Khairlanji Massacre Judgement of The Bombay High Court Dated 14th Jul 2010

1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
Criminal Confirmation Case No. 4/2008.
Central Bureau of Investigation
(Through D.S.P.,C.B.I.S.C.B. Chennai)
Camp at Bhandara.
…..Appellant.
.versus.
1. Sakru Mahagu Binjewar
(Original Accused No.2)
2. Shatrughna Isram Dhande
(Original Accused No. 3)
3. Vishwanath Hagru Dhande
4. Ramu Mangru Dhande
5. Jagdish Ratan Mandlekar
6. Prabhakar Jaswant Mandlekar
Respondent Nos. 1 to 6 R/o: Khairlanji
District: Bhandara (Maharashtra State).
...Respondents
Mr. Ejaz Khan, Spl. P.P. For appellant.
Mr. Sudip Jaiswal, Advocate for respondent nos. 1,5 and 6.
Mr. N.S.Khandewale, Advocate for respondent nos. 2,3 and
4.
2

Criminal Appeal No. 748/2008
1. Shatrughna s/o Isram Dhande
Aged about 40 years.
Occupation: Agricultural Labourer.
(Original accused no. 3)
2. Vishwanath s/o Hagru Dhande
Aged 55 years.
3. Ramu s/o Mangru Dhande
Aged 42 years.
Occupation; Agricultural Labourer.
(Original accused no.7)
4. Shishupal s/o Vishwanath Dhande,
aged 20 years.
(All the appellants are R/o: Village Khairlanji,
Tah. Mohadi, Distr.Bhandara.)
…....Appellants.
.versus.
The Central Bureau of Investigation,
through its Dy.S.P., C.B.I., S.C.B., Chennai,
Camp at Bhandara.
…....Respondent.
Mr. N.S.Khandewale Advocate for the appellants.
Mr. Ejaz Khan, Spl. P.P. for respondent.
3
1. Gopal Sakru Binjewar
Aged about 23 years,
Occupation: Cultivator,
R/o: Khairlanji, Tahsil Mohadi,
District: Bhandara.
District: Bhandara.
3. Jagdish Ratan Mandlekar
District: Bhandara.
(Original accused no.8)
4. Prabhakar Jaswant Mandlekar
District: Bhandara.
…....Appellants.
.Versus.
Central Bureau of Investigation,
through its D.S.P.,, C.B.I., S.C.B.
Chennai, Camp at Bhandara.
…....Respondent.

Mr. Sudeep Jaiswal, Advocate for the appellants.
Mr. Ejaz Khan, Spl. P.P. for respondent.
4
Special Crime Branch, Chennai Camp
O/o: SP, CBI, ACB, 3rd Floor, Block – C,
CGO Complex, Seminary Hills, Nagpur
Through PSI, CBI, Nagpur.
….Appellant.
Versus.
1. Gopal Sakru Binjewar,
OccupatioN: Labour.
2. Shishupal Vishwanath Dhande,
Occupation: Cultivator.
All residents of Village Khairlanji,
Tah: Mohadi, Distt. Bhandara.
….. Respondent.

Mr. Ejaz Khan, SPL, P.P. For the appellant.
Mr. Sudeep Jaiswal, Advocate for respondent no.1.
Mr. N.S.Khandewale, Advocate for respondent no.2.
Special Crime Branch, Chennai Camp
O/o. SP, CBI, ACB, 3rd Floor,
Block C, CGO Complex, Seminary Hills,
Nagpur, Through PSI, CBI, Nagpur.
…....Appellant.
.versus.
5
1. Gopal Sakru Binjewar,
Occupation: Labour.
Occupation; Labour.
3. Shatrughan Isram Dhande,
4. Vishwanath Hagru Dhande
5. Ramu Mangru Dhande,
6. Jugdish Ratan Mandlekar,
7. Prabhakar Jaswant Mandlekar,
aged abot 27 years,
8. Shishupal Vishwanath Dhande,
All residents of Village Khairlanji,
Tah. Mohadi, Distt. Bhandara.
…..Respondents.

Mr. Ejaz Khan, SPL. P.P. for appellant.
Mr. S.Jaiswal, Advocate for respondents 1,2,6 and 7.
Mr. N.S.Khandewale, Advocate for respondents 3,4,5 and 8.
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CORAM : A.P.LAVANDE & R.C.CHAVAN, JJ
DATE OF RESERVING : 29.04.2010
DATE OF PRONOUNCEMENT: 14.07.2010
JUDGMENT (PER A.P.LAVANDE, J)
Confirmation Case No. 4/2008 along with
connected four appeals are being disposed of by common
Judgment since they arose out of the Judgment and order
dated 15/24th September, 2008 passed by the Special Court
at Bhandara in Special Criminal Case No. 01/2007 filed by
Central Bureau of Investigation against eleven accused.
2. All the eleven accused were tried for the offences
punishable under Sections 302, 354, 449, 201, 148 read with
Section 149, 120B of the Indian Penal Code and Sections
3(1) (x), 3(1) (xi), 3(2) (v) and 3(2) (vi) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities ) Act,
1989. By the impugned Judgment accused nos. 1 to 3; 6 to 9
and 11 have been convicted and sentenced for different
offences and accused nos. 4,5 and 10 have been acquitted of
all the offences for which they have been charged. The
details of conviction and sentences imposed on accused
nos. 1 to 3, 6 to 9 and 11 are as under:
7
Accused Sections Sentence
nos.
1 to 3, 6 to 9 302 r/w 149 Imprisonment for life and
and 11. for murder payment of fine of Rs.2000/
of Surekha each i/d to undergo S.I. for
six months each.
2,3,6 and 9 302 r/w 149 Sentenced to death i.e.
for murder hang by neck till death and
of Sudhir payment of fine of Rs.2000/
each i/d to undergo S.I. for
six months each.
1 and 11 302 r/w 149 Imprisonment for life and
for murder payment of fine of Rs.2000/
of Sudhir each i/d to undergo S.I. for
six months each.
2,3 & 6 to 9 302 r/w 149 Sentenced to death i.e.
of Roshan payment of fine of Rs.2000/
six months each.
of Roshan each i/d to undergo S.I. for
six months each.
2,3 & 6 to 9 302 r/w 149 Sentenced to death i.e.
of Priyanka payment of fine of Rs.2000/
six months each.
of Priyanka each i/d to undergo S.I. for
six months each.
8
1 to 3 and 148 r/w 149 R.I. for three years and to
6 to 9 & 11 pay fine of Rs.1000/ each
i/d to S.I. for three months
each.
3. Confirmation Case No. 4/2008 arises out of death
sentence imposed on accused nos. 2,3,6,7,8 and 9;
Criminal Appeal No. 763/2008 has been filed by original
accused nos. 1,2,8 and 9 challenging the conviction and
sentences imposed on them; Criminal Appeal No. 748/08
has been preferred by the original accused nos. 3,6,7 and 11
challenging the conviction and sentences imposed on
them; Criminal Appeal No. 170/09 has been preferred by
Central Bureau of Investigation under Section 377 of the
Indian Penal Code, aggrieved by inadequacy of sentences
imposed on accused nos. 1 and 11 and Criminal Appeal No.
171/09 has been preferred by Central Bureau of
Investigation challenging acquittal of accused nos. 1 to 3, 6
to 9 and 11 for the offences punishable under sections 3(1)
(x), 3(1)(xi), 3(2) (v) and 3(2) (vi) of the Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
For the sake of convenience, the accused shall hereinafter
9
be referred to as per their status before the trial court.
4. Briefly, the case of the prosecution is as follows:
Informant Bhaiyyalal Bhotmange (P.W.17) was
residing at outskirts of Khairlanji village called as 'Toli' with
his wife Surekha and sons Sudhir and Roshan and daughter
Priyanka. They belong to Mahar caste (scheduled caste).
Sidharth Gajbhiye (P.W.11) Police Patil of nearby village
Dhusala is their family friend.
5. On 13.9.2006 Siddharth Gajbhiye came to the
house of Bhaiyyalal Bhotmange in the morning. Accused
No. 2 Sakru met Siddharth Gajbhiye and demanded back
wages on account of which there was a dispute between
them. Sidharth slapped Sakru. On the very day in the
evening when Sidharth was proceedings towards Kandri he
was assaulted by some villagers. On hearing the news of
assault Surekha Bhotmange and Priyanka rushed there and
brought Sidharth to their house. After two days Sidharth
lodged report at Andhalgaon Police Station pursuant to
which Crime No. 52/06 was registered. Surekha Bhotmange
10
gave statement identifying the persons/ accused who
assaulted Siddharth pursuant to which attackers were
arrested. On 29.9.2006 all the accused in Crime No. 52/06
were released on bail.
6. On 29.9.2006 at about 6 to 6.30 p.m. a group of
about 40 persons surrounded the house of Bhaiyyalal
Bhotmange and some of them shouted that they have been
falsely implicated by Surekha. They also gave abuses of
their caste. On seeing that Bhaiyalal ran away from the
house. Surekha came out of her house and set fire to her
cattle shed probably to ward off the attackers. Then
Surekha tried to run away but she was chased and caught by
the accused. She was assaulted by giving blows of sticks,
bicycle chains and also by giving kicks and fist blows.
Thereafter, Sudhir tried to run away but he was also chased
by the accused and he was assaulted by giving blows of
sticks, bicycle chains and by giving kicks and fist blows. His
body was dragged near the body of Surekha who was
already dead. All the accused then searched for other
members of the family of Bhaiyalal. They traced Roshan in
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nearby cattle shed. Roshan freed himself and ran away
towards the hand pump. All the accused chased him and
caught him near hand pump where he was assaulted by
giving blows of sticks, bicycle chains and by giving kicks
and fist blows. Thereafter, accused caught Priyanka near
the hand pump and all the accused beat her by giving blows
in the same manner. On account of assault, Roshan and
Priyanka died. Thereafter, all the accused brought four dead
bodies at one place and threatened others not to tell about
the incident to any one and further threatened that in case
the incident is disclosed they would also meet with the
same fate. Thereafter, accused brought one bullock cart and
took four dead bodies towards the village Kandri and then
dropped them in a canal.
6A. Bhaiyyalal Bhotmange after running away from
his house went to the house of Siddharth Gajbhiye at
Dhusala and told him about the incident. Siddharth made a
phone call to Andhalgaon Police Station. Thereafter,
Bhaiyalal, accompanied by son of Siddharth, went to
Andhalgaon Police Station but did not lodge report since he
was frightened. On the next day morning Bhaiyyalal went
12
to search his family members but he could not trace them
out. Then he went to Andhalgaon Police station and lodged
report. By this time, the police had received information
that the dead body of a girl with a tatoo mark 'Priyanka' on
the hand was found in a canal which was fished out. Police
called Bhaiyalal at Mohadi hospital where the dead body
was taken. Bhaiyalal identified the dead body of Priyanka.
On the same day at about 8.00 p.m. crime was registered
under Sections 147, 148, 149, 302 and 201 of the Indian
Penal Code and under Sections 3(1)(x) of Scheduled Caste
and Scheduled Tribe (Prevention of Atrocities) Act.
7. On 1.10.2006 the Sub Divisional Police Officer Mr.
Susatkar arrested about eighteen persons on suspicion. On
the same day three more dead bodies i.e. of Surekha, Sudhir
and Roshan Bhotmange were also found. Police prepared
inquest panchanamas of these dead bodies and the dead
bodies were sent for post mortem. Since the investigation
was not being carried out on proper lines, the State
Government handed over the investigation of the crime to
the State C.I.D.. However, not much progress was made in
13
the investigation.
8. By notification dated 20.11.2006 the State of
Maharashtra requested the Union of India to investigate the
crime through Central Bureau of Investigation. Central
Bureau of Investigation started investigation by registering
the crime at Special Crime Branch of C.B.I. Chennai vide
No. 11S2006. Thereafter, investigation was taken up by
SDPO of CBI Shri N.K.Sharma which was followed by Dy.
S.P. CBI Shri Nandkumar. In the course of investigation,
CBI recorded statements of several witnesses. CBI sought
discharge of thirty six accused who were suspected to be
involved in the crime which was granted by the learned
Magistrate. Statements of several witnesses were also got
recorded by the Magistrate in terms of Section 164 of the
Code of Criminal Procedure. After completion of the
investigation, CBI submitted charge sheet against eleven
accused for the offences punishable under Sections 147,
148, 149, 120B and 302 of the Indian Penal Code and
offences under The Scheduled Castes and The Scheduled
Tribes (Prevention of Atrocities) Act. The learned Judicial

