Bombay High Court
Raju @ Macchar Soma Naitam vs State Of Maharashtra, Thr. Pso Ps Arni, ... on 11 November, 2025
Author: Anil L. Pansare
Bench: Anil L. Pansare
2025:BHC-NAG:11747-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, AT NAGPUR.
Criminal Appeal No. 10 of 2021
Raju @ Macchar Soma Naitam
Age 36 years, R/o Shelu Shendursani,
Taluka Arni, District Yavatmal. ... Appellant
- Versus -
State of Maharashtra,
Through Police Station Officer Arni,
District Yavatmal. ... Respondent
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Mr. S. P. Deshpande, Advocate (Appointed) for the appellant
Mr. N. R. Rode, APP for the State/respondent
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CORAM : ANIL L. PANSARE AND
RAJ. D. WAKODE, JJ.
Date of reserving judgment : 04-11-2025
Date of pronouncing judgment : 11-11 2025
JUDGMENT (Per : ANIL L. PANSARE, J.)
The appellant takes exception to the judgment and order
dated 22-9-2020 passed by learned Additional Sessions Judge, Darwha
in Sessions Trial No. 23/2018 whereby the appellant is convicted for the
offence punishable under Section 302 of the Indian Penal Code (IPC)
and sentenced to undergo imprisonment for life and to pay fine of
Rs. 2,000/-. As such, he was tried for the offence punishable under
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Sections 302 and 201 of the IPC, however, he has been acquitted for the
offence punishable under Section 201 of the IPC.
2. Briefly stated, the allegations against the appellant were
that in the intervening night of 2-7-2018 and 3-7-2018 at about 0.00
Hours, he committed murder of one Rajendra Ambadas Mhaske and
thereafter threw the dead body with an intention to screen himself from
punishment.
3. The theory of destroying evidence has been disbelieved by
the trial Court. The other part of prosecution theory viz. he committed
murder of Rajendra was, however, believed on the basis of evidence led
by the prosecution. The appellant is aggrieved by the said finding and,
therefore, the present appeal.
4. We have heard Mr. S. P. Deshpande, learned counsel for the
appellant and Mr. N. R. Rode, learned Additional Public Prosecutor
(APP) for the State/respondent. We have gone through the impugned
judgment, evidence, the documents etc. We will refer to the same to
the extent necessary to decide the point/s that arise for our
consideration.
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5. There is no dispute that Rajendra suffered homicidal death.
The dispute is as regards the involvement of appellant in the crime.
Thus, the only point that arises for consideration is whether the
prosecution has established guilt of appellant. The answer is in the
negative for the reasons to follow.
6. Admittedly, there is no eye witness to the crime. The case
of the prosecution is based on the extrajudicial confession given by the
appellant to his friend Rupesh (P.W. 2). His chief-examination read as
under.
"1. I was knowing deceased Rajendra and accused. Incident
took place before 11 months. When I was at Arni, Subhash
Pawar told me that Rajendra was laying in his house. Then I
went to my village at 6.00 p.m. and saw that Rajendra was dead
on cot with injury on his chest, neck and head. On next morning
I received phone call of accused Raju. He said that he wanted to
tell some thing lateron. Then on next day police came to my
house. I told to police that I received above phone call of
accused Raju. Then on say of police I made phone call to
accused by speaker on and asked the accused Raju as to what he
wanted to tell. Then accused Raju told me on phone call that he
committed murder. He also told that the incident was occurred
on dispute of dinner. He also told that he committed murder
with the help of axe.
2. Police took me to Court for recording statement.
Magistrate also recorded my statement. It bears my signature.
Its contents are correct. It is at Exh. 12. Accused present in
Court is same."
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Thus, P.W. 2 has not witnessed the incident. He received phone
call from appellant saying that he wanted to tell him something. On
next day, police arrived at his house. The reason why police visited his
house is not known to anybody. It is further not known as to why did
P.W. 2 suspect involvement of appellant to inform police that appellant
had called him. Thereafter P.W. 2 made a phone call to appellant on
say of police, upon which the appellant informed him that he committed
murder because of dispute of dinner.
7. In the cross-examination, the defence has brought on
record that Rajendra was addicted to liquor and his relations with
villagers were not cordial. His relations with his relatives were also not
cordial. He ill-treated his wife mentally and physically. She left him.
The evidence of other witnesses including father of appellant indicate
that Rajendra was residing alone in the house, in the sense, his dead
body was found in his house and it is nobody's case that along with
Rajendra, anybody was residing with him.
8. The argument of appellant is that in such circumstances,
the prosecution was under obligation to prove that except for appellant,
none else was responsible for the crime. We find substance in the
aforesaid submission. If the relations of appellant were not cordial with
the villagers and even with his family members, the possibility of
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involvement of third person should have been ruled out by the
prosecution.
9. In such cases, motive will play significant role. The motive
behind crime is said to be dispute that occurred because of dinner. This
theory is unacceptable without other details. The prosecution should
have proved as to where did appellant and Rajendra take dinner, why
had there occurred quarrel, where from the appellant obtained axe to
assault Rajendra and so on. Neither is there evidence on this point nor
are these details disclosed by appellant in his alleged confession made
before P.W. 2. Such evidence, which does not give these details, is not
sufficient to bring home the guilt of appellant. More so, because P.W. 2
and Investigating Officer are both silent as to why should Investigating
Officer visit house of P.W. 2.
10. Learned counsel for the appellant has relied upon the
judgment of the Supreme Court in the case of Gopal Sah Vs. State of
Bihar [(2008) 17 SCC 128] to argue that extrajudicial confession is a
weak piece of evidence and the courts are reluctant, in the absence of
chain of cogent circumstances, to rely on this evidence for the purpose
of recording a conviction.
