea company)
at Exh.107, PW-5 Nanasaheb Appasaheb Damale, the panch witness of

memorandum and seizure panchnama of accused no.1 Krishna Korde,
(seizure of one pistol, two live rounds,one t-shirt, jean pant,one mobile and
dual sim card of Vodafone company) memorandum and discovery
panchnama of accused no.accused no.3,Ajinath Thombre, (panchnama of
place of criminal conspiracy and places from where he alongwith accused
no.1 Krushna Korade and accused no.2, Somnath More, on their motorcycle,
followed the motorycle of the deceased and panchanama of place of
commission of crime) at Exh.121.
21) PW6- Balasaheb Raghunath Murkute, the panch witness of
memorandum panchnama and seizure panchnama of accused no.7 Javed
Shaikh(seizure of one mobile and one sim card of Idea company) at Exh.133,
PW-7 Nasir Sardar Shaikh, the panch witness (panchnama of place i.e. house
of accused no.7 Javed Shaikh, which he let out to the co-accused) at
Exh.134, PW-8 Sanjay Bansi Bhingardive, the panch witness of
memorandum panchnama and discovery panchnama of accused no.4 Raju
Shete (place where he threw mobile) , at Exh.135, PW-09 Ganesh Bhausaheb
Agale, the panch witness of memorandum panchnama and discovery
panchnama of accused no.4 Raju Shete (panchnama of place of criminal
conspiracy and where the accused no.4 Raju Shete gave weapon and money
to the accused nos 1 to 3 ) at Exh.139, PW-10 Amol Jalinder Khamkar, the
panch witness of memorandum panchnama and discovery panchnama of
accused no.6 Rahul Darkunde (panchnama of place, where accused no.6
Rahul Darkunde met the deceased )at Exh.142.
22) PW-11 Dada Macchindra Shirke, the photographer(who took the
fotographs from CCTV footage of Baba petrol pump,situated at Ahmednagar-
Aurngabad road). at Exh.143, PW-12 Goraksha Pandharinath Mokate, the
informant of the incident who arrived on the spot after hearing sound at
Exh.153, PW-13 Adinath Devram Todmal, the witness who arrived on the
spot after hearing sound at Exh.156, PW-14 Manoj Laxman Zagare, the
witness who gave his motorcycle no.MH12-KM2635 to Bhaiyya Shaikh in
May 2016 and got returned it in Jan 2017at Exh.155, PW-15 Bhaiyya @
Kaimuddin Kutubuddin Shaikh, the witness who gave motorcycle no.MH12-
KM2635 to his cousin accused no,7 Javed Shaikh at Exh.157.
23) PW-16 Laxman Annasaheb Kusalkar, the witness who met the
deceased before the incident on Ahmednagar- Aurngabad road at Exh.158,
PW-17 Brajesh Satish Gujrathi, the technician(in whose presence, the PW-11
Dada Macchindra Shirke, the photographer took the fotographs of
motorcycles from CCTV footage of Baba petrol pump,situated at
Ahmednagar- Aurngabad road) at Exh.160, PW-18 Abhimanyu Devram
Jadhav, father of deceased at Exh.166, PW-19 Dipali Abhimanyu Jadhav,
sister of deceased at Exh.171.
24) PW-20 Dr. Vikas Madan Rathod, the Medical Officer who
conducted post mortem at Exh.179, PW-21 Dr. Kutubuddin Mulani, Balastic
expert at Exh.194, PW-22 Varsha Bhave, CCTV and Photo expert at Exh.213,
PW-23 Rahulkumar D. Pawar API, the first investigating officer Exh.225,
PW-24 Manish Kalwaniya S.D.P.O, third investigating officer at Exh.230,
PW- 25 Ananda Bhoite S.D.P.O, second investigating officer at Exh.245.
25) Besides this the prosecution relied on the complaint at Exh.66,
statement of Informant u/s. 164 of Cr. P.C.at Exh.67, spot panchanama dated
13/09/2016 at Exh.84, memorandum panchanama and Recovery panchanama
dated 18/09/2016 of Accused No.2 Somnath More, for recovery of two
pistols, five bullets, jean pant, shirt at Exhs. 85 and 86, respectively,
photographs of the clothes and weapons seized from possession of the
Accused No.2 Somnath More, at Exh.87 Exh.88, Supplementary spot
panchanama andseizure panchanama of percussion cap from the spot,and at
Exh.93, photographs of inspection of spot of incident, by Forensic experts at
Exh.94, Exh.95 respectively, seizure panchanama of deceased's articles at
Exh.96, memorandum panchnama of Acused No.3 Ajinath Thombare dated

17/09/2016 at Exh.109, Recovery panchanama of pistol, two live cartridges,
jean pant, T-shirt, mobile handset and motorcycle of Accused No.3 Ajinath
Thombare at Exh.110, photograph of the seized muddemal from Accused
No.3 Ajinath Thombare at Exh.111.
26) Memorandum panchnama of Accused No.1 Krushna Korde
dated 19/09/2016 at Exh.122, photograph of the seized muddemal from
Accused No.1 Krushna Korde at Exh.123, Recovery panchanama of pistol,
two bullets, jean pant, T-shirt, mobile of Accused No.1 Krushna Korde at
Exh.124, photographs of demo panchnama at Exh.125 and Exh. 126,
Discovery panchanama dated 24/09/2016 of accused No.3 Ajinath Thombare
at Exh.127, letter by SDPO to Dairy manager dated 09/01/2018 for
providing panchas,at Exh. 136, memorandum panchanama dated 09/01/2018
of Accused No.4 Raju Shete wherein the Accused No.4 Raju Shete gave the
memorandum that he would show the place where he threw the mobile of
Narayan Waghmode, at Exh.137 and the discovery panchanama at Exh.138,
discovery panchanama of office of the accused No.4 at Exh.140, photographs
of paused screen at Exh. 144 and Exh.145, Hash value of CCTV footage at
Exh.146 to 149, panchanama of CCTV footage capture at Exh.150,
Certificate under 65(B) of Indian Evidence Act at Exh.163.
27) Test identification parade panchnama at Exh.172, post mortem
report with pictorial autopsy chart at Exh. 180, Provisional cause of death
certificate at Exh.181, letter by SDPO to Kalina dated 21/09/2016 (2711) at
Exh.195, letter by SDPO to Kalina dated 21/09/2016 (2710) at Exh.196, letter
by SDPO to Kalina dated 05/12/2016 (2239) at Exh.197, letter by SDPO to
Kalina dated 05/12/2016 (2244) at Exh. 198, letter by SDPO to Kalina dated
05/12/2016 (2264) at Exh.199, examination report by M.M. Khopkar (6238-
39) at Exh.200, examination report by A.S. Aher (7921-22) at Exh.201,
examination report by K.P. Kale (2758-59) at Exh.202, examination report by
K.B. Mulani (21592) at Exh.203, examination report by K.B. Mulani (21593-

94) at Exh.204, examination report by Sreejita Das (16483-84) at Exh.205,
examination report by S.V. Gaikwad (9229) at Exh.206, examination report
by R.B. Shelar at Exh.208, examination report by Varsha Bhave at Exh.214,
inquest panchanama at Exh.226, muddemal receipt at Exh.227.
28) Memorandum panchanama dated 18/11/2017 of accused No.7
Javed Shaikh at Exh.231, Recovery panchanama of mobile of accused No.7
Javed Shaikh at Exh.232, memorandum of accused No.7 Javed Shaikh at
Exh.233, panchnama of house of accused No.7 Javed Shaikh at Exh.234,
Notice to Dr. Kalamkar Hospital by S.D.P.O at Exh.235, letter by S.D.P.O to
Tahasildar for providing panch at Exh.236, memorandum of accused No.4
dated 06/01/2018 at Exh.237, panchnama of house of accused No.4 at
Exh.238, receipt of payment to labour @ Rs.800/- at Exh.239, order passed
by SP to investigate crime to PW-25 at Exh.246, muddemal receipt at
Exh.247, order dated 18/09/2016 by S.D.P.O to API Pawar at Exh.248,
muddemal receipt at Exh.249, memorandum panchanama dated 24/09/2016
of accused No.3 Ajinath Thombare at Exh.250, Bill of Hotel Yashraj, Shani
Shingnapur at Exh.251, application to conduct TIP dated 06/10/2016 at
Exh.252, letter by S.D.P.O to RTO dated 10/10/2016 at Exh.253, letter by
S.D.P.O to P.I Rahuri dated 04/11/2016 at Exh.254, true copies of FIR
registered against accused at Exh.255, letter by S.D.P.O to Dr. Kalamkar
dated 04/11/2016 at Exh.256, reply to S.D.P.O by Dr. Kalamkar (1 to 13
pages) at Exh.257.
29) Letter by S.D.P.O to Ld.J.M.F.C. for recording statement u/s.164
of Cr. P.C. dated 04/11/2016 at Exh.258, letter by S.D.P.O to SP for
SDR/CDR dated 04/11/2016 at Exh.259, certified copy of roznama in
S.C.No. 327/2012 at Exh.260, letter to S.P. by S.D.P.O.for seeking
permission from Collector for filing chargesheet under Arms Act dated
24/11/2016 at Exh.261, letter by S.D.P.O to SDM, Shrirampur dated
02/12/2016 for verification of caste of the deceased Himmat Jadhav at

Exh.262, letter by S.D.P.O to P.I Gangapur dated 03/12/2016 at Exh.263
calling F.I.R. and extract of crime register, Copy of F.I.R. and extract of crime
register sent in reply by P.I Gangapur at Exh.264, Bill of photographer
Shirke at Exh.265, receipt of photographer Shirke at Exh.266, memorandum
panchanama of accused No.6 Rahul Darkunde at Exh.267, later part of
panchanama of accused No.6 Rahul Darkunde at Exh.268, portion marked 'A'
from statement of Dipali Jadhav at Exh. 269, portion marked 'A' from
statement of Abhiman Jadhav at Exh. 270, CDR at Exh. 275 and Exh. 276.
Sr. Article No. Muddemal property Exhibited in

No. ballistic
report
1 Article 1 and 2 Empties recovered from the spotof incident Exh.5 and 6
respectively
2 Article 3 Copper jacketed bullet recovered from spot of Exh.8
incident
incident
incident
6 Article 8 Two pistols recovered from accused No.2 Exh.2 and
Somnath More Exh.4
7 Article 9 One live cartridge Exh.4A
8 Article 10, 11, Four bullets Exh.2A
12, and 13 collectively
9 Article 20 Percussion cap recovered from spot of incident Exh.7
10 Article 27 Pistol recovered from Ajinath Thombare from Exh.1
his house
11 Article 27 & Two live cartridges Exh.1A
27B
12 Article 36 Pistol having picture of eagle recovered from Exh.3
Krushna Korade
13 Article 37 Two bullets Exh.3A and
Exh.3B
Article 1A – jean pant of deceased, Article 1 and 2 – empties, Art. 3, 4, 5 –

bullet cap, Art. 6 and 7 – two envelopes, Art.8 and 9 – two pistols, Art.9A –
two live cartridges, Art. 10,11, 12,13 – four cartridges, Art.14 – shirt, Art. 15
– jean pant, Art. 20 – percussion cap, Art. 21 – envelope of percussion cap,
Art.22 – Baniyan, Art.23 – underpant, Art. 24 – waist string, Art.25 – pair of
sandal, Art. 26 – two pieces of black belt, Art. 27 – pistol, Art.27A and 27B –
two live cartridges, Art.28 – label affixed on pistol, Art. 29- T-Shirt, Art. 30 –
jean pant, Art. 31 & 32 – two packets bearing labels of signature, Art. 33-
Mobile handset, Art- 34 – two packets bearing labels of signature, Art. 35 –
motorcycle, Art. 36 – pistol having picture of eagle, Art. 37 – two bullets,
Art.38 – envelope of pistol, Art. 39 – red T- shirt, Art. 40 – envelope of T-
shirt, Art.-41 – jean pant, Art. 42- envelope of pant, Art.43 – mobile handset
of Nokia company, Art.44 – envelope of mobile, Art. 45 – photo, Art. 46 –
photo, Art. 47 – mobile of white colour, Art. 48 – envelope of pendrive.
30) Ld. APP Shri. K.G. Keskar filed written argument on Exh.328
and has advanced the argument. The contentions raised in the arguments of
Ld. APP Shri. Keskar for State in short are like this.
That to prove that the death of the Chandrakant @ Himmat
Abhimanyu Jadhav is homicidal, the prosecution relied on evidence of PW-
1,the Informant Santosh Chavan, PW-12 Goraksha Mokate and PW-13
Adinath Todmal, PW-16 Laxman Kusalkar, PW-18,father of the
deceased,Abhimanyu Jadhav, the witnesses who arrived on the spot,
immediately after the incident, PW-20 Dr. Vikas Rathod,who conducted post
mortem report on dead body of Chandrakant @Himmat Jadhav, the evidence
of PW-23 API Rahul Pawar,who conducted Inquest panchnama.
31) The prosecution also relied on the evidence of PW-21 Dr.
Kutubuddin Mulani,the ballistic expert, who filed report on Exh.200 to 206
and 208 and 214,on examination of muddemal property sent to him for
examination.
32) The evidence of PW-1 Santosh Chavan, the Informant

alongwith FIR Exh. 66 and statement u/s164 of IPC, Exh.67 reveals that at
the time of incident, he along with deceased was going from Ahmednagar –
Aurangabad highway by his motorcycle. On the way, they met Anna Bharle,
the friend of Himmat Jadhav, who was travelling by car. After crossing the
Ghat,they decided to have tea. Anna Bharle proceeded by his car ahead. PW-
1 Santosh Chavan, the informant with Chandrakant @ Himmat Jadhav
followed his car. And at that time, PW-1 Santosh Chavan, the Informant was
driving the motorcycle and Chandrakant @ Himmat Jadhav was pillion rider.
The car went at some distance. The Informant and the deceased by their
motorcycle just crossed Hotel Hanuman. And the Informant heard sound of
three bullet shots at back side. The pillion rider Chandrakant @ Himmat
Jadhav fell down. He also fell down as motorcycle skidded. He saw three
persons were going to Aurangabad direction in high speed on motorbike. To
take him to the hospital, the informant took out the motorcycle and went
towards Anna Bharle at the hotel.
33) Anna Bharle and his friends were sitting in the hotel. The
informant narrated the incident to him. Thereafter, the informant by his
motorcycle, and Anna Bharle, his friend by their vehicle, had come near
Hanuman Hotel. They found that people had gathered over there. They went
near Himmat and found that Himmat was dead. Himmat died due to bullet
shots.
34) The faces of assailants were veiled. They proceeded towards
Aurangabad direction in high speed. In natural course if any such incident
takes place on the road ,the passerby stops and see as to what had happened,
but the said motorcyclists have not stopped. Here the conduct of is somewhat
suspicious.
35) PW-1 the Informant could not identify those three unknown
persons either at the time of incident or at the time of test identification
parade. Even after showing the photographs in the Court during the trial, the
informant was unable to identify the assailants. Thus, it reveals the incident
took place on Ahmednagar-Aurganbad highway near Hanuman temple.And
those three persons proceeded towards Aurangabad direction in high speed
on motorbike soon after the incident.
36) PW-12 Goraksha Mokate and PW-13 Adinath Todmal are those
witnesses who have come on the spot, after hearing the sound. As per the
evidence of PW-12 Goraksha Mokate, he heard noise of fire crackers at about
02.00 to 02.30 p.m and he came out of the hotel whereas as per PW-13
Adinath Todmal, the waiter in hotel Shaniraj at about 02.00 to 02.30 p.m., he
heard noise of silencer of motor-bike and saw persons assembled in front of
hotel Hanuman and he came out of hotel. The evidence of both the
witnesses ,PW-12 Goraksha Mokate and PW-13 Adinath Todmal revealed
that they noticed motor-bike and one person had fallen on the road. As per
PW-12 Goraksha Mokate some small children told him that three persons
fired bullet on said person whereas PW-13, Adinath Todmal saw one motor-
bike of black colour proceeding towards Aurangabad direction and deceased
Chandrakant @ Himmat Jadhav lying aside the road.
37) PW-16 Laxman Kusalkar is the witness who has seen
Chandrakant @ Himmat Jadhav, and PW-1 Santosh Chavan proceeding
towards their village at Ahmednagar- Aurangabad highway on motor-bike,
before the incident. PW-16 Laxman Kusalkar was acquainted with deceased
Chandrakant @ Himmat Jadhav. After meeting in the way, they talked. PW-
16 asked Chandrakant @ Himmat Jadhav that they will have tea at hotel of
Bhisekaka. PW-16 Laxman Kusalkar went ahead by his car and the
Informant by driving motorcycle on which Chandrakant @ Himmat Jadhav
was pillion rider was following his car. PW-16 Laxman Kusalkar went ahead
and he was waiting in the hotel of Bhisekaka, at that time, PW-1 Santosh
Chavan came and narrated the incident. They went on the spot found the
deceased lying on the road. The police came and took deceased to hospital.
All these evidence together reveals that three persons proceeded towards
Aurangabad direction in high speed on motorbike soon after the incident.
Those three persons are unknown.And that Himmat Jadhav died due to bullet
shots.
38) The evidence of PW-23 API Rahul Pawar, alongwith inquest
panchanama reveals the injuries received by the deceased on back and
stomach. This evidence supports the say of the PW-1, the Informant Santosh
chavhan that he heard the sound of bullet shots at backside,when he
alongwith deceased was proceeding by motorbike. .PW- 20 Dr. Vikas Rathod
M.O. alongwith other Doctors conducted post mortem of the dead body of
the deceased Himmat Jadhav. PW- 20 Dr. Vikas Rathod M.O. deposed before
the court that on examination, they found following injuries on the person of
deceased.
1- Firearm entrance wound in the form of obliquely placed oval
shaped lacerated puncture wound of size 1.5cm x 1.3cm x cavity deep,
present over back of thorax (chest) on right side, situated 1cm away from
vertebral column at the level of 5th thoracic vertebrae and 16 cm medial to
right infra-scapular prominence. The margins of the wound are inverted,
irregular, ragged, abraded, and surrounded with contusion, blood infiltrated,
reddish.
2- Obliquely placed oval shaped lacerated puncture wound with

everted, irrgular, blood infiltrated margin suggestive of firearm exit wound
of size 1.7cm x 0.8cm x cavity deep, present over left upper chest region, in
4th intercostals space, situted 4 cm lateral to left nipple and 5 cm anterio-
medially to mid-axillary line, reddish.
3- Obliquely placed over shaped lacerated puncture wound with

inverted, irrgular, blood infiltrated margin surrounded by blackening
suggestive of firearm entry wound of size 1.2cm x 0.8cm x muscle deep,
present over right lower 1/3 rd of back, flank region, situated 20cm lateral to
vertebral column, directing above downwards and exiting through injury
present 5 cm anterio-inferio-medial to firearm entry wound; firearm exit
wound was of size 1.5cm x 0.8cm x muscle deep, obliquely placed oval
shaped lacerated puncture wound with everted, irrgular, blood infiltrated
margin, reddish, with evidence glancing effect in the form of obliquely

placed contused abrasion of size 7.2cm x 1.2cm present over right inguinal
region situated 2.5 cm inferio-medially to firearm exit wound, more towards
anterior, runnning above downwards, reddish.
4- Obliquely placed laceration of size 6cm x 1.2cm x subcutaneous

deep, present over lower 3rd of right buttock, reddish.
5- Contused abrasion of size 1.5cm x 0.5cm present over anterio-

lateral aspect of left elbow, reddish.
6- Contused abrasion of size 1cm x 0.5cm present over posterior

rd
middle 3 aspect of left forearm, reddish.
7- Contused abrasion of size 1.2cm x 1cm present 3 cm below

elbow joint over posterio-medial aspect of left forearm, reddish.
8- Two Contused abrasion of sizes 0.3cm x 0.2cm and 0.4cm x 0.3

cm respectively situated 0.8 cm apart from each other over anterior aspect of
right knee, reddish.
9- Three Contused abrasion of sizes 0.5cm Firearm entrance wound

in the form of obliquely placed oval shaped lacerated puncture wound of size
1.5cm x 1.3cm x cavity deep, present over back of thorax (chest) on right
side, situated 1cm away from vertebral column at the level of 5 th thoracic
vertebrae and 16 cm medial to right infra-scapular prominence. The margins
of the wound are inverted, irregular, ragged, abraded, and surrounded with
contusion, blood infiltrated, reddish.
39) The evidence of PW- 20 - Dr. Vikas Rathod further reveals that
after internal examination he found following injuries :-
On opening thoracic region, track of firearm injury noted have been

stated below. -
Skin over right side of back, paraspinal area ( Injury no. 1 of column
no.17) →right paraspinal muscles at level of 5th thoracic vertebrae- Fracture
of spinous process of 5th thoracic vertebrae → muscles of 5th intercostal space
at left paraspinal region→ piecing posterior pleura of left lung → posterior
lower portion of upper lobe of left lung → medially towards lower lobe of
left lung → then downwards laterally and exiting lung → anterior left pleura
→ 4th intercostals muscles → 4th intercostal space → Exit ( Injury no. 2 of
column no.17). Entire track show evidence of hemorrhage on the surface at
places.
In Pleura about 2.5 – 3 liter blood was present in left pleural

cavity as per firearm wound tracked. On examination of right lung it was
intact and pale. On examination of left lung, as per track of firearm wound
collapsed with evidence of blood and blood clot throughout the track of
injury. On examination there was fracture of spinous part of 5 th thorasis
vertebra with evidence of surrounding haematoma with deformity present.
All organs were pale. Out of all these injuries, injury no.1 to 3 mentioned in
col. no.17 and corresponding internal injuries mentioned in col. no.20 are
sufficient to cause death in ordinary course of nature. PW- 20 Dr. Vikas
Madan Rathod opined that the cause of death is “firearm injury to left lung”.
Accordingly, they have prepared post mortem examination report and
pictorial autopsy chart. Exh.No.180. They have also issued post mortem cum
provisional cause of death certificate Exh.No.181.
The injury nos. 1 to 3 mentioned in col. no.17 of PM

examination report (Exh.180) may be possible by bullet fired from pistol or
any firearm.
40) PW-20 Dr. Rathod is cross examined by defence. PW-20 Dr.

Rathod denied the suggestion that the injuries caused to the deceased were
not due to fire arm but of iron rod. In fact, the death of Chandrakant @
Himmat Jadhav is not homicidal is not much disputed.
41) The Accused Nos. 1 to 3 were arrested on 15.9.2016.The
prosecution has also brought evidence in respect of spot panchnama, recovery
of weapons i.e. pistol and cartridges used by the accused in commission of
offence. The prosecution has also brought the evidence about clothes wore by
the accused at the time of commission of offence and the mobiles seized from
the accused, by adducing the evidence of panch witnesses and investigating
officer i.e. PW-23 Rahulkumar D. Pawar API first I.O, PW-24 Manish
Kalwaniya SDPO third I.O, PW-25 Ananda Bhoite SDPO, second I.O.
42) PW-23 ,I.O. Rahulkumar D. Pawar, API prepared the panchnama
of seizure of clothes of the deceased vide seizure panchnama Exh.96.The
evidence of panch witness PW-2 Balasaheb Karale, along with evidence of
PW-23 Rahulkumar Pawar collectively reveals that Investigating Officer has
collected two empty cartridges(Exh.5,6), three bullets caps(Exh.8, 9 and10)
one percussion cap (Exh.7) from the spot of incident so also I.O. has
collected simple soil, blood mixed soil from the spot and blood sample from
motor-bike No.MH-17-BK-3019 belonging to PW-1 the informant, Santosh
Chavan.
43) Though the panch witness PW-2 Balasaheb Karale turned hostile
to the effect that accused No.2 Somnath More produced two pistols, five
bullets, shirt and blue jean pant from loft of kitchen of his house, the
evidence of panch witness PW-2 Balasaheb Karale along with evidence of
PW-23 the I.O Pawar reveals that the memorandum panchnama of accused
No.2 Somnath More was conducted. In pursuance of which the accused No.2
Somnath More produced two pistols (Exh.2 and 4), five bullets, shirt and blue
jean pant from his house of Sonai. So, this evidence can be safely relied
upon.
44) The evidence of PW- 3 panch witness Taktmal Gugale along
with evidence of PW-23 the I.O Pawar reveals that in presence of three
experts of FSL Nashik, percussion cap was seized from the spot and
accordingly panchanama was prepared.
45) The evidence of PW-4 panch witness Bhausaheb Ingale along
with evidence of PW-25 Ananda Bhoite reveals that memorandum
panchanama of accused No.3 Ajinath Thombare was conducted in pursuance
of which accused No.3 Ajinath Thombare produced pistol (Exh.1) from steel
pimp in which there were two live cartridges. He also produced clothes i.e. T-
shirt and blue pant, in the pocket of which there was SIM card of idea
company and mobile. The motor-bike bearing No. MH-16-U-1009 was
parked near his house. Those articles were seized by PW-25 I.O Ananda
Bhoite under panchanama.
46) The evidence of PW-5 panch witness Nanasaheb Damale along
with evidence of PW-25 the I.O Bhoite reveals that the accused No.1
Krushna Korde has given the memorandum in pursuance of which he has
produced pistol(Exh.3) from aluminum tin which was having two bullets in
its megazine. The accused No.1 Krushna Korde produced clothes, the clothes
i.e. red T-shirt, blue pant and mobile hand set of Noika company. Those
articles were seized by PW-25 I.O and panchanama was prepared.
47) The evidence of PW-6 Balasaheb Murkute, PW-7 Nasir Shaikh,
PW-9 Ganesh Agale, PW-10 Amol Khamkar, the panch witnesses, PW-15
the witness Bhaiyya Shaikh reveals that they turned hostile however, PW-2
Balasaheb Karale, PW-5 panch witness Nanasaheb Damale, partly firmed and
partly turned hostile. The prosecution brought the evidence of Investigating
Officers, PW-23 Rahulkumar Pawar, PW-24 Manish Kalwaniya and PW-25
Ananda Bhoite who recovered the weapon,clothes of the accused and mobile
of the accused, from the accused in presence of those panchas. Hence, their
evidence as to recovery need not be rejected on the ground that the panch
witnesses for seizure panchanama did not support the prosecution.
48) All these seized articles including clothes of the deceased,
weapons, clothes seized from custody of the accused, were sent to Forensic
Labrotory.
49) According to Prosecution, PW 21 Dr. Kutubuddin Mulani is also
another independent, important and star witness. PW 21 is a ballistic expert
who has been working as Assistant Chemical Analyzer in FSL, Kalina,
Mumbai. The examination report of viscera from dead body is at.Exh. 200.
The report of blood sample of deceased Exh.202 being haemolysed, was
unsuitable & inconclusive for grouping, PW 21 Dr. Kutubuddin Mulani
received articles 27 articles.
50) Exhibits 1, 2 and 3 are the countrymade pistols in working
condition. Exhibit 1 is capable of chambering and firing 9 mm pistol
cartridges and Exhibits 2 and 3 are capable of chambering and firing 7.65
mm pistol cartridges. Residues of fired ammunition-nitrite were detected in
barrel of washings of countrymade pistols. Exhibits 1, 2 and 3 showing that
countrymade pistols Exhibits 1,2 and 3 were used for firing prior to their
receipt in the laboratory.
51) One of the two 9 mm pistol cartridges in Exhibit 1A were
successfully test fired through countrymade pistol Exhibit 1.Randomly
selected two 7.65 mm pistol cartridges in Exhibit 2A were successfully test
fired through countrymade pistol Exhibit 2.Randomly selected on 7.65 mm
pistol cartridge in Exhibit 2A and one 7.65 mm pistol cartridge in Exhibit
3A were successfully test fired through country-made pistol Exhibit
3.Exhibit 4 is a single barrel breech loading country-made handgun in
working condition. The 8 mm rifle cartridge in Exhibit 4A was successfully
test fired through country-made handgun Exhibit 4.
52) The empty in Exhibit 5 is a fired 9 mm pistol cartridge
case.Empty in Exhibit 5 tally with the test fired cartridge from country-made
pistol Exhibit 1 (examined under comparison microscope) showing that this
empty in Exhibit 5 has been fired from country-made pistol Exhibit 1.The
empty in Exhibit 6 is a fired 7.65 mm pistol cartridge case without primer cap
hence not suitable for Ballastic comparison. The primer cap in Exhibit 7 is a
fired primer cap of 7.65 mm pistol cartridge from country-made pistol. The
characteristic features of firing impression on the primer cap in Exhibit 7
tally with the test fired cartridge from country made pistol Exhibit 3.
53) The deformed copper jacketed bullet in Exhibit 9 is a fired 7.65

