Bombay High Court
Vitthal Digambar Raut vs The State Of Maharashtra on 22 January, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal, S. M. Modak
2025:BHC-AS:4701-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1524 OF 2018
WITH
INTERIM APPLICATION NO.1278 OF 2019
IN
CRIMINAL APPEAL NO.1524 OF 2018
Vitthal Digambar Raut .... Appellant
versus
The State of Maharashtra .... Respondent
WITH
CRIMINAL APPEAL NO.1497 OF 2018
Santosh Shamrao Deshmukh .... Appellant
versus
The State of Maharashtra .... Respondent
.......
• Ms. Payoshi Roy a/w. Madhvi Gomathieswaran, Advocate for
Appellant in APEAL/1524/18.
• Mr. Satyavrat Joshi a/w Yash Fadtare a/w Samay Pawar a/w
Shivani Kondekar a/w Ishan Paradkar a/w Reena Prajapati,
Advocate for Appellant in APEAL/1497/18.
• Mr. Arfan Sait, APP for the State/Respondent.
CORAM : SARANG V. KOTWAL &
S. M. MODAK, JJ.
DATE : 22nd JANUARY, 2025
JUDGMENT :
(PER : SARANG V. KOTWAL, J.)
MANUSHREE
NESARIKAR
NESARIKAR 1. Both these Appeals are decided by this common
Nesarikar
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judgment because they arise out of the same impugned
Judgment and Order passed by the Additional Sessions Judge,
Pune, in Special (Atrocities) Sessions Case No.21/2015. The
Criminal Appeal No.1524 of 2018 is preferred by the original
accused No.1 Vitthal Raut and the Criminal Appeal No.1497 of
2018 is preferred by the accused No.2 Santosh Deshmukh.
2. For the sake of convenience both the Appellants are
referred to as the accused Nos.1 and 2 respectively.
3. The learned Judge convicted and sentenced both of
them as follows :
(i) The Appellants were convicted for commission of
offence punishable u/s 302 r/w 34 of the Indian
Penal Code and were sentenced to suffer
imprisonment for life and to pay a fine of
Rs.5,000/- each and in default of payment of fine
to suffer simple imprisonment for one year each.
(ii) They were also charged for commission of offence
punishable u/s 3(2)(v) of the Scheduled Castes
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and Scheduled Tribes (Prevention of Atrocities)
Act (for short 'SCST Act') and also u/s 201 r/w 34
of the Indian Penal Code. They were acquitted
from both these charges.
(ii) They were given set off u/s 428 of Cr.P.C.
4. The prosecution case is that one Kondiram Kale was
working as a labourer at the farm house of one Balaseheb
Kamthe. Both the accused were residing at the same place.
Kondiram was addicted to liquor. Somewhere in the night
between 19/01/2015 to 20/01/2015 Kondiram was heavily
drunk. He uttered some derogatory words regarding accused
No.1's wife. Getting angry, the accused No.1 assaulted him with
a sickle. The accused No.2 joined in the assault and gave blows
with iron rods to Kondiram. Kondiram succumbed to his injuries.
The prosecution case is that the accused No.1 told his wife Jyoti
as to why he had assaulted Kondiram. Jyoti and one more
witness Anita telephonically informed the farm owner Balasaheb
about the incident. He came to the spot. Balasaheb in the
meantime had informed Kondiram's son that Kondiram was
serious. Gorakh, who was Kondiram's son, also came to the spot.
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Then he went to the police station with Balasaheb and gave his
FIR. It was registered as C.R.No.19/2015 with Saswad police
station. It was lodged at 04.00 p.m. on 20/01/2015. The
investigation was carried out. The Inquest Panchanama and the
Spot Panchanama were conducted. The accused No.1 was
arrested on 20/01/2015 and the accused No.2 was arrested on
21/01/2015. On 22/01/2015 and 24/01/2015 some articles
were recovered at the instance of accused Nos.1 and 2
respectively. They included the alleged murder weapons. Those
weapons and clothes were sent for chemical analysis. In the
meantime post-mortem examination was conducted. The
statements of witnesses were recorded u/s 164 of Cr.P.C. At the
conclusion of the investigation, charge-sheet was filed and the
case was committed to the Court of Sessions.