14
Magistrate, First Class, Mohadi committed case to the court
of Sessions. Thereafter, the case was transferred to Special
Court for trial. The Special Court framed charge against all
the accused for the offences punishable under Sections 302,
148, 149, 354, 201 read with Section 149 and 120B of the
Indian Penal Code and under Sections 3(1)(x), 3(1)(xi) and
Section 3(2)(v) and 3(2)(vi) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act. The
accused pleaded not guilty to the charge and claimed to be
tried. The defence of the accused was of total denial and of
false implication.
9. In the course of trial, the prosecution examined
thirty six witnesses and produced several documents to
bring home the charge to the accused. The accused did not
lead any defence evidence. The learned trial Judge upon
appreciation of the evidence led by the prosecution
convicted and sentenced the accused nos. 1 to 3, 6 to 9 and
11 for different offences as stated above. The learned trial
Court acquitted the accused nos. 4,5 and 10 of all the
offences for which they were charged. The learned trial

15
Judge awarded the death sentence to accused nos. 2,3,6, 7,8
and 9.
10. We heard at length Mr. Sudeep Jaiswal, learned
counsel appearing on behalf of accused nos. 1,2,6 and 7, Mr.
N.S.Khandewale, learned counsel for the accused nos. 3,6,7
and 11 and Mr. Ejaz Khan, learned Special Public
Prosecutor on behalf of the CBI. With the assistance of
learned counsel for the accused and learned Special P.P. we
perused the record.
11. Mr. Jaiswal, learned counsel for the accused nos.
1,2,6 and 7 submitted that the conviction of accused nos.
1,2 6 and 7 and sentences imposed on them are liable to be
set aside, inter alia, on the following grounds.
i) The evidence of the eye witnesses i.e.
Mukesh Aasaram Pusam( P.W.2); Suresh
Shalikram Khandate (P.W.3), Bhaiyyalal
Bhotmange (P.W.17), Dinesh Dhande
(P.W.19) and Premlal Walke (P.W.22) does
not inspire confidence and as such is liable to
16
be rejected.
ii) There has been inordinate and
unexplained delay in recording the
statements of the witnesses more particularly
of the eye witnesses which is fatal to the
prosecution case.
iii) The evidence of the so called eye
witnesses is full of contradictions and
omissions seriously affecting their credibility.
iv) Extra judicial confessions alleged to
have been made by the accused nos. 2 and 8
to P.W.10 Anil Lede and P.W.16 Sunil Lede do
not inspire confidence.
v) The prosecution evidence is
tainted and is of only interested witnesses
and, therefore, is liable to be rejected.
vi) The medical evidence is at variance
with ocular testimony and, therefore, no
reliance can be placed on the eye witnesses
examined by the prosecution.
vii) The death sentence awarded to

17
accused nos. 2,6 and 7 is not warranted
inasmuch as the case can not be termed as
rarest of rare case warranting imposition of
death sentence.
In support of his submissions, Mr. Jaiswal relied
upon the following authorities.
i) State of M.P. vs. Kriparam
(2003) 12 Supreme Court Cases,
675.
ii) State of Punjab vs.Hardam Singh

& others.
679.
iii) Rangrao Mithuji Kalokar & ors.
vs. State of Maharashtra.
2006 ALL MR(CRI) NOC 90.
iv) State of Maharashtra vs. Ahmed

Gulam Nabi Shaikh & ors.
1996(4)CRIMES 352.
v) Kikar Singh vs. State of Rajasthan
AIR 1993 SC 2426.
vi) State of Andhra Pradesh vs.

Punati Ramulu and others.
AIR 1993 SC 2644
vii) Mohinder Singh & Anr. vs. State
of Punjab and others.
2003 ALL MR(CRI) 2330
18
viii) State of U.P. vs. Mundrika &
others.
I(2001)CCR 80SC
ix) Sirima Narashimha Rao & others

vs. State of Andhra Pradesh
2010 (1)BCR 802.
x) Shankar Lal vs. State of Haryana
AIR 1998 CRLJ 4592
xi) Tarseem Kumar vs. The Delhi
Administration
AIR 1994 SC 2585
xii) Dilavar Hussain and others. vs.
State of Gujrat and another.
1991(1) SCC 253
xiii) Varkey Joseph v. State of Kerala
AIR 1993 SC 1892
xiv) Omwati vs. Mahendra Singh &
others.
(1) 1998 CCR 130 SWC
xv) Tahsildar Singh and another vs.
State of U.P.
AIR 1959 SC 1012.