mm copper jacketed pistol bullet. copper jacketed pistol bullet in Exhibit 9
tally with the test fired bullet from countrymade pistol Exhibit 3. Deformed
copper jacketing bullet Exh.9 correspondences to country made pistol (article
36) showing that this 7.65 mm copper jacketed pistol bullet in Exhibit 9 has
been fired from countrymade pistol Exhibit 3.Exhibit 10 is a fired 9 mm
copper jacketed pistol bullet. The deformed 9 mm copper jacketed pistol
bullet in Exhibit 10 tally with the test fired bullet from country-made pistol
Exhibit1.The deformed copper jacketed bullet in exh.10 is corresponding
with country The deformed copper jacketed bullet in made pistol - article 27
(exh.1) showing that this deformed 9 mm copper jacketed pistol bullet in
Exhibit 10 has been fired from country-made pistol Exhibit 1. Shot holes on
the clothes are due to copper jacketing bullets.
54) The loading capacity of cartridges in the magazine of three
pistols (articles 8, 27 and 36) is ten cartridges, in each pistol. The loading
capacity of cartridge in country made hand gun (article 9) is one bullet.
55) If the bullet hits to the muscle of human body, it passes

throughout. If the bullet hits to the bone of human being, then the direction
of said bullet changes.
56) The seized clothes, articles from dead body of deceased were
examined. The Examination report is marked as Exh.208. The seized clothes,
articles from dead body of deceased,i.e. banian (article 22), underwear
(article no.23), black belt (two pieces of black belt) (article no.26), black
jeans pant of deceased (article 1A). The sandow banian (article 22),
underwear (article 23) and two pieces of leather belt (article 26) are at exh.
Nos. 13, 14, 17A and 17B in examination report (exh.203). Exhibits (11),
(15), (16A), (16B), (17A), (17B), (26) and (27) are stained with blood.
Exhibits (12) and (13) have considerable number of blood stains.
57) On examination of those clothes of deceased, there were short

holes on those clothes. Those short holes were due to firing of copper
jacketed bullet. On examination JSR particles (absence of blackening and
powder residue) on the clothes, were not fond Therefore, copper jacketing
bullets have been fired from beyond powder range of weapon. Detection of
metallic lead and copper in absence of blackening and powder residues
around periphery of encircled shotholes on full jeans pant Exhibit 11 and its
corresponding shothole on underwear Exhibit 14 and shothole on full open
shirt Exhibit 12 and its corresponding shotholes on sandow banian Exhibit 13
are consistent with wipe and passage of copper jacketed bullets have been
fired from beyond the powder range of a weapon.
58) The fired gunshot residues (lead and copper) was detected on
belt piece in Exhibits 17A and 17B. Nothing of note in relevance to the fired
gunshot residues were detected on exhibits 15, 16 and 18 to 23.He filed
examination report Exh.203.
59) The evidence of PW-1 Santosh Chavan, PW-13 Adinath Todmal,

the evidence of PW-20 Dr. Vikas Rathod along with the evidence of PW-21
Dr. Kutubuddin Mulani reveals that the death of the deceased was homicidal
Therefore, there is sufficient evidence on record to hold that death of
Chandrakant @ Himmat Jadhav is homidical. Thus, prosecution proved the
death of Chandrakant @ Himmat Jadhav is homicidal.
60) The evidence of panch witness PW-2 Balasaheb Karale, the
evidence of PW- 3 panch witness Taktmal Gugale along with evidence of
PW-23 the I.O Pawar The evidence of PW-4 panch witness Bhausaheb
Ingale, the evidence of PW-5 panch witness Nanasaheb Damale along with
evidence of PW-25 the I.O Bhoite, recovery panchnamas of Accused Nos.1 to
3 coupled with the evidence of PW-20 Dr. Vikas Rathod,with the evidence of
Dr. Kutubuddin revealed that percussion cap (Exh.7) and copper jacketed
bullet (Exh.9) is fired from pistol (Exh.3) seized from Accused No.1 Krushna
Korde,and copper jacketed bullet (Exh.10) and empty(Exh.5) is fired from
pistol, (Exh.1) seized from Accused No.3, Ajinath Thombre. Copper jacketed
bullets have been fired beyond reasonable powder range of weapon. And that
caused death of deceased Himmat Jadhav. This is one of the circumstance,
from which inference of guilt of accused Nos.1 to 3 is drawn.
61) PW-11 Dada Shirke the photographer is the independent and star
witness, his evidence along with evidence of PW-17 Brajesh Gujrathi and
evidence of PW- 25 Ananda Bhoite reveals that panchanama at Baba Petrol
Pump, Imampur was conducted in his presence. There were four cameras
installed at the said petrol pump. The cameras were capturing images of
sourrounding areas incoming and outgoing vehicles. The said pump is
situated at Ahmednagar-Aurangabad road. The evidence of PW-11 Dada
Shirke along with evidence of PW- 17 Brajesh Gujrathi, PW-25 I.O Ananda
Bhoite reveals that they alongwith one Mandar Mule saw the CCTV footage
of 13/09/2016 afternoon period. They saw that one two wheeler on which two
persons were riding i.e. PW-1 Santosh Chavan and the deceased were
proceeding and one another motorcycle of which three persons i.e. accused
Nos. 1 to 3 were riding was following the said motor-bike, on which the
deceased was pillion rider. PW-11 Dada Shirke took photographs of both
motor-bikes. The CCTV footage was copied in said pen drive by technician.
The Hash Value was also drawn and panchanama was prepared. Said witness
identified the photographs developed by him.
62) PW- 22 Varsha Bhave is the scientific officer of F.S.L Kalina
who has analyzed the CCTV footage and photographs. She received pen
drive of Sandisc Cruzer Blade 8GB and the photographs at Exh.2/1 to
Exh.2/20 by the letter from police station. She was asked to examine the
similarity between specimen photographs and the persons and clothes present
in the questioned video file. The analyzing of CCTV footage, video clips and
photographs was done by using forensic tool. PW-22Varsha Bhave found the
persons which are seen in the photographs are the same persons which are
seen in the video photographs i.e. CCTV footage. The evidence of PW-22
Varsha Bhave along with her report Exh.214 reveals that the persons present
in Exh.1 was found similar with the person present in Exh.2/2 and 2/3 i.e.
motorbike rider. So, also person present in Exh.1 was found person present in
photograph Exh.2/4 i.e. pillion rider. The clothes of person present in video
file Exh.1 appears to be similar with the clothes present in Exh.2/9. The
clothes of middle person present in questioned video file Exh.1 appears to be
similar of clothes present in Exh.2/13. The clothes of last person on
motorbike present in questioned video file Exh.1 appears to be similar with
the clothes present in photograph Exh.2/17. PW-17 Brajesh Gujrathi issued
certificate u/s 65B of Indian Evidence Act. Even after cross examination, the
evidence of this witness remained unshattered. This evidence of CCTV
footage coupled with evidence of recovery of weapon from the accused nos
1 to 3 ,medical evidence ,ballastic experts evidence points out the guilt of the
Accused Nos.1 to 3,showing that Accused Nos. 1 to 3,by riding on their
motorcycle,by following the motorcycle of the PW-No.1,Santosh
Chavahan,on which the deceased was pillion rider, fired bullet on deceased
from backside and caused death.
63) It is the case of prosecution that accused Nos. 1 to 7, by hatching
conspiracy have committed murder by firing bullets on Chandrakant @
Himmat Abhimanyu Jadhav . The prosecution relied on evidence of PW-18
father of deceased Abhimanyu Jadhav and PW-19 sister of deceased Dipali
Jadhav.
64) It is the case of prosecution that the motive behind commission
of offence of criminal conspiracy to commit murder of deceased Chandrakant
@ Himmat Jadhav was the skirmish in between accused No.4 Raju Shete and
the deceased. The deceased and accused No.4 Raju Shete are from same
village Walan pimpri. The deceased was from Bhill community. He was of
good behaviour and helping nature. So, he was respected by people in the
village Walan whereas the accused No.4 Raju Shete was belonging to
Maratha community and he was jealous of deceased. He disliked deceased
therefore, there was dissension between deceased and accused No.4 Raju
Shete.
65) PW-18 father of deceased Abhimanyu Jadhav and PW-19 sister
of deceased Dipali Jadhav have given several instances showing that the
accused No.4 Raju Shete was having grudge against the deceased
Chandrakant @ Himmat Jadhav.
66) At relevant time, the accused No.4 Raju Shete was engaged in
sand business. The accused No.4 Raju Shete used to transport sand through
village Walan in vehicles nearby the school. So, the deceased asked accused
No.4 Raju Shete not to transport sand through village Walan that to nearby to
school. However, accused No.4 Raju Shete refused and continued
transportation of sand and on this count, the accused No.4 had wrath against
the deceased Chandrakant @ Himmat Jadhav.
67) One another instance is that the deceased Chandrakant @
Himmat Jadhav arranged village fair of God-Kanifnath and followers of
deceased fixed flex board of deceased in the village and on this count also
skirmish took place between accused No.4 Raju Shete and the deceased
68) There was dispute in between two groups of Milind Gosavi and
groups of Satish Shelke. Accused No.4 Raju Shete was from the group Satish
Shelke. They beat Milind Gosavi. At the instance of deceased Chandrakant @
Himmat Jadhav, Milind lodged complaint against said group and matter was
settled in between them by the deceased. However, due to said intervention,
the accused No.4 Raju Shete got annoyed with deceased Chandrakant @
Himmat Jadhav.
69) The group of Raju Shete fired bullet on deceased but the
deceased survived and crime was registered against said group. The accused
No.4 Raju Shete was pressurizing the deceased Chandrakant @ Himmat
Jadhav to withdraw the said case. The copy of judgment in the said criminal
case is filed on the record. This is one of the incriminating circumstance from
which it can be gathered that since before the incident, Raju shete alongwith
other accused was planning and preparing for commission of murder of the
deceased
70) PW-18, father of deceased Abhimanyu Jadhav has given one
instance wherein he was accompanying the deceased Chandrakant @
Himmat Jadhav to the temple of Lord Shani at Rahuri. The accused No.4
Raju shete and his companions were present over there. The accused No.4
Raju Shete by gesture pointed the deceased to his companion .
71) So, also PW-19 sister of deceased Dipali Jadhav has also
deposed about one instance wherein she was accompanying the deceased
nearby school at that time accused No.4 Raju Shete was pointed the deceased
to his companion I.e.accused No.2 Somnath More and accused No.1 Krushna
Korade. This is another incriminating circumstance from which it can be
gathered that since before the incident, Raju shete alongwith other accused
was planning and preparing for commission of murder of the deceased. Thus
the prosecution has brought the evidence of instances wherein the accused
No.4 Raju Shete was having grudge against the deceased Chandrakant @
Himmat Jadhav and therefore it was the motive of accused No.4 Raju Shete
to cause death of deceased Chandrakant @ Himmat Jadhav. The first attempt
of causing murder of the deceased was failed and so he committed the
offence of criminal conspiracy along with other accused.
72) The evidence of PW-1 the informant Santosh Chavan, PW-2 the
panch witness Balasaheb Karale, PW-3 Taktamal Gugale, PW-4 panch
witness Bhausaheb Ingale, PW-5 Nanasaheb Damale panch witenss, PW-11
Dada Shirke, PW-12 the informant Goraksha Mokate, Pw-16 Laxman

Kusalkar, PW-17 the technician Brajesh Gujrathi, PW-18 Abhimanyu Jadhav,
father of deceased, PW-19 Dipali Jadhav sister of deceased is material one
and their testimony cannot be rejected on the ground that it was recorded
after gaps of day.
73) That the accused Nos. 1 to 7 have hatched criminal conspiracy
and in pursuance of criminal conspiracy, the accused No.4 Raju Shete hired
accused Nos. 1 to 3. The accused Nos. 1 to 3, as per direction of accused
No.4 Raju Shete and as per the location given by accused Nos. 5 to 7
followed the deceased Chandrakant @ Himmat Jadhav and committed
murder of deceased Chandrakant @ Himmat Jadhav on 13/09/2016. Since
before 13/9/16 and on 13/09/2016, those accused were in contact with each
other. Raju shete alongwith other accused was planning and preparing for
commission of murder of the deceased Chandrakant @ Himmat Jadhav.
74) The defence admitted the documentary evidence of call details
of CDR at Exh.275 and Exh.276, adduced by the prosecution, which reveals
that since prior to the incident as well as on 13/09/2016, those accused were
in contact with each other for commission of murder deceased Chandrakant
@ Himmat Jadhav. There was some communication in between the Accused
Nos.1 to 7 since prior to the incident. There were calls in between Mobile
No.9822490632 seized from Accused No.7 Javed Shaikh on Mobile No.
8975252244 seized from Accused No.3 Ajinath Thombare. So, also there
was communication in between accused No.4 Raju Shete from mobile No.
7447282495 on mobile No. 9922256875 of accused No.5 Sandip Thopate.
So, also, there was communication in between accused No.3 Ajinath
Thombare from mobile No. 9822490632 on mobile No. 9922256875 of
accused No.5 Sandip Thopate and on mobile No. 7447282495 of accused
No.4 Raju Shete and on Mobile No.9822490632 seized from Accused No.7
Javed Shaikh. There was continuous communication in between mobile No.
9922256875 of accused No.5 Sandip Thopate and Mobile No. 8975252244

seized from Accused No.3 Ajinath Thombare and on mobile No. 7447282495
of accused No.4 Raju Shete , which reveals that Sandip Thopate, the accused
No.5 was having communication with accused No.4 Raju Shete and there
were about ten incoming and outgoing calls. Thus, the accused Nos. 1 to 7 by
hatching conspiracy amongst all of them committed murder of deceased
75) Though the PW-5 panch witness Nanasaheb Damale turned
hostile to the effect that accused Ajinath Thombre gave the memorandum
that he would show the place where Accused No.4 gave the Accused Nos.1 to
3 the contract of killing, and the plan of committing murder of the deceased
was hatched and where the murder was committed, he supported the
prosecution to the effect that Accused Ajinath Thombare, led the panchas and
police to Office of Accused Raju Shete. The evidence of PW-5 panch witness
Nanasaheb Damale along with evidence of PW-25 I.O.Anand Bhoite further
reveals that in pursuance of memorandum statement of accused No.3 Ajinath
Thombare, he has taken the police and panchas to the office of accused No.4
Raju Shete where conspiracy was hatched to commit murder of deceased
Chandrakant @ Himmat Jadhav. Though PW-5 Nanasaheb Damale has
supported the prosecution after he was declared hostile, this evidence as is
supporting the prosecution can be considered by the Court for holding that
there was criminal conspiracy in between accused Nos. 1 to 7 to commit
murder of deceased Chandrakant @ Himmat Jadhav.
76) The evidence of PW-9 Ganesh Agale the panch witness for
memorandum panchanama of accused No.4 Raju Shete wherein, the accused
No.4 Raju Shete has shown his office,where Accused No.5 Sandip Thopte
introduced Accused Nos.1 to 3 to Accused No.4 Raju Shete. And the plan of
committing murder of the deceased was hatched and that where he paid the
amount and gave weapon to the Accused Nos.1 to 3. And thereafter, showed
his house, reveals that he turned hostile. Though he turned hostile, in the
cross examination, PW-9 Ganesh Agale admitted that police drew
panchanama in his presence and has admitted the contents of panchanama
Exh.140. This evidence of PW-9 Ganesh Agale the panch witness for
memorandum panchanama of accused No.4 Raju Shete supports the evidence
of PW-5 Nanasaheb Damale,the panch witness to the effect of the place of
office of the Accused No.4 Raju Shete,shown by the Accused No.3 Ajinath
Thombre.
77) The evidence of PW-5 Nanasaheb Damale,the panch witness
alongwith the evidence of memorandum panchnama of accused No.3 Ajinath
Thombare along with discovery panchanama reveals that the Accused No.1
Krushna Korade and Accused No.2 Somnath More sat in hotel Yashraj and
thereafter on getting the location of the deceased ,followed him, to commit
his murder. The Accused No.3 Aajinath Thombare gave the memorandum as
to how, accused Nos. 1 to 3 travelled, till committing of the murder of the
deceased. The bill of Hotel Yashraj at Exh.251 supports this evidence.
78) The evidence of PW-8 Sanjay Bhingardive along with the
evidence of PW-24 Manish Kalwaniya reveals that the memorandum
panchanama of accused No.4 Raju Shete was recorded in pursuance of
which, accused No.4 Raju Shete, gave the memorandum statement that he
used mobile of Narayan Waghmode in commission of offence and that he
would show the place where he threw mobile handset. At the instance of
accused No.4 Raju Shete, PW-24 Manish Kalwaniya I.O along with panchas
and accused went at Nagar-Manmad road. The accused No.4 Raju Shete
directed to stop the vehicle near Dhaba. He showed streamlet near the road
and stated he threw mobile handset in the streamlet. The police with the help
of two labours took search of mobile handset. But the labours could not trace
mobile handset. The receipt of payment of Labour charges to the labours
Exh.239, supports this say of the PW-8 Sanjay Bhingardive panch witness
has supported the prosecution. So his evidence can be relied upon safely.
79) P.W.No.10, Amol Khamkar the panch witness for memorandum
panchanama of accused No.6 Rahul Darkunde, has turned hostile by denying
that accused No.6 Rahul Darkunde had made voluntary statement that he is
ready to show the place where he met the deceased. And by using mobile
given by the Accused No.7 Javed Shaikh gave location of the deceased to the
Accused Nos.1 To 3, for commission of murder of the deceased. However,
the evidence of PW-No.25, I.O. Anand Bhoite reveals that he directed P.S.I.
Dewadkar to conduct the memorandum panchnama and Discovery
panchnama of the Accused No.6, Rahul Darkunde. PW-No.25, I.O. Anand
Bhoite identified the signature of P.S.I. Dewadkar.
80) The evidence of PW-14 Manoj Zagare reveals that he was
having motorcycle bearing No. MH-12-KM-2635. He has given the said
motorcycle to Bhaiyya Shaikh in May- 2016 by borrowing Rs 15,000/- and in
January -2017 on repayment of Rs.15,000/- he got returned motocycle from
Bhaiyya Shaikh and thereafter, he sold said motocycle to Aakash Kothimbire.
Aakash Kothimbire sold motorcycle to Rahul Aaware and thereafter, the said
motocycle was stolen. So, the complaint was lodged in MIDC police station.
The evidence of PW-15 Bhaiyya Shaikh reveals that he is cousin of accused
No.7 Javed Shaikh. He admitted that he has taken motocycle No.MH-12-
KM- 2635 from PW-14 Manoj Zagare on payment of Rs.15,000/-, however,
he turned hostile to the efffect that he has given said motocycle to accused
No.7 Javed Shaikh on 13/09/2016. However, the fact remains that Bhaiyya
Shaikh is the cousin of accused No.7 Javed Shaikh and the motocycle
No.MH-12-KM- 2635 is belonging to PW-14 Manoj Zagare and PW-15
Bhaiyya Shaikh has taken motocycle No.MH-12-KM- 2635 from PW-14
Manoj Zagare on payment of Rs.15,000/-.
81) The PW-7 Nasir Sardar Shaikh, the panch witness of
memorandum panchnama and discovery panchnama, turned hostile against
the prosecution by denying that Accused No.7 Javed Shaikh gave the
memorandum that he would show the house where co-accused had stayed,
however by adducing the evidence of PW-24, I.O. Manish Kalwaniya,the
prosecution brought the evidence of memorandum panchnama and discovery
panchnama. The evidence of PW-24, I.O. Manish Kalwaniya, reveals that he
directed P.S.I.Gore to conduct the memorandum panchnama and discovery
panchnama,wherein the Accused No.7 Javed Shaikh gave the memorandum
that he would show the house where co-accused had stayed, and accordingly
had shown his house, which he let to co-accused. The memorandum
panchnama and discovery panchnama, are at Exhs.233 and 234 respectively.
By adducing the evidence of PW-24, I.O. Manish Kalwaniya,the prosecution
brought the evidence of memorandum panchnama and discovery panchnama.
The evidence of PW-24, I.O. Manish Kalwaniya, reveals that he directed
P.S.I.Gore to conduct the memorandum panchnama and discovery
panchnama,wherein the Accused No.7 Javed Shaikh gave the memorandum
that he would produce the mobile, used by himself and the Accused No.6
Rahul Darkunde for giving the location of the deceased, and accordingly he
produced the Mobile from his house. The Accused No.7 Javed
Shaikh,produced the mobile of Mido company having sim card of Idea Co.
bearing no. 9822490632 and SIM card of Airtel Co. bearing no.8991901412.
PW-24, I.O. Manish Kalwaniya, identified the signature of P.S.I. Gore on
memorandum panchnama and discovery panchnama, as he worked under
him. The memorandum panchnama and discovery panchnama are at Exhs.
231 and 232 respectively.
82) Even after recording statement u/s. 313 of Cr.P. C. the defence
of the accused was of total denial no plausible explanation was given either
of the accused. So, the defence of denial neither affect the credibility of
prosecution witnesses nor is fatal to the prosecution.
83) If the evidence of PW-18 Abhimanyu Jadhav, father of deceased,
PW-19 Dipali Jadhav, sister of deceased, Medical evidence ,coupled with

evidence of recovery of bullets and empties on the spot and recovery
panchnamas of Accused Nos.1 to 3,the evidence of PW-21 Dr. Kutubuddin
Mulani, ballistic expert, the evidence of PW-25 Ananda Bhoite, I.O and CDR
at Exh. 275 and 276 alongwith discovery panchnama of office of the Accused
No.4, Raju Shete, evidence of PW-8 Sanjay Bhingardive, with memorandum
and seizure panchnama of the Accused No.4, Raju Shete, evidence of PW-
24, I.O. Manish Kalvaniya,with memorandum and seizure panchnama of the
Accused No.7,Javed Shaikh, evidence of PW-25 I.O. Anand Bhoite, with
memorandum and discovery panchnama of the Accused No.6, Javed Rahul
Darkunde, is considered, collectively, it is found that the accused Nos. 4 to 7
were having knowledge as to murder of deceased which is sufficient to draw
the inference, they were aware of nature of activities and the purpose at the
hands of accused Nos. 1 to 3. There is material evidence to believe that
accused Nos. 1 to 7 actively participated in criminal conspiracy and have
committed murder of deceased.
84) In the present matter, the accused are facing trial for the offences
punishable under section 3(2)(v) of the Scheduled Caste Scheduled Tribe
(Prevention of Atrocities) Act 1989. Initially the investigation was carried out
by PW-23 I.O Rahulkumar Pawar API of MIDC Police station. Thereafter,
the investigation was carried out by PW-25 Ananda Bhoite I.O in such
circumstances neither can be doubted or can be treated as illegal on account
that it was conducted by officer below the rank of Deputy Superintendent of
police.
85) Thus, the prosecution proves it is beyond reasonable doubt that
accused Nos. 1 to 3 had murder of deceased with whom accused Nos. 4 to 7
hatched conspiracy and so requested that all accused be held guilty for
murder of deceased Chandrakant @ Himmat Jadhav under section 302, 120-
B read with 34 of Indian Penal Code and under section 3/25 and 3/25 of
Arms Act and under section 3(2)(v) of the Scheduled Caste Scheduled Tribe
(Prevention of Atrocities) Act 1989.
86) The prosecution relied upon several case laws in support of

arguments, which are discussed in relevant paras.
87) Ld. Adv. Shri. V.B. Mhasepatil for accused Nos. 1 and 3 filed the
written argument below Exh.341, Ld. Adv. Shri. M.B. Tawale for accused
No.2 filed written argument below Exh.344, Ld. Adv.Shri. Dubepatil for
accused No.4 filed written argument below Exh.341, Ld. Adv. Shri.
S.V.Sudrik for accused No.5 and 7 filed written argument below Exh.334. Ld.
Adv. Shri. Tone filed written argument below Exh.335. They have also filed
the case laws in support of their arguments.
88) The brief contentions raised by defence are like this :-
That the Accused Nos. 1 to 7 are charged with the offences punishable
under section 120B, 302 of Indian Penal Code, under section 3/25 of Arms
Act and under section 3(2)(b)(va) of Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act 1989. The charge against the accused is framed
below Exh.19. The charge is defective. As per charge the accused Nos. 1 to 7
have committed murder of deceased on the spot. When it is the prosecution
case that accused Nos. 1 to 3 have fired at deceased. That after arrest of
accused Nos. 1 to 3 on 15.9.2016, as per remand papers, the accused No.4
was added on 21/09/2016 and thereafter, sec.120B of I.P.C and the offence
under Atrocity Act were added. It is the allegation that it is a case of contract
killing. The accused No.4 approached accused Nos. 1 to 3 as contract killer.
The accused No.4 supplied weapon to accused Nos. 1 to 3 however, the I.O
has not brought the evidence in respect of consideration paid and weapon
given by accused No.4 to accused Nos. 1 to 3. Thus, there is no evidence of
contract killing. There is no evidence of supply of weapon by accused No.4
to accused Nos. 1 to 4. The charge is framed below Exh.19 on 09/07/2018,
however, there is no evidence of Sec.120B of I.P.C and so Sec. 120B of I.P.C

is not proved in the present matter.
89) It is the say of prosecution that the accused committed offence