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11. As such, it would depend on facts of each case as to what
weightage should be given to the extrajudicial confession in a particular
case, however, where a conviction is to be based on extrajudicial
confession, the Court will have to record satisfaction that the confession
made would satisfy all the requirements of law and such confession is
supported by corroborative piece of evidence. In the present case, for
the reasons which we have noted above, we do not find extrajudicial
confession given by P.W. 2 to be sufficient to blame appellant for the
crime which attracts life imprisonment. Mere statement by the
appellant that he has murdered Rajendra on account of dispute of
dinner will not serve the purpose.
12. Learned Additional Public Prosecutor (APP) argued that
there is corroborative piece of evidence in the form of recovery of
weapon i.e. axe used in the crime. The same is recovered at the
instance of appellant from his house. The weapon was kept behind the
box in the kitchen. According to learned APP, the weapon contained
blood stains. The Chemical Analyser's report indicates that it is a
human blood. Thus, according to him, extrajudicial confession coupled
with recovery of weapon is sufficient to prove involvement of appellant.
13. The argument has been rightly countered by learned
counsel for the appellant. He submits that there is absolutely no
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evidence of appellant using this weapon to kill Rajendra. None of the
witnesses have stated that Rajendra was assaulted by axe. In the
alleged confession also, there is no reference to use of weapon. In the
circumstances, the recovery of weapon, even if is to be accepted to be
true, will be not sufficient to prove that the said weapon was used in the
crime and to connect appellant with the crime.
14. Apart from above, there is no other evidence that would
prove the guilt of appellant.
15. P.W. 1 is father of deceased. He got to know about the
incident from knowledge and, therefore, he went to the house of
Rajendra to find that he was lying on the cot with injury on his chest.
Similar is the evidence of P.W. 3, who is elder brother of Rajendra.
P.W. 4 and P.W. 5 are the persons, who had acquaintance with the
appellant and deceased. Their evidence on incident is also hearsay. The
only addition is that they saw injuries on the chest, throat and head.
P.W. 6 is a photographer, who has taken photograph of dead body. P.W. 7
is a panch witness to inquest panchanama, seizure of clothes, spot
panchanama etc. P.W. 8 is panch witness to recovery of weapon. P.W. 9
is Investigating Officer, who does not speak as to why did he go to the
house of P.W. 2 nor does he depose about phone call made by P.W. 2. He
has deposed about what transpired in interrogation with the appellant
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where he disclosed about use of weapon. This evidence is hit by Section
25 of Evidence Act and thus inadmissible. P.W. 10 is the police officer,
who has recorded FIR. He also does not speak of visit to P.W. 2's house.
P.W. 11 is Medical Officer, who has conducted postmortem. Since there
is no dispute about homicidal death, his evidence does not require
detail analysis.
16. The trial Court has examined one Sunil Gawande as Court
witness finding that his statement was recorded by police, but not
examined by the prosecution. He deposed that P.W. 2 had made a phone
call and informed him that appellant will come to him (Court witness)
and that he should provide food to him. Accordingly, the witness gave
food to appellant. Thereafter P.W. 2 and two persons came to his shop
and took appellant with them.
17. As such, his evidence leads nowhere, however, the trial
Court has taken aid of his testimony to infer that P.W. 2 helped him and,
therefore, the confession given by him to P.W. 2 is voluntary. In our
view, the trial Court made an apparent error in appreciating evidence,
firstly, because P.W. 2 has not deposed about these facts in his evidence.
It is not known why P.W. 2 instructed this witness to provide food to
appellant. It is further not known how did P.W. 2 and other two persons
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came to his shop and where and why did they take accused with them.
Thus, the evidence is of no use.
18. Further, the prosecution failed to justify the allegation that
the appellant had destroyed the evidence by throwing dead body in
order to screen him of punishment. The place where body was thrown
is not disclosed. Further, none of the witnesses have deposed that the
dead body was thrown at any place. In fact, the evidence is otherwise.
The dead body was found in the house of deceased. Learned APP failed
to show, on what basis, the appellant was chargesheeted under Section
201 of the IPC. This creates further doubt in prosecution's theory.
19. Put altogether, the evidence collected by prosecution is
extremely weak, leading to no conclusion. The prosecution therefore,
failed to establish involvement of appellant with the crime. The
appreciation of evidence is not in consonance with the Evidence Act.
The trial Court has straight away relied upon extrajudicial confession
without analyzing the necessary requirements, particularly, use of
weapon in the crime. The trial Court believed motive behind crime to
be dinner which in itself does not appeal to the common sense,
particularly when the relations of deceased with the villagers, relatives
and his wife were strained. The prosecution, therefore, should have led
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evidence ruling out possibility of involvement of third person in the
crime.
20. In any case, there is no evidence beyond reasonable doubt
against the appellant to show his involvement in the crime. That being
so, the judgment of trial Court is liable to be set aside.
21. The appeal is accordingly allowed. The judgment and
order dated 22-9-2020 passed by learned Additional Sessions Judge,
Darwha in Sessions Trial No. 23/2018 is quashed and set aside.
Appellant Raju @ Macchar Soma Naitam is acquitted for offence
punishable under Section 302 of the IPC. He shall be released
forthwith, if not required in any other case.
22. The appeal stands disposed of in above terms.
23. Fees of the counsel appointed for the appellant shall be
quantified and paid as per the rules.
(RAJ D. WAKODE, J.) (Anil L. Pansare, J.)
wasnik
Signed by: Mr. A. Y. Wasnik
Designation: PS To Honourable Judge
Date: 11/11/2025 10:52:01