12. Mr. Khandewale, learned counsel appearing for
accused nos. 2,6,7 and 11 assailed conviction and sentences
imposed on these accused, inter alia, on the following
grounds.
i) There is unexplained and
inordinate delay of 24 to 26 hours in lodging
19
F.I.R. by Bhaiyyalal Bhotmange(P.W.17)
which creates serious doubt about
prosecution case.
ii) F.I.R. (Exh. 133) is full of
discrepancies and the written F.I.R. (Exh. 134)
does not correspondence with the oral report
lodged by P.W.17 Bhaiyyalal Bhotmange and
the same has been fabricated by the
investigation officer Siddeshwar Bharne
(P.W.23).
iii) The evidence of eye witnesses is full
of material contradictions and omissions and
tenor of their evidence discloses that they
were not the real eye witnesses to the
incident.
iv) There has been inordinate delay in
recording the statements of the witnesses,
more particularly the eye witnesses which
throws serious doubt on the prosecution
case.
v) The extra judicial confessions

20
alleged to have been made by accused nos. 2
and 8 to P.W.10 Anil Lede, P.W.15 Gopichan
Mohature and P.W.16 Sunil Lede do not
inspire confidence since both these witnesses
were induced to be the witnesses to the
alleged extra judicial confessions.
vi) The medical evidence tendered by the
prosecution thorough P.W.14 Dr. Avinash
Shende is at variance with ocular testimony
inasmuch as he has clearly admitted that
incise wounds found on the deceased could
be caused only by sharp edged weapon which
is contrary to the prosecution case.
vii) The medical evidence clearly belies
evidence of the eye witnesses.
viii) The prosecution has chosen not to
show weapons i.e. sticks and bicycle chains
seized during the investigation to Dr. Avinash
Shende (P.W.14) in order to establish that
these weapons could have caused injuries
found on the deceased.
21
ix) The entire investigation carried out
by the CBI is tainted and with a view to falsely
implicate eleven accused in the crime.
x) The death sentence awarded to
accused nos. 3,6 and 7 is not warranted since
the case can not be termed as rarest of rare.
In support of his submissions, Mr. Khandewale,
placed reliance on the following judgments.
i) Motilal and another vs. State of

Rajasthan.
(2009) 7 Supreme Court Cases, 454.
ii) State of Punjab vs. Avtar Singh
(2009) 10 SCC 800
iii) State of Andhra Pradesh
(2008) 14 SCALE 118.
iv) Sau. Panchafula Ramchandra

Khadse & another vs. State of
Maharashtra
2008 ALL MR (Cri.) 375

v) Ramesh Baburao Devaskar & ors.
vs. State of Maharashtra
2008 ALL MR (CRI) 293 (SC).
vi) Shankarlal vs. State of Rajasthan
AIR 2004 SC 3559.
22
vii) State of Rajasthan vs. Sheo Singh
& others.
AIR 2003 SC 1783
viii) Ashraf Hussain Shaj vs. State of
Maharashtra
1996 CRLJ 3147.
ix) Pannayar vs. State of Tamil Nadu
((2009)9 SCC 152).
x) Pratap Singh and another vs. State
of M.P..
2005) 13 Supreme Court Cases,
624.
xi) State of Rajasthan vs. Bhanwar

Singh & others.
2004(5) SCALE 711.
xii) Badam Singh vs. State of M.P.
(2003) 12 Supreme Court Cases,792.
xiii) State Inspector of Police,
Vishakhapatnam vs. Surya
Sankaram Karri.
xiv) Ashish Batham vs. State of M.P.
AIR 2002 Supreme Court, 3206.
xv) Shrishti Narain Jha vs. Bindeshwar
Jha and others.
xvi) State of Maharashtra vs. Pralhad
Champatrao Deshbhratar and
others.
2005(1) MHLJ 784
23
xvii) State of M.P. vs. Bacchudas @
Balram & others.
(2007)9 Supreme Court Cases, 135.
xviii) Lakhwinder Singh and others vs.
State of Punjab
AIR 2003 Supreme Court 2577.
xix) Brijpal Singh vs. State of M.P.
2003 AIR SCW 2480.
xx) State of Andhra Pradesh vs. S.
Swarnalatha and others.
IV(2009) CCR 286 (SC).
• xxi) Dhanapal vs. State by Public
Prosecutor , Madras
IV(2009) CCR 243(SC)
xxii) Jai Singh & others. vs. The State of
Karnataka
2007(5)SCAL 658.
xxiii) Vijaybhai Bhanabhai Patel vs.

Navnitbhai Nathubhai Patel and
other,
(2004) 10 Supreme Court Cases 583.
xxiv) Babu and others v. State of U.P.
AIR 1983 Supreme Court 308.
xxv) Sunil Chokhoba Shambarkar &

another vs. State of Maharashtra
2008 ALL MR (Cri) 360
xxvi) State of Rajashthan vs. Netrapal &
others.
xxvii) Haru Ghosh vs. State of West Bengal
IV(2009)CCR 7 (SC).
24
xxviii) Sushil Kumar vs. State of Punjab
IV(2009) CCR 193 (SC).
xxix) Lehna vs. Stateof Haryana
xxx) Jagjit Singh alias Jagga vs. State of
Punjab
(2005) 3 Supreme Court Cases 689.
xxxi) Dhananjay Shanker Shetty vs. State
of Maharashtra
xxxii) Ramdas And others vs. State of

Maharashtra
(2007) 2 Supreme Court Cases, 170
13. Mr. Khan, learned Special Public Prosecutor
appearing on behalf of the CBI while supporting the
impugned Judgment and order submitted that accused nos.
1 and 11 ought to have been awarded death sentence and
the reasons given by the learned trial court for awarding life
imprisonment are patently unsustainable in law. He further
submitted that the acquittal of the accused nos. 1 to 4, 6 to 9
and 11 for the offence punishable under Section 3(1)(x), 3(1)
(xi) and 3(2)(v) and (vi) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities ) Act, 1989 is
patently unsustainable in law inasmuch as the prosecution
25
has clearly established the ingredients of the said offences
against the accused. Therefore, the acquittal of the said
accused for the offences punishable under the said
provisions is unsustainable and is liable to be set aside. He
further submitted that the investigation of the crime has
been carried out by CBI by following scientific methods
and only after verifying the complicity of the accused, CBI
filed the charge sheet against the accused. He further
submitted that the evidence of the eye witnesses P.W.2
Mukesh Pusam, P.W.3 Suresh Khandate, P.W.19 Dinesh
Dhande and P.W.22 Premlal Walke inspire confidence and
is in consonance with their statements before the CBI and
the Magistrate and, therefore, there is absolutely no reason
to discard their evidence. He further submitted that the
delay in lodging report by P.W. 17 Bhaiyyalal Bhotmange is
not fatal inasmuch as he was frightened after seeing the
mob near his house which made him to run away from the
spot. He further submitted that the evidence of the hostile
witness P.W.20 Mahadeo Zanzad to some extent
corroborates the version of the other eye witnesses and,
therefore, to that extent his evidence has to be considered,
26
more particularly having regard to the fact that the principle
of falsus in uno falsus in omnibus is not applicable in India.
He further submitted that extra judicial confessions made
by the accused nos. 2 and 8 to P.W.10 Anil Lede, P.W.15
Gopichand Mohature and P.W.16 Sunil Lede inspire
confidence and there is absolutely no reason to disbelieve
their extra judicial confessions. He further submitted that
the contradictions and omissions in the evidence of the eye
witnesses are on minor aspects which do not discredit their
entire testimony. He , therefore, submitted that the
Judgment and Order passed by the learned trial court be
modified by convicting accused nos. 1,2,3,4,6 to 9 and 11 for
the offence punishable under Section 3(1)(x), 3(1)(xi) and
3(2)(v) and (vi) of the S.C. S.T. Act and the accused nos. 1
and 11 be awarded death sentence.
In support of his submission, Mr. Khan relied
upon the following judgments;
i) Ashabai Machindra Adhagale vs. State
of Maharashtra and others.
AIR 2009 Supreme Court, 1973
ii) Swaran Singh and others vs. State
2008 CRI L.J. 4369.
27
iii) Bachcha vs. State of U.P.
2008 CRI.L.J. 483.
iv) Vidyadharan vs. State of Kerala
2004 CRI. L.J. 605.
v) Shiva Karam Payaswami Tewar .v.
State of Maharashtra.
vi) Mohd. Azad @ Samin v. State of
West Bengal.
vii) Gura Singh vs. State of
Rajashthan
205.
viii) Kailash vs. State of M.P.
(2006)11 Supreme Court Cases
420.
ix) Ravi Kumar Vs. State of Punjab

x) State of U.P. vs. Premi & others.

xi) State of Rajasthan vs. Laxman
Singh and others.