punishable under section 120B, 302 read with 34 of Indian Penal Code. The
charge is framed by the Court below Exh.19, however, the charge is
defective. It is alleged that the accused Nos. 1 to 7 in persuance of criminal
conspiracy, on Ahmednagar- Aurangabad highway committed murder of the
deceased Chandrakant @ Himmat Jadhav. The prosecution examined PW-24,
I.O Manish Kalwaniya. The cross examination of PW-24 Manish Kalwaniya
reveals that the accused No.4 Raju Shete was admitted in Kalamkar hospital
for the period 08/09/2016 to 13/09/2016. The medical papers to that effect are
at Exh.230. On this ground, defence claimed that on 13/09/2016, the accused
No.4 was not present on the spot of incident.
90) In support the prosecution examined total 25 witnesses. After

considering entire evidence i.e. oral evidence of witnesses as well as
documentary evidence, it is found that there is no evidence in respect of caste
of the deceased. There is no nexus in between caste of the deceased and
commission of crime. The deceased is neither abused on caste nor any
offence is committed on account of caste of the deceased. So, the prosecution
failed to prove the offence under section 3(2)(b)(va) of Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities)Act 1989.
91) That the accused Nos. 1 to 7 are charged with the offence
punishable under section 3/25 of Arms Act. It is contended by the prosecution
that PW- 25 I.O Ananda Bhoite has applied for permission of District
Magistrate, Ahmednagar for filing the chargesheet against the accused.
However, there is no sanction obtained by the I.O. Thus, no sanction is
obtained to file the chargesheet against accused. So, there is no evidence
showing that accused committed the offence punishable under section 3/25 of
Arms Act.
92) The evidence of PW-1 Santosh Chavan, the Informant reveals

that while he was going by his motorcycle alongwith deceased, the pillion
rider, from Ahmednagar-Aurangabad road. On the way, they met Anna
Bharle, friend of deceased who was passing by the said road by car. Anna
Bharle asked them that they will have tea at hotel of Bhise Kaka. The
informant alongwith deceased followed his car. The car went ahead. At that
time, he heard sound of three bullet shots from backside.He himself and
deceased fell down from the motorcycle. he saw three persons going by
motorcycle towards Nagar-Aurangabad highway. He omitted that those three
persons fired at deceased. The complaint reveals that he assured that those
three unknown persons have fired the bullets on deceased Chandrakant @
Himmat Jadhav. So, also in the supplementary statement, the informant stated
that the motorcycle of unknown persons proceeded ahead and thereafter the
accused came at back side and fired at the deceased. However, this is not
mentioned in the evidence. There is no evidence that those three unknown
persons have fired the bullets at deceased Chandrakant @ Himmat Jadhav.
On this ground, Defence claimed that the police got those three persons on
suspicion. The evidence of PW-1 the Informant Santosh Chavan reveals that
at the time of incident, the assailants were veiled. So, PW-1 Santosh chavan
could not identify them either at the time of test identification parade or
before the Court.
93) PW-12, Goraksh Mokate, the Informer of the incident, was

present in Shaniraj hotel in 'Imampur Ghat'. He heard noise of fire crackers.
He came outside the hotel, and found the deceased lying on the road. He
further stated that some small boys told that three persons fired bullet on the
deceased and proceeded towards Aurangabad direction. On this count,
defence claimed hearsay evidence is not admissible. Defence contended that
I.O. has not recorded the statements of those small boys. Thus, there is no eye
witness to the incident. The non-examination of material witness is fatal to
the prosecution. The evidence of PW-12 Goraksha Mokate reveals that he is
first informant who informed about the incident to police.He informed to the
police about the incident, as per source of information from small boys. PW-
23 Rahulkumar Pawar, the I.O. deposed in his evidence that he has not made
the investigation about those small boys. Since 13/09/2016, the I.O is
knowing that small boys who saw the incident but the I.O has not searched
those small boys which is the material defect in prosecution case. The
evidence of PW-12 Goraksha Mokate reveals that when he came on the spot,
the clothes of deceased were found soaked with blood. On this ground, he
claimed that much time has passed when PW-12 Goraksha Mokate arrived on
the spot.
94) The PW-13 Adinath Todmal is the witness who arrived on the
spot after hearing the sound. His evidence reveals that he saw persons
assembled in front of Hotel Hanuman. He saw one motorbike of black colour
proceeding towards Aurangabad direction and the deceased was lying aside
the road.
95) The evidence of PW-16 Laxman Kusalkar (Anna Bharle) reveals

that while going by his car, from Ahmednagar-Aurangabad road, he met the
deceased, Himmat,the pillion rider on the motorcycle of Informant, Santosh
Chavan, before the incident. And he had asked the deceased and the
Informant to join him for tea at the hotel of Bhise kaka. PW-16 Laxman
Kusalkar (Anna Bharle) went ahead and waited for the deceased in the
hotel.However, the Informant alone went to him and narrated the incident.
PW-16 Laxman Kusalkar (Anna Bharle) came on the spot with the Informant
and found that the deceased received bullet injuries.
96) Thus, the evidence of PW-1 Santosh Chavan, the Informant, PW-
12, Goraksh Mokate, the Informer of the incident, PW-13 Adinath Todmal,
PW-16 Laxman Kusalkar (Anna Bharle) reveals that they arrived on the spot
after the incident. However none from them have seen the assailants. So, their
evidence in no way is helpful to the prosecution.
97) As per the say of the prosecution, the evidence of panch witness
PW-2 Balasaheb Karale, and the evidence of PW- 3 panch witness Taktmal
Gugale reveals investigating Officer collected two empty cartridges(Exh.5,6),
three bullets caps (Exh.8, 9 and10) one percussion cap (Exh.7) from the spot
of incident so also, I.O. collected simple soil, blood mixed soil from the spot
and blood sample from motor-bike No.MH-17-BK-3019 belonging to PW-1
the informant, Santosh Chavan. However, this evidence has no connection
with accused.
98) The panch witness PW-2 Balasaheb Karale turned hostile to the
effect that accused No.2 Somnath More produced two pistols, five bullets,
shirt and blue jean pant from loft of kitchen of his house. The prosecution
has not examined the another panch. So, there is no independent evidence on
record. The prosecution failed to prove the memorandum panchnama and
seizure panchnama of accused No.2 Somnath More . So, this evidence cannot
be relied upon.In the cross examination, said witness denied that two-four
pistols and some empty cartridges were found on the spot.*
99) The evidence of PW-2 Balasaheb Karale reveals that the
Art.Nos. 8 to 19 were recovered from the possession of accused No.2
Somnath More. In the cross examination, said witness admitted before the
Court that accused No.2 Somnath More has not produced Pistols, clothes and
bullets from the hidden place in his presence. He admitted that he signed the
panchanama as I.O Rahulkumar Pawar compelled him to sign panchanama.
He further admitted that because of fear of I.O Pawar he has not made any
complaint to his superior or superior of I.O Pawar. On this count, the defence
claimed that prosecution failed to prove recovery of pistol and cartridges

from the possession of accused No.2 Somnath More.
100) In the cross examination PW-2 Balasaheb Karale admitted that
on 13/09/2016 only the I.O asked them to come again police station on
18/09/2016 for panchanama of pistol. On this count, defence claimed that it is
manipulated panchanama. In the cross examination of PW-2 Balasaheb
Karale, admitted that when he came to police station for panchanama, the
accused No.2 Somnath More was handcuffed. On this count, defence claimed
that the memorandum panchanama cannot be said to be made voluntarily by
the accused No.2 Somnath More. The panchanama reveals that the pistol and
gun were kept on the bedsheet in the house of accused No.2 Somnath More,
so, it cannot be said that Art.8 to 10 were seized from conscious possession of
accused No.2 Somnath More. The PW-2 Balasaheb Karale in his cross
examination admitted that the police officer Mangire was accompanying
them when they had gone to the house of accused No.2 Somnath More. At
that time, police officer Mangire was holding one bag. On this count, defence
claimed that the false recovery was shown from accused No.2 and alleged
that only on the basis of recovery, the accused No.2 is falsely connected with
the crime.
101) The evidence of PW-4 panch witness Bhausaheb Ingale reveals
that memorandum panchanama of accused No.3 Ajinath Thombare was
conducted in pursuance of which accused No.3 Ajinath Thombare produced
pistol (Exh.1) from steel barral (pimp) in which there were two live
cartridges. He also produced clothes i.e. T-shirt and blue pant, in the pocket
of which there was SIM card of idea company and mobile. The motor-bike
bearing No. MH-16-U-1009 was parked near his house. Those articles were
seized by PW-25 I.O Ananda Bhoite under panchanama.
102) PW-4 Bhausaheb Ingale, however, in cross examination,
admitted that the accused was not present when they had gone to cabin of I.O
Ananda Bhoite. The I.O. told them that accused No.3 Ajinath Thombare is
going to make statement that he is ready to produce the weapon and he is
going to draw the panchanama of the same. The accused did not speak with
them and the police drew the panchanama. So, this evidence cannot be said to
be the evidence of recovery. The PW-25 I.O Bhoite admitted that he has not
seized any document of ownership of house of accused No.3 Ajinath
Thombare which reveals that Art. 27 to 33 were not recovered from the
conscious possession of accused No.3 Ajinath Thombare.
103) The evidence of PW-5 panch witness Nanasaheb Damale
reveals that the accused No.1 Krushna Korde has given the memorandum in
pursuance of which he has produced pistol(Exh.3) from aluminum tin which
was having two bullets in its megazine. The accused No.1 Krushna Korde
produced clothes, the clothes i.e. red T-shirt, blue pant and mobile hand set of
Noika company. Those articles were seized by PW-25 I.O and panchanama
was prepared. However, said witness turned hostile , so his evidence cannot
be relied upon for recovery of weapon from accused No.1 Krushna Korade as
well as for discovery panchanama. The PW-25 I.O Bhoite has conducted the
memorandum and seizure panchanama of accused Krushna Korade as well as
memorandum and discovery panchanama of accused No.3 Ajinath Thombare.
The evidence of PW-25 I.O Bhoite, in this regard cannot be relied upon as he
has not produced the lock up extract or station diary extract showing that the
accused was drawn from lock up and they along with accused left police
station. And so in absence of evidence of lock up extract and station diary
extract, the evidence of PW-25 I.O. Bhoite cannot be accepted as PW-5
Nanasaheb Damale has turned hostile.
104) PW-25 I.O Bhoite in the cross examination admitted that he did
not feel necessity to annex copies of lock up register and log-book to the
chargesheet. So, he had not produced the same on record. In such
circumstances, it cannot be said that prosecution proved memorandum and
seizure panchanama of pistol and cartridges from accused No.1 Krushna

Korade
105) Defence pointed out the evidence of PW-1 Santosh Chavan, the
informant, evidence of PW-13 Adinath Todmal, evidence of Pw-16 Laxman
Kusalkar. PW-1 Santosh Chavan, the informant is the witness who was
accompanying the deceased Chandrakant @ Himmat Jadhav when deceased
was fired and murdered by three unknown persons. The PW-1 Santosh
Chavan is unable to identify the assailants as their faces were veiled at the
time of incident. PW-13 Adinath Todmal is the witness who is working in the
Hotel Hanuman, which is situated near the spot of incident. His evidence
reveals that he has arrived on the spot as soon as he heard the sound of fire
crackers. The PW-16 Laxman Kusalkar is the witness who was passing from
the road Ahmednagar-Aurangabad road by his car and he met the deceased
before the incident. And he arrived on the spot after the incident when PW-1
Santosh Chavan, the Informant called him. Thus, all those three witnesses
were present on the spot after the incident. In the cross examination, those
witnesses i.e. PW-1 Santosh Chavan, PW-13 Adinath Todmal, PW-16
Laxman Kusalkar admitted that they saw 3-4 pistols and empty cartridges on
the spot. On this count, defence claimed that those 3-4 pistols which were
found on the spot, were shown to be recovered from accused Nos.1 to 3 and
accused Nos. 1 to 3 were falsely implicated in this case.
106) The evidence of PW-21 Dr. Kutubuddin Mulani reveals that he

has received the muddemal from S.D.P.O Rural Division, Ahmednagar. He
has received the pieces of liver, kidney, blood of the deceased. He has
received 27 articles from which Exh. 1 to 3 are country made pistols. Those
Exh.1 to Exh.3 were used for firing prior to their receipt in the laboratory.
Exh.1 is capable of chambering and firing. 9 mm pistol cartridge whereas
Exh.2 and Exh.3 are cabable of chambering and firing 7.65 mm pistol
cartridges. The ballistic expert has given his report below Exh.203, however,
in the cross examination, it is found that the cartridges and bullets were not
corresponding with those pistols. PW-21 Dr. Mulani ballistic expert admitted
in his cross examination that at the time of incident, there may be one or two
weapon other than weapon Exh.No.2 and 3 mentioned in the report Exh.203.
He also admitted that he cannot opined which bullet caused death of
deceased. He also admitted that he has not carried out powder range test of
weapon used at the time of test fire. Thus, the prosecution failed to prove that
the bullets were fired from the pistols seized by the police. On the contrary,
defence has brought on record that police have seized 3 to 4 pistols and
cartridges from the spot. The defence pointed out the evidence of PW-1
Santosh Chavan, the Informant and the evidence of PW-16 Laxman Kusalkar,
both these two witnesses are the friend of deceased. There is no reason for
them to deposed against the deceased. Their evidence is required to be
believed. They have deposed in the cross examination that 3 to 4 pistols and
cartridges and cotton swab were found on the spot. This shows that police
have seized the pistols and cartridges found on the spot and had sent it for
examination of ballistic expert. On this ground, defence claimed that the
evidence of ballistic expert is not supporting the prosecution case.
107) The P.M report of deceased is at Exh.180, pictorial autopsy is
produced along with P.M report. P.M report along with pictorial autopsy form
reveal that the pistol was fired from close distance. This falsifies the
prosecution case that accused Nos. 1 to 3 have fired the bullets from pistol
while riding on motorcycle by following the deceased who was riding on
motorcycle. PW-21 Dr. Kutubuddin Mulani the ballistic expert in the cross
examination admitted that at the time of incident there may be one or two
weapons other than weapons Exh. Nos. 2 and 3 mentioned in report. No other
pistol was seized except Exh.2 and Exh.3 that means there were persons on
the spot,other than accused Nos. 1 and accused No.3 who fired at the
deceased and the deceased died.
108) The prosecution has brought the evidence of PW-5 Nanasaheb

Damale, before whom the panchanama was conducted of office of accused
No.4 Exh.250. PW- 5 Nanasaheb Damale deposed that on 24/09/2016, he was
called by I.O. Ananda Bhoite. The accused stated his name as Thombare.
However, the said witness was unable to state what statement was made by
accused Thombare before the police. PW-5 Nanasaheb Damale denied that
accused No.3 Ajinath Thombare made voluntary statement before police that
he is ready to show the place where conspiracy of committing murder of
Chandrakant @ Himmat Jadhav was hatched. The said witness was declared
hostile. Even after cross examination, said witness denied that he would show
the place were conspiracy was hatched.
109) Further in the cross examination, PW-5 Nanasaheb Damale

admitted that he along with other panch, accused Ajinath Thombare and
police staff had gone to office of accused Raju Shete to the Rahuri. The office
was opened by relative of accused Raju Shete and police seized two
photographs and light bill from office of accused Raju Shete. The prosecution
has brought the evidence of PW-25 S.D.P.O, I.O Ananda Bhoite. He deposed
before the Court that accused Ajinath Thombare gave the memorandum on
24/09/2016 that he would show the place where they had hatched conspiracy.
The memorandum panchanama of accused Ajinath Thombare is at Exh.250.
He has taken photographs of the office of accused Raju Shete vide Article
No.45 and 46. It is contended by the defence that the office of accused No.4
Raju Shete is accessible to all. So meeting of conspiracy is not possible at
office of accused No.4.
110) In case of criminal conspiracy no direct evidence is available.

There is no evidence of payment of money to accused Nos. 1 to 3. From
circumstance, the inference is to be drawn that the conspiracy has taken
place. When there is no evidence of payment of money, it cannot be said that
prosecution has proved the conspiracy. On this ground, it is claimed that PW-
5 Nanasaheb Damale is brought up witness.
111) The cross examination of PW-5 Nanasaheb Damale reveals that

he was with Vasant Jadhav near Panchayat Samiti office at Rahuri. Vasant
Jadhav received the phone call and after attending phone call, he said they
have to go to office of Raju shete. So, they went to the office of Raju Shete.In
the cross examination, PW-5 Nanasaheb Damale has admitted that he
regularly used to visit office of accused No.4 Raju Shete. There are CCTV
camera installed in the office of accused Raju Shete. On 24/09/2016, the
police had seen the recording of CCTV camera in his presence. Those
recordings were of period preceding one and half month of 24/09/2016. But
nothing objectionable was found. So, the evidence of panchanama cannot be
believed.
112) It is the defence that the prosecution is required to prove the

CCTV footage. The prosecution has brought the evidence in respect of CCTV
footage. The panchanama of CCTV footage is at Exh.150. It is the say of
PW-25 I.O. Ananda Bhoite that he mentioned the name of accused Nos. 1 to
3 in panchanama Exh.150 only on the basis of CCTV footage. The CCTV
footage is not video recording of incident. The accused Nos. 1 to 3 were
arrested on 15/09/2016. The CCTV footage panchanama Exh.150 was
conducted on 16/09/2016. The panchanama Exh.150 reveals the time when
those motorcycle passed. There are no identification marks of accused Nos. 1
to 3. The assailants were not described. The CCTV footage was sent to
forensic.
113) PW-22 Varsha Bhave has deposed before the Court that she
analyzed the video files and specimen photographs and she has mentioned
that the persons present in questioned video file Exh.1 appears to be similar
with person present in the provided reference photographs. She has further
deposed that she found that personal identification, parameter and

comparable features were not sufficiently observed in the provided
questioned video file Exh.1 as the faces of those persons were veiled.
Accordingly she prepared the examination report Exh.214. She has deposed
before the Court that she has identified the persons only on the basis of
clothes wore by those persons shown in the photographs and video file. In the
cross examination, she deposed that she has not sought the information
regarding colour resolution of the recording of concerned CCTV camera. The
recording of CCTV in sunlight so shade of colour changes, so this
comparison made by PW-22 in the examination report Exh.214 cannot be
said to be of same standard so this evidence is weak evidence and conclusion
cannot be based on this evidence.
114) One Mandar Mule is maintaining the CCTV camera. The

prosecution produced the certificate under section 65B of Evidence Act, by
examining PW-17 Brajesh Gujrathi. The prosecution got exhibited certificate
under section 65B vide Exh.163. However, the panchanama Exh.150 reveals
that the certificate is issued by Mandar Mule. So, this evidence of CCTV
footage cannot be relied upon. There is no evidence of hard disc. The data
was downloaded on laptop with the help of pendrive from CCTV device and
the copy was produced in the Court. So, PW-17 Brajesh Gujrathi is not
competent to issue the certificate under section 65B of I.T Act.
115) PW-11 Dada Shirke is the photographer. He is working in

M.I.D.C police station since 10 years. He has taken screen shot from CCTV
footage. But the evidence of PW-11 Dada Shirke reveals that the police
selected the photographs and he has taken screen shot accordingly. The said
witness has admitted that he has converted soft copy in hard copy by using
memory card. That means whatever evidence was sent to forensic was not
genuine and therefore the evidence of PW-11 Dada Shirke cannot be relied
upon.
116) PW-17 Brajesh Gujrathi is the witness who is under the

command of police. In the cross examination he has deposed that he has not
checked the configuration of camera installed in Baba Petrol Pump. He also
admitted that he has not checked configuration of NVR i.e. Network Video
Recorder. He also admitted that he has not verified dater and timer of NVR.
Though, he issued certificate under section 65B Exh.163. He has not
mentioned that he has collected the data from CCTV footage, on his laptop
with the help of pendrive. This evidence is secondary evidence,therefore not
admissible as per section 65B of Evidence Act. So, the electronic evidence
brought by prosecution cannot be relied upon.
117) That the case is based on circumstantial evidence, the motive of

the accused plays the important role. The prosecution is required to prove the
motive on the part of the accused. It is the allegation of prosecution that there
was village political rivalry in between deceased and the accused No.4. There
was also rivalry on count of sand business. It is the allegation of prosecution
that accused No.4 hired accused Nos. 1 to 3 for killing Chandrakant @
Himmat Jadhav. It was contract killing. The motive of accused Nos. 1 to 3 is
money. It is the say of prosecution that there was conspiracy in between
accused Nos. 1 to 7, accused No.5 introduced accused Nos. 1 to 3 to accused
No.4, the accused No.5 is the mediator. As per the prosecution, the
conspiracy took place in the office of accused No.4.
118) The evidence of PW-18 Abhimanyu Jadhav father of deceased

and PW-19 Dipali Jadhav sister of deceased. Both these witnesses have
deposed before the Court that the deceased was caused death at instance of
accused No.4 Raju Shete. PW-18 Abhimanyu Jadhav father of deceased
deposed before the Court that accused No.4 Raju Shete have shown the
deceased to accused No.2 Somnath More and accused No.6 Rahul Darkunde
and he was not knowing them. However, PW-16 Laxman Kusalkar in the
cross examination deposed that the accused Nos. 1 to 3 were acquainted with
the deceased Chandrakant @ Himmat Jadhav, they used to come to the house
of deceased then how PW-18 Abhimanyu Jadhav father of deceased has not
identified the accused No.2 Somnath More and accused No.6, Rahul, when
the accused No.4 Raju Shete shown them the deceased Chandrakant @
Himmat Jadhav. Moreover, the PW-18 Abhimanyu Jadhav has identified the
Accused Rahul Darkunde and Accused Somnath More in the Court without
holding identification parade So this evidence is not admissible
119) PW-18 Abhimanyu Jadhav in his evidence has given some

instances that in the village the deceased Chandrakant @ Himmat Jadhav
arranged fair and in which the flexes of deceased Chandrakant @ Himmat
Jadhav were fixed in the village. So scrimish took place in between accused
Raju Sheteand the deceased. He has also given another instance wherein the
deceased has settled the dispute in between group of accused Raju Shete and
group of Milind Gosavi and the deceased Chandrakant @ Himmat Jadhav has
settled the matter in between them. So, the accused was annoyed with the
deceased Chandrakant @ Himmat Jadhav and the accused along with his
group members fired bullet on the deceased Chandrakant @ Himmat Jadhav
however, the deceased survived. However, in the cross examination PW-18
Abhimanyu Jadhav father of deceased admitted that there was no dispute in
between accused on the count of fixing of flexes.
120) The evidence of PW-19 Dipali Jadhav sister of deceased also

reveals that once when she was passing from the house, the accused No.4
Raju Shete had shown the deceased to accused No.2 Somnath More and
accused No.1 Krushna Korade. PW-19 Dipali Jadhav has identified those
accused in her test identification parade Exh.171. The evidence of PW-19
Dipali Jadhav in respect of identification is valueless because PW-19 Dipali
was knowing the accused Nos. 1 to 3 since before the incident. PW-16
Laxman Kusalkar has deposed before the court that accused Nos. 1 to 3 were
friends of deceased and they used to visit house of the deceased and PW-19
Dipali Jadhav used to serve meal to them.
121) PW-19 Dipali Jadhav has also deposed about the instance of
settlement of dispute in group of Milind Gosavi and accused No.4 Raju
Shete, so also has deposed about the active part of the deceased in the fair in
their village and fixing of flexes in the village of deceased Chandrakant @
Himmat Jadhav. PW-19 Dipali Jadhav admitted in her cross examination that
there was no animosty in between deceased Chandrakant @ Himmat Jadhav
and accused No.4 Raju Shete. So, on this ground, the defence claimed that
the prosecution failed to prove the motive of accused No.4 Raju Shete to
commit the offence. On this count, defence contended that the evidence of
PW-18 Abhimanyu Jadhav father of deceased and PW-19 Dipali Jadhav sister
of deceased was suffering from contradictions and omissions and on this
count, their evidence cannot be relied upon to hold that there was motive of
accused No.4 to cause death of the deceased.
122) If eye witness are not available then the motive is to be proved
on the basis of circumstantial evidence. PW-23 I.O, Rahulkumar Pawar, PW-
24 S.D.P.O, I.O Manish Kalwaniya, PW-25 I.O Ananda Bhoite have
investigated into this matter. PW-19, sister of deceased Dipali Jadhav has
deposed that after demise of Chandrakant @ Himmat Jadhav, the wife of
accused No.4 Raju Shete had contested the election. PW-18, father of
deceased Abhimanyu Jadhav has deposed in the cross examination that he
cannot state whether his son Chandrakant @ Himmat Jadhav had animosity
with police. The accused No.4 Raju Shete is agriculturist and he is not
dealing in the business of selling sand. However, it is the deceased who is
dealing with business of sand. The evidence of PW-1 Santosh Chavan, the
informant reveals that in the cross examination the informant has admitted
that the deceased Chandrakant @ Himmat Jadhav was enaged in sand
business. PW-19 Dipali Jadhav, sister of deceased deposed in her cross
examination that the source of income of the family of deceased was income
from two acres of agricultural land. PW-1 Santosh Chavan, the informant in
the cross examination deposed that recently deceased purchased Bolero jeep,
tractor and trolly. PW-1 the informant has admitted that because of sand
business deceased Chandrakant @ Himmat Jadhav had many enemies. PW-
19, Dipali Jadhav sister of deceased in her cross examination deposed that
she does not recollect whether on 14/09/2016, she had given statement before
police that they suspected that Jaggu Jadhav might have given contract of
murder of deceased to assailants. On this ground, defence claimed that it
might be Jaggu Jadhav or any other enemy who might have murdered the
deceased. The evidence of PW-1 Santosh Jadhav, the informant, friend of
deceased and PW-19, Dipali Jadhav sister of deceased are required to be
believed. On this ground, defence claimed that prosecution failed to establish
the motive.
123) It is the case of prosecution that the accused used the mobile in
the commission of offence. The accused No. 5 Sandip Thopate, accused No.6
Rahul Darkunde and accused No.7 Javed Shaikh have given the location of
deceased to accused Nos. 1 to 3, So that accused Nos. 1 to 3 could commit
murder of deceased as per the direction of accused No.4 Rahu Shete. It is the
say of prosecution that the accused No.4 Raju Shete used mobile phone of
Narayan Waghmode, however, for proving this, the prosecution failed to
examine the witness Narayan Waghmode. So, the adverse inference under
section 114(g) of Indian Evidence Act is required to be drawn against the
prosecution.
124) The prosecution has examined several witnesses so as to bring