5. During trial, the prosecution examined 10 witnesses
including Kondiram's son Gorakh Kale, the farm owner
Balasaheb Kamthe, Jyoti Raut and Anita Dhiwar, the Panchas for
Spot Panchanama and Recovery Panchanama, Medical Officer
who had conducted the post-mortem examination and the police
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officers who conducted the investigation. The C.A. Reports were
produced on record. The defence of the accused was of total
denial.
6. The learned Trial Judge relied on the extra-judicial
confession given by the accused No.1 to his wife Jyoti and to the
farm owner Balasaheb. He also relied on the evidence of the
recovery of weapons and of the clothes as well as C.A. report
regarding those articles. Learned Judge observed that there was
no material on record to show that the accused had committed
murder of the deceased with the knowledge that he was
belonging to a scheduled cast. Therefore, they were acquitted
from the charges u/s 3(2)(v) of the SCST Act. Based on these
main circumstances, the learned Judge convicted and sentenced
the Appellants as mentioned earlier.
7. Heard Ms. Payoshi Roy and Mr. Satyavrat Joshi learned
counsel for the Appellants and Mr. Arfan Sait, learned APP for
the State.
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8. The FIR in this case was lodged by P.W.1 Gorakh Kale.
He was the son of the deceased. He has deposed that his father
Kondiram was residing at the agricultural field of Balasaheb
Kamthe at Ekhatpur. Kondiram was doing labour work. Two to
three months prior to January 2015, Kondiram had left that
work and had started residing with P.W.1 and his family. On
18/01/2015, Balasaheb took him back for work at his
agricultural field. On 19/01/2015, in the evening P.W.1 got a call
from Balasaheb who told P.W.1 that Kondiram was drunk and
that P.W.1 should have a word with him. Kondiram and P.W.1 had
a conversation. On 20/01/2015, at about 11.15 a.m. Balasaheb
again called P.W.1 and asked him to come his field urgently. After
some time, Balasheb again called him and told him that his
father had passed away. Therefore, P.W.1 went to Government
Hospital, Saswad with his relatives. P.W.1 saw that his father had
suffered bleeding injuries on his head. There were other injuries
on his shoulders, hands, chest and legs. P.W.1 had further
deposed that he got an impression that his father was murdered
by some unknown person with a weapon. He then went to the
police chowky and lodged his report. It was recorded as per his
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say. It was treated as the FIR. It is produced on record at Ex.19.
On 21/01/2015, he went to Balasaheb's field. He met Meena
Kamble, Jyoti Raut (P.W.4) and Anita Dhiwar (P.W.7). They told
him that about 9 to 9.30 p.m. on the previous night both the
accused and Kondiram were sitting in a cattle shed. Kondiram
passed some remarks about the accused No.1's wife. Therefore,
there was some altercation. Then both the accused had
mercilessly beaten Kondiram with sickle, stick, iron rod and
rope. Because of that, he fell unconscious and died on the spot.
After hearing this, P.W.1 again went to the police station and
gave his supplementary statement.
In the cross-examination he deposed that the accused
No.1, his wife Jyoti (P.W.4), Anita (P.W.7) and Meena were
working in that cattle shed. But he had not met any of them
prior to the incident. His father was addicted to liquor since 15
years prior to the incident. After hearing the news of his father's
death, he along with his relatives reached Ekhatpur at about
02.30 p.m. on 20/01/2015. On that day, he had not made any
enquiries with these witnesses and he added that they also did
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not inform him anything on their own. He further added that he
had not gone to Ekhatpur at the first instance. He had gone to
Saswad.
Further in the cross-examination, he has given an
important admission, which in the context of the case is
extremely significant. He has admitted that after he had seen the
dead body in the hospital and before he lodged his report, he
had a discussion with Balasaheb and with his relatives. He
accepted that at that time, Balasahe had not told him about the
assault on his father in the cattle shed and therefore, he had
lodged his FIR against an unknown person. He had further
deposed that the police had recorded his supplementary
statement in the afternoon on 21/01/2015. The FIR as
mentioned earlier is produced at Ex.20. Significantly, it
specifically mentions that his father was murdered by some
unknown person with some unknown weapon for some
unknown reason.
