Bombay High Court
Nitesh S/Klo Bharatlal Shahu vs State Of Mah., Thr. P.S.O. Nandanvan Ps. ... on 14 October, 2025
Author: Anil L. Pansare
Bench: Anil L. Pansare
2025:BHC-NAG:10918-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CRIMINAL APPEAL NO. 235/2020
Nitesh Bharatlal Shahu,
Aged 30 years, Occ. Painter,
r/o Plot No. 100, New Sahakar Nagar,
Nandanvan, Nagpur
(Presently in Central Prison, Nagpur) .....APPELLANT
...V E R S U S...
The State of Maharashtra, through
Police Station Officer, Police Station,
Nandanvan, Nagpur. ...RESPONDENT
--------------------------------------------------------------------------------------------------
Mr. Avinash Gupta, Senior Advocate, Assisted by Mr. Akash Gupta,
Advocate for appellant.
Mr. I. J. Damle, A.P.P. for respondent-State.
--------------------------------------------------------------------------------------------------
CORAM:- ANIL L. PANSARE AND Y. G. KHOBRAGADE, JJ.
DATE OF RESERVING THE JUDGMENT : 10.10.2025
DATE OF PRONOUNCING THE JUDGMENT : 14.10.2025
ORAL JUDGMENT (Per: Anil L. Pansare, J.)
Appellant is aggrieved by judgment and order of conviction
dated 12.07.2019 passed by Sessions Judge - 11, Nagpur in Sessions
Trial No. 393/2016, thereby convicting the appellant and another for
the offences punishable under section 302 read with section 34 of the
Indian Penal Code, 1860 ("IPC"). Another accused was Ajay Bharatlal
Sahu, who had also preferred appeal being Criminal Appeal No.
606/2019. He has expired pending appeal and, therefore, the said
appeal stood abated. Both the accused were sentenced to life
imprisonment. The facts in brief are as under:
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2. On 30.05.2016, one Rajendra Malode lodged report with
Police Station Nandanvan, stating therein that he has two brothers,
namely, Chandrashekhar and Narendra. Chandrashekhar was addicted
to liquor. He was having company of Chetan Supare (PW3) and Ajay
Sahu (deceased accused). They were engaged in painting works. There
was previous hostility between Chetan and Ajay arising from a prior
quarrel, for which crime under Sections 110/117 of the Maharashtra
Police Act, 1951, was registered. On 29.05.2016. Rajendra was at his
house. At that time, Sukant Landge came to his house and informed
that there occurred quarrel between Chandrashekhar at one side and
Ajay and Nitesh, the appellant on other side. He also informed that
Chandrashekhar was taken to Medical Hospital. Upon receiving the
information, his mother went to Medical Hospital with Sukant. He
made a phone call from the hospital and informed that Chandrashekhar
expired. Accordingly, Rajendra went to Medical Hospital. He noticed
that Chandrashekhar's head was broken with injuries and had other
injuries on his person. He asked Chetan about the injuries, whereupon
details of incident were given by Chetan and accordingly First
Information Report (FIR) was lodged vide Crime No. 418/2016, for the
offences punishable under Section 302 read with Section 34 of the IPC.
3. The investigating officer visited the spot. He recorded
statements of witnesses, weapon was seized at the instance of appellant,
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clothes of deceased and accused were seized and sent to chemical
analysis. Investigating officer collected evidence including postmortem
report. After completing investigation, charge sheet was filed.
4. The Trial Court examined 14 witnesses and two defence
witnesses. The defence of the appellant was of total denial and false
implication. The Trial Court after having gone through the entire
evidence and after having heard both sides, held appellant and Ajay
guilty for the offence. Accordingly, both were sentenced to life
imprisonment. Since Ajay has expired, the parties before us have argued
the case to ascertain whether the appellant has committed the murder.