the evidence in respect of those mobile hand set used by the accused in
commission of offence. The prosecution has examined the witness PW-6
Balasaheb Murkute who is panch witness for seizure of mobile hand set and
SIM card from accused No.7 Javed Shaikh. However, he turned against the
prosecution in the cross examination. Said witness admitted that he does not
know whether police have affixed the label signed by him on mobile handset.
He also admitted that police had already written the panchanama and the
contents were not read over to him. In the cross examination by the
prosecution, the said witness has denied that police has seized the mobile
handset from accused No.7 Javed Shaikh in his presence. On this ground,
defence claimed that prosecution failed to prove use of mobile handset by the
accused No.7 Javed Shaikh.
125) PW-8 Sanjay Bhingardive is the panch witness in whose

presence the accused No.4 Raju Shete gave the memorandum that he would
show the place where he threw mobile handset. Said memorandum
panchanama is at Exh. 137. PW-8 Sanjay Bhingardive though has not turned
against the prosecution. In the evidence he deposed before the court that the
accused has taken them on the streamlet near Nagar-Manmad road and
showed streamlet and stated that he threw mobile handset in the streamlet.
The police with the help of labours took search of mobile handset but it was
not found. Accordingly panchanama was prepared vide Exh.138. Thus, there
is absolutely no evidence which would reveal that accused No.4 was using
the mobile of Narayan Waghmode as no such mobile was recovered.
126) The prosecution also has not examined Shankar Sathe, as it is

alleged by the prosecution that accused No.5 Sandip Thopate used the mobile
of Shankar Sathe, on this ground, prosecution failed to prove the recovery of
mobile from respective accused and so also the communication in between
the accused in respect of location of deceased and murder of deceased caused
by accused Nos. 1 to 3 as per location given by the accused Nos. 5 to 7 and

according to the direction of accused No.4 Raju Shete. There is no evidence
of connection in between accused Nos. 1 to 7 to commit the offence. Thus,
there is no evidence of motive of the accused to commit murder of the
deceased Chandrakant @ Himmat Jadhav. So, also, the evidence in respect of
mobile does not help the prosecution to prove the connection in between
accused Nos. 1 to 7. There is no evidence showing involvement of accused
Nos. 1 to 7 in commission of crime.
127) The PW-6 Balasaheb Murkute and PW-7 Nasir Sardar Shaikh
are the witnesses on the point of memorandum and seizure panchanama of
accused No.7 Javed Shaikh and discovery panchanama who turned hostile.
Their evidence is in respect of place where the accused No.7 Javed Shaikh
has given his house to accused Nos. 1 to 3 on rent. The prosecution though
has adduced the evidence of PW-5 Nanasaheb Damale in whose presence
accused No.3 Ajinath Thombare has showed the place of criminal conspiracy
in between the accused, the PW-5 Nanasaheb Damale has not supported the
prosecution. Thus, the prosecution failed to prove the agreement in between
the accused and the criminal conspiracy as alleged.
128) The case of the prosecution is that the accused No.6 committed
criminal conspiracy, however, accused No.6 is not involved in commission of
offence. The prosecution has examined PW-1 Santosh Chavan, the informant,
however, there is absolutely no evidence against accused No.6 in his
deposition. PW-2 the panch witness Balasaheb Karale is the panch witness
for spot panchanama , memorandum and seizure panchanama of accused
No.2 Somnath More. The PW-3 Takatmal Gugale is the panch witness for
supplementary spot panchanama. PW-4 Bhausaheb Ingale is the panch
witness for memorandum and seizure panchanama of accused No.3 Ajinath
Thombare. PW-5 Nanasaheb Damale is the panch witness for memorandum
and seizure panchanama of accused No.1 Krushna Korade and memorandum

and discovery panchanama of accused No.3 Ajinath Thombare. PW-6
Balasaheb Murkute is the panch witness for memorandum panchanama of
accused No.7 Javed Shaikh. PW-7 Nasir Shaikh is the panch witness for
memorandum and discovery panchanama of accused No.7 Javed Shaikh. PW-
8 Sanjay Bhingardive is the panch witness for memorandum and recovery
panchanama of mobile of accused No.4 Raju Shete. PW-9 Ganesh Agale is
the panch witness for memorandum and discovery panchanama of accused
No.4 Raju Shete. PW-10 Amol Khamkar is the panch witness for
memorandum panchanama of present accused No.6 Rahul Darkunde. As per
prosecution, accused No.6 Rahul Darkunde had shown the place where he
met deceased in presence of PW-10 Amol Khamkar. The panchanama to that
effect is at Exh. 267 to 268, however, PW-10 Amol Khamkar has not
supported the prosecution. So, the prosecution failed to prove the
involvement of accused No.6 Rahul Darkunde in commission of offence.
129) PW-18 Abhimanyu Jadhav father of deceased is the interested

witness. His evidence reveals that he had seen accused No.6 and accused
No.2 accompanying accused No.4 near temple and accused No.4 Raju Shete
showed the deceased to accused No.6 Rahul Darkunde and accused No.2
Somnath More. However, this evidence does not reveal any involvement of
accused No.6 in commission of offence. The prosecution failed to prove the
criminal conspiracy and participation of accused No.6 in criminal conspiracy.
130) On this count, the defence claimed that the prosecution failed to
prove its case and requested to acquit the accused. In support of their
arguments the defence has relied upon several case laws which are discussed
in the relevant paras. So, also the other contentions raised by the defence are
discussed in the relevant paras.
AS TO POINT NO. 1 TO 5 :-
131) To prove its case, first the prosecution is required to prove as to

whether death of deceased Chandrakant @ Himmat Jadhav is homicidal
death. Here in the present matter, there is no direct evidence, therefore, in
order to ascertain that whether the death of deceased Chandrakant @ Himmat
Jadhav is homicidal, it is necessary to evaluate the evidence of prosecution
witnesses carefully and cautiously. The prosecution has based its case upon
circumstantial evidence, such evidence must testify three tests :-
1- First, the circumstances from which an inference of guilt is
sought to be drawn must be cogently and firmly established,
2- Secondly, those circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused,
3- Thirdly, the circumstances taken cumulatively should form a
chain so complete that there is no escape from the conclusion that within all
human probability, the crime was committed by the accused and none else i.e.
to say circumstances should be incapable of explanation on any reasonable
hypothesis save that of the accused guilt.
132) It is the say of prosecution that the accused Nos. 1 to 7 prior to
13/09/2016 agreed to commit murder of Chandrakant @ Himmat Jadhav and
committed offence of criminal conspiracy.
133) Secondly, accused Nos. 1 to 7 in pursuance of criminal
conspiracy on 13/09/2016 at about 02.30 p.m on Nagar-Aurangabad road,
Imampur ghat, near Hanuman Hotel, Tal. And dist. Ahmednagar did commit
murder by firing bullet and thereby intentionally caused death of
Chandrakant @ Himmat Jadhav and thereby committed an offence
punishable under section 302 read with 120B of I.P.C.
134) Thirdly, accused Nos. 1 to 7 from not being members of
scheduled caste and knowing that deceased Chandrakant @ Himmat Jadhav
is member of Scheduled Caste and Scheduled Tribe committed offence
punishable under section 3(2)(b)(va) of Scheduled Caste and Scheduled Tribe

(Prevention of Atrocities) Act.
135) Lastly, accused Nos. 1 to 7 in contravention of provisions of
Arms Act were found in possession of weapon i.e. pistol along with live
cartridges, without any license or permit and committed offence punishable
under section 3/25 of Arms Act.
136) In the present matter, the prosecution relied upon the following
incriminating circumstances which according to the prosecution proved the
guilt of accused beyond reasonable doubt.
1- The evidence of PW-1 Santosh Chavan and PW-16 Laxman
Kusalkar that on the day of incident, PW-1 Santosh Chavan as motorcycle
rider and deceased Chandrakant @ Himmat Jadhav as pillion rider proceeded
by motorcycle from Ahmednagar- Aurangabad highway coupled with copies
of roznama S.C. No.337/2012 State Vs. Himmat Abhimanyu Jadhav and
others showing that deceased was present in Ahmednagar Court on
13/09/2016. And the knowledge thereof that deceased had gone to
Ahmednagar Court and was to return by same route, to the accused No.6
Rahul Darkunde.
2- The evidence of PW-11 Dada Shirke photographer, the panch
witness for CCTV footage, who took screen shots of the motorcycle on which
PW-1 Santosh Chavan as motorcycle rider and deceased as pillion rider were
followed by motorcycle of accused Nos. 1 to 3 within few minutes on
13/09/2016 in between 02.00 p.m. to 02.30 p.m. and evidence of another
panch witness, PW No.17, Brajesh Gujrathi, Managing Director of Talent
Media, who issued certificate under section 65B of Indian Evidence Act with
the evidence of PW no.22,Varsha Bhave,Forensic Expert who examined the
video files of CCTV Footage and photographs received by her from MIDC
police station.
3- The evidence of PW-1 Santosh Chavan that after hearing three
bullets shots from backside, by PW-1 Santosh Chavan and after both of them
i.e. Himmat Jadhav and informant fell down, the PW-1 Santosh Chavan
noticed three persons were proceeding towards Aurangabad direction in high
speed on motorbike.
4- The evidence of PW-12 Gorksha Mokate and PW-13 Adinath
Todmal noticed deceased lying on the spot and PW-13 Adinath Todmal and
PW-16 Laxman Kusalkar saw that deceased received bullet injuries
5- The evidence of PW-12 Goraksha Mokate and the evidence of
PW-13 Adinath Todmal that PW-12 Gorkasha Mokate from Hotel Shaniraj
near the spot, and PW-13 Adinath Todmal from Hotel Hanuman near the spot
heard sound and arrived on the spot and PW-13 Adinath Todmal noticed one
black colour motorcycle proceeding towards Aurangabad direction.
6- The evidence of PW-20 Dr. Vikas Rathod, the P.M. report with
pictorial autopsy form showing cause of death due to fire arm injuries.
7- The evidence of PW-2 Balasaheb Karale with spot panchanama
Exh.84 showing two empty (Exh.5 and Exh.6) and three bullet caps (Exh.8,
Exh.9, Exh.10) recovered from the spot vide spot panchanama Exh.84 and
evidence of PW-3 Takatmal Kesharchand Gugale with supplementary spot
panchanama Exh.93 showing recovery of one percussion cap (Exh.7) from
the spot.
8- The evidence of PW-4 Balasaheb Laxman Karale along with the
evidence of PW-23 I.O Rahul pawar and memorandum and recovery
panchanama (Exh.85 and Exh.86) of accused No.2,Somnath More and in
pursuance, recovery of pistol and handgun (Exh.2 and Exh.4) with four
bullets (Exh.2A) and one live cartridge(Exh.4A).The evidence of PW-4
Bhausaheb Yadavrao Ingale along with the evidence of PW-25 I.O Ananda
Bhoite and memorandum and recovery panchanama (Exh.109 and Exh.110)
of accused No.3 Ajinath Thombare and in pursuance recovery of pistol
(Exh.1) with two live cartridges (Exh.1A) and the evidence of PW-5
Nanasaheb Appasaheb Damale along with evidence of PW-25 I.O. Bhoite

and memorandum panchanama and recovery panchanama of accused No.1
Krushna Korade for recovery of pistol (Exh.3) with two bullets (Exh.3A and
3B).
9- The evidence of PW-21 Kutubuddin Mulani along with ballistic
report (Exh.203), showing copper jacketed bullet (Exh.10) and empty (Exh.5)
fired from pistol Exh.1 and copper jacketed bullet (Exh.9) and percussion cap
(Exh.7) fired from pistol, (Exh.3).
10- The evidence of seizure panchanama of clothes of deceased vide

Exh.96 shows shotholes on the shirt and pant of the deceased and the
evidence of PW-21 Kutubuddin Mulani showing that shotholes found on
clothes are caused due to deformed jacketed bullets.
11- The shot-holes on clothes of deceased are corresponding with
the injuries mentioned in P.M. report (Exh.180).
12- Cause of death is fire arm injury to left lung.
13- The evidence of recovery of pistol, recovery of empties, copper
jacketed bullets from spot along with ballistic report, medical evidence
cumulatively reveals fire arm death due to firing of copper jacketed bullet
from pistol seized from accused No.1 Krushna Korade and accused No.3
Ajinath Thombare.
14- The evidence of PW-2 Balasaheb Karale, PW-4 Bhausaheb
Ingale, PW-5 Nanasaheb Damale along with evidence of PW-25 the I.O.
Ananda Bhoite along with memorandum panchanama and seizure
panchanama showing seizure of clothes of accused No.2 Somnath More on
18/09/2016, seizure of clothes of accused No.3 Ajinathj Thombare on
17/09/2016 and seizure of clothes from accused No.1 Krushna Korade on
19/09/2016 and evidence of PW-11 Dada Shirke the photographer along with
panchanama Exh.150 dated 16/09/2016 showing the clothes of accused Nos.
1 to 3 in the screen shots of CCTV footage on 13/09/2016.

15- The evidence of PW-22 Varsha Bhave showing identical clothes
of the accused in photographs and in CCTV footage.
16- The evidence of PW-4 Bhausaheb Ingale, PW-5 Nanasaheb
Damale along with evidence of PW-25 the I.O. Ananda Bhoite along with
memorandum panchanama and seizure panchanama showing seizure of
mobile of black colour Nokia company having IMEI No.355755/06/935930/5
and 355755/06/935931/3 having Vodafone SIM card from accused No.1
Krushna Korade having mobile number 9823018559 and memorandum
panchanama and seizure panchanama showing seizure of mobile of white
colour Samsung company having idea company having IMEI
No.357122077362900 SIM card from accused No.3 Ajinath Thombare
having mobile number 8975252244.
17- The evidence of PW-24 I.O Manish Kalwaniya showing arrest of
accused No.7 Javed Shaikh and recovery of mobile of Mido company bearing
SIM card No. 9822490632 and Airtel company SIM card No. 8991901412
bearing IMEI No. 353479060140992 and 353479060341996.
18- The evidence of PW-18 Abhimanyu Jadhav, the father of
deceased, that prior to one month of incident, when he along with deceased
had gone to temple of Lord Shani at Rahuri. The accused Raju Shete with his
two companions saw an anger to deceased Himmat Jadhav and Raju Shete
showed Himmat to his associate by gesture. Those two persons are accused
No.2 Somnath More and accused No.6 Rahul Darkunde.
19- The evidence of PW-19 Dipali Jadhav, the sister of deceased,
that prior to one month of incident, when she along with deceased was
proceeding to their house near from school, at that time, the accused Raju
Shete with his two unknown persons alighted from vehicle and accused Raju
Shete showed Himmat Jadhav to those unknown persons by gesture. In
identification parade vide Exh.172, Dipali Jadhav identified the accused No.2
Somnath More and accused No.1 Krushna Korade.

20- The certified copy of judgment in S.C.No.210/2015 u/s. 143,
147, 148, 323, 341, 307 read with 149 of I.P.C. and under section 3(2)(v) of
the Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act 1989 and
under section 3/25 and 5/27 of the Arms Act and under section 37(1)(3)/135
of Bombay Police Act wherein injured is the deceased and accused No.4
along with other accused are accused of this case showing that accused No.4
along with other accused was acquitted.
21- The evidence of PW.No.5,Nanasaheb Damale and evidence of
PW No. 25, Ananda Bhoite, with Memorandum panchnama, Exh.250 of the
Accused No.3, Ajinath Thombre and Discovery panchnama, Exh.127 of
Office of Accused No.4, Raju Shete, from where two photographs at Article
45 and 46 were seized. And the evidence of PW.No.9, Ganesh Aagale and
evidence of PW No. 24, Manish Kalvaniya, with Memorandum panchnama,
Exh.237 of the Accused No.4, Raju Shete and Discovery panchnama,
Exh.140, of Office of Accused No.4 ,Raju Shete.
22- The evidence of PW.No.10,Amol Khamkar and evidence of PW
No. 25, Ananda Bhoite,with Memorandum panchnama,Exh.267 of the
Accused No.6, Rahul Darkunde and Discovery panchnama,Exh.268,of place
where Accused No.6 ,Rahul Darkunde,met Deceased and gave location of the
deceased to Accused No.3, Ajinath Thombre.
23- The evidence of PW.No.5, Nanasaheb Damale and evidence of
PW-25, Ananda Bhoite,with Memorandum panchnama, Exh.250 of the
Accused No.3, Ajinath Thombre and Discovery panchnama, Exh.127,
showing receipt of phone call to Accused No.3, Ajinath Thombre received at
Hotel Yashraj, in between 12.00 to 1.00 p.m.,with bill of Hotel Yashraj
Exh.251.
24- The evidence of Call Details.
25- The evidence of PW.No.8, Sanjay Bhingardive and evidence of
PW-24, Manish Kalvaniya, with Memorandum panchnama, Exh.137 of the

Accused No.4, Raju Shete and Discovery panchnama, Exh.127, showing the
place of streamlet in the area of Vilad on Manmad road, wherein Mobile was
searched, and receipt of labour charges paid to labours for searching mobile
in the streamlet at Exh.239.
26- The evidence of PW No. 25, Ananda Bhoite, showing that the
SIM card No.7447282495 was in the name of witness Narayan Waghmode.
137) Prosecution has brought the relevant circumstances showing that
the deceased Himmat Jadhav died due to bullet injuries. PW-1, the Informant,
Santosh Chavan deposed that on 13.9.2016 he accompanied the deceased
Himmat Jadhav to Ahmednagar Court, in which the deceased was one of the
Accused. The certified copy of the roznama of S.C.No.337/12, State Vs.
Himmat Jadhav and others, dtd 13.9.2016 at Exh.260 supports this evidence.
They went to Court of Ahmednagar from khedle by the motorcycle of the
PW-1, the Informant, Santosh Chavan. After attending the Court date, he
alongwith the deceased proceeded on motorcycle from Ahmednagar-
Aurangabad road towards their village. The PW-1, the Informant, Santosh
Chavan was driving the motorcycle and the deceased was pillion rider. On
the way they met PW-16 Laxman Kusalkar, who was travelling by car. PW-
16 Laxman Kusalkar, (Anna Bharle) was friend of the deceased. He asked the
deceased to join him for tea at the hotel of Bhise kaka, which was situated
ahead at some distance. PW-16 Laxman Kusalkar, (Anna Bharle) went ahead
by car. PW-1, the Informant, Santosh Chavan and the deceased followed his
car. The car went ahead.
138) PW-1 Santosh Chavan along with deceased Chandrakant @
Himmat Jadhav was proceeding by Ahmednagar-Aurangabad road. At that
time, PW-1 Santosh Chavan, the informant was driving the motorcycle and
the deceased Chandrakant @ Himmat Jadhav was pillion rider. When they
came near Hanuman Hotel, PW-1 Santosh Chavan heard sound of bullet
firing at back side. The pillion rider the deceased fell down. The motorcycle
skidded, he also fell down. He saw three persons were proceeding towards
Aurangabad direction in high speed on motorbike. The faces of assailants
were veiled.
139) Ld. Adv. Shri. V.B. Mhasepatil for accused Nos. 1 and 3 relied
on A. Shankar Vs. State of Karnataka., 2011 ALL MR (Cri) 2357 (S.C.)
and Ld. Adv. Shri. Dubepatil for accused No.4 relied on Baliya @ Bal
Kishan Vs. State of M.P., in Criminal Appeal No. 2001 of 2008 with
Criminal Appeal No. 2002 of 2008 decided on 05-10-2012 by the Hon'ble
Supreme Court of India and contended that the evidence of PW-1 Santosh
Chavan, the informant is suffering from material omission amounting to
contradictions. So, the said evidence of PW-1 the informant Santosh Chavan
can not be relied upon safely. He pointed out the evidence of PW-1 Santosh
Chavan wherein there is no mention in complaint that three persons fired at
deceased. The contents of complaint reveal that the informant has mentioned
in the complaint that '' मम घघबरलल हलतल मम समलर पघहहलल असतघ तमन अनलळखम इसम
मलटघरसघयकल जलरघत औररगघबघद रलडनल जघतघनघ हदसलल . तयघ तमन अनलळखम इसमघरनम
हहममत जघधव यघरचलवर गलळयघ झघडलयघचम खघतम आहल . '' The complaint does not speak
about that those unknown persons fired at the deceased. However, in the oral
evidence the PW-1 Santosh Chavan, the informant omitted he got assured
that those unknown persons on motorcycle fired at the deceased. Further in
the supplementary statement, the informant mentioned that '' मम व हहममत
मलटघरसघयकवरन पडलयघवर ततडघलघ रमघल बघरधलललयघ तमन अनलळखम इसमघचम
मलटघरसघयकल थलडम पपढल थघरबलम व तयघवरमल मघगल बसलललघ इसम खघलम उतरलघ व तयघनल
जखमम हहममतवर पपनहघ गलळयघ झघडलयघ तसघ हहममत मघगमल बघजपस धडपडत जघवव लघगलघ,
मम तयघवलळम खपप घघबरलललल हलतल. '' However, in the evidence, PW-1 Santosh
Chavan, the informant has not mentioned in his evidence that three persons
fired at the deceased. So, it cannot be held that three persons have fired at the
deceased. It is contended that those three persons were passing from the road
and only on the suspicion expressed by the informant those three accused
were caught.
140) Here in the present matter, the PW-1 Santosh Chavan has filed
the FIR dated 13/09/2016 at about 06.00 p.m. The incident took place in
between 02.00 to 02.30 p.m. which reveals that immediately after the incident
the FIR of PW-1 the informant was recorded. The evidence of the PW-1
Santosh Chavan itself shows that after hearing firing of three bullet shots,
from backside, the pillion rider, the deceased fell down. The motorcycle
skidded, he also fell down. He saw three persons were proceeding towards
Aurangabad direction in high speed on motorbike. That means only three
persons riding on said bike alone were passing from there And so in the
complaint, he stated that he assured that those three persons fired bullets on
deceased. It was not mentioned in the evidence, due to error of memory. The
incident took place on 13.9.2016. The evidence of PW-1 Santosh Chavan was
recorded on 29.10.2018, after lapse of about two years. So it is a normal error
of memory. Still he stuck up to his evidence that he saw three persons riding
on the motorbike, passing from there. So this cannot be called as omission
amounting to contradiction.
141) In answer the case law relied by the prosecution Sahebgonda
Laxman Birajdar and Ors. Vs. State of Maharashtra., 2017 ALL MR
(Cri) 293 is applicable in the present matter as it was observed therein that
FIR is not an encyclopedia. FIR need not contain minute details of incident
but it requires to disclose substance of allegations. it can be used either to
corroborate or to contradict version of its maker. Secondly, in respect of
portion of supplementary statement, it is found that the said omission neither
was brought on record by the defence in the cross examination of the said
witness nor it was proved by the defence So, in such circumstances, the case
law relied by the accused No.1 and 3 A. Shankar Vs. State of Karnataka
and Baliya @ Bal Kishan Vs. State of M.P., in Criminal Appeal No. 2001
of 2008 with Criminal Appeal No. 2002 of 2008 decided on 05-10-2012 by

the Hon'ble Supreme Court of India is not applicable in the present case.
142) The incident took place on Ahmednagar-Aurangabad Highway.If
any untoward incident happens on the road, the travellers of passing vehicle
rushes to the spot,to help the affected person. The evidence of the PW-1
Santosh Chavan itself shows that after hearing firing of three bullet shots,
from backside,the pillion rider, the deceased fell down and he himself fell
down and he saw three persons were proceeding towards Aurangabad
direction in high speed on motorbike. In the present case, fleeing of these
unknown persons by their motorbike, immediately after the incident is
something suspicious and is incriminating circumstance against those three
unknown person.
143) PW-12 Goraksha Mokate and PW-13 Adinath Todmal are those
witnesses who have come on the spot after hearing noise. As per the evidence
of PW-12 Goraksha Mokate, he heard noise of fire crackers and he came out
of hotel. He came to know from small boys that three persons fired on the
deceased. Ld. Adv. Shri.V.B. Mhasepatil for accused Nos. 1 and 3 relied on
the case law Dattatraya Ramchandra Sutar (Pawar) Vs. The State of
Maharashtra., 2018 ALL MR (Cri) 663, 3-Randhir Singh & Ors Vs.
State of Haryana decided on 30-07-2018 of the Hon'ble Punjab and
Haryana High Court (Divisional Bench), 2018 Law Herald 2442; 2018 0
Supreme (P&H) 2264; and contended that in view of Section 60 of
Evidence Act, evidence of a witness that he learnt the fact from another
persons cannot be admitted, particularly when the another person does not
step in the witness box and says that he had narrated that particular fact to the
particular witness. So, on this count, defence claimed that the evidence of
PW-12 Gorkasha Mokate to the effect that he came to know from small boys
that three persons fired on deceased cannot establish the fact that three
persons have fired bullets towards Himmat Jadhav.
144) Ld. Adv. Shri. Dubepatil for accused No.4 relied on the case law
Pawan Kumar Vs. State of Hariyana, AIR 2003 (SC) 2987 and 2003 Cri.
L.J. page 3556 (SC) and contended that the hearsay evidence could not be
believed in absence of the person from whom the information is received.
Here,in the present matter, the evidence of PW-12 Goraksha Mokate, reveals
that he came to know from small boys that three persons fired on the
deceased. Those small boys are not examined by the prosecution. This
evidence is hearsay evidence. So this evidence is inadmissible.
145) The case law relied by Ld. Adv. Shri.V.B. Mhasepatil for
accused Nos. 1 and 3 Dattatraya Ramchandra Sutar (Pawar) Vs. The
State of Maharashtra.3-Randhir Singh & Ors Vs. State of Haryana
decided on 30-07-2018 of the Hon'ble Punjab and Haryana High Court
(Divisional Bench), 2018 Law Herald 2442; 2018 0 Supreme (P&H) 2264;
And the case law relied by Ld. Adv. Shri. Dubepatil for accused No.4,i.e.
Pawan Kumar Vs. State of Hariyana, AIR 2003 (SC) 2987 and 2003 Cri.
L.J. page 3556 (SC) are applicable in the present matter.
146) PW-12 Goraksha Mokate deposed before the Court that he came
to know from small boys that three persons fired on deceased. The
prosecution has adduced the evidence of PW-23 I.O. Rahul Pawar. In the
cross examination, PW-23 I.O. Rahul Pawar deposed that he did not make
investigation in respect of the boys who had given the information of incident
to Goraksha Mokate. On this count, Ld. Adv Shri. Mhasepatil contended that
the prosecution has not examined material witnesses and relied on the case
law The State of Maharashtra Vs. Rajesh Pitambar Sonawane & Ors.,
2018 ALL MR (Cri) 255, and claimed that non-examination of independent
witnesses causes fatal to the prosecution case.
147) The spot of incident is a high way of Ahmednagar-Aurangabad
road. It is a public way. The evidence of PW-12 Goraksha Mokate that he
came to know from small boys, that three persons fired on the deceased.
There is no evidence of whereabouts of those small boys. So, in such

circumstances, the non-examination of those small boys will not cause fatal
to the prosecution. If it was the case that those small boys were known to
PW-12 Goraksha Mokate, and if those were not examined than it could be
said that non-examination of independent witnesses causes fatal to the
prosecution case.
148) As per evidence of PW-13 Adinath Todmal, the waiter in Hotel
Shaniraj at about 2.00 to 02.30 p.m. he heard noise of silencer of motorbike
and saw persons assembled in front of Hotel Hanuman. He came outside the
Hotel. He noticed black coloured motorbike proceeding towards Aurangabad
direction and deceased Chandrakant @ Himmat lying at the side of the road.
PW-16 Laxman Kusalkar is the witness who has seen deceased Chandrakant
Himmat Jadhav and PW-1 Santosh Chavan proceeding to their village at
Ahmednagar-Aurangabad highway on motorbike. After meeting in the way,
they had talk. PW-16 Laxman Kusalkar asked the deceased Chandrakant @
Himmat Jadhav that they will have tea at Hotel of Bhisekaka. PW-16 Laxman
Kusalkar went ahead by his car and motorcycle of Chandrakant @ Himmat
Jadhav followed his car. PW-16 Laxman Kusalkar went ahead and he was
waiting for deceased in the hotel of Bhisekaka. At that time, PW-1 Santosh
Chavan came and narrated the incident. They went on the spot and found that
deceased was lying on the road. All this evidence collectively reveals that
deceased Chandrakant @ Himmat Jadhav received bullet injuries. The
unknown persons by their motorbike, immediately after the incident fled
away towards Aurangabad direction. It was black coloured bike.
149) As no one had seen the incident, the case is based on
circumstantial evidence. Therefore, the Court has to see as to what
circumstances are available pointing towards the guilt of the Accused. The
prosecution has examined PW-2 Balasaheb Laxman Karale in whose
presence PW-23 I.O Rahul Pawar conducted spot panchanama. The PW-2
Balasaheb Karale deposed before the Court that the police has called himself
and one Ganesh Dhadge for holding panchanama. They accompanied police
staff to Pandhari pool ghat road by vehicle. There were empty cartridges and
bullets found on the spot of occurrence. The police seized four empty
cartridges and three bullets. The police also seized motorcycle from the spot.
The police collected simple soil and blood mixed soil from the spot of
occurrence. There was blood on motorbike. The police drew the panchanama
Exh.84 in their presence. PW-2 Balsaheb Karale identified two empty
cartridges (Article 1 and 2) and three bullet caps (Article 3, 4 and 5) found on
the spot and seized by the police from the spot of occurrence. The spot
panchanama also supports this evidence that the two empties and three bullet
caps were seized from the spot of occurrence.
150) The PW-3 Takatmal Kesharchand Gugale deposed before the
Court that he had gone to Imampur Ghat in front of Hanuman Hotel on
Ahmednagar-Aurangabad road. Three experts of Forensic Science Laboratory
namely Bodakhe, Patil and one more were present on the crime scene. While
searching on the crime scene, they found percussion cap on the spot.
Accordingly, supplementary spot panchanama was prepared. The percussion
cap (Article 20) found on the spot was seized from the spot. The photographs
were taken of the spot which are at Exh. 94 and Exh. 95.
151) PW-3 Taktamal Gugale further deposed before the Court that PSI
Nagave produced clothes of deceased Jadhav. The black jean pant was
stained with blood and was torn at waist. Yellowish full sleeves shirt having
blood stains and white baniyan soaked with blood and underwear soaked with
blood was produced. Red colour waist string, the black sandal having blood
stains and the black belt of the deceased was also produced accordingly. The
I.O. PW-23 Rahul Pawar conducted the seizure panchanama of clothes of
deceased. The seizure panchanama of clothes of deceased reveals that the
shirt of deceased was having circle shaped hole on the back side of shirt and
there were three holes at the right side of the shirt.