13A. In rejoinder, Mr. Jaiswal and Mr. Khandewale
submitted that the offences under The Scheduled Castes
and Scheduled Tribes (Prevention of Atrocities) Act, 1989
are not made out against the accused. Learned counsel

28
further submitted that accused nos. 1 and 11 do not deserve
death sentence. Learned counsel further submitted that not
only accused nos. 1 and 11 do not deserve death sentence
but other accused who have been sentenced to death also
do not deserve death sentence since the case can not be
termed as rarest of rare case.
14. We have considered the rival submissions and

perused the record and the judgments relied upon by the
learned counsel for the accused and learned Spl. P.P..
15. Before we analysis the evidence of the eye
witnesses we would like to deal with the medical evidence
tendered by the prosecution to prove that all the four
deceased viz. Priyanka Bhaiyalal Bhotmange, Roshan
Bhaiyalal Bhotmange, Sudhir Bhaiyalal Bhotmange and
Surekha Bhaiyalal Bhotmange died homicidal death. The
prosecution has examined Dr. Avinash John Shende
(P.W.14) Medical Officer who at the relevant time was
posted at Sihora Rural Hospital and was deputed at Mohadi
Rural Hospital for the period April to November, 2006. He
deposed that he had conducted about 20 to 25 post

29
mortems. On 30.9.2006 dead body of Priyanka Bhaiyalal
Bhotmange was referred to him for post mortem. He
conducted the post mortem on the same day. He found the
following external injuries.
i) Incised would over the scalp at the left tempero

occipital region with fracture of tempero occipital
bone 5 (length) x 2 (breadth) x 1 (depth) cm. In size.
ii) Incised wound over the right parietal bone 3 x 1 x
0.5 c.m.
iii) Marks of strips of chain over the middle half of the
right thigh extending from the lateral surface to the
frontal aspect horizontally 15 x 1 cm..
iv) Marks of signs of chain over the right middle half
of the right thigh above the injury No. 3 parallel to the
injury No. 3 having size 10 x 1 cm..
v) Marks of strips of chain over the left thigh lower
1/3 frontal aspect 3 x 1 cm. In size.
vi) Contusion over mandible middle part 3 x 1 cm.
In size.
vii) Contusion over the left hand 4 x 4 cm. In size.
30
viii) Contusion all over the left forearm with collies
fracture left side.
ix) Marks and strips of chain extending from the
above of the mid clavicular line to the lower end of
stern um on chest about 15 x 1 cm..
x) Contusion over the chest, left side at the level
10th to 12th rib about 3 x 2 cm. In size.
xi) Contusions over the back of chest right having
size 7 x 5 cm. At the level of scapula.

15A. All those injuries were ante mortem. Injury Nos. 1
and 2 were on vital parts of that deadbody. These injuries
No. 1 and 2 were sufficient in ordinary course nature to
cause death. Injuries nos. 3,4, 5 and 9 could have been
caused by giving blows of cycle chain. Rest of the injuries
could have been caused by hard and blunt object.
15B. On internal examination of dead body, he found
the following injuries.
i) There was haemorrhage on left tempero

occipital region which was beneath the external
injury no. 1.
ii) There was haemorrhage at right parital
region which was beneath external injury no.2.
31
iii) Fracture of tempero occipital bone.
iv) Fracture of frontal bone.
15C. Internal injuries nos. 3 and 4 were also
corresponding to external injuries no. 1 and 2. Probable
cause of death was due to intracranial haemorrhage due to
head injury. He had issued post mortem Exh. 120. He
confirmed its contents as correct and identified his
signature on the same.
15D. He further deposed that on 1.10.2006 the dead
body of Roshan Bhaiyalal Bhotmange was referred to him
for post mortem which was conducted by him on the same
day. On external examination he found the following
injuries.
i) Contusion over the middle half of the

right leg 3 x 2 cm in size caused by hard and
rough object.
ii) Contusion over the right medial surface
of the ankle 2 x 2 cm in size.
iii) Contusion over the right side of the

middle chest 5 x 3 cm in size.
iv) Contusion over the right side abdomen
at midelavicular line 3 x 2 cm. In size.
v) Lacerated wound over the floor of the
32
right eye 2x2x1 cm deep with fracture floor of
the right eye.
vi) Contusion over the right eye.
vii) Mouth is damaged teeth in tact with

fracture midline of the mandible at chin.
viii) Lacerated wound over the frontal bone
right side 2 x 0.5 x 3 cm. Insize having
fracture at the frontal bone.
ix) Lacerated wound on the back of head
6 x 1 x 1 cm extending from the right siide to
left side of occipital bone.
x) Lacerated wound over and above, the

right ear on the temporal bone 2 x 0.5 x 0.5
cm..
15E. All these injuries were ante mortem. Out of these
injuries, injuries Nos. 8,9 and 10 were on the vital parts of
body and were sufficient in the ordinary course of nature to
cause death. All the injuries could have been caused by
hard and blunt object and were sufficient in the ordinary
course of nature to cause death.
On internal examination of dead body of Roshan
Bhotmange he found the following injury.
i) Haemorrhage under the scalp at right
frontal bone beneath external injury no. 8.
15F. The probable cause of death of Roshan

Bhotmange was due to intracranial haemorrhage due to
head injury. Accordingly, he issued post mortem report
Exh. 121. He identified his signature on the same and
33
confirmed its contents as true.
16. On 1.10.2006 dead body of Sudhir Bhaiyalal
Bhotmange was brought to him for post mortem. He
conducted post mortem and on external examination he
found the following injuries.
i) Abrasion over the right knee, a) 5 x 2 cm.
In size; b) 2 x 2 cm in size over patella.
ii) Contusion over the shin of right tibia 8 x
w cm in size lateral surface.
iii) Contusion over the chest 10 x 5 cm over
left side from the medial sternal end to
midclavicular line.
iv) Contusion over the left medial half

forearm with swelling with crepitus with
fracture middle half of ulna.
v) Contusion over the right lower chest 3 x
2 cm.
vi) Abrasion over the left knee 4 x 1 cm. In
size over patella.
vii) Abrasion over the ankle lateral surface a)
3 x 2 cm. b) 2 x 1 cm right side.
viii) Contusion over the left eye which was

swollen.
ix) Lacerated wound over the left parietal

bone 4 x 1 x 0.5 cm in size.
x) Lacerated wound over the lateral surface
of left eye 3 x 0.5 x 1 cm. in size.
34
xi) Lacerated wound over the right frontal

region 3 x 1 x 1 cm. in size.
xii) Lacerated wound over the right parietal

bone 1x 1x 1 cm. in size.
xiii) Lacerated wound over and above te right
ear at the region of right temporal 1 x 1 x 1
cm. in size.
xiv) Lacerated wound over the back of head
at the occipital region 4 x 2 x 1 cm. in size.
xv) Fracture of vault of scull extending from
the lateral canthus of left eye to the
midparietal suture about 15 cm size.
All these injuries were ante mortem. Injuries nos. 9 and
11 to 15 were on the vital parts of body and were sufficient
in the ordinary course of nature to cause death. The
injuries could have been caused by hard and blunt object.
On internal examination of dead body of Sudhir
Bhotmange, he found haemorrhage under scalp present at
left front to parietal region which corresponds to external
injury no. 15.
The probable cause of death of Sudhir was due to
intracranial haemorrhage due to head injury. Accordingly,
he issued post mortem note Exh. 122. He confirmed its
contents as true and identified his signature on the same.
16A. On 1.10.2006 dead body of Surekha Bhaiyalal
Bhotmange was brought to him for post mortem and he

35
conducted the post mortem on the dead body of Surekha
Bhaiyalal Bhotmange and on external examination he
found the following injuries;
i) Incised wound over the scalp extending

from left parietal bone to the frontal bone
right side with expose of the scull parts 8 x 7
m 0.5 cm. In size.
ii) Incised wound left temporal side obliquely
for 4” x 0.5 in size.
iii) Incised wound right lateral side, shin of
tibia upper 1/3, 5 x 3 x 3.5 cm in size.
iv) Incised wound over the face below right
eye 2 cm below 1 x 1 x 0.5 cm in size.
v) Incised wound over the right temporal 3
x 2 x 1 cm in size.
vi) Contusion over the middle half of the

lower leg left side with fracture tibia fibula.
vii) Contusion over the left knee joint 5 x 2
cm. in size with fracture left knee joint.
viii) Incised wound over the base of the right
knee with fracture base of phalanx 1 x 1 x 1
cm.
ix) Contusion over the right wrist having

fracture coll'es right.
x) Contusion over the right lower 1/3 of

thigh frontal aspect 5 x 3.
xi) Marks of strips of chain over the right

lateral surface of thigh to frontal thigh 15 x 1
36
cm. with contusion of the part.
xii) Marks of strips of chain over the left side
of the chest above the left breast 10 x 1 cm.
xiii) Contusion over the right middle half of
lower leg 3 x 2 cm in size.
xiv) Contusion over the left thigh middle half
of the frontal aspect 3 x 2 cm in size.
xv) Abrasion over the lower 1/3 of the left
leg 2 x 1 cm. in size.
xvi) Abrasion over the lower 1/3 of right leg
3 x 2 cm in size.
16B. All these injuries were ante mortem. Injuries nos.
1 to 5 were on the vital parts of the body and were sufficient
in the ordinary course of nature to cause death. Injuries 1
to 10 and 13 to 16 could have been caused by hard and
blunt object. Injury nos. 11 and 12 could have been caused
by giving blows of metal chain.
16C. On internal examination he found the following

injuries;
i) Haemorrhage at left temporal occipital

bone which corresponds to external injury
no.1.
ii) Haemorrhage at right temporal bone,

which corresponds to external injury no. 5.
iii) Fracture at left tempero occipital bone,

which corresponds to injury no.1.
37
iv) Fracture on right frontal bone, which also
corresponds to injury no.1.
v) Fracture at right temporal bone which

corresponds to injury no.5.
Probable cause of death of Surekha

Bhotmange was due to intracranial
haemorrhage due to head injuries.
Accordingly, he issued poste mortem note
Exh. 123. He confirmed its contents as true
and he identified his signature on the same.
16D. The witness further deposed that in all four dead
bodies, he found semi digested food at small intestines and,
therefore, he opined that all these four persons had died
after about 5 to 6 hours of their last meals. In cross
examination he admitted that incised wounds can only be
caused by sharp edged weapon. He also admitted that
external injuries 1 to 5 and 8 as mentioned in column no.
17 of the post mortem report of Surekha Bhotmange were
caused only by sharp edged weapons. He admitted that
external injuries no. 1 and 2 as mentioned in column no. 17
of the post mortem note of Priyanka Bhotmange were
caused only by sharp edged weapons. He admitted that