5. We have heard Mr. Avinash Gupta, learned Senior Counsel
assisted by Mr. Akash Gupta, learned counsel for the appellant and
Mr.Indrajit Damle learned APP for the respondent- State. We have gone
through the evidence, documents and other materials placed before us.
We will refer to the same to the extent necessary to decide the following
points that arise for our consideration. We have recorded our findings,
thereon for the reasons to follow.
Sr.No Points Findings
1. Has the prosecution proved that In the affirmative.
Chandrashekhar Malode suffered
homicidal death?
2. Has the prosecution proved that In the affirmative.
appellant has committed murder of
Chandrashekhar Malode?
4 APEAL235.20.odt
3. Whether interference is called for in the In the Negative.
judgment?
4. What order? The appeal is
dismissed.
REASONS:
As to point Nos.1 and 2:
6. Both the points are interlinked and hence are decided by
common reasoning. The prosecution was under obligation to prove that
Chandrashekhar suffered homicidal death and that the appellant was
responsible for the same and has caused murder.
7. PW3 Chetan Supare is the star witness. He has witnessed
the incident. As such, the appellant's brother PW9 Manoj has also
witnessed the incident but he resiled from his statement made before
the police and thus did not support the prosecution. The case of
prosecution is based upon one witness i.e. PW3 Chetan.
8. He deposed that on 29.05.2016, he met Chandrashekhar at
about 8:00 to 08:30 p.m. He referred to the earlier case wherein a
quarrel arose between him and Ajay and informed Chandrashekhar that
Ajay is not attending the Court and, therefore, warrant may be issued
against him. Upon that, Chandrashekhar suggested to meet Ajay so as
to give him an understanding. Both went to Ajay's house and called
him. Chandrashekhar informed Ajay to go to the Court. Ajay said, he
5 APEAL235.20.odt
will. At that time, appellant came out and said to Chandrashekhar that
he has informed him many times to not come to his house; on which
Chandrashekhar said that he's not talking to him (appellant) and asked
him to keep quiet. There occurred altercation between appellant and
Chandrashekhar. The appellant slapped Chandrashekhar. He fell
down. At that time, PW3 Chetan rushed to save him. Appellant asked
Ajay to catch him (PW3). Ajay caught him. Appellant sat on
Chandrashekhar's stomach, caught his head and struck his head against
road for 10 to 15 times. Appellant then went inside house and brought
knife, again sat on the stomach of Chandrashekhar stabbed him on his
chest. At that time, appellant's elder brother Manoj came out of the
house and tried to catch appellant. He did not pay any heed. Manoj
snatched the knife from the appellant's hand but he was not paying
heed to anybody. He again sat on stomach of Chandrashekhar and
started striking his head on the Ground. Thereafter, Manoj said that he
is dead and asked to take Chandrashekhar to Medical Hospital. The
appellant informed PW3 to come to Hospital. They all put
Chandrashekhar in the auto rickshaw of Manoj. He took
Chandrashekhar to Hospital. PW3 also reached and Manoj and PW3
returned back in his auto rickshaw. PW3 then went to the house of
Sukant Landge and informed him about the incident. They went to the
house of Chandrashekhar. Sukant narrated the incident to
Chandrashekhar's mother. Thereafter, they all went to Medical Hospital.
6 APEAL235.20.odt
Later on, Chandrashekhar's brother, PW1 Rajendra came there. PW3
informed Rajendra about the incident, who lodged report. PW3 then
identified the weapon used in the crime.
9. In cross-examination, the appellant put up a case, indicating
that there occurred quarrel between PW3 and Chandrashekhar and few
others on one hand and Ajay on the other and that Ajay was beaten by
these people. Case was also put up saying that Chandrashekhar was
heavily drunk. The case was also put up that PW3 committed murder
of Chandrashekhar by strangulating him and falsely implicated
appellant and Ajay to take revenge against them. The witness denied
the case so put up by the appellant. The witness withstood the cross-
examination. The defence has not even questioned about identification
of weapon used in the crime.
