[Cites 5, Cited by 0]
Bombay High Court
Shankar S/O. Vithoba Dhengare vs State Of Maharashtra Thr. P.S.O., P.S. ... on 23 February, 2026
Author: Anil L. Pansare
Bench: Anil L. Pansare
2026:BHC-NAG:3070-DB
35-apeal-17-2019.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 17 OF 2019
Shankar s/o Vithoba Dhengare,
aged about 35 years, Occ. Labourer,
R/o Ambedkar Ward, New Wadsa,
Tah. Wadsa, Dist. Gadchiroli.
...APPELLANT
Versus
State of Maharashtra,
Through Police Station Officer,
Police Station - Armori,
District - Gadchiroli.
...RESPONDENT
Mr. R.R. Gour, Counsel for the appellant (appointed).
Mr. S.S. Hulke, A.P.P. for the respondent/State.
.....
CORAM : ANIL L. PANSARE AND
NIVEDITA P. MEHTA, JJ.
ARGUMENTS WERE HEARD ON : 29/1/2026
JUDGMENT IS PRONOUNCED ON : 23/2/2026
JUDGMENT (PER : ANIL L. PANSARE, J.) :
The appellant has taken an exception to the
judgment and order dated 29/11/2017 passed by the learned
Sessions Judge, Gadchiroli, in Sessions Case No. 121/2015,
thereby convicting the appellant for the offence punishable
under Section 302 of the Indian Penal Code, 1860 (IPC). He
has been sentenced to suffer imprisonment for life. As such, the
appellant and one Dadaji Nimbaji Gajbhiye were tried for the
offence punishable under Section 302 read with Section 34 of
IPC, however, the trial Court was pleased to acquit Dadaji.
2] The facts in a nutshell are that on 26/7/2015, at
Kasavi forest area, when the appellant, along with the
informant - Abdul Kadir Abdul Sattar Sheikh - PW1, co-
accused - Dadaji and one Vishnu Sahu, was sitting at Railway
Station - Desaiganj, a beggar, named Madhukar Shende, was
listening to songs on mobile handset of the co-accused -
Dadaji. There was one more beggar sitting nearby. The
appellant snatched Rs.7/- from that beggar. On being asked as
to why the appellant snatched the money, the appellant beat
him. Then, all of them, except both the beggars, went to
Navegaon Bandh. After consuming liquor, when they were
returning by train, Madhukar met them at Wadegaon Railway
Station. The appellant took him in the train, and on not
returning the mobile handset, the appellant started quarreling
with him. Thereafter, the appellant took him, co-accused -
Dadaji and the informant - Abdul Kadir to his home. He took
one steel rod. Thereafter, they went inside the forest from
Kasavi Phata. Thereafter, both the accused asked Madhukar
about the mobile handset, and on his denial, the appellant hit
him with steel rod on his leg. When, PW1 tried to intervene,
the appellant also beat him. Again, both the accused started
beating the deceased, so he fell down. Therefore, PW1 fled
away.
3] It is further the case of the prosecution that
thereafter, both the accused came near Kasavi Phata, and took
him to Village - Kondhala. He (Shankar) administered him
(Abdul (PW1)) liquor. Thereafter, again they returned to
Wadsa. The informant told the incident to one Policeman by
name Faiyyaj. He took him to Wadsa Police Station. He told the
incident to Police. Wadsa Police took him on the spot. That
time, deceased - Madhukar was lying seriously injured. He was
moaning. He had injury to his both legs, hands, and blood was
oozing. The deceased was taken to Armori Hospital, where
Doctor declared him dead. PW1 lodged report, and accordingly,
crime was registered against both the accused, vide Crime No.
41/2015 for the offence punishable under Section 302 read
with Section 34 of IPC.
4] The investigation was taken-up by PW5 - Narayan.
He conducted inquest panchanama, referred body for
postmortem, visited the spot at Kasavi Phata, seized blood
stained earth and simple earth, drawn necessary panchanamas
of spot and recovery of articles. Both accused were arrested on
the same day. Blood samples of accused were also taken, blood
stained iron rod was recovered at the instance of the appellant,
from the bushes near Kasvi Jungle, rod was sent for medical
opinion, statement of witnesses were recorded, and
chargesheet was filed.
5] The trial Court framed charge. The original accused
did not plead guilty. The prosecution examined seven witnesses
to bring home their guilt. The trial Court, having considered all
attending circumstances, found appellant guilty of crime. The
co-accused was, however, acquitted for want of sufficient
evidence. The said finding is challenged by the appellant.