38
injury nos. 1 and 2 mentioned in column no. 19 of post
mortem note of Priyanka Bhotmange could have been
caused by sharp and hard weapon. He also admitted that
internal injuries as mention in column no. 19 of the post
mortem note of Surekha Bhotmange could have been
caused by sharp and hard weapon. However, he denied the
suggestion that if a person floats in canal water for
kilometers, then he can sustain contused wound due to
dash of the body against the canal. He admitted that there
could be contusions and abrasions if one falls on hard
rough and blunt surface. He further deposed that the chain
marks are also known as ligature marks but he did not find
ligature marks on any of the four bodies of which he had
performed post mortem. The witness volunteered that he
found ligature marks on the dead bodies of Surekha and
Priyanka Bhotmange. He admitted that he had not
mentioned in post mortem reports of Roshan and Sudhir
Bhotmange that haemorrhage which caused their death
was intracranial haemorrhage. He had not mentioned
word “intracranial” because he forgot to write the same. He
admitted that he knew the importance of writing correct

39
dates. The witness admitted that the date mention at page
no. 7 of post mortem report of Priyanka Bhotmange at its
bottom is 30.9.2009 and there is over writing on that date.
He denied that initially the date 1.10.2006 was written and
thereafter it was changed to 30.9.2006. The witness was
shown the death certificate which was issued by him. The
witness stated that the date mentioned in it at bottom was
30.9.2006 and not 30.8.2006. This certificate was marked as
Exh. 124. He admitted that there was over writing at the
place of date of page no. 7 of both the post mortem notes of
Roshan and Sudhir Bhotmange. He denied that it was
earlier written as 5.10.2006. He denied that thereafter the
same was changed to 1.10.2006. He admitted that
provisional certificate of death is given on the basis of the
notes of injuries in order to enable the investigating agency
to set the line of their investigation. He admitted that he
had prepared final report of post mortem after the dead
bodies were handed over. He denied that on 1.10.2006 he
had conducted one post mortem and then scribed final
report and then conducted another post mortem. Witness
volunteered that he had conducted three post mortems one
40
after the other and thereafter scribed final post mortem
reports. He admitted that at page no. 8 of the post mortem
of Priyanka he had corrected the earlier date of 1.10.2006 to
30.9.2006. He further stated that it was not necessary that in
every homicidal death viscera should be preserved. He
denied the suggestion that police had taken post mortem
notes from him on 5.10.2006. He deposed that peeling of
skin on the dead bodies of Roshan, Sudhir and Surekha
Bhotmange was sign of decomposition.
16E. The witness further admitted that his services
were terminated with effect from 9.11.2006 and the same
was terminated since his work was not found satisfactory
and that he was again given fresh appointment by
Government. He admitted that as he had conducted those
post mortems he was terminated alleging that his work was
not satisfactory. Witness stated that decomposition starts
after 24 hours. In further cross examination he admitted
that Priyanka had died about 16 to 18 hours before
conducting post mortem. Other three persons died about
30 to 34 hours before conduction of their post mortem. He
admitted that he has not noted the age of injuries on the

41
post mortem notes. He had mentioned the time of death
approximately. He denied the suggestion that he had not
conducted post mortem of those bodies. He denied the
suggestion that he had not conducted any post mortem
before conducting the post mortem on the four dead
bodies.
17. The evidence of the above witness, which has not
been shaken on material aspects in the cross examination,
clearly proves that all the four deceased viz. Priyanka
Bhotmange, Roshan Bhotmange, Sudhir Bhotmange and
Surekha Bhotmange died homicidal death. Same also
stand corroborated by inquest panchanamas Exhs. 91, 86,88
and 87 of Priyanka Bhotmange, Roshan Bhotmange, Sudhir
Bhotmange and Surekha Bhotmange respectively which
have not been seriously disputed. Thus, the prosecution has
been able to prove that Priyanka Bhotmange, Roshan
Bhotmange, Sudhir Bhotmange and Surekha Bhotmange
died homicidal death.
18. The learned counsel for the accused and learned
42
Special P.P. for CBI have cited several authorities in support
of various propositions regarding delay in lodging FIR,
delay in recording statement of a witness, variance
between medical and ocular evidence, etc..which we have
referred hereinabove. We do not propose to deal with the
authorities individually but we propose to mention the
propositions for which the authorities have been cited.
19. The following propositions emerge from the
authorities cited by Mr. Jaiswal, learned counsel for the
accused nos. 1,2,6 and 7.
i) Unexplained delay in lodging First

Information Report is fatal to the prosecution
case.
ii) In case of material contradictions in the
testimonies of prosecution witnesses the
accused are entitled to acquittal.
iii) Accused can not be convicted, if the

prosecution evidence is tainted.
iv) Unexplained delay in recording

43
statements of material witnesses is fatal to the
prosecution case.
v) If there is variance between ocular

testimony and medical evidence the
prosecution case becomes doubtful.
vi) The evidence of a witness full of material
contradictions does not deserve any
credence.

authorities cited by Mr. N.S.Khandewale, learned counsel
appearing for accused nos. 2,6,7 and 11.
i) Unexplained delay in lodging First Information

Report is fatal to the prosecution case;
ii) When investigation is slipshod, benefit must go
to the accused;
iii)Unexplained delay in recording statement of eye
witnesses creates doubt upon the prosecution
case;
iv) Testimony of an interested witness needs careful
and close scrutiny;
44
v) The evidence of a witness full of material
contradictions on vital aspects has to be
rejected;
vi) No interference in appeal against acquittal if two
views are possible;
vii) Proof of motive though not necessary
if there is direct evidence, the absence of motive
is relevant in deciding complicity of the accused
in the commission of crime.
viii) Failure to prove motive assumes
importance if there are other circumstances
creating doubt about prosecution case.
ix) Death sentence is to be imposed in rarest
of rare case.
authorities relied upon by Mr. Khan, learned Spl. P.P..
i) Normal discrepancies in the evidence of the
witnesses are not fatal to the prosecution case;
ii) The medical evidence need not always be

treated as sacrosanct;
45
iii) Maxim “Falsus in uno falsus in omnibus” is
not applicable in India;
iv) If there is cogent and strong evidence, mere
wrong recording of time of lodging of First
Information Report is not fatal to the prosecution
case;
v) Failure to name one or more accused in
FIR is no reason to disbelieve the evidence of eye
witness if it is trustworthy;
vi) Relationship is not a factor which would
affect the credibility of a witness;
vii) Mere presence in an unlawful assembly

can not render a person liable for the offence
unless he shares common object;
viii) Statement of a witness recorded by a

Magistrate under Section 164 Cr.P.C. can be taken
into consideration to corroborate the evidence of a
witness in committing court.
ix) The evidence of a hostile witness need not
be rejected in toto;
x) The conviction can be based on extra judicial
46
confession, if it is made voluntarily, without
coercion, influence or pressure;
xi) Evidentiary value of extra judicial confession
must be judged having regard to the circumstances
in which it was made and the credibility of the
witness who testifies thereto;
xii) Confession can be made even to a private
person or a Magistrate.
22. We now proceed to analyse the prosecution
evidence.
We shall first deal with the evidence of the eye
witnesses examined by the prosecution to prove complicity
of the accused in the crime. The prosecution examined five
witnesses claiming to be eye witnesses viz. Mukesh Pusam
(P.W.2), Suresh Khandate (P.W.3), Dinesh Dhande
(P.W.19), Mahadeo Zhanzad (P.W.20) and Premlal Walke
(P.W.22). We shall separately deal with the evidence of
Bhaiyalal Bhotmange (P.W.17) who lodged first information
report. According to the prosecution itself, Bhaiyalal
Bhotmange is not an eye witness to the actual incident of
assault on the deceased and it is the case of Bhaiyalal