10. The testimony of PW3, therefore, can be safely relied upon.
However, Mr.Gupta, learned Senior Counsel argued that his testimony
has been falsified by the medical evidence. He has invited our attention
to postmortem report Exh. 68. PW6 Dr. Nitin Baramate, who conducted
postmortem examination, deposed that the probable cause of death was
head injury with strangulation. The argument is that death has
occurred by strangulation as well but PW3 has not uttered a single
word about it and, therefore, his evidence is not believable.
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11. Mr. Gupta further submitted that the injuries reported in
postmortem report, particularly injury Nos. 3 and 4 are said to be
caused by knife in question. PW6 Dr. Baramate admitted that the knife
is one edged and its other edge was blunt. According to Mr. Gupta, such
a weapon with one edge blunt cannot cause an incised wound.
Therefore, the weapon allegedly seized is not connected to the incident
of crime.
12. The discovery of knife at the instance of the appellant is
also said to be not believable because in the first part of memorandum
recorded under section 27 of the Indian Evidence Act, 1872 ("Evidence
Act"), the appellant has not disclosed the place where the knife was
allegedly concealed. Accordingly, it is argued that the recovery of
weapon is not believable. In support, reliance is placed on the
judgment of Coordinate Bench of this Court in Criminal Appeal
No.101/2001 (Manoj Madanlal Tekam .Vs. The State of Maharashtra ),
wherein the Court held that if the place where the weapon was
concealed was not stated by the appellant in the first part of
memorandum, consequent recovery from the place from where the
recovery is made, is of no use.
13. These contentions have been rightly countered by Mr.Damle
learned A.P.P. He submits that the Doctor's evidence will have to be
8 APEAL235.20.odt
read in the light of what PW3 has said. PW3 has, in clear terms,
defined the incident. The appellant has banged Chandrashekhar's head
against road for 10 to 12 times. In doing so, he sat on his stomach not
once, but twice. In between he brought knife and inflicted blows on
Chandrashekhar's chest. Despite such status, the doctor opined that the
probable cause of death is head injury and strangulation. Thus, the
cause of death includes head injury for which none other than the
appellant was responsible. He, therefore, cannot escape the liability by
harping upon the other part of the cause of death. The doctor has not
opined that the cause of death is either head injury or strangulation.
Opinion is that the cause of death is head injury and strangulation.
Thus, Chandrashekhar suffered death for two reasons; head injury and
strangulation. The evidence as regards head injury is writ large and
that being the cause of death, the guilt of the appellant is established.
14. So far as injury Nos. 3 and 4 are concerned, the appellant
has not even put up a case that these injuries could not have been
caused by the knife identified by PW3. Mr. Damle submits that, had the
appellant asked doctor about it, he would have explained how these
injuries could have been caused by the weapon having one side blunt.
Having not done so, the appellant cannot now question occurrence of
injury by the said weapon.
9 APEAL235.20.odt
15. Mr. Damle, then referred to the testimony of appellant's
brother PW9 Manoj. He did not support the prosecution version. He
resiled from his statement made before the police. Accordingly, he was
cross-examined by the learned A.P.P. His attention was drawn to his
statement made before the police, where he has said that when he came
out, he saw appellant was pressing neck of Chandrashekhar. He had
also stated before the police that he saw the appellant striking
Chandrashekhar's head on road. This contradiction has been proved by
the prosecution through the investigating officer. Accordingly, Mr.
Damle argued that this part of the evidence will justify the death by
strangulation.
16. At this stage, Mr. Gupta, learned Senior Counsel invited our
attention to the judgment of the Hon'ble Supreme Court in the case of
Mahavir & others Vs. State of Haryana [Criminal Appeal No.5560-5561
of 2024], wherein the Supreme Court reiterated the principles of law
that the material elucidated as contradiction by use of section 145 of
the Evidence Act is not substantive evidence. The Court accordingly
held that contradiction so proved does not translate the contradiction
into substantive evidence and thus cannot be acted upon to base a
conviction.