9. P.W.2 Balasaheb is another important witness. He was
the Sarpanch of Yewalewadi. He was residing there with his
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family. His agricultural field was at Ekhatpur. It was measuring 5
½ acre. It was in the name of his son. There was a cattle shed on
that field. Two rooms were constructed for the labourers. The
accused No.1 was residing there with his family and the accused
No.2 was residing alone. Kondiram stayed there for about 8
days. There were others working in the field. He used to
distribute the work amongst both the accused, the deceased,
Meena, Anita and accused No.1's wife Jyoti (P.W.4). On the date
of the incident, he received a phone call from Meena and Anita
(P.W.7). They told him that both the accused had assaulted
Kondiram and he should come to the cattle shed urgently. He
reached there at about 1 to 1.30 p.m. He informed P.W.1 and
called him at the spot. He has deposed that after P.W.1 reached
the cattle shed, they took Kondiram to the Hospital at Saswad.
P.W.2 then went back to the cattle shed. Interestingly, he has
further deposed that after reaching there, the accused No.1 told
him that he had killed Kondiram because Kondiram was
suspecting the character of the accused No.1's wife. He further
told P.W.2 that he had committed the assault with the help of the
accused No.2. After this, P.W.2 went to the police station along
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with P.W.1 Gorakh. Then Gorakh lodged his complaint at the
police station. After the incident, the accused No.2 had run
away. The police brought accused No.1 and his wife to the police
station from the cattle shed. It is his case that, at that time, the
accused No.1 confessed to his crime to the police. This
confession is of course inadmissible. On the next day, the police
arrested the accused No.2.
In the cross-examination, he deposed that in the past,
Kondiram was working in the cattle shed and was residing there.
Kondiram was working with P.W.2 for about 4 years in the past.
Since about 8 days prior to the incident, Kondiram had rejoined
his work. P.W.2 did not receive any call in the night of the
incident. He has further deposed that after he got phone call
from Meena and Anita, he had informed the police
telephonically about the incident. He had given information
about the incident to the police. When P.W.1 reached at the spot,
there was a discussion between P.W.2 and P.W.1 Gorakh. P.W.2
was present in the hospital till 12 o'clock in the midnight. The
police also made enquiries with P.W.2. He admitted that he had
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gone to the police station along with P.W.1 to lodge the
complaint. On that day, the police had not made any enquiry
with him. He denied other suggestion about deposing falsely.
10. P.W.4 Jyoti Raut is the wife of the accused No.1. She
did not depose to support the prosecution case and therefore she
was declared hostile. She was cross-examined by the learned
APP appearing for the State. She denied having given any
statement to the police. Contradictory portions from her police
statement were read out to her. She denied having told those
parts in her police statement. Those portions were shown to P.I.
Goud, who is examined as P.W.8. He had recorded the statement
of P.W.4. Those portions were marked as Ex.44 to 48. P.W.4's
statement was also recorded u/s 164 of Cr.P.C. by the learned
JMFC, Saswad on 29/01/2015. But the contradictory portion
from that statement was not brought to the notice of the P.W.4
and those portions were not proved through the evidence of the
learned Magistrate, who had recorded that statement.
11. P.W.7 Anita Dhiwar also did not support the
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prosecution case and she was declared hostile. She has deposed
that on 20/01/2015, she was working as a labourer with Meena
and Jyoti (P.W.4) in the field of Balasaheb. She did not know the
deceased. She had seen one person lying in the cattle shed.
When she looked at the unknown person, who was lying in the
shed, Jyoti and Meena were also with her. P.W.7 then called P.W.2
Balasaheb. At that time, both the accused were not seen in the
cattle shed. P.W.7 was declared hostile and was cross-examined
by the learned APP.
In the cross-examination, she deposed that she told the
police that the deceased was lying unconscious at the spot and
that when she asked the accused No.1 about him, the accused
No.1 told her that the deceased had used bad words against his
wife and therefore he and the accused No.2 Santosh had beaten
the deceased. This was obviously contradictory to her
deposition. But she was not asked any explanation regarding
this contradiction. She was not given any opportunity to explain
this contradiction. Her statement was also recorded u/s 164 of
Cr.P.C. She further deposed that her statement was correctly
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recorded. Again this statement appears to be a contradictory
statement with her deposition and again no opportunity was
given to her to explain that contradiction.
