Bombay High Court
Raju Kshatriya @ Raju Nepali @ Tapan ... vs The State Of Maharashtra on 27 June, 2025
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2025:BHC-AS:26258-DB
Gokhale 1 of 18 905-apeal-1253-19 (J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1253 OF 2019
Raju Kshatriya @ Raju Nepali @
Tapan Sarveshwar Das ..Appellant
Versus
The State of Maharashtra ..Respondent
WITH
INTERIM APPLICATION NO. 2741 OF 2024
IN
CRIMINAL APPEAL NO. 1253 OF 2019
__________
Mr. D. G. Khamkar for the Appellant.
Ms. Kranti T. Hiwrale, APP for State/Respondent.
__________
CORAM : SARANG V. KOTWAL &
MANJUSHA DESHPANDE, JJ.
DATE : 27 JUNE 2025
JUDGMENT:
( Per Sarang V. Kotwal, J. )
1. The Appellant has challenged the Judgment and order
dated 22.07.2016 passed by the learned Additional Sessions
Judge, Pune, in Sessions Case No.45 of 2015. The Appellant was
convicted for commission of the offence punishable under section
302 of the I.P.C. and was sentenced to suffer rigorous
imprisonment for life and to pay a fine of Rs.10000/- and in
Digitally
signed by
VINOD
VINOD BHASKAR
BHASKAR GOKHALE
GOKHALE Date:
2025.07.02
10:40:31
+0530
2 of 18 905-apeal-1253-19 (J)
default to suffer R.I. for one year.
2. Heard Mr. Khamkar, learned counsel for the Appellant
and Ms. Kranti Hiwrale, learned APP for the State.
3. The prosecution case is that the deceased Virendra
Kumar and the Appellant were working as the labourers under the
supervision of the first informant Parasnath Vishwakarma. They
used to sleep on the fifth floor of the building where the
construction was going on. The prosecution case is that, in the late
evening on 25.09.2014, there was a quarrel between the deceased
Virendra Kumar and the Appellant. The Appellant wanted financial
help from the deceased, but he refused; therefore, there was a
quarrel. After the dinner, they went to sleep on the fifth floor. In
the morning, the deceased was found in a pool of blood with the
head injury. There was a cement block and a hammer lying nearby.
According to the prosecution case, the Appellant committed this
murder in the night and then absconded. On the next morning,
when the dead body was discovered, Parasnath informed the
police. The police came on the scene. They made enquiries.
3 of 18 905-apeal-1253-19 (J)
Parasnath gave his F.I.R. at about 2:30p.m. on 26.09.2014. The
Appellant was arrested on 03.10.2014. His blood stained shirt was
recovered at his instance from a field, lying in the grass, on
05.10.2014. In the meantime, the investigation was continued, the
postmortem examination was conducted, the statements of the
witnesses were recorded and at the conclusion of the investigation,
the charge-sheet was filed. The case was committed to the Court of
Sessions.
4. During the trial, the prosecution examined six witnesses.
Two witnesses were examined for proving the circumstance of "last
seen together theory". The panchas for spot panchanama and
recovery panchanama of the shirt were examined. The Medical
Officer was examined and finally the investigating officer was
examined.
5. The defence of the Appellant was of total denial.
According to him, few days prior to the incident, he had lost his
father, therefore, he had gone to Assam. He was falsely implicated.
6. The learned Trial Judge considered the evidence on
4 of 18 905-apeal-1253-19 (J)
record and the defence taken by the Appellant. The learned Trial
Judge particularly relied on the evidence of PW-1 Parasnath and
PW-2 Wasim who were examined on the point of "last seen
together theory". The learned trial Judge also accepted the
recovery of blood stained shirt at the instance of the Appellant.
Based on these circumstances, he recorded the findings of guilt
against the Appellant.
