2026 Supreme(Online)(Bom) 3630

HIGH COURT OF BOMBAY
MANISH PITALE, SHREERAM V. SHIRSAT, JJ
Babu Sakharam Dive – Appellant
Versus
State of Maharashtra – Respondent
CRIMINAL APPEAL NO. 1113 OF 2012|Sessions Case No. 41/2010

Murder conviction quashed for lack of proof that specific appellants inflicted fatal blow; eyewitness contradictions, medical evidence allowing death by fall, parity with acquitted co-accused, and unexplained FIR delay entitle benefit of doubt.

Headnote:(A) Indian Penal Code, 1860 - Sections 302 r/w 34, 324 r/w 34 - Murder and voluntarily causing hurt by dangerous weapons - Appellants convicted by Sessions Court for murder and hurt in group assault leading to death from head injury - High Court acquitted in appeal holding prosecution failed to prove beyond reasonable doubt that appellants inflicted fatal blow; no specific attribution by eyewitnesses; material contradictions in timing, location, weapons, roles; medical evidence (fracture of parietal bone, intra-cerebral bleeding) compatible with fall on rocky surface from height by person over 60 years; omnibus allegations insufficient; principle of parity as co-accused acquitted on same evidence; recovery of weapons from acquitted accused's house unreliable, not shown to doctor; no intention to kill in sudden quarrel without premeditation; delay in FIR unexplained leading to embellishment. (Paras 22-50)

(B) Criminal Procedure Code, 1973 - Section 155(2) - Investigation pursuant to non-cognizable complaint - Partial recording of statements under NC not fatal where FIR later registered for cognizable offence and investigation commenced thereafter; police lapses not to benefit accused if evidence otherwise reliable, but here evidence unreliable. (Paras 17-19)

(C) Evidence - Eyewitness testimony - Injured and related witnesses not wholly reliable due to contradictions on material aspects (time, spot, weapons, roles, transport to hospital); require corroboration absent here; fall in third category needing material corroboration which lacking especially with prior enmity. (Paras 22-29, 43-47)

(D) Section 34 IPC - Common intention - Requires prior meeting of minds and pre-arranged plan; not proved where omnibus allegations without specific overt acts. (Para 32) (E) Medical Evidence - Duty to show recovered weapons to doctor for opinion on injury causation; failure material gap causing aberration in justice. (Paras 33-34)

Facts of the case:
Group altercation at night arising from verbal abuse escalated to assault with sticks and stones; deceased intervened, fell unconscious with head injury, died later; injured eyewitnesses deposed but versions inconsistent; NC complaints initially, FIR after 7 days; weapons recovered from one house after 8 days; Sessions Court convicted three, acquitted others.

Findings of Court:
Prosecution case not proved beyond reasonable doubt; death possibly from fall not assault; acquittal warranted.

Issues: Whether prosecution proved appellants caused fatal head injury; effect of eyewitness contradictions, delay in FIR, medical possibility of fall, parity, investigation defects, specific roles and intention.

Ratio Decidendi: Where eyewitnesses give omnibus versions without attributing specific fatal act to particular accused, compounded by contradictions, medical compatibility with alternative cause (fall), and parity with acquitted co-accused on identical evidence, conviction under 302/34 unsustainable; benefit of doubt to accused; two reasonable views possible, favour innocence.

Result: Appeal allowed; conviction and sentence quashed; appellants acquitted.

Table of Content
1. prosecution alleges rioting assault causing death. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9)
2. arguments cite fir delay, discrepancies, witness reliability. (Para 10 , 11 , 12 , 13 , 14)
3. nc irregularities not fatal absent evidence failure. (Para 15 , 16 , 17 , 18 , 19 , 20)
4. eyewitness contradictions on time, place undermine case. (Para 21 , 22 , 23 , 24 , 25 , 26)
5. no specific fatal blow attribution to appellants. (Para 27 , 28 , 29)
6. parity requires equal acquittal; s.34 needs prior concert. (Para 30 , 31 , 32)
7. weapons must shown to doctor; fall possible cause. (Para 33 , 34 , 35 , 36 , 37)
8. sudden quarrel lacks murder intention. (Para 38 , 39 , 40 , 41)
9. injured witnesses need corroboration amid contradictions. (Para 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49)
10. acquittal for reasonable doubt in prosecution proof. (Para 50 , 51 , 52)

JUDGMENT (Per Shreeram Shirsat, J.)

1. The present Appeal has been filed by the Appellants challenging the Impugned Judgment and Order dated 21.09.2012 passed by the Additional Sessions Judge, Nashik in Sessions Case No. 41/2010 whereby the Appellants have been convicted under section 302 r.w. section 34 of the Indian Penal Code (IPC) and are sentenced to undergo Imprisonment for life and pay a fine of Rs. 1,000/- each and in default to undergo Rigorous Imprisonment for 2 months each. The Appellants have also been convicted for offence under section 324 r.w. section 34 of IPC and are sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of Rs. 500/- each and in default to undergo Rigorous Imprisonment for 1 month each.

2. During the pendency of the Appeal, Appellant No. 3 expired and therefore, in so far as Appellant No. 3 is concerned, the Appeal is abated. This Court vide order dated 17^th December, 2025 recorded the said fact.

3. Before proceeding with the facts of the case it will be advantageous to give the names of all the accused and their status after conclusion of the trial, in a tabular form for easy reference.

4. Brief Facts of the prosecution case are as under:

a. On 02/04/2009 at about 9.00 p.m. in front of the house of Manglu Dive (PW 3) situated at village Ojharkhed, all accused being members of unlawful assembly in pursuance of common object of such assembly committed offence of rioting and assaulted Kashiram on his head by means of sticks and stones. It is also the case of the prosecution that the accused also caused voluntarily hurt to the witnesses viz PW1 Sampat, PW2 Ramnath, PW3 Manglu, PW5 Tarabai, PW9 Anusayabai by means of sticks & stones and thereby caused injuries to them. It is further the case that thereafter Chandrabai Bendkule reached the spot and brought the deceased Kashiram, PW3 complainant Manglu, PW1 Sampat and all other injured persons to Civil Hospital, Nashik.

b. It is further the case that on 3/4/2009 at 13:05 hours, NC complaint came to be registered by PW 1 against Tryambak Ramji Dive, Babu Sakharam Dive, Laxman Ravji Dive, Somnath Tryambak Dive, Bhavdu Babu Dive , Shivaji Babu Dive, Vishnu Laxman Dive under section 323, 504, 506 IPC.

c. It is further the case that on 3/4/2009 at 00:35 hours, Mahadu Babu Dive also registered NC complaint against Rangnath Manglu Dive, Sampath Hari Dive ( PW1), Lahanu Sampat Dive, Laxman Hari Dive under section 323, 504, 506 IPC.

d. It is further the case that one complaint of PW1 came to be recorded on 3/4/2009 and also the statement of PW3 came to be recorded.

e. PW1 Sampat and PW3 Manglu were discharged from the hospital on 05.04.2009. On 09.04.2009 PW3, Manglu went to Nashik Taluka Police Station and lodged complaint regarding the incident that happened on 2/4/2009.

f. On the basis of his complaint, Taluka Police Station registered FIR against all the accused vide CR No.26/2009 under sections 143, 147, 148, 326, 504 and 506 r/w S. 149 of the Indian Penal Code and under Section U/s 37(1) r/w S. 135 of Bombay Police Act.

g. Thereafter investigation commenced. The IO recorded the statements o

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