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17. Thus, the law is well settled that contradictions cannot be
taken aid of to base a conviction. However, the argument of Mr. Damle,
is that Chandrashekhar suffered death, not only by strangulation, but
also by head injury. The prosecution has successfully established the
appellant's role in causing head injuries and, therefore, he cannot
escape the liability of consequences of such an act. We find merit in the
submission. We may add few things here. The doctor, while answering
questions, stated that there can be n-number of means of strangulation,
which may be by hands, rope, cloth, by bamboo stick, by wire, etc. He
denied that if there is strangulation, there has to be marks. He, then
admitted that strangulation may be caused by accident.
18. Thus according to the Doctor, there are multiple ways by
which strangulation could be caused. In the present case, the appellant
sat on Chandrashekhar's stomach and repeatedly assaulted him; firstly,
by striking his head against road and thereafter by inflicting knife blows
on his chest. Evidence of PW3 indicates that when his brother tried to
control the appellant, he was not paying heed to anyone. Thus he
continued to assault Chandrashekhar. Ultimately, his brother said that
Chandrashekhar has died. Thus, the appellant for substantial time was
sitting on the stomach of Chandrashekhar, he mercilessly beat him and
multiple acts were performed by him while inflicting the injuries.
11 APEAL235.20.odt
Sitting on stomach for considerable time with multiple means of assault
on vital parts of body could be the reason for strangulation, showing no
mark of strangulation.
19. In any case, the prosecution has proved death by head
injury and, therefore, appellant's role is fully established through PW3,
whose version is natural and reliable. Law is well settled that the
conviction can be based solely on the testimony of an eye witness, if it is
reliable. In Ravi Vs. State represented by Inspector of Police, [2008 ALL
SCR 2011], the Hon'ble Supreme Court in a case that was based on the
testimony of a single witness, held that when prosecution version
essentially rests on the testimony of a single witness, the same may be
relied upon without corroboration depending on the facts and
circumstances of each case. The Supreme Court held that as a general
rule, Court can and may act on the testimony of single witness though
uncorroborated. It is so because one credible witness outweighs the
testimony of a number of other witnesses of indifferent character. The
Supreme Court further noted that unless corroboration is insisted upon
by statute, the Court should not insist on corroboration except in cases
where the nature of the testimony of the single witness itself requires as
a rule of prudence, that corroboration should be insisted upon, for
example, in a case of child witness or of a witness whose evidence is
that of an accomplice or of an analogous character.
12 APEAL235.20.odt
20. The judgment, in our view, will put to rest the argument of
the appellant. Once it is found that testimony of PW3 inspires
confidence, the convention can be based relying on such testimony,
without there being corroborative piece of evidence. PW3 has vividly
described the entire incident. He has withstood the cross-examination.
Thus, conviction of appellant is well founded on his testimony. The
defence of the appellant that the prosecution failed to throw light on
death by strangulation, carries no substance for the reasons which we
have noted in the earlier paragraphs.
21. Another limb of argument is that Chandrashekhar might
have suffered accidental death. Mr. Gupta, learned Senior Counsel has
invited our attention to station diary entry, Exh. 91, which reads thus :
"There is an entry at this time that Chandabai
Madhukar Malode stated that some unknown auto-
rickshaw driver admitted her son Chandrashekhar
Madhukar Malode, r/o Pandit Nagar, Hasanbaugh for
treatment and he died while undergoing treatment.
She has come to know that he met with an accident in
Kharbi Square at about 21.00 hours. On the basis of
the said information, I sent Chandabai Malode to
Medical Hospital to confirm the said body and 1 along
with the Police Staff left by Peter mobile van to verify
veracity of the said information."
22. The entry is dated 30.05.2016. The time noted is 1.05
hours. It indicates that Chandrashekhar's mother received information
that some unknown auto rickshaw driver admitted her son
Chandrashekhar in the hospital for treatment and he died while
13 APEAL235.20.odt
undergoing the treatment. She came to know that Chandrashekhar met
with an accident at Kharbi Square at about about 21:00 hours.