Further in the cross-examination, conducted on behalf
of the accused, she deposed that her statement was recorded
after about 4 to 5 days of the incident.
12. P.W.5 Prakash Pathak was a Pancha for the Spot
Panchanama. It is produced on record at Ex.30. He has
described the scene of the offence in the cattle shed.
Significantly, he has deposed that on one side in the cattle shed,
there was a sickle and an iron rod. This Spot Panchanama was
conducted on 20/01/2015. Importantly, he was shown the
articles Koyta, iron rod and wooden stick as article Nos.1, 2 and
3 respectively. He identified those articles as the seized articles.
In his deposition, he has not stated that those articles were
seized from the spot. Even in the cross-examination there is no
reference to any seizure of those articles at the time of
conducting the Spot Panchanama.
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13. In this context, the evidence of P.W.6 Rajendra
Kumbharkar will have to be tested. He was a Pancha for two
recovery Panchanamas carried out on 22/01/2015 and
24/01/2015. On the first occasion, a stick, a sickle, a sweater
and a pant were recovered at the instance of the accused No.1,
pursuant to his statement recorded u/s 27 of the Evidence Act.
These disclosure statement and the recovery Panchanama were
produced on record at Ex.38/1 and Ex.38/2. On the next
occasion, the same procedure was effected for recovery of iron
rod at the instance of the accused No.2. Those documents were
produced on record at Ex.39/1 and Ex.39/2. On both these
occasions, the weapons were recovered at the instance of
accused Nos.1 and 2 separately from the cattle shed from
beneath the cattle feed.
14. P.W.9 Sanjay Nimbalkar was a Pancha for recovery of
clothes of the accused No.2 at his instance, but he did not
support the prosecution case that the clothes were recovered
when the accused No.2 was arrested on 21/01/2015.
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15. The C.A. Report produced on record at Ex.61 shows
that there was blood of inconclusive blood group of human
origin on the weapons. There was blood of 'B' group on the
pants of both the accused. There was blood of 'B' group on the
clothes of the deceased. The blood group of both the accused
was also 'B' group as is reflected in another C.A. report produced
at Ex.60.
16. P.W.3 Dr. Indraneel Patil, had conducted the post-
mortem examination. He has noted 15 injuries on the dead
body. The fatal injuries were the two incised wounds on the
occipital region. The other injuries were in the nature of
abrasions, contusions, haematoma and CLWs. The internal
injuries were in the nature of haematoma under the scalp. There
was subdural haematoma and subarachnoid haematoma. There
was also haematoma on the upper thorax. The blood and viscera
was preserved for chemical analysis and it was found that there
was excess amount of ehtyl alcohol in the blood of the deceased.
The final opinion was given after receiving the C.A. Report
about viscera. The C.A. Report in that behalf is produced on
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record at Ex.26 and the final opinion is produced on record at
Ex.25. The cause of death was mentioned as the 'head injury'.
17. P.W.8 PI Sureshsingh Goud had recorded statement of
P.W.4 and he exhibited various portion marked from the
statement of P.W.4. As mentioned earlier, they are produced on
record from Ex.44 to 48.
18. P.W.10 Ashok Bharate, had conducted the investigation.
He had recorded the supplementary statement of P.W.1 and
other witnesses. He collected the death certificate. He arranged
for the recording of statements of the witnesses u/s 164 of
Cr.P.C. from JMFC, Saswad. He effected recovery of articles and
sent them for chemical analysis report. He seized the weapons
and other articles at the instance of the accused as mentioned
earlier. After completion of the investigation, he filed the charge-
sheet.
This, in short, is the evidence led by the prosecution.