7. PW-1 Parasnath Vishwakarma was the supervisor at
Ciroko Grand Society's construction site at Punawale, Tal. Mulshi,
District Pune. At that time, the Appellant, the deceased and few
others were working at that spot with PW-1 Parasnath. Their
working hours were between 8:30a.m. to 6:00p.m. He has
deposed that the deceased and the Appellant used to sleep on the
fifth floor after their work was over. On 25.09.2014, after having
dinner, the Appellant and the deceased went to sleep on the fifth
floor. On the next day, till about 9:30a.m. both of them did not
return for work. Therefore, PW-1 Parasnath and other 2 to 3
persons went to the fifth floor. They saw Virendra Kumar lying in a
pool of blood. He had suffered bleeding injuries. They saw one
5 of 18 905-apeal-1253-19 (J)
cement block and one hammer near him. After that, the police
came there and took Virendra Kumar to Sassoon Hospital, but he
was declared dead. PW-1 Parasnath has further deposed that, he
tried to contact the Appellant, but his phone was switched off.
Then he lodged his F.I.R. at Wakad police station. The F.I.R. is
produced on record at Exhibit-13. The record shows that, C.R.No.32
of 2014 was registered at Wakad police station at 2:30p.m.
In his cross-examination, he stated that on 26.09.2014
somebody had telephoned the police in the morning. When the
police came at the spot, PW-2 Wasim and others were with PW-1
Parasnath. In addition, about 100 to 150 people had gathered at
the spot. At that time, the police had interrogated PW-1 and
others. He admitted that, at that time, they told the police that
they did not know as to how the deceased had died. They told the
police that they were only aware that he had died and, therefore,
the police were called. After that PW-1 Parasnath went to the
police station and lodged his F.I.R. The F.I.R. produced at Exhibit-
13 repeats the same story which is mentioned in his deposition.
6 of 18 905-apeal-1253-19 (J)
8. PW-2 Wasim Ansari was also working on the same site as
deposed by PW-1 Parasnath. PW-2 Wasim has stated that, on
25.09.2014 at about 7:45p.m. there was a quarrel between the
Appellant and the deceased. The Appellant asked for Rs.100/-
from the deceased for recharging his cell phone, but the deceased
refused as there was already some outstanding amount from the
Appellant. Because of this refusal, the Appellant got angry and
abused the deceased. There was a fight between them. The others
separated them. At about 8:30p.m. they all had dinner and at
9:15p.m. the Appellant and the deceased went to the fifth floor of
'D' building to sleep. PW-2 Wasim and one Rachharam went to the
fourth floor for sleeping. At about 10:00p.m., the Appellant came
down and brought one cement block. PW-2 Wasim questioned him.
At that time, the Appellant told him that he had brought it to use it
as pillow. PW-2 Wasim has further deposed that, at about
11:45p.m. they heard the shouts and screams. They started going
towards the fifth floor. However, on the way, the Appellant was
seen coming down from the staircase. At that time, there were
blood stains on his person. He did not tell anything to PW-2 Wasim
7 of 18 905-apeal-1253-19 (J)
and others; and ran away. Then PW-2 Wasim and others went to
the fifth floor and saw the dead body of the deceased lying in a
pool of blood. They also saw a cement block and one hammer.
In his cross-examination, he stated that he did not tell
PW-1 Parasnath anything about the incident of fight for money
that had taken place on the previous evening. PW-2 Wasim further
stated that, after looking at the dead body, he and Rachharam did
not raise any shouts. They did not wake up anybody. They did not
try to catch the Appellant. According to him, since they were
frightened they were not able to speak. He further deposed that,
he did not feel it necessary to narrate the incident to PW-1
Parasnath. They went to the room of PW-1 Parasnath and then
went to sleep. Whey they were at the spot, they did not call
anybody, nor telephoned anybody. After all this, when they went to
the room of PW-1 Parasnath, he was asleep. They did not wake
him up and did not tell him about the incident. On the next day,
they woke up at 9:00a.m. to9:15a.m.; though, he claimed that he
did not get any sleep. On the next day at 9:00a.m. to 9:15a.m.