152) Thus, as stated above the evidence of witnesses i.e. PW-1
Santosh Chavan, PW-12 Goraksha Mokate, PW-13 Adinath Todmal, PW-16
Laxman Kusalkar reveal that the deceased Chandrakant @ Himmat Jadhav
received bullet injuries. It is found that two empties and three bullets and one
percussion cap was seized from the spot. The seizure panchanama of clothes
of deceased supports this oral evidence that deceased received bullet injuries,
as it reveals that the shirt, pant baniyan, underwear, waist string and sandal
were stained with blood. The evidence of PW-1 Santosh Chavan reveal that
after they fell down, and after hearing three bullet shots three persons
proceeded in high speed by their motorbike towards Aurangabad direction.
153) During investigation,the accused Nos. 1 to 3 were arrested on
15/09/2016. The evidence of PW-2 Balasaheb Karale further reveals that on
18/09/2016, he along with another panch Ganesh Dhadge went to MIDC
police station. The accused Somnath More was present in the police station.
He gave memorandum that he is ready to produce revolver, bullets and
clothes and accordingly memorandum panchanama Exh.85 was prepared.
PW-2 Balasaheb Karale further deposed that he along with other panchas,
police staff, accused More boarded in police vehicle. Accused Somnath More
took them to village Sonai at his house. The accused and police entered the
house and panchas stayed out of the house. Within 10 minutes they were
called in the house. They found two pistol and one gun on the bedsheet along
with 4 to 5 bullets. There was one jean pant and one shirt on the bed sheet.
The police prepared the seizure panchanama Exh.86. The photographs of
seizure panchanama are at Exh. 87 and 88. The two pistols (Article 8 and 9)
and four bullets (Article 10 to 13), shirt (Article 14) and jean pant (Article
15) were identified by PW-2 Balasaheb Karale the panch witness. The said
witness turned against the prosecution to the effect that the accused Somnath
More produced clothes, pistols and bullets from the loft of the kitchen.
However, he supported the prosecution in the cross examination by the State,

by admitting that the accused produced weapon and clothes from loft of
kitchen.
154) The PW-4 Bhausaheb Ingale the panch witness for memorandum
and seizure panchanama of accused No.3 Ajinath Thombare deposed before
the court that he had gone to MIDC Police station. The accused present over
there disclosed his name as Adinath Raosaheb Thombare. The accused No.3
gave the memorandum that he is ready to produce pistol, clothes and
motorbike from the hidden place accordingly, memorandum panchanama
vide Exh.109 was recorded. PW-4 Bhausaheb Ingale along with another
panch, police staff and accused had gone by vehicle by the road at the
instance of the accused. Accused Ajinath Thombare took them to their house
where his grandmother was present over there. The accused produced one
pistol from the steel tin (pimp) which was kept at western wall of the house.
The pistol was containing two live cartridges. The accused Ajinath Thombare
also produced clothes hanged on the peg of southern wall of the house. Those
were one T-shirt and one blue jean pant. There was mobile handset of
Samsung company in the pocket of jean pant. One motorbike Bajaj pulsar
MH-16-U-1009 was parked near the wall of the house. Accordingly, police
prepared the seizure panchanama Exh.110. The police got taken the
photographs Exh.111. The said panch PW-4 Bhausaheb Ingale identified
pistol containing two live cartridges (Article 27), T-shirt and pant (Article 29
and 30), mobile (Article 33), motorbike (Article 35).
155) PW-5 Nanasaheb Damale the panch witness deposed before the
court that he had gone to MIDC police station. Accused Krushna Korade
gave the memorandum that he would produce pistol and clothes from hidden
place. His memorandum panchanama was recorded vide Exh.122. The PW-5
Nanasaheb Damale along with another panch, accused and police staff went
by Ahmednagar-Aurangabad road to Devgaon via Ghodegaon to Kukana
road. The accused took out key from the beneath stone at the window of the
house. He took out pistol from aluminum tiffin. There was picture of eagle on
the said pistol. There was magazine of the pistol which was containing two
bullets. The accused also produced T-shirt and blue pant from beneath of the
clothes. He also produced mobile handset of Nokia make. The police
prepared panchanama Exh. 124 in his presence and took out photographs
vide Exh.123. The PW-5 Nanasaheb Appasaheb Damale identified pistol
(Article 36), two bullets (Article 37), shirt (Article 39), pant (Article 41),
mobile handset (Article 43).
156) Thus, the evidence of PW-2 Balsaheb Karale, PW-4 Bhausaheb
Ingale and PW-5 Nanasaheb Damale reveals that the pistols with live
cartridges, clothes of the accused wore by the accused at the time of incident
and mobile were seized from accused Nos. 1 to 3. As stated above, two empty
cartridges, three bullet caps and one percussion cap was recovered from the
spot.
157) It is contended on behalf of the defence that PW No.25 Anand
Bhoite admitted in his cross examination, that he has not collected ownership
documents from Accused No.2, Somnath More and Accused No.3, Ajinath
Thombre. Herein the present matter, first, the recovery pachanama is proved
by examining, independent panch witnesses, i.e. PW-2 Balsaheb Karale, PW-
4 Bhausaheb Ingale and PW-5 Nanasaheb Damale. So, there is no reason, for
discarding this independent evidence. Secondly, the evidence of panch
witnesses, i.e. PW-2 Balsaheb Karale, PW-4 Bhausaheb Ingale and PW-5
Nanasaheb Damale and the evidence of Memorandum panchanamas and
Recovery panchanamas of the Accused No.1 Krushna Korde, Accused No.2
Somnath More, Accused No.3 Ajinath Thombre, at Exhs. 122 and 124, 85
and 86, 109 and 110 respectively reveals the recovery under section 27 of
Evidence Act. The evidence of memorandum panchanama and Recovery
panchanama of the Accused No.1 Krushna Korde, Exhs.122 and 124, shows
that accused produced the pistol and live cartridges from Aluminum tin of his
house, the evidence of Memorandum panchanama and Recovery panchnama
of the Accused No.2 Somnath More, Exhs. 85And 86, shows that wife of
Accused No.2 Somnath More, was present in the house and accused
produced the pistol and live cartridges from loft of kitchen, from his house,
the evidence of Memorandum panchanama and Recovery panchnama of
Accused No.3 Ajinath Thombre, at Exhs. Exhs.109 and 110, shows that
accused produced the pistol and live cartridges from steel barrel of his house .
The accused have produced the weapons from hidden place from their
respective houses. The accused produced their clothes and mobiles from their
respective houses. The weapons, clothes and the mobiles of the accused were
produced from their respective houses from the places which were in their
exclusive knowledge. Therefore, failure to collect ownership documents from
the accused by investigating Officer will not affect the evidence of recovery,
in any manner.
158) Secondly, PW-1 Santosh Chavan, PW-13 Adinath Todmal, PW-
16 Laxman Kusalkar are those witnesses who arrived on the spot
immediately after the incident. In the coss examination, they admitted that
they saw 3-4 pistols and empty cartridges on the spot. On this count, defence
claimed that those 3-4 pistols which were found on the spot, were shown to
be recovered from accused Nos.1 to 3 and accused Nos. 1 to 3 were falsely
implicated in this case. The same suggestion was given to PW-2 Balasheb
Karale, the panch witness for the spot panchanama and PW-23 Investigating
Officer Rahul Pawar that 3-4 pistols and empty cartridges were found on the
spot and was seized from the spot. To which they denied. Here, PW-1
Santosh Chavan, PW-13 Adinath Todmal, PW-16 Laxman Kusalkar are the
witnesses, who arrived on the spot immediately after the incident. They are
not the panch witnesses of spot panchanama. So, their this evidence will not
falsify the evidence of recovery of weapons, clothes, mobiles.
159) The case laws relied by Ld. Adv. Shri. Dubepatil for accused
No.4 Peerappa and Ors. Vs. State of Karnataka and Ors., 2005 SAR
(Criminal) 676 (S.C.)is not applicable in the present case. In the said case
law the weapons were knife and jambia. And it was observed that no blood
was found on such weapons.In present case weapon is firearm,so no question
of finding blood on firearm. Lakhwinder Singh and others Vs. State of
Punjab., decided on 17/12/2002, 2002 (2003) AIR SC 2577 of Hon'ble
Supreme Court of India, isnot applicable in the present case.In the said
case law,no independent witness was examined, but in the present case,
PW-2 Balsaheb Karale, PW-4 Bhausaheb Ingale and PW-5 Nanasaheb
Damale are the independent witnesses,and those are examined by the
prosecution. Shaikh Nazir Shaikh Failu Vs. State of Maharashtra.,
2019(2)Bom.C.R.(Cri) 496 is not applicable in the present case. This case
law is pertaining to seizure of counterfeit currency notes from room in
possession of somebody. In present case there is no such seizure. This case
law cannot be made applicable in the present case as the above articles i.e.
pistols with live cartridges, clothes of the accused wore by the accused and
mobile were seized from the houses of accused where the accused used to
reside. The place of these muddemal property is within the exclusive
knowledge of the accused. None other than accused are having knowledge of
those articles in the house. In such circumstances, the residential houses of
these accused cannot be called accessible places. Thus, the prosecution
proved the recovery of the weapon,clothes, and mobiles as per section 27 of
Evidence Act.
160) The case law Sameer Hasan Shaikh Vs. State of Maharashtra
2002(2)B Cr.C403 relied by Ld.Adv.Shri Dube patil for Accused No.4,is not
applicable in the present case.In the said case law,the panch witnesses not
supported the prosecution story.But in the present case the panchas PW-2
Balsaheb Karale, PW-4 Bhausaheb Ingale and PW-5 Nanasaheb Damale have
supported the prosecution story. The case law State of M.P. vs.Makrand
Singh 2019(1)Acquittal2(SC) relied by Ld.Adv.Shri Dube patil for Accused
No.4,is not applicable in the present case.In the said case law,the panch
witnesses were not examined the prosecution .But in the present case the
panchas PW-2 Balsaheb Karale, PW-4 Bhausaheb Ingale and PW-5
Nanasaheb Damale are examined the prosecution.
161) Secondly, two empty cartridges, three bullet caps, one percussion
cap was recovered from the spot immediately after the incident as the spot
panchanama reveals that it was conducted on the day itself on 13/09/2016 at
about 16.15 to 18.00 O'clock. So, therefore, it cannot be said that those
empties, percussion cap, bullet caps were recovered from accesssable place.
162) The question arises whether the two empty cartridges, three
bullets and one percussion cap was fired from the pistols recovered from the
custody of the accused and for that it is necessary to scrutinize the evidence
of PW-21 Dr. Kutubuddin Mulani, ballistic expert.
163) The evidence of PW-25 I.O., Anand Bhoite reveals that he sent
seized muddemal to Forensic Expert of Kalina, vide letters Exhs. 195, 196.
Specialists in this field are tasked with linking bullets to weapons and
weapons to individuals PW-21 Dr. Kutubuddin Mulani, ballistic expert
deposed before the Court that he is working as Assistant Chemical Analyzer
in F.S.L. Kalina, Mumbai. The evidence of PW-25 I.O., Anand Bhoite, the
evidence of PW-21 Dr. Kutubuddin Mulani, ballistic expert reveals that
laboratory received 27 articles. The evidence of PW-21 Dr. Kutubuddin
Mulani, ballistic expert reveals that those 27 articles were including Exh.1, 2
and 3 are country made pistol and Exhibit 4 single barrel breech loading
countrymade handgun in working condition.
164) Exhibits 1, 2 and 3 are the country-made pistols in working
condition. Exhibit 1 is capable of chambering and firing 9 mm pistol
cartridges and Exhibits 2 and 3 are capable of chambering and firing 7.65
mm pistol cartridges. Residues of fired ammunition-nitrite were detected in

barrel of washings of country-made pistols,Exhibits 1, 2 and 3 showing that
countrymade pistols Exhibits 1, 2 and 3 were used for firing prior to their
receipt in the laboratory. Exhibit 4 single barrel breech loading country made
handgun is capable of chambering and firing 8 mm rifle cartridges. Residues
of fired ammunition-nitrite was detected in barrel washings of country-made
handgun Exhibit 4 showing that countrymade handgun Exhibit 4 was used
for firing prior to its receipt in the laboratory.
165) As discussed above pistol (Article 36-Exhibit 3) was recovered
from accused No.1,Krushna Korde, along with two bullets (Article 37-
Exhibit 3A , 3B). The evidence of PW-21 Dr. Mulani reveals that Article (37-
Exhibit 3A )was successfully test fired through countrymade pistol Exhibit 3.
166) The 7.65 mm pistol cartridge in Exhibit 3B having multiple
indentation on the cap. The characteristic features of firing pin impression on
the 7.65 mm pistol cartridge Exhibit 3B do not tally with the test fired
cartridge from countrymade pistol Exhibit 2 and 3 showing that this 7.65 mm
pistol cartridge in Exhibit 3B has been attempted to fire from another
weapon.
167) As stated above, the premier cap Exhibit 7 was recovered from
the spot of occurrence vide supplementary spot panchanama Exh. 93. The
evidence of PW-21 Dr. Mulani reveals the premier cap in Exhibit 7 is a fired
premier cap of 7.65 mm pistol cartridge. The characteristic features of firing
impression on the premier cap in Exhibit 7 talley with the test fired cartridge
from countrymade pistol Exhibit 3 showing that premier cap in Exhibit 7 has
been fired from countrymade pistol Exhibit 3 .
168) The deformed copper jacketed bullet in Exhibit 9 is a fired 7.65
mm copper jacketed pistol bullet having crude rifling marks. The deformed
7.65 mm copper jacketed pistol bullet in Exhibit 9 tally with the test fired
bullet from countrymade pistol Exhibit 3 in respect of superficial lengthwise
crude rifling marks observed on them (examined under comparison

microscope) showing that this 7.65 mm copper jacketed pistol bullet in
Exhibit 9 has been fired from countrymade pistol Exhibit 3.
169) The evidence in respect of recovery panchanama reveals that the
country made pistol (Article 8 – Exhibit 2) and countrymade handgun
(Article 9- Exhibit 4) was recovered from accused No.2 Somnath More. The
evidence of PW-21 Dr. Mulani shows that Randomly selected two 7.65 mm
pistol cartridges in Exhibit 2A (Exhibit 2A- out of Article 10 to 13) were
successfully test fired through countrymade pistol Exhibit 2. (Exhibit 2-
Article 8 ). So, also one live cartridge in handgun (Exhibit 4A- Article 9A)
was successfully test fired from Exhibit 4 handgun (Exhibit 4- Article 9) .
170) As stated above, countrymade pistol (Article 27- Exhibit 1) was
recovered from accused No.3 Ajinath Thombare along with two live
cartridges (Article 27A, 27B- Exhibit 1A). The evidence of PW-21 Dr.
Mulani shows that One of two 9 mm pistol cartridge in Exhibit 1A was
successfully test fired through country made pistol Exhibit 1. The deformed
copper jacketed bullet in Exhibit 9 is a fired 7.65 mm copper jacketed pistol
bullet having crude rifling marks. The deformed copper jacketed bullet in
Exhibit 10 is a fired 9 mm copper jacketed pistol bullet having superficial
lengthwise brushing marks. The deformed 9 mm copper jacketed pistol bullet
in Exhibit 10 tally with the test fired bullet with countrymade pistol Exhibit 1
in respect of superficial lengthwise brushing marks observed on them
showing that this deformed 9 mm copper jacketed pistol bullet in Exhibit 10
has been fired from country made pistol Exhibit-1.
171) The evidence of PW-21 Dr. Mulani shows that the empty in
Exhibit-5 is a fired 9 mm pistol cartridge case. The characteristic features of
firing pin impression on the empty in Exhibit1- 5 talley with the test fired
cartridge from country made pistol Exhibit 1 showing that this empty in
Exhibit 5 has been fired from country made pistol Exhibit 1.
172) Besides this one KF 765 empty cartridge Exhibit 6 was found
not suitable for ballistic comparison. So, also Article 3- Exhibit 8 deformed
jacketed bullet found on the spot was fired from another weapon. PW-21 Dr.
Kutubuddin Mulani, ballistic expert filed the report vide Exh.203.
173) In the cross examination PW-21 Dr. Mulani deposed before the
Court that 7.65 mm pistol cartridge (Exhibit 3B) has been attempted to fire
from country made pistol other than Exhibit 2 and 3 as mentioned in the
report (Exh.203). The copper jacketed bullet has been fired from another
weapon other than weapons mentioned at Exh. Nos. 2 and 3 mentioned in
Exh. 203. PW-21 Dr. Mulani admitted that there may be one or two weapons
other than weapons Exh. Nos. 2 and 3 mentioned in report (Exh.203). He
further admitted that he cannot opined which bullet caused death of deceased.
On this count, defence claimed that there were other weapons used by
someone on the spot and therefore only it cannot be said that the bullets were
fired from the pistols Exh. 1 to 3.
174) While striking out this argument prosecution relied upon
Gautam S/o. Bhila Ahire Vs. State of Maharashtra., 2010 ALL MR (Cri)
2353 wherein it was observed that while appreciating the evidence brought
on record by prosecution, total evidence has to be appreciated in its entirety
merely because one witness has stated some stray sentence that too in his
cross examination, held, it can not considered de-hors entire prosecution
evidence brought on record by the prosecution. In the present case, if the
evidence of PW-21 Dr. Mulani is considered in its entirety. It is found that
there is evidence of PW-21 Dr. Mulani with report Exh.203 along with
recovery panchanamas showing recovery of pistols from accused Nos. 1 to 3.
This evidence collectively shows that the accused Nos. 1 and 3 used the
pistol Exh. 3 and Exhibit 1 respectively and fired Exh. 9 and 10 copper
jacketed bullets and Exh.7, percussion cap and Exh.5 empty on the deceased
Chandrakant @ Himmat Jadhav. So, this stray admission will not affect the
case of the prosecution that the copper jacketed bullet Exh.10, Empty Exh.5
were fired from Exh.1-pistol seized from Accused No.3 Ajinath Thombre and
copper jacketed bullet Exh.9, percussion cap Exh.7 were fired from Exh.3-
Pistol seized from Accused No.1, Krushna Korde.
175) The country made pistols and countrymade handgun recovered
from Accused Nos.1 to 3 are given Articles during the evidence and were
given exhibits by ballistic expert in ballistic report Exh.203. The evidence of
ballistic report along with recovery panchanama reveals that :-
Muddemal Article given Exh. Description of From whom
property during Given as muddemal recovered
evidence per property
ballistic
report
Exh.203
Countrymade Art.8 Exh.2 572875785105 From accused

pistol & No.2 Somnath
33657732 made More
in Japan
Countrymade Art.27 Exh.1 Made in USA From accused

pistol zzzzz zzzzz No.3 Ajinath
zzzzz Thombare
Countrymade Art.36 Exh.3 719017 German From accused

pistol pistol CAL 765 No.1 Krushna
CALIBES Korade.
7.65mm made
in Germany.
Countrymade Art.9 Exh.4 One single From accused

handgun barrel breech No.2 Somnath
loading More.
countrymade
handgun
176) Three bullet caps, two empties and one percussion cap recovered
from spot are given Articles during the evidence and are given Exhibits by
ballistic expert in ballistic report. The evidence of ballistic report along with
recovery panchanama reveals that :-

Muddemal Art. Given Exhibit given As per From whom recovered
property during by ballistic ballistic
evidence expert in his report
ballistic
report
Exh.203
Percussion Art. 20 Exh.7 Fired from Exh.3 recovered from

cap Exh.3 accused No.1 Krushna
Korade
Copper Art. 4 Exh.9 Fired from Exh.3 recovered from

jacketed pistol Exh.3 accused No.1 Krushna
bullet Korade.
Copper Art.5 Exh.10 Fired from Exh.1 recovered from

jacketed countrymad accused No.3 Ajinath
bullet e Pistol Thombare.
Exh.1
Empty Art.1 Exh.5 Fired from Exh.1 recovered from

countrymad accused No.3 Ajinath
e pistol Thobmare
Exh.1
KF 765 Art. 2 Exh.6 Not suitable -----

empty for ballistic
cartridge comparison
Deformed Art.3 Exh.8 Fired from -----

jacekted another
bullet weapon
177) After going through the evidence of PW-21 Dr. Mulani, it is

found that, he has deposed before the Court that he has also examined the
clothes of deceased. On examination of those clothes, he found shot holes on
the clothes, those shot holes were due to firing of copper jacketed bullet. He
opined that copper jacketing bullets have been fired beyond powder range of
weapon. As discussed above, it is found that the copper jacketed bullets were
found on the spot which were fired from Exh. 1 and 3 i.e. the country made
pistols, recovered from accused No. 3 and accused No.1 respectively. So, the
defence of the accused that the firing was made on the deceased by another
weapon than the weapon seized in this offence, cannot be accepted.
178) PW No.21, Kutubuddin Mulani Forensic expert opined shot
holes on the clothes of deceased were due to firing of copper jacketed bullet
Thus,it is clear that the accused Nos. 1 and 3 used the pistol Exh. 3 and
Exhibit 1 respectively and fired Exh. 10 and 9 copper jacketed bullets on the
deceased Chandrakant @ Himmat Jadhav. Thus, the fact remains that the
copper jacketed bullet Exh.10, Empty Exh.5 were fired from Exh.1-pistol
seized from Accused No.3 Ajinath Thombre and copper jacketed bullet
Exh.9, percussion cap Exh.7 were fired from Exh.3-Pistol seized from
Accused No.1, Krushna Korde.
179) The evidence of PW-1 Santosh Chavan, PW-12 Goraksha
Mokate, PW-13 Adinath Todmal, PW-18 Abhimanyu Jadhav reveals that the
deceased Chandrakant @ Himmat Jadhav was taken to Civil Hospital,
Ahmednagar by police. The evidence of PW-23 I.O. Rahul Pawar reveals that
he visited the spot and conducted spot panchanama thereafter, he conducted
inquest panchanama of deceased vide Exh.226 and sent the dead body of
Chandrakant @ Himmat Jadhav to Civil Hospital for post mortem
examination. The PW-20 Dr. Vikas Rathod deposed before the Court that he
received letter of Civil Surgeon, Ahmednagar and Dy. S. P. Ahmednagar
along with inquest panchanama for conducting post mortem of dead body of
Chandrakant @ Himmamt Abhimanyu Jadhav. The dead body was aged
about 30 years. Rigor mortis was present.
180) On examination he found following external injuries on the dead

body of deceased :-
1- Firearm entrance wound in the form of obliquely placed oval shaped
lacerated puncture wound of size 1.5cm x 1.3cm x cavity deep, present over
back of thorax (chest) on right side, situated 1cm away from vertebral column
at the level of 5th thoracic vertebrae and 16 cm medial to right infra-scapular

prominence. The margins of the wound are inverted, irregular, ragged,
abraded, and surrounded with contusion, blood infiltrated, reddish.
2- Obliquely placed oval shaped lacerated puncture wound with everted,

irrgular, blood infiltrated margin suggestive of firearm exit wound of size
1.7cm x 0.8cm x cavity deep, present over left upper chest region, in 4th
intercostals space, situted 4 cm lateral to left nipple and 5 cm anterio-
medially to mid-axillary line, reddish.
3- Obliquely placed over shaped lacerated puncture wound with inverted,

irrgular, blood infiltrated margin surrounded by blackening suggestive of
firearm entry wound of size 1.2cm x 0.8cm x muscle deep, present over right
lower 1/3 rd of back, flank region, situated 20cm lateral to vertebral column,
directing above downwards and exiting through injury present 5 cm anterio-
inferio-medial to firearm entry wound; firearm exit wound was of size 1.5cm
x 0.8cm x muscle deep, obliquely placed oval shaped lacerated puncture
wound with everted, irrgular, blood infiltrated margin, reddish, with
evidence glancing effect in the form of obliquely placed contused abrasion of
size 7.2cm x 1.2cm present over right inguinal region situated 2.5 cm inferio-
medially to firearm exit wound, more towards anterior, runnning above
downwards, reddish.
4- Obliquely placed laceration of size 6cm x 1.2cm x subcutaneous deep,

present over lower 3rd of right buttock, reddish.
5- Contused abrasion of size 1.5cm x 0.5cm present over anterio-lateral

aspect of left elbow, reddish.
6- Contused abrasion of size 1cm x 0.5cm present over posterior middle

rd
3 aspect of left forearm, reddish.
7- Contused abrasion of size 1.2cm x 1cm present 3 cm below elbow joint

over posterio-medial aspect of left forearm, reddish.
8- Two Contused abrasion of sizes 0.3cm x 0.2cm and 0.4cm x 0.3 cm

respectively situated 0.8 cm apart from each other over anterior aspect of
right knee, reddish.
9- Three Contused abrasion of sizes 0.5cm Firearm entrance wound in the

form of obliquely placed oval shaped lacerated puncture wound of size 1.5cm
x 1.3cm x cavity deep, present over back of thorax (chest) on right side,
situated 1cm away from vertebral column at the level of 5 th thoracic vertebrae
and 16 cm medial to right infra-scapular prominence. The margins of the

wound are inverted, irregular, ragged, abraded, and surrounded with
contusion, blood infiltrated, reddish.
181) The evidence of PW-20 Dr. Vikas Rathod further reveals that he
found evidence of fracture of 5th thoracic vertebrae and deformity was
present. All the above injuries were ante mortem and fresh.
After internal examination he found following injuries :-
On opening thoracic region, track of firearm injury noted have been
noted below:-
places.
In Pleura about 2.5 – 3 liter blood was present in left pleural

cavity as per firearm wound tracked. On examination of right lung it was
intact and pale. On examination of left lung, as per track of firearm wound
collapsed with evidence of blood and blood clot throughout the track of
injury. On examination there was fracture of spinous part of 5 th thorasis
vertebra with evidence of surrounding haematoma with deformity present.
All organs were pale. Out of all these injuries, injury no.1 to 3 mentioned in
col. no.17 and corresponding internal injuries mentioned in col. no.20 are
sufficient to cause death in ordinary course of nature. The P.M. report column
23 reveals that injury No.1 in column 17 and its subsequent resultant internal
injuries are sufficient to cause instantaneous death in ordinary course of
nature. In column No.20 there is mention of subsequent resultant internal

injuries that are :-
On opening thoracic region, track of firearm injury noted have been noted
below:-
places.
182) PW- 20 Dr. Vikas Madan Rathod opined that the cause of death
is “firearm injury to left lung”. Here in the present matter, this medical
evidence is material one. The evidence of PW-23 I.O. Rahul Pawar reveals
that he conducted inquest panchanama of deceased vide Exh.226 showing
injury on back at upper side and injuries on stomach ,chest. The I.O. PW-23
Rahul Pawar conducted the seizure panchanama of clothes of deceased. The
seizure panchanama of clothes of deceased reveals that the shirt of deceased
was having circle shaped hole on the back side of shirt and there were three
holes at the right side of the shirt. Thus, the medical evidence corroborates
this evidence. Accordingly, PW- 20 Dr. Vikas Madan Rathod with other
doctors prepared post mortem examination report and pictorial autopsy chart.
Exh.No.180. They have also issued post mortem cum provisional cause of
death certificate Exh.No.181.
183) PW-20 Dr. Vikas Rathod further deposed that the injury nos. 1 to
3 mentioned in col. no.17 of PM examination report (Exh.180) may be
possible by bullet fired from pistol or any firearm.
184) Thus, as discussed above the evidence of PW-1 Santosh Chavan,