47
Bhotmange himself that after seeing the crowd near his
house he ran away from the spot.
23. Mukesh Pusam (P.W.2) deposed that on 29.9.2006
at 6.00 p.m. to 6.30 p.m. he was present in front side
courtyard of his house. He heard shouts of accused no. 8
Jagdish and saw that 1012 persons were standing in front of
the house of Surekha. Out of them he identified accused
No.1 Gopal, accused no.2 Sakru, accused no.3 Shatrughna,
accused no. 6 Vishwanath, accused no. 7 Ramu, accused no.
8 Jagdish and accused no. 9 Prabhakar. Accused no. 8
Jagdish gave abuses and said to Surekha Bhotmange to
come out of her house. Surekha then came out of her house
and set fire to her cattle shed to ward off the accused. Then
she ran away towards triangular open space at back side of
her house. Some accused put off fire, while some chased
her. Accused no. 8 Jagdish caught Surekha, pulled her hair
and dragged her to a nearby drain and dipped her in it 23
times. By then other aforesaid accused reached there. All
those seven accused then beat Surekha by fists, kicks and
with chains and killed her. They then brought the dead
48
body to Dhusala road situated nearby. Then those persons
shouted to kill other members of Surekha's family. Sudhir
Bhotmange then came out of his house in underwear and
ran towards Dhusala road. Then those accused chased him
and thereafter dragged him near dead body of Surekha.
After that those accused found Roshan Bhotmange at cattle
shed of Ramdas Khandate. Roshan told them that he did
not cause harm to anyone and so he should not be beaten.
Roshan, then ran towards borewell. Those accused chased
him and caught him near bore – well and beat him by
bicycle chains and sticks and killed him. Thereafter, those
accused searched for Priyanka. This witness then heard
shouts of Priyanka in agony of being killed. Thereafter,
accused No. 3 Shatrughna and accused no. 7 Ramu dragged
dead body of Roshan while accused no. 2 Sakru and
accused no.8 Jagdish dragged dead body of Priyanka near
other two dead bodies. Thereafter, accused no. 7 Ramu and
accused no. 9 Prabhakar shouted that if anyone would tell
anything against them then they would meet the same fate
as those four persons. Thereafter, this witness came to his
house on being frightened. After some time he saw that

49
accused no. 8 Jagdish was riding a bullockcart in which
those dead bodies were kept. He also saw accused no. 2
Sakru, accused no. 3 Shatrughna, accused no. 7 Ramu and
accused no. 9 Prabhakar followed that bullocks cart which
was taken towards village Kandri.
23A. In crossexamination he admitted that he did not
see Sudhir, Roshan and Priyanka being beaten and killed.
In crossexamination it was suggested to him that on seeing
some persons in front of the house Surekha set fire to her
cattle shed and before that these persons were arguing with
Surekha. It was also suggested by the defence to the
accused that when he heard shouts of Surekha he was
standing in front of his house as mentioned in the
statement recorded by the Judicial Magistrate which
suggestion was admitted by the witness. The witness also
admitted that there was little rain and no electric light at
that time. The witness also admitted that he had contested
the election and lost by two votes and at that time accused
had helped the opponent. The witness deposed that he first
heard shouts of Jagdish and then he looked in that
direction and saw 1012 persons were standing in front of
50
the house of Surekha. In crossexamination the omission
visavis his statement to CBI, CID and learned Judicial
Magistrate, First Class to the extent of presence of 10 to 12
persons was brought on record. Another omission which
was proved by the defence is that Surekha ran towards the
compound which was in opposite side and on the basis of
this defence contended that it was not possible for the
witness to notice Surekha. It has also been brought on
record in the crossexamination that the witness stated to
the learned Magistrate that at that time there was little rain
and no electric light. It was also brought on record that the
witness had not stated as to which of the accused has
assaulted by which weapon viz. stick, cycle chain or by kicks
and fists blows. Another omission visavis the statement
made to the police which has been proved is that he did not
state that Sudhir came out of the house in underwear and
ran towards the road towards his field. However, said fact
finds place in the statement made by the witness under
Section 164 Cr.P.C.. Another omission brought on record
visavis the statement made to CBI is that he had not stated
that accused were searching for Priyanka but this version is
51
found in the statement made to the learned Judicial
Magistrate, First Class Mr. Pradip Ladekar (P.W.35) in
which the witness stated that accused were asking where
was her daughter. Having regard to the fact that Priyanka
was admittedly the daughter of Surekha the version of the
witness that the accused were asking for Priyanka needs to
be accepted. Another contradiction in the nature of
omission which has been brought on record is that he had
not stated that accused no. 7 Ramu Dhande had also
threatened other persons of the locality after the incident.
Close scrutiny of the evidence of the above witness though
discloses that there are certain contradictions and
omissions visavis his earlier statements, in our considered
opinion, same can not be said to be such as to discredit his
version that he was present near his house which is
admittedly situated very close to the house of Bhaiyalal
Bhotmange (P.W.17).
24. No doubt if the evidence of a witness discloses
material contradictions and omissions visavis earlier
statement, the testimony of such witness does not inspire
52
confidence. In the present case, admittedly after the dead
bodies of four persons were found and investigation was
taken up by the local police, indiscriminate arrests were
made and in all 46 persons were arrested. According to the
State itself, the prosecution did not proceed in the right
direction and, therefore, investigation was handed over to
State CID. Even the State CID did not carry out the
investigation in proper direction and, therefore, ultimately
the State Government handed over the investigation to CBI
which after carrying out investigation sought discharge of
35 persons who were in custody which was granted by the
learned Magistrate. The people in Khairlanji which is a
small village in Bhandara District were frightened and
probably on account of indiscriminate arrests of several
persons from the village people were not ready to come out
with the truth. In this factual background mere delay in
recording the statements of the witnesses or disclosure of
certain facts at a late stage would not be fatal to the
prosecution case. The delay was inevitable because the
investigation of the crime was handed over to CBI on
20.11.2006 and it was only thereafter the CBI could

53
investigate the crime. Delay in recording the statements of
the witnesses is fatal to the prosecution case if it is
deliberate with a view to falsely implicate the persons in
commission of the crime. In the present case, upon close
scrutiny of the entire evidence of Mukesh we find it difficult
to accept the defence version that he was not present on the
spot on the date of the incident as deposed by him or that
he was not an eye witness to the incident. No doubt there
are some embellishments in the evidence of this witness.
However, they would not destroy his entire evidence. It is
difficult to accept the defence version that his presence on
the spot is doubtful in view of the statement made by Mr.
Vinayak Susatkar (P.W.25) the first investigation officer who
deposed that his investigation reveals that Mukesh Pusam
left the house on 29th September, 2006. The statement of Mr.
Vinayak Susatkar whose investigation was found to be
tainted by the State itself is not sufficient to discredit the
testimony of Mukesh Pusam. Moreover, we are also unable
to accept the defence version that it was not possible for
him to see the incident since there was little rain and
darkness. The incident had occurred at about 6 to 6.30 p.m.
54
on 29.9.2006 and it is difficult to hold that only because the
witness stated that it was dark he was not in a position to
identify the accused from a close distance.
25. Another eye witness on which prosecution relied
upon is Suresh Khandate (P.W.3). Suresh who is also
residing in the close vicinity of Bhaiyalal Bhotmange
deposed that he on hearing shouts came out of the house
and saw accused nos. 1 to 3, 6 to 9 and 11 in front of the
house of Bhaiyalal Bhotmange and some of them were
armed with sticks and some were armed with chains. They
shouted that Mahar caste people should be ousted from the
village and then Surekha came out of her house and set fire
to her cattle shed. Thereafter, accused Jagdish caught hair
of Surekha and dipped her in the drain. Thereafter, accused
nos. 1 to 3, 6 to 9 and accused no. 11 beat her to death.
Then Sudhir came out of his house in underwear and those
accused chased him and caught him and beat him to death
by giving him blows with cycle chains and sticks.
Thereafter, accused shouted to search for other members.
After that those accused found Roshan behind the cattle

55
shed of Ramdas Khandate behind the house of Bhayyalal.
Roshan said that he should not be killed as he did not cause
harm to any one but the accused did not pay heed. Those
accused started beating him. So he ran away towards hand
pump (borewell). Then those accused caught him near
hand pump and beat him to death. Then he heard shout of
Priyanka in agony and thereafter accused no. 7 Ramu and
accused no. 3 Shatrughna dragged dead body of Roshan
while accused no.2 Sakru and accused no. 8 Jagdish dragged
dead body of Priyanka where dead bodies of Surekha and
Sudhir were dumped. After some time a bullock cart was
brought there and then the accused kept those dead bodies
on that bullock cart. Accused no. 8 Jagdish was riding that
bullock cart while accused no.2 Sakru, accused no.3
Shatrughna and accused no. 9 Prabhakar followed the
bullock cart which proceeded towards Kandri.
25A. In crossexamination he stated that his house was
in front to the house of Bhayyalal and Siddharth used to
visit the house of Bhayyalal since he used to treat Surekha
as his sister. He admitted that he had good relation with
Bhotmange family members and he used to visit their

