HIMMAT SUKHADEO WAHURWAGH & ORS. versus STATE OF MAHARASHTRA

Citation: [2009] 7 S.C.R. 364 · Decided: 01-05-2009 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

f2009] 7 S.C.R. 364 
A 
HIMMAT SUKHADEO WAHURWAGH & ORS. 
I,. 
V. 
STATE OF MAHARASHTRA 
Criminal Appeal No. 1641 of 2007 
MAY 1, 2009 
B 
[S.B. SINHA, HARJIT SINGH BEDI AND AFTAB 
ALAM, JJ.] 
Penal Code, 1860 - ss. 147, 148 and 3021149 - Murder 
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of three persons in two incidents - By eight accused - One of 
..... 
the deceased making dying declaration inculpating the 
c accused - Eye-witness to both the incident - Two of the 
witnesses were children - Recovery of weapon of offence with 
blood-stains - Group of blood matched with that of deceased 
- Acquittal by trial court - Conviction by High Court - On 
appeal, held.' Conviction justified - Eye-witness to the first 
incident, though a child, cannot be discarded - His evidence 
.....
D duly corroborated by dying declaration - Witnesses to the 
second incident also reliable - prosecution story is supported 
:} 
by medical evidence - Evidence Act, 1872 - s. 118. 
Administration of Justice - Difficulties faced by criminal 
courts - Discussed. 
E 
The eight appellants-accused were prosecuted for 
having killed three persons. As per prosecution, in the first 
incident accused attacked two persons. Eye-witness to the 
incident PW1 ( a child witness) was accompanying them. 
He escaped and narrated the incident to his family 
-y,.. 
F 
members. When others reached the spot, one of the 
deceased made a dying declaration to PW2. Accused 
persons were hunting for other family members of the 
deceased. When 'N' was going with PW4 (child witness) to 
lodge the compliant, accused assaulted 'N' which resulted 
in his death. Eye-witnesses to the second incident were 
G PWs 4, 5 and 6. The motive behind the occurrence was that 
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one of the deceased was convicted for attempt to murder 
father of some of the accused. This incident took place just 
).-~ 
after release of the deceased from the jail. PW 3 informed 
the police on phone. After arrest of the accused, on their 
disclosure statement, weapons of offence and blood-
H 
364 
HIMMAT SUKHADEO WAHURWAGH & ORS. V. 
365 
STATE OF MAHARASHTRA 
..J. 
stained clothes were recovered. Trial court acquitted all A 
the accused u/ss. 147, 148 and 302/149 IPC. High Court 
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convicted all of them. Hence the present appeal. 
Dismissing the appeal, the court 
HELD: 1.1 The evidence in the instant case suggests 
that the judgment of trial court was unjustified in the face B 
of extremely credible evidence and was based on a 
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complete misconception as to the evidence on record . 
High Court was justified in interfering in the matter on a 
re-appreciation of the evidence. [Para 4] [372-D-E] 
Chandrappa and Ors. vs. State of Karnataka (2007) 4 c 
SCC 415; Swami Prasad vs. State of Madhya Pradesh J.T. 
2007 (4) SC 337 - relied on 
1.2 Third deceased and his sons were prosecuted for 
an attempt to murder father of accused 1 to 5 and were 
sentenced to five years imprsionment by the trial court, but 
"+ 
the sentence was reduced to three years by the High Court D 
and the accused were released from jail. The present 
incident took place within four months of that release. It is · 
true that some of the prosecution witnesses have testified 
that during the eight years between the earlier incident and 
the present one, the relations between the two parties had 
improved and that they were on visiting terms as well. It is E 
obvious, however, that the release of the third deceased 
and his sons from jail was an event which undoubtedly 
-~ --f 
ignited old passions and animosities and precipitated the 
incident. The finding of the trial court that there was no 
motive for the murders is, thus, on the face of it, unacce-
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ptable. [Para 1 O] [376-B-E] 
1.3 On a perusal of evidence of PW1 it stands revealed 
that he was able to discern between right and wrong and 
despite a searching cross-examination made by the 
defence lawyer nothing adverse could be brought out. He 
testified that he had gone along with the two deceased to G 
__ ..,. 
plough the field and while they were returning home, they 
.... 
had been surrounded by all the accused and injuries had 
been caused to his father and uncle. He also specified 
the weapons that each of the accused was holding and the 
manner of their use. He also stated that in the confusion 
that followed the attack, he had managed to escape, had H 
366 
SUPREME COURT REPORTS 
[2009] 7 S. C.R. 
.... 
' 
A rushed home, revealed the story to his family and then 
hidden himself till the next morning. [Para 12] [

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