PW- 12 Gorksha Mokate, PW-13 Adinath Todmal, PW-18 Abhimanyu Jadhav
reveal that the deceased Chandrakant @ Himmat Jadhav received bullet
injuries. The evidence of PW-20 M.O. Dr. Vikas Rathod as well the evidence
of PW-21 Dr. Kutubuddin Mulani collectively reveals that those bullet
injuries have caused death of deceased and those bullet injuries were caused
due to firing of pistols that are Exhibit-1 and Exhibit-3. The evidence of PW-
4 Bhausaheb Ingale along with evidence of PW-25 I.O Bhoite reveal that the
pistol Exhibit-1 was recovered from accused No.3 Ajinath Thombare and the
evidence of PW-5 Nanasaheb Damale along with evidence of PW-25 Anand
Bhoite reveals that pistol Exhibit-3 was recovered from accused No.1
Krushna Korade. All these evidence cumulatively reveals that accused Nos.
1 and 3 have fired the bullets on deceased by using pistols Exhibit-1 and
Exhibit-3 and have caused death of deceased Chandrakant @ Himmat
Jadhav.
185) One of the another circumstance available on record is the

evidence in respect of CCTV footage. PW- 11 Dada Shirke is the
photographer who has taken the photographs by pausing the screen of CCTV,
installed at Baba Petrol Pump. The place of Baba Petrol Pump is situated 200
meters away from the spot of incident. The PW-17 Brajesh Gurathi is also the
second witness who is panch witness as well as the witness who issued
certificate under section 65B of Indian Evidence Act. Their evidence reveals
that on 16/09/2016, they were called by S.D.P.O, Ahmednagar at Baba Petrol
Pump. Both those witnesses are panch witnesses of the panchanama of
CCTV footage. Their evidence reveals that one Mandar Mulay was looking
after the maintenance of CCTV installed at Baba Petrol Pump. The cameras
were capturing the images of surrounding area on Ahmednagar-Aurangabad
highway. Those cameras were recording incoming and outgoing vehicles.

The recording was stored in DVR installed in the cabin of Baba Petrol Pump.
They have seen CCTV footage of 13/09/2016 on the screen in camera No.4.
They have seen the video recording. The recording was of afternoon period.
They saw one motorbike was going from the front of petrol pump and two
persons were on motorbike. One another motorbike was following aforesaid
two wheeler and there were three persons on the said motorbike. PW-11 Dada
Shirke paused the screen and took photographs of both the motorbikes. Those
photographs are at Exh.144 and 145. Out of three persons riding on the
motorcycle, rider of motorbike had wore a cap and covered his face by
handkerchief. First pillion rider covered his head by handkerchief and second
pillion rider had covered his mouth by handkerchief.
186) The CCTV footage was copied in pen-drive by the technician

Mandar Mulay. PW-25 I.O Anand Bhoite handed over pen-drive to PW-17
Brajesh Gurathi. PW-17 Brajesh Gujrathi drew hash value of four files which
were in pendrive and issued certificate. The four certificate of hash value are
at Exh. 146 to 149. The pendrive is at Exh.162. The police prepared the
panchanama Exh. 150. The pendrive can ran only on smart player or Xplayer
so PW-17 issued certificate under section 65B of Indian Evidence Act
Exh.163.
187) PW-22 Varsha Bhave is the forensic expert who has examined
the questioned video file with specimen photographs. She was directed to
find out whether the persons who were on the motorbike are the same
persons, which are in the video file. After examining CCTV footage dated
16/09/2016, she found that the persons which are seen in the photographs are
the same persons who are seen in videographs i.e. CCTV footage. The time
of video was 12.01.59 to 02.59.59. After analysing questioned video file she
found reference photographs marked as Exhibit 2/2 and 2/3 match with video
file Exhibit 1. The person present in the questioned video file (Exh.1) appears
to be similar with person present in the provided reference photographs
Exh.2/2 and 2/3 i.e. motorbike rider. After analysing video file (Exh.1) and
reference photograph (Exh.2/4) she found that the persons present in the
vedio file(Exh.1) is similar with person present in provided reference
photographs (Exh.2/4).
188) After video analysis of recorded questioned video file (Exh.1)

with reference to photographs marked at Exh.2/9, she found that the clothes
of person present in the questioned video file Exh.1 appears to be similar
with clothes of persons present in the provided reference photographs
(Exh.2/9). After analysing questioned video file (Exh.1) with reference to the
photographs (Exh.2/13) he found that clothes of middle person present in the
questions video file (Exh.1) appears to be similar with clothes present in
provided reference photographs (Exh.2/13).
189) After analyzing questioned video file (Exh.1) with reference to

the photographs (Exh.2/17) he found that clothes of last person present in the
questions video file (Exh.1) appears to be similar with clothes present in
provided reference photographs (Exh.2/17).
190) PW-22 Varsha Bhave further deposed that she found that
personal identification, parameters and comparable features were not
sufficiently observed in the provided questioned video file (Exh.1), as the
faces of those persons were veiled. Accordingly, she prepared her
examination report Exh.214.
191) During cross examination, PW-22 Varsha Bhave deposed before

the Court that she has not sought the information regarding colour resolution
of the recording of the concerned CCTV camera. She has not done
examination of clothes of motorcyclist and pillion rider shown in questioned
video file (Exh.1) with reference to photographs (Exh.2/4). She admitted that
she has done analysis only physical features of motorcyclist and pillion rider
shown in questioned video (Exh.1) and not of the clothes. Further she
admitted that she has done the identification of motorcyclist and two pillion
riders shown in questioned video (Exh.1) on the basis of clothes. On this
count, defence claimed that the evidence of CCTV footage cannot be relied
upon.
192) After going through the evidence of PW-11 Dada Shirke, PW-17
Brajesh Gujrathi and PW-22 Varsha Bhave, it is found that it is the recording
of CCTV footage dated 13/09/2016. The recording was in regular course.
Therefore, the question of seeking information of colour resolution of
recording of concerned CCTV camera does not arise. Secondly, the CCTV
footage is dated 13/09/2016, the panchanama (Exh.150) of CCTV footage is
prepared on 16/09/2016. On 16/09/2016 itself there was mention of colours
of clothes of three persons riding on the motorcycle which was following the
motorcycle on which deceased was pillion rider in panchanama (Exh.150).
The recovery panchanama was proved through PW-2 Balasaheb Karale vide
Exh.85 and 86 with photographs Exh. 87 and 88, through PW-4 Bhuasaheb
Ingale vide recovery panchanama Exh.109 and 110 with photographs
Exh.111 and recovery panchanama was proved through PW-5 Nanasaheb
Damale vide Exh.122, 124 respectively with photographs Exh.123 dated
18/09/2016, 19/09/2016 and 17/09/2016 respectively which reveals that the
accused have produced those clothes after preparation of panchanama of
CCTV footage Exh.150. Therefore, it cannot be said that the panchanama
was falsely prepared or CCTV footage panchanama was falsely prepared.
The CCTV footage panchanama (Exh.150) along with certificate under
Section 65B of Indian Evidence Act convinces the genuineness of CCTV
footage. The evidence of seized clothes of the Accused Nos.1 to 3
corresponds with the clothes shown on CCTV Footage.
193) Moreover this evidence of CCTV Footage supports the evidence

of PW.No.1,Santosh Chavhan, that the faces of those three unknown persons
riding on motorcycle,were veiled,and they passed from the spot immediately
after the incident. This evidence of CCTV Footage supports the evidence of
PW.No.13, Adinath Todmal, that he noticed motorbike of black colour
proceeded towards Aurangabad direction.
194) The defence contended that the evidence of CCTV footage

cannot be relied upon on the count that the certificate is not issued by the
appropriate authority. There is variations in the evidence of PW-17 Brajesh
Gujrathi for CCTV footage and panchanama (Exh.150). The evidence of PW-
17 Brajesh Gujrathi reveals that he has issued the certificate under section
65B of Indian Evidence Act whereas the panchanama reveals that Mandar
Mule issued the certificate under section 65B at Exh.163. However, after
going through the evidence of PW-17 Brajesh Gujrathi, it is found that it is
the witness Brajesh Gujrathi who has drawn the Hash value of CCTV footage
which was extracted from pen drive vide Hash value certificate Exh.146 to
149, therefore, the certificate issued under section 65B vide Exh.163 cannot
be doubted.
195) Ld.Adv Shri Mhase patil for Accused No.1 to 3 relied on Anvar
P. V. Vs. P. K. Basheer & Ors., 2014(6) All MR 951 (SC). and contended
that CCTV footage which was extracted from pen drive is secondary
evidence, so cannot be admitted in evidence. In the case law Arjun Khotkar
vs. Kailash Kushanrao and others 2020SCCONLineSC571, it is observed
that the device on which the original information is first stored is owned
and /or operated by him. Such proof however cannot be adduced if the device
cannot be physically brought to court [in such case the only means of proving
the information will be in accordance with section 65B(1) r/w section
65B(4)] of Evidence Act. So, in view of observation in the case law of Arjun
Khotkar, this evidence of CCTV footage is admissible. And the case law of
Anvar P. V. Vs. P. K. Basheer & Ors., 2014(6) All MR 951 (SC) is not
applicable. Thus the oral evidence of witnesses who arrived on the spot after
the incident and their say that it were three persons riding on the motorcycle
proceeded in high speed towards Aurangabad is supported by this evidence of
CCTV footage. This evidence shows that the accused Nos. 1 to 3 by riding on
their motorcycle were following the motorcycle of PW-1 the informant on
which the deceased was pillion rider.
196) Thus, the evidence of PW-2 Balasaheb Karale, PW-3 Takatmal

Gugale, PW-4 Bhausaheb Ingale, PW-5 Nanasaheb Damale along with the
evidence of recovery panchanama showing the recovery of pistol (Exh.1, 2,
3) from accused Nos. 1 to 3 coupled with the evidence of PW-21 Dr.
Kutubuddin Mulani and examination report Exh.203 shows that the accused
Nos. 1 to 3 have committed murder of deceased Chandrakant @ Himmat
Jadhav by firing the bullets from pistols (Exh.1 and Exh.3).
197) The evidence of PW-2 Balasaheb Karale, PW-4 Bhausaheb

Ingale, PW-5 Nanasaheb Damale along with evidence of recovery
panchanama showing recovery of clothes wore by accused Nos. 1 to 3 at the
time of incident along with evidence of PW-11 Dada Shirke, PW-17 Brajesh
Gujrathi, PW-22 Varsha Bhave with evidence of panchanama of CCTV
footage shows that the accused Nos. 1 to 3, on their motorcycle by following
the motorcycle on which the deceased was riding, fired the bullets from
pistols (Exh.1 and Exh.3). Thus, the evidence discussed above, reveals that
the pistols with live cartridges, clothes of accused and mobiles were
recovered from the custody of accused as well as the bullet caps and empties
were recovered from the spot and it was found that those bullets were fired
by accused Nos. 1 to 3 from the pistols. The circumstantial evidence
available is :-
1- Recovery of pistols and live cartridges from the accused and recovery
of bullet caps and empties from the spot.
2- The clothes wore by the accused at the time of incident, seized from
the custody of accused and the evidence of CCTV footage supporting the
evidence of recovery of clothes from accused Nos. 1 to 3.
3- The mobiles seized from the custody of accused Nos. 1 and accused
No.3 vide seizure panchanama Exh.122, 124 and Exh.109, 110. Thus, we
have discussed the Point Nos. 1 and 2 in above paras. The discussion about
the Point No.3 i.e. recovery of mobile will be discussed in the further
relevant paras.
198) PW-5 Nanasaheb Damale is the panch witness on the point of

recovery of pistol with live cartridges, clothes and mobile of accused No.3
Ajinath Thombare, the evidence of which is already discussed in above paras.
PW-5 Nanasaheb Damale is also panch witness for memorandum
panchanama Exh.250 and discovery panchanama Exh.127. The PW-5
Nanasaheb Damale has not supported the prosecution to the effect that on
24/09/2016, the accused No.3 Ajinath Thombare gave the memorandum that
he would show the place where he conspired with co-accused for committing
murder of Chandrakant @ Himmat Jadhav and the place where the said plan
was executed. However, he admitted his signature on the memorandum
panchanama Exh.250. He supported the prosecution to the effect that he
along with panchas, police staff at the instance of accused No.3 Ajinath
Thombare had gone to the office of accused Raju Shete at Rahuri. The
relatives of accused Raju Shete came with key of said office and stated that it
was the office of Raju Shete. The relative has opened the office of accused
Raju Shete. The police seized two photographs and lightbill from the office
of accused Raju Shete. Those photographs are at Article 45 and 46.
199) The PW-25 the I.O Anand Bhoite in this regard deposed before
the Court that on 24/09/2016, the accused No.3 Ajinath Thombare gave
memorandum in presence of panchas that he is ready to show the places
where they had hatched the conspiracy and where they had committed
murder of Himmat Jadhav. He drew the panchanama vide Exh.250. In
pursuance of memorandum, the accused took them i.e. staff and panchas to
Rahuri in one office and stated that he and his associates hatched the
conspiracy of commission of murder of Chandrakant @ Himmat Jadhav. It
was office of accused No.4 Ramchandra Shete. The manager Narayan
Waghmode was present over there. PW-25 Anand Bhoite seized two
photographs Article 45 and 46 from the office. He has also taken the
photographs of the accused Article 125 and 126.
200) Here, it is found that accused No.3 Ajinath Thombare, has fired
bullets on deceased Chandrakant @ Himmat Jadhav by pistol. There is no
reason for accused No.3 Ajinath Thombare to know the office of accused
Raju Shete. The evidence of PW-15 Nanasaheb Damale along with evidence
of PW-25 I.O Anand Bhoite collectively reveals that in pursuance of
memorandum given by the accused No.3, Ajinath Thombare ,the panchanama
of place shown by the Accused No.3 Ajinath Thombare was conducted. The
Article 45, 46 and Article 125, 126 supports this evidence of PW-5
Nanasaheb Damale and the evidence of PW-25 Anand Bhoite. The
Memorandum Panchnama and discovery panchnama of Ajinath Thombre are
at Exhs.250 and 127.
201) In the cross examination of PW-5 Nanasaheb Damale, he

admitted that he used to visit the office of Accused No.4, Raju Shete
regularly. He admitted that CCTV cameras are installed in the office of
Accused No.4, Raju Shete. On 24.9.2016, the police had seen recording of
CCTV cameras from since before one and half month, in his presence. And
the police did not noticed any objectionable thing. This evidence reveals that
the defence is admitting the place shown by the Accused No.3 Ajinath
Thombre, as office of Raju Shete. The question arises what is the reason for
accused No.3 Ajinath Thombare to know the office of accused Raju Shete.
Thus the prosecution proved the Memorandum Panchnama and discovery
panchnama of Ajinath Thombre at Exhs.250 and 127.This evidence reveals
there is some connection in between the Accused No.3 Ajinath Thombre and
Accused No.4 Raju Shete,with regard to office of the Accused No.4 Raju
Shete, since before one and half month. Since before one and half month
some thing was going on in between Accused No.3 Ajinath Thombre and
Accused No.4 Raju Shete. There is no explanation on behalf of accused No.4
and accused No.3 Ajinath Thombare as to what is the reason that accused
No.3 knows the office of Raju Shete. As per Section 106 of Evidence Act,
when the facts are especially within the knowledge of a person in a case
based on circumstantial evidence, if the accused does not throw any light
upon facts which are specially within his knowledge and which could not
support any theory or hypothesis compatible with his innocence, Court can
consider his failure to adduce any explanation as an additional link which
completes chain. In the present case, as there is no explanation from the
accused to this evidence, this evidence becomes additional link which
completes the chain. Hence the case law Rameshbhai Mohanbhai Koli and
others Vs. State of Gujrat in 2010 ALL MR (Cri) 3969 , Sanjay Ramesh
Ghodake Vs. State of Maharashtra., 2014 ALL MR (Cri) 2843. relied by
the prosecution are applicable in the present matter as it was observed therein
that as per Section 106 of Evidence Act, when the facts are especially within
the knowledge of a person in a case based on circumstantial evidence, if the
accused does not throw any light upon facts which are specially within his
knowledge and which could not support any theory or hypothesis compatible
with his innocence, Court can consider his failure to adduce any explanation
as an additional link which completes chain.
202) Further, the evidence of PW-5 Nanasaheb Damale along with

evidence of PW-25 Anand Bhoite collectively reveals that accused No.3
Ajinath Thombare gave the memorandum that he is ready to show to Hotel
Yashraj from where he himself, accused No.1 Krushna Korade, accused No.2
Somnath More and one Vijay Korhale had drunk the liquor on the day of
incident. The accused No.3 Ajinath Thombare took the police staff and
panchas at Hotel Yashraj at Shingnapur where the I.O seized bill dated
13/09/2016 which is at Exh. 251. Further, the accused No.3 Ajinath
Thombare gave the memorandum that on receipt of phone call they went on
Ahmednagar-Aurangabad road just beneath of Imampur Ghat section and he
took the police and panchas over there and showed the place where they
waited for Himmat Jadhav. Thereafter, he took the police staff and panchas to
Jeur section. As per directions of accused, the driver of vehicle took U-turn
and parked the vehicle to the side and the accused showed the place where
deceased has passed the place with his friend. Again, they boarded in the
vehicle and the accused showed the place where he and his associates
stopped as deceased was speaking with somebody and thereafter, the accused
took them to the spot of incident and accordingly, the panchanama Exh.127
was prepared. The bill of Hotel dated 13/09/2016 is at Exh. 251. It shows that
the accused Nos. 1 to 3 purchased drinks from Hotel Yashraj. PW-5
Nanasaheb Damale,deposed that the hotelier prepared the bill in his presence.
203) In the cross examination, PW-5 Nanasaheb Damale, he admitted

that CCTV cameras are installed in the hotel Yashraj. On 24.9.2016, the
police had seen recording of CCTV cameras in his presence. And the police
did not noticed any objectionable thing. This evidence reveals that the
defence is admitting the place shown by the Accused No.3 Ajinath Thombre,
as hotel where the Accused No.1 Krushna Korde, Accused No.2, Somnath
More, Accused No.3, Ajinath Thombre gathered and had liquor.
204) Thus the prosecution proved the memorandum panchanama and

discovery panchanama of Ajinath Thombre at Exhs. 250 and 127. The
evidence of the PW-5 Nanasaheb Damale, that accused No.3 Ajinath
Thombare gave the memorandum that on receipt of phone call they went on
Ahmednagar-Aurangabad road, reveals there is some connection in between
the Accused No.3 Ajinath Thombre and Accused No.1 Krushna Korde,
Accused No.2,Somnath More. This is the connecting link with the evidence
of call details Exh. 275 and 276.
205) The evidence of PW-9 Ganesh Aagale along with evidence of

PW-24 I.O Manish Kalwaniya reveals that the accused Raju Shete gave the
memorandum that he would show the place where he had hatched conspiracy
with the other accused. The PW-9 Ganesh Aagale turned hostile by denying
that accused Raju Shete made voluntary statement before the police and had
shown the spot where he gave money and weapon to co-accused. He has also
turned against the prosecution to the effect that at the instance of accused
Raju Shete, the police staff, panchas had gone to Rahuri and accused Raju
Shete had shown his office and stated that he has given money and weapon to
co-accused for committing murder in his office. The panchanama to that
effect is at Exh. 237 and Exh.140. Though, PW-9 Ganesh Aagle has turned
against the prosecution, the PW-24 I.O. Manish Kalwaniya has supported the
prosecution in respect of memorandum panchanama of accused Raju Shete
vide Exh.237 and discovery panchanama of accused Raju Shete vide
Exh.140. Exh.237 reveals the accused No.4 Raju Shete has shown the place
of his office where the Accused No.5 Sandip Thopte introduced Accused
No.1Krushna Korde, Accused No.2 Somnath More and Accused No.3 Ajinath
Thombre to him. This evidence could be looked into as conduct of the
accused under section 8 of Evidence Act which connects the accused No.4
with accused Nos. 1 to 3. This evidence supports the prosecution in respect
of evidence of PW.No.5 Nana Damale and memorandum panchnama and
Discovery panchnama of Ajinath Thombre at Exh.250 and 127.
206) PW-9 Ganesh Aagale has supported the prosecution to the effect
that accused Raju Shete took them to his house at village Walanpimpri and
police drew the panchanama of house of accused vide Exh.238.
207) The evidence of PW-8 Sanjay Bhingardive the panch witness for
memorandum panchanama and discovery panchanama of Accused No.4 Raju
Shete vide Exh.137 and 138. PW-8 Sanjay Bhingardive has supported the
prosecution in respect of evidence of memorandum and discovery
panchanama of accused Raju Shete Exh.137 and 138. The evidence of PW-8
Sanjay Bhingardive the panch witness and the evidence of PW-24 I.O.
Manish Kalwaniya along with memorandum and seizure panchanama reveals
that the accused Raju Shete gave the memorandum that he would show the
place where he threw the mobile of Narayan Waghmode and led the panchas
and police staff to the streamlet and showed the streamlet wherein he threw
the said mobile. Their evidence further reveals that PW-24 I.O. Manish
Kalwaniya hired the labours and searched the mobile, but it was not found.
Thus, this evidence reveals that the accused Raju Shete was having mobile of
Narayan Waghmode with him and which he threw in the streamlet. The
receipt of payment of labour charges by I.O. shows payment was made to
labours for searching the mobile is at Exh.239. This evidence supports the
evidence, of mobile thrown by the accused No.4 Raju Shete in the streamlet
was searched by those labours. This evidence collectively reveals the
connection of accused No.4 Raju Shete with accused Nos. 1 to 3. By
adducing this evidence, the prosecution has brought the connecting link in
between accused No.4 Raju Shete and accused Nos. 1 to 3. Now, it is for the
defence to strike out this evidence by adducing their defence evidence
showing that accused No.4 Raju Shete is in no way connected with accused
Nos. 1 to 3. However, even after cross examination, the defence failed to
prove the same. So, the evidence adduced by the prosecution in respect of
connection of accused No.4 Raju Shete with accused Nos. 1 to 3 is required
to be accepted. Moreover the incident is of 13.09.2016 and the panchanama
was prepared on 06.01.2018. So, it is highly impossible to trace out the
mobile after such a long period.
208) It is allegation of the prosecution that accused No.5 Sandip