6] We have heard Mr. R.R. Gour, learned Counsel for
the appellant, and Mr. S.S. Hulke, learned A.P.P. for the
respondent/State. We have gone through the evidence and
documents, impugned judgment, etc. We will refer to the same
to the extent necessary to decide following points that arises
for our consideration. We have recorded our findings thereon
for the reasons to follow.
Sr. No. Points Finding
1 Whether the prosecution has In the negative
proved that the appellant is
responsible for homicidal death of
the deceased - Madhukar Shende ?
2 Whether interference is called for in In the affirmative
the impugned judgment ?
3 What order ? Appeal is allowed
REASONS
As to point nos. 1 and 2
7] Both points are interlinked, and hence, decided by
common reasoning. The appellant has not disputed the
homicidal death of Madhukar Shende. The dispute is about
involvement of appellant in the crime. Accordingly, the
evidence is being considered.
8] The testimony of PW1 is heavily relied upon by the
trial Court. He was with the accused persons almost
throughout the day. He has given details of the offence in
following manner :
9] PW1 stated that he knew both the accused persons,
as they belonged to his Village, and that, he was also
acquainted with the deceased - Madhukar. He stated that the
incident had occurred about two years prior to his deposition.
On the date of incident, he was facing some family tension, and
therefore, was sitting at the Railway Station - Desaiganj,
between 8:00 to 8:15 am. The deceased - Madhukar was also
sitting with him at the railway station. At that time, co-accused
- Dadarao, the appellant and Vishnu came there. Another
beggar was present at the station. The deceased was listening
to songs on the mobile handset of Dadarao. He stated that the
appellant snatched money from the other beggar. When the
beggar questioned the appellant as to why he had snatched his
money, the appellant took a stick from the same beggar and
assaulted him on his legs. He further deposed that his Uncle -
Sheru, who was serving in C.R.P.F., was also present at the
railway station. Sheru objected to the act of beating the beggar,
and slapped the appellant twice or thrice.
10] Thereafter, a train arrived, and PW1, co-accused -
Dadarao, the appellant and Vishnu boarded the train, and went
to Navegaon Bandh. At Navegaon Bandh, they consumed
liquor. Thereafter, they returned towards Desaiganj by train
scheduled at about 12:30 p.m. While returning, deceased -
Madhukar met them at Wadegaon. PW1 stated that the
appellant took the deceased inside the train and questioned
him regarding the mobile handset. When the deceased replied
that he did not have the handset, the appellant assaulted him.
Due to this assault, passengers in the train became aggressive.
Thereupon, the appellant told them that he would take the
deceased to the hospital. PW1 further stated that all of them
alighted at Wadsa.
11] Thereafter, PW1, appellant, deceased and Vishnu
sat on a motorcycle. However, instead of proceeding towards
hospital, the appellant took them to his house and picked up a
steel rod. Thereafter, the appellant took them towards Kasvi
Jungle. PW1 stated that he tried to stop appellant, but he did
not listen. They proceeded about 500 to 600 meters inside the
jungle from the main road. Vishnu alighted on the road, while
appellant assaulted the deceased with steel rod inside the
jungle, allegedly demanding the mobile handset. PW1 stated
that when he intervened to stop the assault, the appellant also
assaulted him with two blows of steel rod. PW1 stated that
thereafter, he fled from the spot and came onto the road. A
Tata S vehicle was passing by, which he stopped by giving a
signal. However, the occupants of the vehicle refused to help,
and went away. Thereafter, appellant and Vishnu came near
him, took him on motorcycle, and brought him to Village -
Kondhala, and thereafter, to Desaiganj. PW1 stated that
appellant again offered liquor at Wadsa.
12] PW1 then directly went to one Police Constable,
viz., Faiyyaj, who resided near his house, and narrated entire
incident to him. Faiyyaj took PW-1 to Police Station. Thereafter,
they went to the spot of incident, where the deceased was
found alive, but with grievous injuries. PW1 stated that he gave
water to the deceased. The deceased was, then, taken to
Armori Hospital, but he died on the way. The doctor at Armori
Hospital declared him dead, following which, PW1 lodged
report. He deposed that the report was written as per his
narration, though name of Dadarao was incorrectly mentioned
instead of Vishnu Sahu. He stated that the report was not read
over to him, but the remaining contents were correct. The
report was marked at Exhibit 28, and printed FIR at Exhibit 29.