PW-1 Parasnath told him that the deceased had not returned, at
8 of 18 905-apeal-1253-19 (J)
that time also, they did not tell PW-1 Parasnath that they had seen
the dead body in the night itself. PW-2 Wasim then accompanied
PW-1 Parasnath and others to the room of the deceased at about
9:30a.m. Even then he did not tell anything to PW-1 Parasnath and
others about the incident. PW-1 Parasnath then dialed the number
100 and informed the police. The police came there after 25 to 30
minutes. Even at that time, PW-2 Wasim did not tell anything
about the incident to anybody. The police questioned them, but
PW-2 Wasim did not tell the police about the incident. In the
statement recorded by the police, he did not tell the police about
the fight between the Appellant and the deceased. He had not
stated before the police in his statement that there were blood
stains on the person of the Appellant.
9. PW-3 Jagannath Sawant was a pancha for the spot
panchanama. He has described the situation at the spot and how
the dead body was lying there. The police seized a cement block
and a hammer from the spot. The panchanama was conducted
between 3:10p.m. to 4:00p.m. on 26.09.2014. It is brought on
record at Exhibit-18.
9 of 18 905-apeal-1253-19 (J)
10. PW-4 Somnath Shelar was a pancha in whose presence
the Appellant had produced his shirt on 05.10.2014. He has
deposed that the Appellant gave his disclosure statement and led
the panchas and the police to one field which was at a distance of
100 to 150ft. from that housing society. The shirt was thrown in
the grass in that field. The Appellant took out that shirt. It was
seized. The panchanama is produced on record at Exhibit-22.
11. PW-5 Dr. Amol Shinde had conducted the postmortem
examination. He had seen the contusion over left ear pinna of the
size 6cm x 4cm. There was abrasion and contusion on the left
mastoid region, and the contusion over lateral aspect of left
shoulder. The cause of death was mentioned as "death due to head
injury". According to him, the injuries were possible by hammer
which was seized from the spot. The postmortem report was
produced on record at Exhibit-24.
12. PW-6 Police Inspector Amrut Marathe had conducted the
investigation. He deposed that on 26.09.2014 he was attached to
Wakad police station as the Police Inspector. On that day, PW-1
10 of 18 905-apeal-1253-19 (J)
Parasnath came to the police station and lodged his F.I.R. It was
produced on record at Exhibit-13 in the trial. On the basis of that
complaint, C.R.No.32 of 2014 was registered. PW-6 Amrut had
gone to the spot of incident and had prepared the spot
panchanama. He deposed that the dead body was sent for the
postmortem examination. He had collected the postmortem notes.
He had recorded the statements of the witnesses. The Appellant
was arrested on 03.10.2014. On 05.10.2014 the blood stained
shirt was recovered at his instance. He sent the muddemal articles
for chemical analysis on 07.11.2014.
In the cross-examination, he stated that A.P.I. Kendre
had submitted a detailed report about the incident to the police
station. He further deposed that, he found the contents of that
report correct and, therefore, he had submitted the said report
along with the charge-sheet. That report is produced on record at
Exhibit-30 before the trial Court and it was proved through this
witness. This report is of some consequence in this case. We shall
refer to that report in the following discussion.
11 of 18 905-apeal-1253-19 (J)
13. Apart from this oral evidence, the prosecution has
brought the C.A. report on record at Exhibit-29. It shows human
blood on the clothes of the deceased and also on the shirt of the
Appellant. However, the blood group on all these articles was
inconclusive.
This, in short, is the evidence led by the prosecution.
14. Learned counsel for the Appellant submitted that the
prosecution has not proved its case beyond reasonable doubt.