Thopate, accused No.6 Rahul Darkunde and accused No.7 Javed Shaikh were
involved in the criminal conspiracy of committing murder of deceased
Chandrakant @ Himmat Jadhav. The prosecution has brought the evidence of
PW-6 Balasaheb Murkute along with evidence of PW-24 I.O Manish
Kalwaniya. PW-6 Balasaheb Murkute the panch witness for memorandum
panchanama and recovery panchanama of mobile handset and SIM card from
accused No.7 Javed Karim has not supported the prosecution by denying that
the accused Javed Karim gave memorandum that he would produce the
mobile handset and SIM card. PW- 24 I.O Manish Kalwaniya deposed before
the Court that he directed PSI Gore to conduct the memorandum panchanama
of accused Javed Karim Shaikh. Accused Javed Karim Shaikh produced the
mobile handset from his house. The PSI Gore has prepared memorandum and
seizure panchanama vide Exh.231 and 232. This evidence reveals that the
accused Javed Shaikh produced white coloured mobile handset of idea
company of SIM card No. 9822490632. It was also having SIM card of Airtel
company bearing No. 8991901412. The memorandum of Javed Shaikh
reveals that he and accused No.6 Rahul Darkunde used the mobile and have
given the location of Himmat Jadhav as per the directions of accused Raju
Shete.
209) Here again, the case law of Kripal Singh Vs. State of
Rajasthan, relied by the prosecution is applicable. There is no such legal
proposition that the evidence of police officials unless supported by
independent witness is unworthy of acceptance. So, this evidence is required

to be accepted.
210) PW-7 Nasir Shaikh is the panch witness of memorandum

panchanama and seizure panchanama of accused No.7 Javed Shaikh. PW-7
Nasir Shaikh turned against the prosecution by denying that the accused No.7
gave the memorandum in his presence that he would show the place which
was let out by him to accused Nos. 1 to 3 after the incident and accordingly,
accused No.7 has shown said place. The evidence of PW-24 I.O Manish
Kalwaniya along with the evidence of memorandum and discovery
panchanama Exh.233 and 234 reveals that the accused No.7 has let the house
to accused Nos. 1 to 3 on rent of Rs.1,000/-. In the cross examination, the
PW-24 I.O Manish Kalwaniya admitted that he has not collected ownership
documents of the house shown by the Accused No.7 Javed Shaikh and further
that sold the said house. The fact remained that said house was owned by the
Accused No.7. This evidence establishes the link that the accused No.7 was
having the house.
211) In this regard, the prosecution relied on Kripal Singh Vs. State
of Rajasthan, 2019 ALL SCR (Cri) 519, wherein it was observed that even
if the panch witness turned hostile, the evidence of person who effected the
recovery would not stand vitiated. It was observed in the said case law that
the official acts of the police have been regularly performed is a wise
principle of presumption. Hence, the evidence of official witnesses cannot be
distrusted and disbelieved merely on the count of their official status. Same
view was taken in Surinder Kumar Vs. State of Punjab, 2020 ALL SCR
(Cri) 369, it was observed in Rameshbhai Mohanbhai Koli and others Vs.
State of Gujrat in 2010 ALL MR (Cri) 3969 that merely because of panch
witness turned hostile is no ground to reject the evidence if the same is based
on testimony of I.O alone. Same view was taken in Sanjay Ramesh
Ghodake Vs. State of Maharashtra., 2014 ALL MR (Cri) 2843. In view of

above case laws, the evidence of PW-23 I.O Rahulkumar Pawar, PW- 24 I.O
Manish Kalwaniya, PW-25 I.O Ananda Bhoite can be safely relied upon in
respect of evidence of recovery of material objects from the accused.
212) PW-10 Amol Khamkar is the panch witness in whose presence

the accused No.6 Rahul Darkunde gave the memorandum that he would show
the place where he met the deceased. PW-10 Amol Khamkar turned against
the prosecution by denying that the accused Rahul Babasaheb Darkunde gave
memorandum in his presence. Even after cross examination, he has not
supported the prosecution.
213) PW-25 I.O Bhoite deposed before the Court that he directed PSI
Dewadkar to record memorandum statement of accused Rahul Darkunde. PSI
Dewadkar drew the memorandum panchanama of accused Rahul Darkunde.
The memorandum panchanama and discovery panchanama to that effect are
at Exh.267 and 268. PW-25 I.O Bhoite identified signature of P.S.I.
Dewadkar.PW-10 Amol Khamkar is the panch witness though turned against
the prosecution,in view of case law Kripal Singh Vs. State of Rajasthan,
2019 ALL SCR (Cri) 519, the evidence adduced by PW-25 I.O Bhoite .is not
vitiated.The evidence PW-25 I.O Bhoite along with memorandum
panchnama and discovery panchnama reveals that Rahul Darkunde has given
the memorandum that he along with Javed Shaikh has given location of
deceased Himmat to accused Nos 3 Ajinath. He gave the memorandum that
he would show the place where he met deceased Himmat Jadhav and has
taken the information from him about his location by having informal talk
with him and had given the information to accused Nos. 1 to 3. In
consequence of memorandum, the accused No.6 has shown the hotel
Ghodeshwari Bhel Center near Shani Shingnapur temple flexure where he
met deceased Himmat and thereafter, he had shown the Hotel Sarang from
where he gave the location of deceased to accused Nos. 1 to 3. The

Memorandum and discovery panchnama to that effect is at Exhs.267 and
268.It is the place where the deceased told the Accused No.6 that he is going
to Ahmednagar Court on his Court date and he would return by the same rout
ofAhmednagar-Aurangabad.The location of the deceased was known to the
Accused No.6 Rahul Darkunde.There is no reason for Accused Nos.1 to 3, to
know the location of the deceased. Accused No.6 Rahul Darkunde extracted
the information from the deceased with intention to commit murder of the
deceased.
214) This evidence is relevant in view of setion 8 of Evidence

Act.The evidence altogether reveals that the location of deceased was given
by accused No.7 Javed Shaikh and accused No.6 Rahul Darkunde. As
discussed above, the evidence of PW-6 Balasaheb Murkute along with
evidence of PW-4 I.O. Manish Kalwaniya reveal that the accused Javed
Shaikh produced the mobile of Mido company bearing mobile No.
9822490632. So, also as discussed above, the accused No.1 has produced his
mobile bearing No. 9823018559 and accused No.3 Ajinath Thombare
produced his mobile number bearing 8975252244. The defence has given no
objection to give Exh. to call details of mobile found in possession of
accused and the other mobiles of the accused. The call details are collectively
exhibited as Exh.275 and 276.The evidence of PW No.9 Ganesh Aagale with
the evidence of PW.No.24,Manish Kalvaniya shows Accused Raju Shete
gave the memorandum that Accused No.5 Sandeep Thopte introduced
Accused Nos1 to 3 at the office of Accused No.4 Raju Shete. This evidence
denotes conduct of Accused No.4 showing meeting of the accused at his
office.The Accused Nos 1 to 3 are connected with the Accused Nos 4 to7.
215) As stated above, there is evidence of custody of mobile with

accused No. 1 Krushna Korade, accused No.3 Ajinath Thombare and accused
No.7 Javed Shaikh. The mobile produced by accused No.1 Krushna Korade,
bearing no.9823018559 accused No.3 Ajinath Thombare bearing
no.8975252244 and accused No.7 Javed Shaikh bearing no.9822490632 are
seized in this crime. Thus, it is clear that those accused were using the said
mobile. The evidence of PW-8 Sanjay Bhingardive along with evidence of
PW-24 I.O. Manish Kalwaniya with Exhibit 137 and 138 i.e. memorandum
and discovery panchanama of accused No.4 Raju Shete reveals that he was
using mobile of one Narayan Waghmode. The evidence of PW.No.25
I.O.Anand Bhoite reveals that during investigation, he found that the Accused
No.4 Raju Shete was using the mobile of Narayan Waghmode bearing
no.7447282495 and he threw the said mobile in the streamlet. The evidence
further reveals that even after making efforts the mobile was not traced out.
The CDR details contain the customer application form showing that the
mobile No. 95522000400 was belonging to accused Raju Shete. The
evidence of PW-8 Sanjay Bhingardive, evidence of PW-24 I.O Manish
Kalwaniya reveals that the mobile used by Raju Shete was not traced out.
The call details record reveals that the mobile number bearing
no.7447282495 was belonging to Narayan Waghmade. The conduct of the
accused Raju Shete of throwing the mobile of Narayan Waghmode in the
streamlet itself create the suspicion in respect of Mobile thrown in streamlet.
216) It is the case of the prosecution that accused No.4 Raju Shete
used mobile of Narayan Waghmode. The prosecution has not brought the
evidence of Narayan Waghmode who is the material witness. By examining
Narayan Waghmode, the prosecution could bring on record the use of mobile
of Narayan Waghmode by the accused No.4. But prosecution withheld such
material witness. So, Ld. Adv. Shri. Dubepatil for accused No.4 requested to
draw adverse inference under section 114(g) of Indian Evidence Act and
relied on Khatri Hemraj Amulakh Vs. The State of Gujrat., Civil Appeal
No. 84 of 1969 decided on 07-02-1972 (1972) AIR (SC) 922. However, after
going through the written argument filed by the prosecution below Exh.328
as well as, as per oral argument advanced by Ld. APP Shri. Keskar, it is
found that the witness Narayan Waghmode was called as witness. However,
he has not supported the prosecution story. So, the prosecution has not
recorded his examination in chief. It is the choice of the prosecution to
examine or to drop any of witnesses on behalf of prosecution. The
prosecution chose to drop the evidence of witness Narayan waghmode. So,
non-examination of witness Narayan Waghmode will not affect the
prosecution case adversely. So, the case law Khatri Hemraj Amulakh Vs.
The State of Gujrat cannot be made applicable in the present matter.
217) The evidence of PW-25 Anand Bhoite and the call details reveal
the evidence of customer application forms showing mobile No.
95522000400 was belonging to accused Raju Shete.Mobile no.8975252244
found in possession of Accused No.3 Ajinath Thombre was belonging to
AccusedNo.7 Javed Shaikh. Mobile no.9822490632 of Javed Shaikh was
used by Accused No.7 Javed Shaikh and Accused No.6 Rahul Darkunde.
Mobile no.7447282495 was belonging to Narayan Waghmode and was used
accused No.4 Raju Shete.There were several contacts in between the mobiles
held by accused No.1 Krushna Korade, accused No.3 Ajinath Thombare,
accused No.4 Raju Shete, accused No.7 Javed Shaikh and accused No.6
Rahul Darkunde. The evidence of PW.No.25,I.O.Anand Bhoite with call
details at Exh.275 and 276, reveals that the Accused No.5 Sandip Thopte
was using mobile no.9922256875. There is contact in between mobile
no.8975252244 found in possession of Accused No.3 Ajinath Thombre and
mobile no.9822490632 of Javed Shaikh since before24.8.2016.On 13.9.16
there is contact for 7 times in between11.41 a.m. to14.29 p.m.
218) On 13.9.2016, there is contact in between mobile

no.8975252244 found in possession of Accused No.3 Ajinath Thombre and
and mobile no.9822490632 of Javed Shaikh, mobile no.9922256875 of

Accused No.5 Sandip Thopte, mobile no.7447282495 of Accused No,4 Raju
Shete .Maximum calls are received and given by Accused No.3 Ajinath
Thombre on Ahmednagar- Aurangabad Highway.
219) Accused No.4 Raju Shete was in contact with Accused

No.5,Sandip Thopte since before 24.8 2016.On 13.9.2016, there are 10 calls
in between Accused No,4 Raju Shete and Accused No.5 Sandip Thopte,7calls
in between Accused No.3 Ajinath Thombre and Accused No,4 Raju Shete.
Accused No.5,Sandip Thopte was continuously in contact with accused No.4
Raju Shete and Accused No.3 Ajinath Thombre. As per evidence of
PW.No.25,I.O. Anand Bhoite, Memorandum and seizure panchnama Exh
Nos. 267 and 268 respectively, on 13.9.2016 the Accused No.6 met Deceased
at Shani shinganapur flexture and he thereafter called accused no.3 Ajinath
Thombre, There are 7 calls in between them. one of it is at about 11.41 a.m.
and 12.46 p.m. As per evidence of PW.No.5 Nanasaheb
Damale,memorandum panchnama and Discovery panchnama Exhs250 and
Exh127,Accused No.3 Ajinath Thombre received call in between 12.00 p.m.
to1.00 p.m.Accused No.6 Rahul Darkunde called accused No.3 Ajinath
Thombre at 12,46 from shani shinganapur. Thus, it is found that there was
some communication in between accused Nos. 1 to 7 with regard to
commission of offence. Here, though the conversation in between them is not
filed on record, in view of other incriminating circumstances available on
record, the inference can be drawn that accused Nos. 1 to 7 have contacted
each other for committing the offence of criminal conspiracy as well as for
commission of offence of murder of deceased Chandrakant @ Himmat
Jadhav. The defence has contended that this evidence of CDR cannot be
relied upon as the prosecution has not adduced the evidence of conversation
in between accused Nos. 1 to 3. Here in the present matter, the prosecution
has brought the call details showing that accused Nos. 4 to 7 were in contact
with accused Nos. 1 to 3 to commit murder of deceased.
220) The defence has raised the objection on the evidence of call
details Exh.275 and 276 by contending that there is discrepancy in the IMEI
numbers mentioned in panchanama and mentioned in call details.In such
circumstances, the evidence of call details cannot be relied upon. Secondly,
the handwritten names of accused are mentioned in call details. So, this
evidence cannot be the basis and cannot be relied upon.
221) The case law Manoj Suryavanshi Vs. State of Chattisgarh.,

2020 ALL SCR (Cri) 888 relied by the prosecution is applicable in the
present matter as it was observed that '' by exhibiting CDR through
deposition of investigating officer, without examining any officer of mobile
company, the non-examination of such officer is not fatal to the prosecution.
While appreciating the evidence, the minor discrepancies and lacunas in
investigation cannot be the reason to discard entire prosecution case. If
evidence is otherwise sufficient and inspiring to bring home guilt of
accused.’’ In the present case, CDR is exhibited as defence has given no
objection. Thus, the defence has admitted the CDR call details. So, now, the
defence cannot object the call details by contending that those CDR details
bear the handwritten names of the accused. So, also defence alleged that there
is difference in IMEI number mentioned in panchanama and mentioned in
call details. So, this objection also does not sustain as defence as admitted the
call details. If there is difference in IMEI number mentioned in panchanama
and mentioned in call details. It is a minor discrepancy and this cannot be the
reason to discard the prosecution case, if evidence is otherwise,sufficient and
inspiring to bring home guilt of the accused.
222) The various circumstances I.e.evidence of empties, bullet caps,

percussion cap recovered from spot, the evidence of recovery of pistols from
Accused Nos.1 to 3, the evidence of ballestic expert showing bullets and
empties fired from pistols seized from the Accused Nos.1 to3, medical
evidence, CCTV Footage evidencethe office of the Accused Raju Shete
shown by the Accused No.3,Ajinath and accused No.4 Raju Shete,himself,
photographs seized from office of Accused Raju Shete, Hotel receipt showing
the place of hotel from where the Accused No.3 Ajinath,on receipt of call, in
between 12.00 to 1.00 p.m.,proceeded with co-accused towards Ahmednagar-
Aurangbad Road,call record showing communication in between mobile of
Accused No.3 Ajinath and Accused No.6 Rahul on mobile of Accused No.7
Javed Khan, evidence of PW.No.25,I.O. Anand Bhoite, showing mobiles
belonging to Accused Raju Shete andAccused Sandip Thopte with call details
showing communication in between Accused Nos.1 to 7,cumulatively links
the connection in between the Accused showing plan and preparation for
commission of offence.
120-A Definition of Criminal Conspiracy
When two or more persons agree to do, or cause to be done

(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is
designated a criminal conspiracy.
Provided that no agreement except an agreement to commit an offence
shall amount a criminal conspiracy unless some act besides the agreement is
done by one or more parties to such agreement in pursuance thereof.
Explanation – It is immaterial whether the illegal act is the ultimate object of

such agreement, or is merely incidental to that object.
120-B Punishment of criminal conspiracy
(1) Whoever is a party to a criminal conspiracy to commit an offence

punishable with death, imprisonment for life or rigorous imprisonment for a
term of two years or upwards, shall, where no express provision is made in
this Code for the punishment of such a conspiracy, be punished in the same
manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal

conspiracy to commit an offence punishable as aforesaid shall be punished
with imprisonment of either description for a term not exceeding six months,
or with fine or with both.
Section 120-B of I.P.C, requires
(1) That the accused agreed together.

(2) To do an act or cause to be done.
(3) That such act was illegal or was done by illegal means
(4) The overtact if the agreement was not an agreement to commit an
offence.
Or ingredients :
A) an agreement between two or more persons
B) an agreements must relate to doing or causing to be done either
1- an illegal act, 2- an act which is not illegal in itself but is
done by illegal means
therefore, it is necessary to show meeting of minds of two or more persons

for doing or causing to be done an illegal act or an act by illegal means.
Section 10 of Indian Evidence Act :-

10- Things said or done by conspirator in reference to common
design –
‘ Where there is reasonable ground to believe that two or more
persons have conspired together to commit an offence or an
actionable wrong, anything said, done or written by any one of
such persons in reference to their common intention, after the time
when such intention was first entertained by any one of them, is a
relevant fact as against each of the persons believed to be so
conspiring, as well for the purpose of proving the existence of the
conspiracy as for the purpose of showing that any such person was
a party to it. ’
When the Court is satisfied that there is reasonable ground to

believe that two or more persons have conspired together to commit an
offence, provisions of Section 10 of the Indian Evidence Act will come into
play. For application of Section 10 of Indian Evidence Act, it is not necessary
to prove the conspiracy. There should be some prima facie evidence to show
that the person was a party to the conspiracy before his acts can be used
against his co-conspirators, once such prima facie evidence exists, anything
said done or written by one of the conspirators in reference to the common
intention, after the said intention was first entertained, is relevant against the
others.
223) In the present case, there is prima facie evidence showing that
the accused Nos. 1 to 7 are party to the conspiracy. The call record shows that
the accused Nos. 1 to 3 were continuously present on Ahmednagar-
Aurangabad road on 13/09/2016, during the incident took place. The call
details shows the continuous communication in between accused
No.3,Ajinath Thombare (who was accompaning Accused No.2 Somnath
More and Accused No.1 Krushna Korde) and accused No.5 Sandip Thopate.
So, also in between accused No.3 Ajinath Thombare and accused No. 7 Javed
Shaikh and accused No.4 Raju Shete. As stated above, the call details shows
that since prior to 24/08/2020, the accused No.7 Javed Shaikh (who was
accompanying Accused No.6 Rahul Darkunde,) and accused No.3 Ajinath
Thombare, accused No.5 Sandip Thopate and accused No.4 Raju Shete are in
contact with each other. This shows prima facie evidence of implementation
of conspiracy. So, in view of above discussion, I hold that accused Nos. 1 o 7
are involved in the conspiracy. The evidence cumulativly shows the meeting
of mind with acts done by each of the Accused to commit murder of the
deceased.It was preplanned murder with preparation. The accused Nos. 4 to 7
are the conspirators who planned to commit murder of deceased Himmat
Jadhav. The accused Nos. 1 to 3 were to execute the plan. The recovery
panchanama shows the pistols and bullets and live cartridges in custody of
accused Nos. 1 to 3. This shows, the Accused Nos.1 to 3 have come on the
spot with full preparation with sufficient arms and ammunations with
apprehension of contingency that may arrive at the time of incident. In case
of such contigency, they were to use the arms and ammunations. They had
equipped themselves with arms and ammunations,got themselves veiled, by
keeping mobile with them to convey their acts in pursuation of responsibility
shouldered on them. The case is based on circumstantial evidence, the chain
of circumstances is established. All this evidence reveals the criminal
conspiracy. Thus, all this evidence reveals that the accused Nos. 1 to 7 have
committed criminal conspiracy by agreeing to commit murder of deceased
Chandrakant @ Himmat Jadhav and from time to time they have furnished
the location to accused Nos. 1 to 3 for commission of murder of deceased.
Thus, all of the accused are involved in commission of the offence.
224) The case laws filed by Ld.Adv. Shri. Dubepatil for accused No.2
and 4 that are :-
1- Saju Vs. State of Kerala., 2001 Cri.L.J. 102 (S.C.) is not

applicable in the present matter as in the said case law there was no evidence
as to circumstances of motive conspiracy. But in the present case there are
strong circumstances of motive, conspiracy. So this case law is not applicable
in the present case.
2- Baliya @ Bal Kishan Vs. State of M. P., 2012 ALL MR (Cri)
4129 (S.C.)
3- Balkar Singh Vs. State of Haryana., 2015 Cri. L.J. 901.
(S.C.)4-Ranjan Mohandas Kadri Vs. The State of Maharashtra., 2015
ALL MR (Cri) 2712.
4- Faim and Others Vs. The State of Maharashtra., in Criminal
Appeal Nos. 1009, 1203 and 1231 of 2012 decided on 20/11/2015, (2016)1
Bom Cr (Cri) 459 of Hon'ble Bombay High Court are not applicable in the
present matter as in the said case laws there was no evidence as to agreement,
meeting of mind.So also as defence admitted the call record .Therefore, now
defence cannot raise any objection that it is a secondary evidence.
225) The above case laws are not applicable in the present matter as
the facts therein are different than the present case. In the said case laws,
there was serious discrepancies in the evidence of witnesses, in another case
law there was no evidence to support and prove that accused committed
conspiracy. So, these case laws cannot be made applicable in the present
matter.
226) Ld. Adv. Shri. Sudrik for accused Nos. 5 and 7 relied on the case
law Pravin s/o. Dattuji Divte Vs. The State of Maharashtra., 2012 ALL
MR (Cri) 2051 and claimed that the prosecution has to prove essential
ingredients i.e. agreement to commit offence. But in the present case, the
prosecution has failed to prove the essential ingredients i.e. agreement to
commit offence and thus has failed to prove the offence punishable under
section 120-B and 302 read with 120-B of I.P.C.
227) In answer Ld. APP Shri. Keskar contended that the conspiracy is
always hatched in secrecy and it is impossible to adduce direct evidence of
the same. The offence can only be proved largely from the inferences drawn
from the acts or illegal omissions committed by the conspirators in pursuance
of common design. It is settled legal position that in conspiracy to commit
offence, the agreement itself becomes the offence. No overtact is necessary.
After going through the case law, of Pravin s/o. Dattuji Divte Vs. The State
of Maharashtra, it is found that the fact therein are different than the present
case. In the said case law, there were eye witnesses and the said observation
was made in view of direct evidence. However, in the present matter, the case
is based on circumstantial evidence and therefore, this case law cannot be
made applicable in the present case.
228) Ld. Adv. Shri. Mhase patil relied on State (Government of
NCT of Delhi ) Vs. Nitin Gunwant Shah in Criminal Appeal No. 951 of
2007 with State (Government of NCT of Delhi ) Vs. Om Prakash
Srivastava @ Babloo in Criminal Appeal No. 952 of 2007 decided on 16-09-
2015 of the Hon'ble Supreme court of India. And claimed that the prosecution
should prove meeting of mind and mere knowledge and discussion is not
sufficient.
229) The prosecution relied upon the case law, Adnan Bilal Mulla
Vs. State through DCB, CID., 2006 ALL MR (Cri) 2866 in support of his
argument and contended that the conspiracy need not be established by the
evidence of actual agreement between the conspirators. Overt acts raise a
presumption by an agreement and knowledge of the purpose of conspiracy.
This case law is applicable in the present matter.
230) The case law, Randhir Singh & Ors Vs. State of Haryana
decided on 30-07-2018 of the Hon'ble Punjab and Haryana High Court
(Divisional Bench), 2018 LawHerald 2442; 2018 0 Supreme (P&H) 2264;
relied by Defence , is not applicable in the present case.In the present case
law the conspiracy is based on hear say evidence, but in the present case there
is no such prosecution story.
231) Thus, all this evidence reveals that each of the accused is
conspirator in this case and the accused Nos. 1 to 7 have committed criminal
conspiracy by agreeing to commit murder of deceased Chandrakant @
Himmat Jadhav and from time to time they have furnished the location to
accused Nos. 1 to 3 for commission of murder of deceased. Thus, all of the
accused are involved in commission of the offence.
232) The evidence of PW-14 Manoj Laxman Zagare reveals that he

was having Bajaj Pulsar motorbike bearing registration No. MH-12-KM-
2635. He was in need of money in May-2016, so, he borrowed amount of
Rs.15,000/- from Bhaiyya Shaikh and in exchange he handed over possession
of motorbike to Bhaiyya Shaikh. In January-2017, he returned the money to
Bhaiyya Shaikh and got possession of motorbike which reveals that during
May- 2016 to January-2017, the motorbike No.MH-12-KM-2635 was in
custody of Bhaiyya Shaikh. PW-15 Bhaiyya Shaikh deposed before the Court
that Manoj Zagare obtained Rs.15,000/- from him and pledged his
motorcycle MH-12-KM-2635 with him. PW-15 Bhaiyya Shaikh is cousin of

accused No.7 Javed Shaikh. PW-15 Bhaiyya Shaikh turned against the
prosecution by denying that he handed over the said motorbike to accused
No.7 Javed Shaikh. The fact remains that the PW-14 has given his motorbike
to PW-15 Bhaiyya Shaikh who is cousin of accused No.7 Javed Shaikh.
Though, PW-15 Bhaiyya Shaikh turned against the prosecution by deposing
that he has not given said motorcycle to accused No.7, it has come on record
that the motorcycle of PW-14 Manoj Zagare was with brother of accused
Bhaiyya Shaikh.
233) It is the case of prosecution that the motive behind commission

of offence of criminal conspiracy to commit murder of deceased Chandrakant
@ Himmat Jadhav was the skirmish in between accused No.4 Raju Shete and
the deceased. The deceased and accused No.4 Raju Shete are from same
village Walan pimpri. The deceased was from Bhill community. He was of
good behaviour and helping nature. So, he was respected by people in the
village Walan whereas the accused No.4 Raju Shete was belonging to
Maratha community and he was jealous of deceased. He disliked deceased
therefore, there was dissension between deceased and accused No.4 Raju
Shete.
234) PW-18 father of deceased Abhimanyu Jadhav and PW-19 sister