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19. Learned counsel appearing for both the accused made
the following submissions :
The prosecution has failed to prove its case beyond
reasonable doubt. The evidence of extra-judicial confession
cannot be accepted. The evidence of P.W.1 shows that P.W.2 was
always with him right from the time he had reached the hospital
at Saswad till the FIR was lodged. P.W.4 according to the
prosecution case was told by none other than the accused No.1
that he had committed murder of the deceased. This would
amount to extra-judicial confession. But this fact was not told by
the P.W.2 to P.W.1. Therefore, it is clearly added as an
afterthought by the prosecution. In any case, the extra-judicial
confession is a weak piece of evidence and cannot form the sole
basis for conviction. It has to be corroborated in material
particulars. They submitted that P.W.4 was a hostile witness and
could not have been relied on for any purpose. Similarly, P.W.7
was also declared hostile. She is also an unreliable witness. The
learned Judge erred in placing reliance on her evidence.
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20. The evidence regarding recovery of weapons is
extremely doubtful. According to P.W.5, the weapons were seen
in the cattle shed at the time of conducting the Spot
Panchanama on 20/01/2015 and therefore, the police were
aware of those articles in the cattle shed and yet after two and
four days i.e. on 22/01/2015 and 24/01/2015 it is shown that
those weapons were recovered at the instance of the accused
Nos.1 and 2. She submitted that even P.W.5 had identified the
weapons in the Court. Therefore, there are indications that some
weapons were recovered at the spot itself. If there is any
ambiguity in respect of this evidence, the prosecution has not
explained it and therefore, benefit of doubt must go to the
accused. They submitted that in this view of the matter finding
of blood stains on the Koyta will not assist the prosecution. Both
the accused as well as the deceased were having the same blood
group 'B'. Therefore finding 'B' blood group on the pants of both
the accused does not take the prosecution case any further.
They submitted that there is no acceptable evidence against the
accused and therefore they deserve to be acquitted.
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21. Learned APP on the other hand submitted that the
presence of both the accused, witness P.W.4 and P.W.7 is
undisputed and admitted. Therefore, P.W.4 and P.W.7 were the
natural witnesses to whom the accused No.1 could have given
extra-judicial confession. Though they were declared hostile, the
relevant portion from their police statements were brought on
record and in fact, P.W.7 has admitted that when she asked the
accused No.1 about the deceased, at that time, the accused No.1
had confessed to beating the deceased. He submitted that this is
an important circumstance. He further submitted that P.W.7 has
admitted the truthfulness of her statement given to the learned
Magistrate u/s 164 of Cr.P.C., which corroborates the
prosecution case. The evidence of P.W.2 is corroborated by P.W.4
and P.W.7. The conduct of the accused is also important. The
accused No.1 was taken to the police station, but the accused
No.2 was absconding, which would indicate his guilt. He
submitted that P.W.2 not having disclosed about the murder and
assault on Kondiram to his son P.W.1 Gorakh, is a natural
conduct on the part of P.W.2 to break the news gently and
therefore, the defence cannot take advantage of P.W.2 not having
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disclosed this fact to him at the time of lodging of the complaint.
He submitted that based on these circumstances, the prosecution
has proved its case beyond reasonable doubt.
22. We have considered these submissions. The main
circumstance on which the prosecution has relied on to prove
the case against the accused, is the extra-judicial confession. For
that purpose, there are three witnesses i.e. P.W.2, P.W.4 and P.W.7.
P.W.2 has clearly stated that before lodging of the FIR, he had
enquired with the accused No.1 and at that time, the accused
No.1 had confessed about beating the deceased. P.W.2 was also
told by other witnesses regarding the part played by the accused
in assaulting the deceased. The evidence shows that P.W.2 was
throughout with P.W.1, right from the time when P.W.1 went to
the hospital or to the spot of incident before lodging of the FIR.
P.W.1 has accepted that before lodging of the FIR, he had
discussed the incident with the P.W.2. Therefore, naturally, the
FIR should have disclosed the names of the accused as the
assailants of the deceased but the FIR specifically mentions that
the assault was committed by unknown person with unknown
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weapons for an unknown reason. All this raises serious doubt
about the claim of P.W.2 regarding extra-judicial confession
allegedly made by the accused No.1 to his wife or to P.W.2. P.W.4
is not a reliable witness. She is wife of the accused No.1.