Accordingly, the police officer registered entry, sent her to Medical
Officer to confirm the body and the police staff left to verify the veracity
of the said information.
23. This entry discloses few facts. One is that she received
information that some unknown auto rickshaw driver has admitted
Chandrashekhar in hospital and that he informed that Chandrashekhar
expired while undergoing the treatment. She was also informed that
Chandrashekhar met with an accident.
24. Mr. Damle, learned A.P.P. argued that as per evidence of
PW3, Chandrashekhar was admitted by none other than PW9 Manoj,
the brother of appellant. The entry referred to above shows that auto
driver had given information to Chandabai. Therefore, it is Manoj, who
has given false information to Chandrashekhar's mother about his
suffering accidental death. Further argument is that the Police Officer
left to verify the veracity of the information. Thus, according to Mr.
Damle, the information so received was to be verified and after
verification what revealed is that appellant is the one who has
committed murder. This entry, therefore, will be of no help to
appellant.
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25. The argument requires acceptance. It is nobody's case that
except for PW9 Manoj, some other person has taken Chandrashekhar to
hospital in the auto rickshaw and admitted him in hospital. In the
circumstances, if an auto rickshaw driver has informed
Chandrashekhar's mother that he has admitted Chandrashekhar to
hospital and that he suffered accidental death, there is every reason to
believe that the auto rickshaw driver is PW9 Manoj and has given false
information to save his brother.
26. We may note hear that both; appellant and prosecution
have invited our attention to the statement of PW3 (Exh.114) recorded
under section 164 of the Criminal Procedure Code, 1973. The appellant
relied upon the said statement to point out that PW3 Chetan has stated
before the Court that Chandrashekhar and Ajay were consuming liquor
on that day and there occurred altercation between the two. This is
highlighted to argue that the possibility of Chandrashekhar falling down
and suffered accidental death by strangulation, cannot be ruled out. Mr.
Damle, learned A.P.P. relied upon the said judgment to point out that
PW3 Chetan stated before the Court that Manoj and Ajay, the brothers
of appellant asked him to tell to others that it was an accidental death,
but he refused to do so.
15 APEAL235.20.odt
27. These submissions, however, cannot be relied upon by
either side in terms of the law laid down in Mahavir's case (supra),
where the Supreme Court reiterated the principle of law that statement
under sections 161 and 164 of the Cr.P.C. can be used to prove
contradictions or omissions in the testimony of witnesses to impeach
their credibility and for no other reason, though statement under
Section 164 of the Cr.P.C. can also be used for corroboration.
28. Be that as it may, Mr. Damle, learned A.P.P. is correct in
contending that the person who must have informed Chandrashekhar's
mother about his accidental death is PW9 Manoj, who had carried
Chandrashekhar to hospital in his auto rickshaw. There is thus no
substance in the argument of appellant that Chandrashekhar might
have suffered accidental death.
29. Put all together based on the testimony of PW3 Chetan, the
conviction of appellant can be well sustained. The Trial Court has
considered all the attending circumstances and has rendered a well
reasoned finding in this regard.
30. So far as the other witnesses are concerned, their evidence
in the light of testimony of PW3 Chetan will not have any adverse
16 APEAL235.20.odt
impact upon the prosecution's case. Rather, it will only corroborate the
same. PW1 Rajendra is the brother of Chandrashekhar. He has lodged
FIR after having visited the hospital upon receiving information. He has
not witnessed the incident. Therefore, he has no personal knowledge
thereof. PW2 Rahul is the witness to spot panchanama. The spot of
incident has been well established in the testimony of PW3 and,
therefore, evidence of PW2 Rahul will be hardly of any significance.
Similar is the status of PW4 Rajesh, who has witnessed the seizure of
clothes and blood samples.