There are two important witnesses in the form of PW-1 Parasnath
and PW-2 Wasim and both of them are totally unreliable. There are
not only improvements in their depositions, but their conduct is so
unnatural that, it is not possible to believe them at all. PW-1
Parasnath had not told the police about the incident or about the
'last seen together theory' when the police had come on the spot.
The deposition of PW-2 Wasim is even worse. He had not even told
PW-1 Parasnath about the occurrence he had seen on the previous
evening and on the night of the occurrence. Both of them are not
telling the truth which can be seen from their deposition itself.
12 of 18 905-apeal-1253-19 (J)
Their evidence will have to be tested on the background of the
report Exhibit-30. This report was tendered by API Kendre to PW-6
P.I. Marathe. That report shows that the police had gone to the
spot. PW-1 Parasnath and PW-2 Wasim had not told them anything
about their knowledge at all. The F.I.R. was lodged at 2:30p.m.
after much deliberation and the Appellant was falsely implicated in
the case.
15. Learned APP opposed these submissions. According to
her, the prosecution has proved its case through the evidence of
PW-1 Parasnath and PW-2 Wasim. The circumstance of 'last seen
together' was the strong circumstance. The Appellant was
absconding. There was no explanation offered by the Appellant.
The blood stained clothes seized at his instance show presence of
human blood. All these circumstances form a complete chain of
circumstances and, therefore, the prosecution has proved its case
beyond all reasonable doubts.
16. We have considered these submissions. The prosecution
case is based on the evidence of PW-1 Parasnath and PW-2 Wasim.
13 of 18 905-apeal-1253-19 (J)
We find force in the submission of learned counsel Mr. Khamkar
that both these witnesses are highly unreliable. Their conduct is
most unnatural. PW-2 Wasim has deposed about the fight in the
previous evening, which he had not told either to PW-1 Parasnath
or to the police when his statement was recorded. Curiously, he
claims to have seen the Appellant running down from the staircase
after commission of the murder. He claims to have heard shouts of
the deceased. According to him, he went to the fifth floor and saw
that the deceased was lying in a pool of blood. If that was so, then
his conduct that followed after this, is most unnatural. According
to him, he went to the room of PW-1 Parasnath and went to sleep
quietly. He did not wake up PW-1 Parasnath. He did not inform
anybody else in the vicinity. He did not call for help. He did not
raise any shouts. He did not tell anything to anybody even in the
morning at 9:30a.m. when PW-1 Parasnath told him that the
deceased had not attended the work. Even then, PW-2 Wasim did
not utter a word about the facts which he had seen in the evening
and in the night. We find it very difficult to believe that after
looking at the dead body, PW-2 Wasim would just go to the room
14 of 18 905-apeal-1253-19 (J)
of PW-1 Parasnath and go to sleep. We find that his conduct was
most unnatural. There are important omissions from his police
statement as referred to herein above. Therefore, we discard his
evidence completely.
17. As far as, PW-1 Parasnath is concerned, his evidence is
relevant only to the aspect of the 'last seen together' theory.
According to him, at about 9:30p.m. in the night of 25.09.2014,
the Appellant and the deceased had gone to sleep to the fifth floor.
At the highest, the prosecution can say that the Appellant and the
deceased were seen by this witness at 9:30p.m. The dead body was
discovered by this witness after about 12 hours. This is a long time
gap. It is a gap of 12 hours at least. The prosecution has to rule out
all the possibilities of anybody else committing the offence except
the present Appellant. The prosecution has failed to do so. Apart
from that, we find that he has not disclosed this case to the police
at the earliest. We have carefully perused the report Exhibit-30
which is the report submitted by API Kendre to PW-6 PI Marathe.
In that report, API Kendre has mentioned that the police received
an information that a person was found in a pool of blood in
15 of 18 905-apeal-1253-19 (J)
unconscious condition at that spot. Immediately, police went to the
spot of the incident. They made enquiries with all the persons
present there. At that time, they came to know the name of the
deceased. Then they shifted the deceased to Sassoon Hospital.