13] In cross-examination, PW1 admitted several
omissions in his report. He admitted that although he stated
before police that his Uncle - Sheru was present at the railway
station, the same was not mentioned in the report, and he
could not assign any reason for the omission. He admitted
omissions regarding assault on beggar, slapping of appellant by
Sheru, and aggressive reaction of passengers in the train. He
admitted omissions regarding going to appellant's house before
proceeding to the hospital, attempting to stop appellant,
distance inside the jungle, Vishnu alighting on the road,
stopping of the vehicle, refusal by its occupants, and giving
water to the deceased. He admitted that he did not state before
police that the deceased died before reaching the hospital.
14] PW1 further admitted that a theft case was
registered against him at Desaiganj Police Station. He denied
the suggestion that he had consumed liquor since morning,
though he admitted that appellant had consumed liquor with
him twice. He denied that after consuming liquor at Navegaon,
they went to their respective homes. He also stated that he did
not know as to whom the mobile handset belonged. He denied
all defence suggestions that he had assaulted the deceased,
taken his money, or falsely implicated the accused due to
previous enmity or to save himself from prosecution. He
admitted that he did not know the name of the Officer, who
reduced his report into writing, and that he never read the
report. He denied the suggestion that he had confessed his own
guilt to the police or that he lodged a false report to save
himself.
15] PW1 then deposed that when his statement, under
Section 164 of the Code of Criminal Procedure, 1973 (for short
"the Code"), was recorded, he did not state anything against
Dadarao. Upon being declared hostile to that extent, the
learned APP was permitted to cross-examine him. PW1 stated
that the name of Dadarao, in his statement under Section 164
of the Code, was incorrectly written. He denied the suggestion
that he had falsely named Vishnu to save Dadarao.
16] As could be seen, PW1 - informant's testimony
suffers from several omissions on vital facts. He has also
modified his version on material points. The most significant
modification is that, while lodging report before police, he did
not name Dadarao as accused, but had named Vishnu Sahu.
The prosecution, however, made an attempt to point out that
PW1 is trying to save Dadarao, and therefore, falsely named
Vishnu. PW1's testimony will have to be, therefore, carefully
scrutinized.
17] On the point of involvement of appellant, we find
that, there are several omissions in his statement recorded by
police. He stated before police that the deceased was listening
to songs on mobile handset of co-accused - Dadarao. PW1, co-
accused - Dadarao, appellant and Vishnu boarded train, and
went to Navegaon Bandh. They consumed liquor. While
returning back, deceased met them at Wadegaon. The
appellant took up a quarrel with him on the count of mobile
handset. We find no reason why should appellant have any
objection for deceased using mobile of co-accused, particularly
when co-accused is completely silent on this point. There is
further no reason why should appellant assault deceased when
he said that he does not have mobile handset. Most
importantly, after such assault, when all of them alighted at
Wadsa, they all, except Dadarao, went to the house of
appellant, where appellant picked-up a rod. They all, then,
proceeded to Kasvi jungle. They proceeded inside the jungle,
where appellant assaulted deceased by means of steel rod
inside the jungle demanding mobile handset.
18] Thus, despite assaulting deceased in the train, he
accompanied appellant to jungle. This theory doesn't appeal to
common sense. As such, PW1 has deposed that appellant took
them all towards jungle on motorcycle. While doing so, he
stopped motorcycle at his house, went inside, picked-up steel
rod, and took them all to jungle. In normal circumstances,
person, like deceased, should flee away from the spot, or at
least, make an attempt to do so. He, however, continued to
remain pillion rider on motorcycle, and ultimately, was beaten
to death by means of steel rod.
19] The steel rod was allegedly recovered at the
instance of the appellant. The Investigating Officer - PW5 and
the Medical Officer - PW7 both deposed that the steel rod was
stained with blood. The steel rod was sent to Forensic Science
Laboratory (FSL). The FSL report (Exh. 62), however, indicates
that no blood was found on the metallic rod. This discrepancy
will create doubt whether the weapon produced before the
Court was the same as was allegedly seized at the instance of
the appellant.
20] That apart, PW1 has also deposed that he came
back home, and reported the matter to his neighbour - Mr.
Faiyyaz, who is Police Constable. He took him to Wadsa Police
Station. He informed the incident to Police Station - Wadsa.
They all went to spot, and found that deceased was lying
seriously injured. The deceased was taken to Armory Hospital,
where doctor declared him dead. In cross-examination,
however, he deposed that he was taken to spot by Policeman -
Pathan, and thereafter, vehicle from Armori Police Station came
at the spot and PW1 was taken to hospital.