56
house. He denied that the house of Mukesh was at the
distance of about 30 ft. from his house and stated that it was
about 10 ft. away. He also admitted that deceased Roshan
and Sudhir were friends of his sons Mangesh and Kamal He
admitted that he suffered from chickenguniya from
20.9.2006 and he was having severe pain in joints and he
stated that he could not walk and he was taking treatment
from the Doctor. He admitted that he did not go in the
village between the period 20.9.2006 to 5.12.2006. He also
stated that during the said period of about two months
police neither asked him anything nor he told them
anything. He admitted that after 45 days of the incident 23
police outposts were made but he did not know whether
any police officer from CID used to come to the outpost. He
admitted that he did not tell anything about incident to the
leaders, journalists or the social workers and the reason was
that he was suffering from illness and as such he did not call
those persons. However, in cross examination he admitted
that he had stated to CBI about the place where Roshan
was hiding and the cowshed in the field was not visible to
him from the place near his house. He stated that he could
57
not see Roshan at the house of Bhotmange. He further
stated that he had stated to CBI that Roshan was found at
cowshed which was at the place owned by Ramdas. His
statement to CBI was correctly recorded. Similar statement
was made to CBI that Roshan ran away from there and
these persons chased him and apprehended him near the
hand pump and that he was beaten to death and the same
was correctly recorded. He further stated that he did not
state so to the learned Magistrate since he did not ask him.
He was confronted with the statements made to Magistrate
and CBI wherein he had not stated that Jagdish shouted
that other members of the house should be searched and
killed. The witness could not give any reason for the
omission. He also admitted that he had not told the
Magistrate that the accused found Roshan at the back side
of the shed of the house of Bhotmange. Similarly, he was
confronted with the statement made to Magistrate wherein
he had not stated that Jagdish and Vishwanath Dhande told
that Mahar caste people should be ousted from the village
and omission was duly proved.
25B. In further cross examination of the witness the

58
following omissions visavis his statement to the
Magistrate were brought on record.
i) That he did not tell that all the accused
ran after Surekha;
ii) The bullocks of bullockcart were red in
colour.
25C. The witness further stated that his statement
before the CBI that dead bodies were kept in bullock cart
and were taken away towards Kandri village was correctly
recorded. He further deposed that at the time of incident
he was not able to run, to jump and to climb. He denied
the suggestion that he could not see the object at long
distance because of pain in the eyes. He denied the
suggestion that he had not seen any of the accused beating
Bhotmange family members or that none of the accused
took away the dead bodies of the family members of
Bhotmange in the bullock cart. He denied the suggestion
that since Mukesh Pusam who was also belonging to the
same caste has lost his election by two votes he had grudge
against all the accused. He denied the suggestion that
Bhaiyyalal had enticed him by offering money and,

59
therefore, he falsely deposed against the accused. Similarly,
he also denied the suggestion that CBI had offered money
and a job in the village and, therefore, he deposed against
the accused. He denied that he was facing prosecution for
drinking liquor. The witness was shown one certified copy
of the statement (Exh. 275) bearing his signature. He was
shown another application (Exh. 276) made by him to the
Collector for his rehabilitation. The witness admitted that
he had applied to the Collector for rehabilitation. The
witness stated that he had brought the copy of the
application having his signature. He produced the same at
Exh. 278. The witness stated that he deposed in the court
on 2.7.2007 and Exh. 278 was prepared on 16.4.2007. He
further deposed that the Social Welfare Officer had shown
to him some agricultural land which would be immersed in
Gose Khurd Dam Water and, therefore, they did not like the
land. He was asked by the Social Welfare Officer to seek
payment of Rs. 10 lacks in stead of agricultural land and
then he got prepared Exh. 277. He further stated that he
and Mukesh (P.W.2) had applied at the same time. He
denied the suggestion that the CBI proposed for his

60
rehabilitation as he was witness in the case. He denied the
suggestion that he was induced by CBI by promising his
rehabilitation. He admitted that he was residing at
Khairlanji. The witness admitted that he was given police
protection after he complained to the Police about threats.
In reexamination on behalf of the CBI he stated that he had
given application for rehabilitation as he faced threats from
the relatives of the accused and for no other reason and he
had expressed threats to his life.
25D. No doubt in the testimony of this witness there
are certain contradictions and omissions visavis earlier
statement but the core of his testimony has not been
shaken in the cross examination and having regard to the
fact that his house was very close to the house of Bhaiyyalal
it was quite natural for this witness to witness the incident
of assault on deceased. Insofar as the submission made by
the learned counsel for the accused that this witness as well
as Mukesh who had also filed similar applications for
rehabilitation were induced to depose by promising to
provide plots is concerned, we find merit in the submission
of Mr. Ejaz Khan that CBI had no role to play in the

61
rehabilitation of the two witnesses or in the attempt of the
two witnesses to get rehabilitated on the ground that they
faced threats from the villagers. It was for the State
Government who had to take appropriate decision on the
applications made by the two witnesses for rehabilitation as
the same was part of the witness protection programme.
Therefore, in our considered opinion, the mere fact that two
witnesses had asked for rehabilitation on the ground that
they were facing threats from the villagers and could not
carry out any work in the village would not be a ground to
disbelieve their version on oath. Suresh Khandate (P.W.3)
though was suffering from Chicken Guniya, it is difficult to
hold that he was not in a position to come out of his house
and see the incident. Testing their evidence on the touch
stone of probabilities, we are of the considered opinion
that, the evidence of both the witnesses i..e Mukesh Pusam
(P.W.2) and Suresh Khandate (P.W.3) inspires confidence
and their evidence clearly establishes the role of accused
nos. 1 to 3, 6 to 9 and 11 in the commission of the crime.
26. The next eye witness examined by the

62
prosecution is Dinesh Dhande (P.W.19). He deposed that
he knew Bhaiyyalal Bhotmange and his family members.
The house of Bhaiyyalal is at Toli area of Khairlanji.
Bhaiyyalal was residing along with his wife Surekha, sons
Sudhir, Roshan and daughter Priyanka. On 29.9.2006 in the
evening he returned to his house and thereafter he went to
the shop to purchase pan masala. On the way back he
heard shouts from Toli area so he went to that area. He
stood near an electric pole behind the house of Natthuji
Khandate. He saw Surekha Bhotmange coming out from
the back side of her house. Vishwanath Dhande and
Shatrughana Dhande followed Surekha. Vishwanath
Dhande was possessing one stick and Shatrughana Dhande
was possessing a chain. By that time Jagdish Mandlekar
came to that place from the side of house of Suresh
Khandate. He was also holding one stick. Jagdish
obstructed Surekha Bhotmange near a drain. Jagdish then
started beating Surekha Bhotmange by using stick. Then
Vishvanath and Shatrughana Dhande came there from the
back side portion of the house of Bhaiyyalal and started
beating Surekha. Then Ramu Dhande and Shishupal

63
Dhande came there from the same way Jagdish came there.
Ramu was holding one stick and Shishupal was holding one
chain. Both of them started beating Surekha. Then
Prabhakar Mandalekar, Gopal Binjewar and Sakru Binjewar
came there from the back side portion of the house of
Bhaiyyalal. Prabhakar Mandlekar and Gopal Binjewar were
having nothing in their hands. There was a wooden stick in
the hand of Sakru Binjewar. Then Prabhakar Mandlekar,
Gopal Binjewar and Sakru Binjewar started beating
Surekha. Then all those persons killed Surekha by beating
her. He did not go to see whether she was alive or dead.
Beating took place near a drain and beside a cow dung pit
situated at the back side portion of the house of Bhaiyyalal
towards left side. The distance between that drain and cow
dung pit is 3 4 feet. Witness was shown the map (Exh. 54).
Witness pointed out the place where Dhusala road and
Kandri road meets. The witness pointed out the place
where he stood and also the place of beating of Surekha.
Thereafter he saw Sudhir Bhotmange running towards
Dhusala in an underwear. Jagdish Mandalekar, Vishwanath
Dhande, Shishupal Dhande, Shatrughana Dhande, Ramu

64
Dhande, Prabhakar Mandlekar, Gopal Binjewar and Sakru
Binjewar caught Sudhir Bhotmange in front of the house of
Krishnaji Titirmare and beat him. Sudhir was dragged to
the place where Surekha was kept. Roshan, second son of
Bhaiyyalal was hiding himself in a cattle shed situated at the
back side of their house. All those persons caught Roshan
who had escaped and ran towards the hand pump (bore
well). All these persons caught him near the hand pump
and beat him on account of which Roshan fell down.
Witness claimed that he did no go to see whether he was
alive or dead. Priyanka, daughter of Bhaiyyalal was hiding
in a cattle shed situated beside the hand pump. All the
above referred persons brought her out of that cattle shed
and assaulted her by giving blows of sticks, chains and by
giving fist and kick blows. Priyanka was wearing a school
uniform. The witness claimed that he saw all those persons
dragging Roshan and Priyanka to the place where Sudhir
and Surekha were kept. Sudhir and Roshan were beaten by
sticks, chains, fists and kicks.
26A. When the incident was going on, 30 to 40 persons
surrounded the house of Bhaiyyalal. Some persons out of