Significantly, beyond the name of the deceased, they were not told
anything by anybody. PW-1 Parasnath's evidence shows that he was
very much present when the police had reached the spot. He had
not told the police about his suspicion against the Appellant or that
the Apellant was also not seen in the morning, or even regarding
'last seen together' theory. API Kendre's report further mentions
that the dead body was sent for postmortem examination. The
report mentions the C.R.No.32 of 2014. The significant feature of
this report is that, it was tendered in the night at around
10:00p.m. on 26.09.2014 and there is a reference to the C.R.No.32
of 2014, as well. This report clearly mentions that the police had
gone at the spot. API Kendre was one of the first police officers
who had reached the spot and he had made the enquiries with the
persons present there. None of the persons including PW-1
Parasnath and PW-2 Wasim had told this police officer about the
16 of 18 905-apeal-1253-19 (J)
suspicious disappearance of the Appellant or the theory of the
accused and the deceased having been 'last seen together'. Since
that is the only circumstance against the present Appellant, it was
necessary for the prosecution to have established that
circumstance beyond reasonable doubt. There is no immediate
disclosure about this theory of 'last seen together' to the police
who had gone at the spot. PW-2 Wasim in fact has deposed that,
repeatedly even after getting sufficient opportunity, neither PW-1
Parasnath, nor PW-2 Wasim had told the police or anybody else
about the 'last seen together' theory. Therefore, we find the
prosecution has not proved the circumstance of the Appellant and
the deceased having been last seen together by other witness.
18. The motive brought out by the prosecution is in respect
of the monetary dispute. But again, PW-2 Wasim had not told
about this to anybody and in particular, he had not told this to PW-
1 Parasnath. PW-2's statement was recorded on 27.09.2014.
Therefore, we find substance in the submission of Mr. Khamkar
that he had introduced that theory as an after thought.
17 of 18 905-apeal-1253-19 (J)
19. The other circumstance of recovery of blood stained shirt
at the instance of the Appellant also cannot be an incriminating
circumstance. Though, C.A. report shows that there were blood
stains on that shirt, but the blood group was inconclusive. It was
necessary for the prosecution to have established that the blood
found on the Appellant's shirt was not his own blood but was that
of the deceased. The blood group was inconclusive. Even more
than that, we find that the recovery evidence itself is not reliable.
This is an admitted fact and it is brought out on record by the
prosecution itself that this shirt was recovered from the grass in a
field. The field was open and accessible to all. It was recovered on
05.10.2014. The incident had taken between 25.09.2014 and
26.09.2014. Thus, this recovery from the open and accessible place
after a few days, hardly inspires any confidence in favour of the
prosecution case.
20. Thus, we find that the prosecution has failed to prove
each of these circumstances independently beyond reasonable
doubt and even if taken together they do not form a reliable and
complete chain of circumstances against the present Appellant.
18 of 18 905-apeal-1253-19 (J)
With the result, the Judgment and order of conviction and
sentence is not sustainable. The Appellant deserves to be acquitted
from all the charges.
21. Hence, the following order:
ORDER
i) The Appeal is allowed.
ii) The Judgment and Order dated dated 22.07.2016
passed by the learned Additional Sessions Judge,
Pune, in Sessions Case No.45 of 2015, convicting
and sentencing the Appellant, is set aside.
iii) The Appellant is in custody. He be released
forthwith if not required in any other case.
iv) The Appellant shall execute P. R. Bond in the sum
of Rs.25000/- U/s.481 of Bharatiya Nagarik
Suraksha Sanhita, 2023 (correspondingly
U/s.437A of the Cr.P.C.) for his appearance, in
case an Appeal is preferred.
v) The Appeal is disposed of.
vi) With disposal of the Appeal, the interim
application is also disposed of.
(MANJUSHA DESHPANDE, J.) (SARANG V. KOTWAL, J.)