Therefore, even if it is assumed that she was interested in saving
her husband, yet if there was a police statement available with
the prosecution, from which the contradictory portions were
brought on record at Ex.44 to 48, then it was also the duty on
the part of the prosecution to have given her an opportunity to
explain why there was contradiction in her deposition. The same
criteria applies to her statement recorded u/s 164 of Cr.P.C. She
was not given an opportunity to explain those contradictions.
Therefore, in any case, her evidence is inherently unreliable and
even her contradictions from her earlier statements are not put
to her for seeking explanation.
23. As far as P.W.7 is concerned, the same criticism applies
to her evidence also. She was also declared hostile. She had not
supported the prosecution case in her examination-in-chief. But
in her cross-examination, she had given a stray answer that she
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had told the police that when she asked the accused No.1 about
the deceased, he had told her that the deceased had used bad
words against his wife and therefore, he and the accused No.2
had beaten the deceased. However, P.W.7's attention was not
drawn to this contradiction compared to her examination-in-
chief to seek her explanation. Similarly, when she narrated that
her statement u/s 164 of Cr.P.C. was recorded, she was not asked
as to why there was apparent contradiction in her deposition
and in the statement recorded u/s 164 of Cr.P.C. In any case, she
was declared as a hostile witness. She has not supported the
prosecution case. In our opinion, she is an unreliable witness
and therefore, conviction cannot be based on her evidence.
24. As far as the recovery evidence is concerned, P.W.5 has
stated that he had seen a sickle, iron rod and a stick in the cattle
shed. Inspite of that, those were not seized at the time of
conducting the Spot Panchanama. But he identified those
articles in the Court as article Nos.1, 2 and 3. According to the
prosecution case, the same articles were seized at the instance of
the accused Nos.1 and 2 subsequently on 22/01/2015 and
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24/01/2015. The same articles were identified by the recovery
Pancha P.W.6 Rajendra Kumbharkar. This raises serious doubt
about the articles produced in the Court. Apart from that,
considering the evidence of P.W.5 and 6 together, it would mean
that the police had already searched the cattle shed on
20/01/2015. Yet, those weapons were recovered from same
cattle shed on 20/01/2015 and 22/01/2015. Thus all these
factors vitiate the recovery effected at the instance of the
accused Nos.1 and 2. In effect, the C.A. Report concerning these
articles also does not help the prosecution. For the same reason,
since the recovery is doubtful, the seizure of the clothes of the
accused also becomes doubtful and it cannot form an
incriminating piece of evidence, though pants recovered from
both the accused showed blood having blood group 'B'.
25. The post-mortem notes show the injuries caused to the
deceased, but there has to be a linking evidence between the
alleged act of the accused, weapons and the assault. As
discussed earlier, the prosecution has failed to prove each of
these circumstances beyond reasonable doubt. The case is based
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purely on the circumstantial evidence. Neither of the
circumstances is proved by the prosecution individually and they
certainly do not form a complete chain. Therefore, the
prosecution has failed to prove its case beyond reasonable
doubt. The accused deserve to be acquitted from the case.
26. Hence, the following order :
ORDER
(i) The Appeals are allowed.
(ii) The Judgment and Order dated 19/10/2018
passed by the Additional Sessions Judge, Pune,
in Special (Atrocities) Sessions Case
No.21/2015, is set aside.
(iii) The Appellant Vitthal Digambar Raut be released
forthwith, if not required in any other case.
Before being released the Appellant Vitthal Raut
shall execute PR Bond in the sum of Rs.30,000/-
(Rupees Thirty Thousand only), u/s 437-A of
Cr.P.C. for his appearance in case Appeal is
preferred against acquittal.
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(iv) The Appellant Santosh Shamrao Deshmukh shall
execute a separate PR bond u/s 437-A of Cr.P.C.
in the sum of Rs.30,000/- (Rupees Thirty
Thousand only) within a period of two months
from today before the Trial Court, for his
appearance in case Appeal is preferred against
acquittal.
(v) The bail bonds of the Appellant Santosh
Shamrao Deshmukh, who is on bail stand
cancelled.
(vi) The fine amount deposited, if any, shall be
refunded.
(vii) The Appeals are disposed of.
(viii) With disposal of the Appeals, the connected
Interim Application is also disposed of.
(S. M. MODAK, J.) (SARANG V. KOTWAL, J.)