21] Thus, there is discrepancy as regards the manner in
which movement of vehicle of police took place. In chief
examination, PW1 states that he was taken to Police Station -
Wadsa, who took him to the spot, whereas, in cross-
examination, he states that policeman, namely, Pathan, took
him to the spot of incident, and thereafter, vehicle from Armori
Police Station arrived, and took PW1 to hospital.
22] PW7 - Dr. Rakesh attached to Sub-District Hospital,
Armori, deposed that dead body was brought by PW1. Thus,
PW7 does not say that dead body was brought by police. The
prosecution has not explained as to why the police did not
refer the dead body to hospital when they visited spot with
PW1 and brought him to hospital. The prosecution has further
not examined policeman - Pathan or Faiyyaz to corroborate the
testimony of PW1. The above discrepancy would create serious
doubt about credibility of PW1. In such cases, the prosecution
would be under obligation to put forth additional evidence,
which it failed to do in the present case.
23] PW2 - Anil is a panch witness to the seizure of
clothes, recovery of weapon and inquest panchanama. His
evidence on recovery of weapon will be insignificant for the
reasons, which we have discussed above, where we have held
that the weapon produced before the Court was not the same
as was allegedly recovered at the instance of the appellant. His
evidence will be, therefore, of no significance to show
involvement of appellant in the crime.
24] PW3 - Vijay, though cited as witness to the
incident, has not supported the prosecution version. He was
declared hostile, and cross-examined by the prosecution. He
denied that co-accused - Dadarao and PW1 used to visit
appellant for consuming liquor. He further denied that on the
date of incident, at about 1:30 pm, he had seen appellant, co-
accused, PW1 and an unknown person going on motorcycle
towards appellant's house. He also denied having seen
appellant riding motorcycle while co-accused carrying steel
rod. His evidence, therefore, is of no use.
25] PW4 - Premsing is the one, who has drawn map of
the spot. PW5 is the Investigating Officer, whose evidence, to
the extent necessary, has been already discussed. PW6 - Kalyan
is a Police Constable, who carried muddemal to FSL. PW7 is
doctor, whose testimony, to the extent necessary, has been
discussed.
26] Put altogether, prosecution's case is based only on
the testimony of PW1. His testimony, in our considered view, is
not credible enough to inspire confidence in a case that attracts
punishment for life imprisonment. It is well settled that in such
cases, the proof of guilt should be placed on higher pedestal.
Here is a case, where the trial Court has believed the testimony
of PW1, despite there being multiple omissions on material
facts, so also, improvement on the point of involvement of co-
accused. Most importantly, the story of deceased joining
appellant and others despite having been assaulted in the train,
is something that does not appeal to common sense. It is
unbelievable that the deceased also permitted appellant to go
to his house and get weapon, and thereafter, continued to be a
pillion rider on his motorcycle. The role of police, to whom
PW1 reported the incident, and who accompanied PW1, either
to Police Station or to spot, is also not spelt out by the
prosecution. The prosecution, for the reasons known to it, has
not examined these witnesses. Further, though the PW1 has
stated that appellant has assaulted him with two blows of steel
rod, the prosecution has failed to produce any medical
evidence to substantiate the alleged injuries. In the absence of
medical corroboration the said allegation remains unproved.
The other witness, i.e., PW3, who has allegedly seen the
incident, has not supported the prosecution.
27] As such, the learned A.P.P. submits that PW1's
evidence is trustworthy, however, the Counsel for appellant has
rightly pointed out to us various discrepancies in prosecution
story to disbelieve PW1's testimony.
28. The trial Court has committed serious error while
appreciating the evidence of PW1. We find it extremely risky to
attribute guilt to appellant based on such evidence. In the
circumstances, the concept of proof beyond reasonable doubt
will favour the appellant. The trial Court's finding, therefore,
will have to be overturned.
29] Accordingly, point no.1 is answered in the negative.
Point no.2 is answered in the affirmative.
As to point no.3
30] Having answered first two points in the manner
hereinabove, the prosecution failed to establish appellant's
guilt. The appellant has made out a case in his favour.
Resultantly, following order is passed :
ORDER
I] The appeal is allowed.
II] The judgment and order dated 29/11/2017 passed
by the learned Sessions Judge, Gadchiroli, in Sessions Case No.
121/2015, is quashed and set aside.
III] The appellant is acquitted of the offence punishable
under Section 302 of IPC. He shall be released forthwith, if not
required in any other case.
IV] Fees of the Counsel appointed to represent the
appellant be quantified and paid as per Rules.
JUDGE JUDGE
Sumit
Signed by: Mr. Sumit Agrawal
Designation: PS To Honourable Judge
Date: 23/02/2026 13:57:12