of deceased Dipali Jadhav have given several instances showing that the
accused No.4 Raju Shete was having grudge against the deceased
235) At relevant time, the accused No.4 Raju Shete was engaged in
sand business. The accused No.4 Raju Shete used to transport sand through
village Walan in vehicles nearby the school. So, the deceased asked accused
No.4 Raju Shete not to transport sand through village Walan that to nearby to
school. However, accused No.4 Raju Shete refused and continued
transportation of sand and on this count, the accused No.4 had wrath against
the deceased Chandrakant @ Himmat Jadhav.
236) One another instance is that the deceased Chandrakant @
Himmat Jadhav arranged village fair of God-Kanifnath and followers of
deceased fixed flex board of deceased in the village and on this count also
skirmish took place between accused No.4 Raju Shete and the deceased
237) There was dispute in between two groups of Milind Gosavi and
groups of Satish Shelke. Accused No.4 Raju Shete was from the group Satish
Shelke. They beat Milind Gosavi. At the instance of deceased Chandrakant @
Himmat Jadhav, Milind lodged complaint against said group and matter was
settled in between them by the deceased. However, due to said intervention,
the accused No.4 Raju Shete got annoyed with deceased Chandrakant @
Himmat Jadhav.
238) The group of Raju Shete fired bullet on deceased but the
deceased survived and crime was registered against said group. The accused
No.4 Raju Shete was pressurizing the deceased Chandrakant @ Himmat
Jadhav to withdraw the said case.The copy of judgment in the said criminal
case is filed on the record. This is one of the incriminating circumstance from
which it can be gathered that since before the incident, Raju shete
alongwith other accused was planning and preparing for commission of
murder of the deceased
239) PW-18, father of deceased Abhimanyu Jadhav has given one
instance wherein he was accompanying the deceased Chandrakant @
Himmat Jadhav to the temple of Lord Shani at Rahuri. The accused No.4
Raju shete and his companions were present over there. The accused No.4
Raju Shete by gesture pointed the deceased to his companion .
240) So, also PW-19 sister of deceased Dipali Jadhav has also
deposed about one instance wherein she was accompanying the deceased
nearby school at that time accused No.4 Raju Shete pointed the deceased to
his companion I.e.accused No.2 Somnath More and accused No.1 Krushna
Korade.. This is another incriminating circumstance from which it can be
to cause death of deceased Chandrakant @ Himmat Jadhav. The first attempt
of causing murder of the deceased was failed and so he committed the
offence of criminal conspiracy along with other accused.
241) Ld. Adv. Shri. Sudrik relied on the case law Kanan and others
Vs. State of Kerala., AIR 1979 Supreme Court 1127 and contended that
where a witness identifies an accused who is not known to him in the Court
for the first time, his evidence is absolutely valueless unless there has been a
previous test identification parade to test his powers of observation. In the
present case, PW-18 Abhimanyu Jadhav, father of deceased identified the
accused accused No.2 Somnath More and accused No.6 Rahul Darkunde for
the first time without identification parade. In the present case, it is found that
PW-18 the father of deceased, Abhimanyu Jadhav had identified the accused
Somnath More and Rahul Darkunde for the first time in the Court. So, in
such circumstances, his evidence cannot be considered for holding that he
identified the accused. Hence, the case law filed by Ld. Adv. Shri. Sudrik is
applicable in the present matter. However, the fact remains that PW-19 Dipali
Jadhav, sister of deceased identified accused No.2 Somnath More as well as
accused No.1 Krushna Korade in identification parade as well as in the Court.
So, evidence of PW-19 Dipali Jadhav can be relied upon for identification of
accused No.2 Somnath More and accused No.1 Krushna Korade.
242) The case law Mohanlal Vs. State of Maharashtra., AIR 1982,
S.C 839 and 1982 Cri. L.J. 600 relied by Ld. Adv. Shri.Dubepatil for
accused No.4 and and the case law of Kanan and others Vs. State of
Kerala relied by Ld. Adv. Shri. Sudrik for Accused No.5 and 7 are
applicable in the present matter.
243) The evidence of PW-19 Dipali reveals that she was called for
identification parade. PW-19 Dipali has identified the accused No.2 Somnath
More and accused No.1 Krushna Korade. It is the defence of the accused that
there was delay in holding test identification parade. So, test identification
parade is doubtful. Ld. Adv. Shri. Mhasepatil relied on Musheer Khan @
Badshah Khan & Anrs. Vs. State of M.P. 2010 ALL MR (Cri) 933 (S.C.),
however, in the said case law the presence of witness on the spot was
doubtful. There were contradictions in versions of witnesses and therefore, it
was observed that delay in holding test identification parade is doubtful. But,
in the present case, there is no such case where the evidence of witnesses are
suffering from contradictions. Hence the case law of Musheer Khan @
Badshah Khan & Anrs. Vs. State of M.P. is not applicable in the present
matter.
244) Ld. Adv. Shri. Dubepatil for accused No.4 relied on the case law
Mehtab Singh Vs. State of M.P. AIR 1975 (SC) 274 and 1975 Cri. L.J.
290 and contended that where the accused previously known to the witnesses
there is no need to hold identification parade. He pointed out evidence of
PW-16 Laxman Kusalkar, wherein the cross examination, the said witness
admitted that the accused Nos. 1 to 3 were close friends of deceased and they
used to visit house of deceased at that time, Dipali used to be present at home
and she used to serve meal to them. So, on this count, defence claimed that
Dipali was already knowing accused Nos. 1 to 3. So, there is no need of
holding identification parade. In the present matter, PW-16 is cross examined
on 15/04/2019, wherein he has admitted that Dipali, the sister of deceased
was knowing accused Nos. 1 to 3 as they used to visit house of the deceased
and Dipali used to serve meal to them. The evidence of PW-18 father of
deceased Abhimanyu Jadhav is recorded on 01/06/2019 and the evidence of
PW-19 is recorded on 13/06/2019. When it is the defence that accused Nos. 1
to 3 used to visit the house of deceased where PW- 18 father of deceased and
PW-19 sister of deceased were residing, then how the suggestion was not
given to these witensses who are well aware about the guests visiting their
house. How a third person like PW-16 who is neither residing in the
neighbourhood of deceased nor is relative of the deceased, can state about
what is going on in the house of deceased.
245) PW-16 Laxman Kusalkar is resident of Sonai, Tal. Newasa, Dist.
Ahmednagar whereas PW-18 and 19 are resident of Pimpriwalan, Tal.Rahuri,
Dist. Ahmednagar. So what is the reason that PW-16 Laxman Kusalkar is
knowing the visit of guests in the house of PW-18 and 19 at their residence at
Pimpriwalan when he is in Sonai. So, this admission of PW-16 Laxman
Kusalkar will not cause fatal to the evidence of identification parade in
respect of accused Nos. 2 Somnath More and accused No.1 Krushna Korade
by PW-19 Dipali Jadhav. So, the case law Mehtab Singh Vs. State of M.P. is
not applicable in the present case. Thus, the fact remains, PW-19 Dipali
Jadhav identified accused No.2 Somnath More and accused No.1 Krushna
Korade. This is another incriminating circumstance from which it can be
to cause death of deceased Chandrakant @ Himmat Jadhav and so he
committed the offence of criminal conspiracy along with other accused. Thus
the prosecution has proved the motive of accused Nos. 1 to 7 in commission
of murder of the deceased Chandrakant @ Himmat Jadhav. Motive is the
formost material to be in case based upon circumstantial evidence. Motive

plays a crucial and important role in the cases based upon circumstantial
evidence. The incriminating circumstances in the present matter establishes
the guilt of accused cogently and firmly. These circumstances unerringly
points towards the guilt of the accused. These circumstances, taken
cumulatively, form a chain so complete that there is no escape from
conclusion that accused and none as is guilty of the offence. In the present
case, the recovery of pistols from accused Nos. 1 to 3 and the evidence that
the bullet caps found on spot were fired from the pistols recovered from the
accused. The evidence connecting the accused Nos. 1 to 3 with accused Nos.
4 to 7 in execution of plan by accused Nos. 1 to 7. The previous case filed
against accused Raju Shete and others u/s. 307 of I.P.C. for attempt to commit
murder of deceased Chandrakant @ Himmat Jadhav shows the rivalry in
between deceased and accused Raju Shete. It also shows the attempt to
commit murder of deceased Himmat Jadhav was made by accused Raju Shete
and others. The all other instances given by PW-18 father of deceased,
Abhimanyu Jadhav and PW-19 sister of deceased, Dipali denotes strong
motive of accused Raju Shete to commit murder of deceased Chandrakant @
Himmat Jadhav. Thus, all the accused have committed the offence u/s.302
read with 120-B of I.P.C.
300- Murder
Culpable homicide is murder, if the act by which the death is caused is done
with the intention of causing death, or
2ndly - If it is done with the intention of causing such bodily injury as the
offender knows to be likely to cause the death of the person to whom the
harm is caused or
3rdly - If it is done with the intention of causing bodily injury to any person
and the bodily injury intended to be inflicted is sufficient in the ordinary
course of nature to cause death, or
4thly - If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death, or
such bodily injury as is likely to cause death, and commits such act without
any excuse for incurring the risk of causing death or such injury as aforesaid.
302- punishment for murder

Whoever commits murder shall be punished with death, or
imprisonment for life, and shall also be liable to fine.
246) In the present matter the Accused Nos. 1 to7 in pursuance of

pursuance of criminal conspiracy on 13/09/2016 at about 02.30 p.m on
Nagar-Aurangabad road, Imampur ghat, near Hanuman Hotel, Tal. And dist.
Ahmednagar did commit murder by firing bullet and thereby intentionally
caused death of Chandrakant @ Himmat Jadhav and thereby committed an
offence punishable under section 302 read with 120B of I.P.C.
247) The case laws relied on behalf of accused No.2 and 4 by Ld.
Adv. Shri. Dubepatil and Ld. Adv. Shri. Tawale :-
1- Deoraj Deju Suvarna and etc. Vs. State of Maharashtra., 1994 Cri.
L.J. 3602.
2- Balwan Singh Vs. State of Chhattisgarh and Anr., 2019(2)
Acquittal 68(S.C.)
are not applicable in the present case as the facts in above case laws are
pertaining to direct evidence and present matter is pertaining to
circumstantial evidence.
248) The case law Himanshu Mohan Rai Vs. State of U.P & Anr.
2017 ALL MR (Cri) 1753 (SC)., relied by prosecution is applicable in the
present matter as it was observed in the said case law that if there is delay in
recording statements of witnesses and if testimony of said witness is
corroborated by evidence of informant in all material details of incident then
his testimony cannot be rejected. Here in the present matter, though there is
delay in recording the statements of witnesses, it will not cause fatal to the
prosecution as testimony of said witnesses are corroborated in all material
details of incident.
249) It is alleged by the defence that the charge is defective. The

charge is framed on 09/07/2018 since then none from accused filed
application with the contention to alter the charge. On framing of charge, the
defence has not challenged the framing of charge. Secondly, it is found that
charge is properly framed, so, this say of the defence cannot be accepted. The
charge reveals in pursuance of criminal conspiracy, the accused Nos. 1 to 7
committed murder by firing bullets and thereby intentionally or knowingly
committed an offence punishable under section 302 read with 120-B of I.P.C.
250) In the present case, the accused are facing the charge under
section 3/25 of Arms Act. For initiating prosecution under section 3/25 of
Arms Act, prior sanction of District Magistrate is necessary. The evidence of
PW-23 I.O. Rahul Pawar that he had filed the application to S.P. for obtaining
the permission to file the chargesheet. However, there is no sanction order
filed on record. In the present case, the accused are armed with the pistols
containing bullets. However, there is no sanction filed on record. In such
circumstances, the accused cannot be held guilty under section 3/25 of Arms
Act.
251) The prosecution had come with the allegation that accused
committed murder of Chandrakant @ Himmat Jadhav who is member of
Scheduled Caste. For proving the offence under section 3(2)(b)(va) of the
Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act 1989, the
prosecution is required to establish that informant is member of Scheduled
Caste. This fact can be proved by placing cast certificate of informant. In the
present case, no such caste certificate is filed on record. So, it cannot be said
that the offence under section 3(2)(b)(va) of the Scheduled Caste Scheduled
Tribe (Prevention of Atrocities) Act 1989 is proved against the accused.
252) In the present matter, the accused are facing trial for the offences
punishable under section 3(2)(v) of the Scheduled Caste Scheduled Tribe

(Prevention of Atrocities) Act 1989. Initially the investigation was carried out
by PW-23 I.O Rahulkumar Pawar API of MIDC Police station. Thereafter,
the investigation was carried out by PW-25 Ananda Bhoite I.O in such
circumstances neither can be doubted or can be treated as illegal on account
that it was conducted by officer below the rank of Deputy Superintendent of
police. In support prosecution relied upon State of Madhya Pradesh Vs.
Babbu Rathore & Anr, 2020 ALL SCR (Cri) 356.
253) Ld. Adv. Shri. Dubepatil relied on the case laws Ravinder
Singh Vs. Sukhbir Singh and Ors., 2013 SAR (Criminal) 304 (S.C.)
2- Ratnakala Martandrao Mohite Vs. The State of Maharashtra &
Anr., 2020 ALL MR (Cri) 334, and claimed that the prosecution failed to
bring the evidence in respect of offence committed on account of caste. On
going through the record, it is found that neither the PW-1 the informant,
Santosh Chavan, nor PW-18 Abhimanyu Jadhav nor PW-19 Dipali Jadhav
deposed before the court that the deceased was from Bhill community. So,
also neither certified copy nor original certificate of caste is produced on
record. So, the above case laws are applicable in the present matter as there is
no evidence on record showing that the deceased was of Bhill community
and the accused was of superior community.
254) The statements u/s. 313 of Cr. P. C. of accused are recorded. It is
the defence of the accused that they are falsely implicated in the present
crime. The defence is of total denial. In the written statement by accused Nos.
1 to 3, it is alleged that the deceased was their good friend and they used to
visit house of the deceased. The deceased was murdered and his assailants
were not found. So, the community of deceased pressurized the police to
arrest the assailants. The accused No.4 agitated the false cases filed under
Atrocities Act. So, false case was filed against the accused. At the time of
incident, accused No.4 was admitted in the hospital of Dr. Kalamkar. The
admission of accused No.4 in the hosptial of Kalamkar does not exonerate the
accused from the charge of conspiracy and murder. To amount conspiracy
with murder the presence of accused on the spot is not necessary. The
prosecution failed to prove motive and they requested to acquit the accused.
However, there is no iota of evidence on record which would suggest false
implication of accused in the criminal case. There is no reason for police
machinery to implicate the accused in false case.
255) In the above paras various circumstances, in the chain of events
established, ruled out the reasonable likelihood of innocence of the accused.
The accused Nos. 1 to 7 agreed to commit murder of deceased Chandrakant
@ Himmat Jadhav and committed offence of criminal conspiracy and
committed murder of deceased Chandrakant @ Himmat Jadhav.
256) In view of above discussion, I hold that death of deceased

Chandrakant @ Himmat Jadhav was homicidal. The prosecution proved the
accused Nos. 1 to 7 committed offence of criminal conspiracy to commit
murder of the deceased and committed murder of deceased. The prosecution
failed to prove that the accused Nos. 1 to 7 not being members of Scheduled
caste and knowing that deceased Chandrakant @ Himmat Jadhav is member
of scheduled caste, committed offence punishable under section 3(2)(b)(va)
of the Scheduled Caste Scheduled Tribe (Prevention of Atrocities) Act 1989.
The prosecution also failed to prove that accused Nos. 1 to 7 in contravention
of provisions of Arms Act were found in possession of weapon i.e. pistol and
live cartridges without permit and committed an offence punishable under
section 3/25 of Arms Act. Hence, I answer Point Nos. 1 to 3 in affirmative
and 4 and 5 in negative.
257) Today the accused are produced by jail authority. The accused
are apprised that the prosecution has proved its case beyond reasonable
doubt. That accused have committed criminal conspiracy and murder of
deceased Chandrakant @ Himmat Jadhav. Therefore, I proceed to hear the

accused on the point of sentence.
258) Ld. Adv. Shri. V.B. Mhasepatil for accused Nos. 1 and 3, Ld.
Adv. Shri. Tawale for accused No.2, Ld. Adv. Shri. Dubepatil for accused
No.4, Ld. Adv. Shri. Sudrik for accused No.5 and 7, Ld. Adv. Shri. Tone for
accused No.6 present before the Court.
259) Heard Ld. Advocates for respective accused on the point of

sentence. The accused Nos. 1 to 7 submitted that the punishment prescribed
for the offence p.us. 120-B is six months. The accused Nos. 1 to 7 are Karta
of the family. They are young. The family is dependent upon them.
Considering the age, minimum punishment be awarded. The accused Nos. 1
to 7 are also having responsibilities. So, submitted to award minimum
punishment.
260) Ld. APP Shri. Keskar submitted that the offence is of serious
nature. The punishment prescribed for the offence p.s. 302 of I.P.C. is death
or life imprisonment. If the lenient view is taken, wrong message will spread
in the society and on this count, submitted to award maximum punishment.
261) I have given thoughful consideration to the submissions

advanced by their Ld. Ld. Adv. Shri. V.B. Mhasepatil for accused Nos. 1 and
3, Ld. Adv. Shri. Tawale for accused No.2, Ld. Adv. Shri. Dubepatil for
accused No.4, Ld. Adv. Shri. Sudrik for accused No.5 and 7, Ld. Adv. Shri.
Tone and Ld. APP Shri. Keskar for the prosecution.
262) Here in the present matter, it is found that since before the
incident, the accused No.4 Raju Shete was having grudge against the
deceased Chandrakant @ Himmat Jadhav. The accused No.4 Raju Shete
along with other accused tried to commit murder of deceased Himmat
Jadhav. However, deceased Himmat Jadhav survive. So, the accused No.4
Raju Shete has planned and prepared for commission of murder of deceased
by agreement with accused Nos. 1 to 3 and 5 to 7. The accused No. 6 Rahul

Darkunde by having informal talk with the deceased, got the location of the
deceased and gave this information to accused Nos. 1 to 3 for committing
murder of deceased Chandrakant @ Himmat Jadhav. The deceased was
totally unaware of the ill acts of the accused. The accused Nos. 1 to 7
preplanned and executed the plan as per directions of accused No.4. So,
accused cannot be shown any leniency. The nature of the offence is serious.
The offence is grave in nature. In such circumstances, only on account of
young age of the accused, leniency cannot be shown. Therefore, in view of
above discussion, considering this circumstances of the case and submissions
advanced by their advocates on behalf of accused, I am of the opinion that
following order would meet the ends of justice. Hence, I pass following order
Order
1- The Accused No.1 Krushna Ashok Korade, accused No.2 Somnath

Bhanudas More, accused No.3 Ajinath Raosaheb Thombare, accused No.4
Ramchandra @ Raju Chimaji Shete, accused No.5 Sandip Bahirunath
Thopate, accused No.6 Rahul Babasaheb Darkunde, accused No.7 Javed
Karim Shaikh are convicted under section 235(2) of Code of Criminal
Procedure, for an offence punishable under section 302 read with 120-B of
Indian Penal Code and under section 120-B of Indian Penal Code arising out
of Crime No. 230/2016 registered with M.I.D.C police station, Ahmednagar.

Karim Shaikh are sentenced to suffer rigorous imprisonment for life each and
sentenced to pay a fine of Rs.10,000/- each ( Rs. Ten Thousand) and in
default of payment of fine, they shall suffer rigorous imprisonment for six
months for an offence punishable under section 302 read with 120-B of
Indian Penal Code.

Karim Shaikh are sentenced to suffer rigorous imprisonment for seven years
years each and to pay fine of Rs. 7,000/- (Rs. Seven Thousands) each for an
offence punishable under section 120-B of Indian Penal Code., in default of
payment of fine, they shall suffer rigorous imprisonment for three months for
an offence punishable under section 120-B of Indian Penal Code.
4- All the substantive sentences are to run concurrently.
5- The period of detention undergone by the Accused No.1 Krushna

Ashok Korade, accused No.2 Somnath Bhanudas More, accused No.3 Ajinath
Raosaheb Thombare, accused No.4 Ramchandra @ Raju Chimaji Shete,
accused No.5 Sandip Bahirunath Thopate, accused No.6 Rahul Babasaheb
Darkunde, accused No.7 Javed Karim Shaikh as under trial prisoner shall be
set-off against the sentence of life imprisonment imposed, subject to Sec.
433-A of the Code of Criminal Procedure.

Karim Shaikh are hereby acquitted as per Section 235(1) of Cr. P.C. for the
offence punishable under section 3(2)(b)(va) of the Scheduled Caste

Scheduled Tribe (Prevention of Atrocities) Act 1989.

Karim Shaikh are hereby acquitted as per Section 235(1) of Cr. P.C. for the
offence punishable under section 3/25 of Arms Act.
8- The muddemal property i.e. :-

a) Soil from the spot, blood mixed soil from the spot, blood soaked from
the spot in cotton swab, blood on motorcycle of informant and deceased
wiped out by the cotton swab, be destroyed after appeal is period over.
b) Two empties (Article 1 and 2), three bullet caps (Article 3, 4, 5),
percussion cap (Article 20) be sent to the District Magistrate, Ahmednagar
for disposal according to the law, after appeal period is over.
c) The clothes of deceased i.e. one yellow colour full sleeves shirt, one
white colour baniyan having back side one hole and front side three holes
soaked with blood, blue-ash colour underpant soaked with blood, four
layered waist string soaked with blood, pair of black Sandal having blood
stains, two pieces of black colour broken belt, be destroyed after appeal
period is over.
d) One San Disk pendrive be destroyed, after appeal period is over.
e) Two live cartridges (Made in USA 9mm) Article 27A, 27B, be sent to
the District Magistrate, Ahmednagar for disposal according to the law, after
appeal period is over.
f) One ash/blue colour half shirt and blue colour jean pant seized from the
custody of accused Ajianth Thombare, be destroyed after appeal period is
over.
g) One white colour mobile handset of Samsung make having SIM card
of Idea company bearing No. 357121/07/736290/6, 357122/07/736290/4,
seized from the custody of accused Ajinath Thombare, be returned to its
original owner after due verification and identification, if not returned, after
h) On Red/Black colour Bajaj Pulsar motorcycle bearing registration
No.MH-16-U-1009 seized from the possession of accused Ajinath Thombare
be returned to its original owner after due verification and identification, if
not returned, after appeal period is over.
I) One yellow- blue colour full sleeves shirt and one blue colour jean pant
seized from the custody of accused Somnath More, be destroyed after appeal
period is over.
j) Counrty made pistol (Article 8) (made in Japan) with four bullets
(Article 10 to 13) seized from the custody of accused Somnath More, country
made hand gun (Article 9) having live cartridge (Article 9A) seized from the
custody of accused Somnath More, be sent to the District Magistrate,
Ahmednagar for disposal according to the law, after appeal period is over.
k) One country made pistol (Article 36) with two bullets (Article 37)
seized from the custody of accused Krushna Korade, be sent to the District
Magistrate, Ahmednagar for disposal according to the law, after appeal
period is over.
l) One red colour half T-shirt, one blue jean pant seized from the custody
of accused Krushna Korade, be destroyed after appeal period is over.
m) One black colour Nokia mobile having IMEI No. 355755/06/93593015
and 355755/06/935931/3 and having micro SIM card of Vodfone company
seized from the custody of accused Krushna Korade, be returned to its
original owner after due verification and identification, if not returned, after
n) One mobile of Mido company having Sim card of Idea company

9822490632 and Airtel SIM card No.8991901412/035225746H1 having
IMEI No. 353479060140992 and 353479060341996, seized from the custody
of accused Javed Shaikh, be returned to its original owner after due
verification and identification, if not returned, after appeal period is over.
9- Declared and pronounced in open Court.

Digitally signed
by Manjusha
Vasantrao
Deshpande
Date: 2020.11.12
10:41:30 +0530
Date :- 11/11/2020. ( Manjusha V. Deshpande)

Additional Sessions Judge,
Ahmednagar.

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1 Judgment in S.C. No.

MHAH010072142016 Presented on : 13-12-2016 .

THE COURT OF ADDITIONAL SESSIONS JUDGE AHMEDNAGAR

1) Krushna Ashok Korade,

CHARGE : U/s. 302, 120-B, 34 of I.P.C. and u/s. 3(2)(v)

under section 65B of Indian Evidence Act. Investigating Officer prepared

3) Does the prosecution prove that accused : In the affirmative.

4) Does the prosecution proves that : In the negative.

an offence under the Indian Penal Code

5) Does the prosecution proves that : In the negative.

6) What order ? : As per final order.

20) To bring home guilt of the accused, prosecution has examined

at Exh.107, PW-5 Nanasaheb Appasaheb Damale, the panch witness of

Exh.96, memorandum panchnama of Acused No.3 Ajinath Thombare dated

K.B. Mulani (21592) at Exh.203, examination report by K.B. Mulani (21593-

02/12/2016 for verification of caste of the deceased Himmat Jadhav at

Sr. Article No. Muddemal property Exhibited in

Article 1A – jean pant of deceased, Article 1 and 2 – empties, Art. 3, 4, 5 –

32) The evidence of PW-1 Santosh Chavan, the Informant

2- Obliquely placed oval shaped lacerated puncture wound with

3- Obliquely placed over shaped lacerated puncture wound with

margin, reddish, with evidence glancing effect in the form of obliquely

4- Obliquely placed laceration of size 6cm x 1.2cm x subcutaneous

5- Contused abrasion of size 1.5cm x 0.5cm present over anterio-

6- Contused abrasion of size 1cm x 0.5cm present over posterior

7- Contused abrasion of size 1.2cm x 1cm present 3 cm below

8- Two Contused abrasion of sizes 0.3cm x 0.2cm and 0.4cm x 0.3

9- Three Contused abrasion of sizes 0.5cm Firearm entrance wound

On opening thoracic region, track of firearm injury noted have been

In Pleura about 2.5 – 3 liter blood was present in left pleural

The injury nos. 1 to 3 mentioned in col. no.17 of PM

40) PW-20 Dr. Rathod is cross examined by defence. PW-20 Dr.

53) The deformed copper jacketed bullet in Exhibit 9 is a fired 7.65

55) If the bullet hits to the muscle of human body, it passes

57) On examination of those clothes of deceased, there were short

59) The evidence of PW-1 Santosh Chavan, PW-13 Adinath Todmal,

Dada Shirke, PW-12 the informant Goraksha Mokate, Pw-16 Laxman

9922256875 of accused No.5 Sandip Thopate and Mobile No. 8975252244

PW-19 Dipali Jadhav, sister of deceased, Medical evidence ,coupled with

86) The prosecution relied upon several case laws in support of

88) The brief contentions raised by defence are like this :-

however, there is no evidence of Sec.120B of I.P.C and so Sec. 120B of I.P.C

89) It is the say of prosecution that the accused committed offence

90) In support the prosecution examined total 25 witnesses. After

92) The evidence of PW-1 Santosh Chavan, the Informant reveals

93) PW-12, Goraksh Mokate, the Informer of the incident, was

95) The evidence of PW-16 Laxman Kusalkar (Anna Bharle) reveals

and found that the deceased received bullet injuries.

claimed that prosecution failed to prove recovery of pistol and cartridges

seizure panchanama of pistol and cartridges from accused No.1 Krushna

106) The evidence of PW-21 Dr. Kutubuddin Mulani reveals that he

108) The prosecution has brought the evidence of PW-5 Nanasaheb

109) Further in the cross examination, PW-5 Nanasaheb Damale

110) In case of criminal conspiracy no direct evidence is available.

111) The cross examination of PW-5 Nanasaheb Damale reveals that

112) It is the defence that the prosecution is required to prove the

deposed that she found that personal identification, parameter and

114) One Mandar Mule is maintaining the CCTV camera. The

115) PW-11 Dada Shirke is the photographer. He is working in

116) PW-17 Brajesh Gujrathi is the witness who is under the

117) That the case is based on circumstantial evidence, the motive of

118) The evidence of PW-18 Abhimanyu Jadhav father of deceased

119) PW-18 Abhimanyu Jadhav in his evidence has given some