31. PW5 is Sukant Landge. He deposed in tune with what PW3
has stated. According to him, he received the information of incident
from PW3 and has passed on the same to Chandrashekhar's mother.
32. We should note here the series of events which will clarify
as to how the station diary entry regarding accidental death must have
been registered. The evidence of PW3 Chetan, indicates that the
incident occurred on 29.05.2016 at about 09:00 to 10:00 p.m. PW3
Chetan, Manoj, Ajay and Nitesh - the appellant, put Chandrashekhar in
auto rickshaw. Manoj took Chandrashekhar to Medical Hospital in his
auto rickshaw. Appellant asked PW3 to come to the hospital, meaning
thereby that PW3 did not travel in auto rickshaw. Manoj admitted
Chandrashekhar in hospital. Manoj and PW3 then returned back in auto
17 APEAL235.20.odt
rickshaw. Manoj dropped PW3 at Hasanbagh Chowk. PW3, took his
motorcycle and went to the house of PW5 Sukant Landge and informed
him about the incident. Thereafter, PW5 narrated the incident to
Chandrashekhar's mother. In the meantime, when Manoj admitted
Chandrashekhar to hospital, he must have called Chandrashekhar's
mother and informed her about accidental death. This is how the
station diary entry must have been registered. Thus, the defence made
an attempt to divert the attention of police. In any case, entry was
registered for verification of information and after verification, role of
appellant was disclosed.
33. PW5 is the doctor, who has performed postmortem. His
evidence has been discussed. PW7 is the witness to discovery of knife
at the instance of appellant. His evidence has been ignored. PW8 is the
carrier of viscera and the blood of the deceased. His evidence is formal
and does not require any comment. PW9 is brother of appellant. He
has turned hostile. His evidence is already discussed. PW10 is
neighbour of the appellant. He has deposed that he has seen one
injured lying on the ground. He has also seen that the appellant, his
brother Ajay and Manoj carried him to the hospital. Thus his evidence
would corroborate the prosecution's version that Chandrashekhar
suffered homicidal death and not accidental. PW11 is the one who has
prepared spot panchanama and has registered FIR. PW12 is also pancha
18 APEAL235.20.odt
to the discovery of weapon at the instance of the appellant. Said part of
the evidence has to be ignored. PW13 is yet another formal witness who
carried muddemal for chemical analysis. His evidence is also not
significant and does not require further comment. PW14 is the main
investigating officer whose evidence to the extent necessary is already
discussed.
34. So far as the defence witnesses are concerned, Mr. Gupta,
learned Senior Counsel for the appellant submits that their evidence is
of no use and can be ignored. This is how the evidence is led.
35. The series of events noted above would clearly establish the
guilt of the appellant. The appellant made several attempts before the
Trial Court to create confusion but the prosecution successfully dealt
with the said attempts. The brother of appellant though had witnessed
the crime, has resiled from his statements made earlier. PW9 Manoj
made an attempt to deviate the attention of the police by misleading
Chandrashekhar's mother by giving false information that
Chandrashekhar suffered accidental death.
36. Thus, the overall evidence is incriminating against the
appellant. Such evidence, if looked into in the light of Section 3 of the
Evidence Act, we have no hesitation in upholding the Trial Court's
19 APEAL235.20.odt
finding. As per Section 3 of the Evidence Act, a fact is said to be proved
when, after considering the matters before it, the Court either believes it
to exist, or considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon the
supposition that it exists.
37. In the present case, the overall evidence, as discussed
above, is sufficient to believe that Chandrashekhar's death was
homicidal and that the appellant is the one who is responsible for such
death. Point Nos. 1 and 2 are accordingly answered in the affirmative.
As to Point Nos. 3 and 4:
38. Having answered first two points in the manner
hereinabove, no interference is called for in the impugned judgment.
There is no substance in the appeal. The appeal is accordingly
dismissed.
(Y. G. Khobragade, J.) (Anil L. Pansare, J.)
kahale