65
those persons who were beating, intermittently were telling
that if some one would tell their names then he will be also
beaten like them. Thereafter, he went to his house as he was
frightened. Witness further deposed that Bhaiyyalal
belongs to Mahar caste. Witness claimed that at the time of
incident other persons were beating and shouting
“Maharana Mara” (beat Mahar caste people). The witness
identified the persons present in the court as assailants and
stated that he knew them as they were his covillagers.
26B. In crossexamination on behalf of the accused
nos. 3 to 7 and 11, the witness stated that his house is
situated about 500 to 600 meters away from the house of
Bhaiyyalal and his field is besides Dhusala Road at the
distance of about 1 k.m.. He used to go to field in the
morning and return in the evening some times early and
some times late. He further stated that he did not know
Rajendra Gajbhiye but he knew Sidhharth Gajbhiye who
was frequently visiting the house of Bhaiyyalal. Sidhharth
Gajbhiye is the Police Patil of village Dhusala. He stated
that he did not know whether Khairlanji people were afraid
of Sidhharth Gajbhiye because he was a goonda. The

66
witness claimed that he has not seen the incident of beating
Sidhharth. He claimed that he had good relations with the
family of Bhaiyyalal but he was not on visiting terms with
them., Witness further admitted that in the said crime
about 40 to 50 persons were arrested including his father.
He did not remember whether his statement was recorded
by police after arrest of his father but he admitted that CBI
recorded his statement on 9.12.2006 when his father was in
jail. He further stated that when his statement was recorded
by the Magistrate his father was in jail. Witness admitted
that he was taken to jail four times for identification of
attackers. The witness candidly admitted that since his
father was in jail he did not identify any of the accused. He
admitted that his statement was recorded by the Magistrate
and that his father was released after CBI filed the charge
sheet. Witness denied that CBI assured him that his father
would be released after 90 days and further assured that if
he gave statement before the CBI, then CBI would
discharge his father. He admitted that he had stated the
police that he had returned from the field at about 6.30 p.m.
on the date of incident. Witness was confronted with the

67
police statement when it was so recorded to which the
witness stated that it was not correctly recorded. He had not
told the police on 29.10.2006 as to which of the accused was
holding that weapon. He could not give any reason why
this was not found in his police statement.
26C. The witness admitted that beyond the house of
Bhaiyyalal there were heaps of cow dung and in that area
grass grows in winter season but he denied that the grass
and plants grow up to height of 3 to 4 feet. Witness
admitted that the Police had provided security guard to
him for 24 hours. The witness further admitted that
amongst 40 encircling the house of Bhaiyyalal Bhotmange
there were some ladies but he could not identify them as
they were standing far away. The witness categorically
denied the suggestion that he could not identify them
because of darkness and stated that it was not so dark. The
witness admitted that during those days there used to be
load shedding for about 8 to 10 hours.
26D. He further deposed that Surekha and Bhaiyyalal
Bhotmange used to prepare bidis also and bidi contractor
and his men used to come to the house of Surekha

68
Bhotmange even at odd hours. He claimed ignorance as to
whether there used to be quarrels between Surekha
Bhotmange and bidi contractor regarding money matters.
Witness admitted that he was active in politics in the village
and that Mukesh Pusam and Suresh Khandate were in his
group in election. He denied that Bhaiyyalal was also in his
panel. He admitted that all the accused used to remain in
opposite panel in election. Witness admitted that he was
called to Andhalgaon Police Station and threatened several
times and was threatened that if he did not give statement
he would also be arrested.
26E. In the cross examination on behalf of the accused
nos. 1, 2, 8 and 9 he deposed that the distance between the
place where he stood to see the incident and the house of
Bhaiyyalal was about 100 to 150 meters. However, he
denied the suggestion that from point W1 in sketch (Exh.
54) he could not see as to what happened on the road
situated in front of the house of Bhaiyyalal. He admitted
that there were houses and some trees besides the road.
However, he denied the suggestion that if some one stood
on that road he could not have seen him. The witness

69
volunteered that persons were visible but their faces could
not be identified. He further stated that he did not tell the
police that from his terrace he had seen that some thing was
going on around the house of Bhaiyyalal or that he saw
some ladies and gents attacking the house of Surekha
Bhotmange. The witness was confronted with the police
statement and the witness stated that same was not
correctly recorded. The witness further stated that he could
not identify 40 to 50 persons who had gathered on the spot.
Witness admitted that on the day of the incident there were
showers of rain and the same went up to 7.30 to 8.00 p.m.
but he denied the suggestion that there was heavy rain with
the passage of time. He stated that he did not remember
whether there was load shedding in the village from 5.30
onwards and that it went up to late night. He further stated
about 50 persons who were present there were not the
attackers and he could not identify them. He denied the
suggestion that he returned to the village from the field at 6
to 6.30 p.m.. The witness volunteers that he returned back
at about 5.00 p.m. He denied the suggestion that at 6.30
p.m. he went to the beetle kiosk for taking kharra and saw
70
those persons returning from Kandri. To a pointed
question that he did not see the incident, witness stated that
since there was darkness he could not see the incident
clearly. Witness volunteered that the Police had threatened
him to give statement in their favour but CBI did not tell
him to do so. Witness denied the suggestion that CBI
induced him by offering to give him job and money if he
were to depose in their favour. The witness admitted that
Sidhharth used to visit the house of Bhaiyyalal in his
presence as well as in his absence. He denied the
suggestion that Surekha used to file complaints against the
villagers after quarrels. He also denied the suggestion that
Surekha used to threaten that people would be falsely
implicated under the Atrocities Act. The witness denied the
suggestion that he had named the accused at the instance
of the CBI.
26F. The witness further stated that he was taken for
identification of offenders about four times but he did not
identify them. He admitted that he had not disclosed the
incident to police officers and Ministers who visited the
village but the same was on account of fear. He further

71
deposed that since the police had arrested about 50 persons
he did not tell the incident to them.
26G. A close scrutiny of the evidence of the above
witness discloses that although there are certain
contradictions in his testimony visavis his earlier
statements, the core of his testimony has not been shaken
in the cross examination. It is difficult to accept that merely
because accused were in the opposite camp in election the
witness would falsely implicate them. It is pertinent to note
that the witness has not implicated all of the accused
named in the charge sheet. The attack on the testimony of
this witness on the ground that he could not have seen the
incident on account of darkness is concerned, we find it
difficult to accept that merely because the witness stated
that there was a little darkness, he could not see the
incident of assault on the deceased. Moreover, the accused
were from his village which is a small one. The witness knew
all the accused and it is the case of the witness himself that
they were in opposite camp and as such we find it extremely
difficult to accept the defence that because of darkness
witness was not in a position to identify the accused

72
assaulting the deceased as deposed by him. It is also
pertinent to note that the witness claimed that he was
frightened and he did not disclose the entire incident to the
police because he was threatened by police that if he did
not support the police he would be implicated in the case.
We have already noted that initially the investigation was
not carried out in a proper direction and indiscriminate
arrests were made by the local police and, therefore, we find
it difficult to reject the version of the witness that on
account of fear he did not disclose the actual incident to the
police. It was quite natural for the witness to disclose the
actual incident to CBI after the investigation was handed
over to CBI by the State Government. Therefore, in our
considered opinion, mere delay in disclosing the incident to
CBI by itself is not fatal to the prosecution case having
regard to the circumstances mentioned hereinabove.
Moreover, the evidence of this witness also stands
substantially corroborated by his statement made to the
Magistrate which lends assurance to the testimony of the
witness. Therefore, we have no hesitation to accept his
testimony which clearly proved the complicity of accused
73
in the commission of the crime.
27. The next witness examined by the prosecution is
Mahadeo Zanzad (P.W.20) who deposed that his house is
situated at the distance of 100 to 150 feet from the house of
Bhaiyyalal Bhotmange. He claimed that he was residing at
Khairlanji since his birth. He further deposed that on the
day of the incident he returned from his field and went to
beetle kiosk to take kharra at about 6.30 p.m.. Thereafter,
he heard noise coming from the side of the house of
Bhaiyyalal. He went towards the house of Bhaiyyalal and
stood at the back side of the house of Nathuji Khandate and
he saw about 20 to 30 persons standing around the house of
Bhaiyyalal and thereafter Surekha Bhotmange came out
from the back side portion of her house. Thereafter,
Prabhakar Mandalekar, Jagtdish Mandalekar, Sakru
Binjewar, Vishwanath Dhande, Shatrughana Dhande,
Ramuji Dhande and Purushottam Titirmare surrounded
Surekha Bhotmange. Surekha was then shouting that she
should not be beaten. Some male persons were telling to
beat her while some other were telling to let her go.
74
Thereafter, he could not see what happened due to
darkness. Then he heard shouts that Sudhir was running
towards the field and he be caught. He also saw 23 persons
running towards Sudhir but he could not identify those 23
persons. He heard the shouts of Sudhir as “Maru Naka,
Maru Naka (not to beat him)”. Some persons were telling to
beat him but some persons were telling not to beat him.
After some times some persons ran towards the hand
pump. Then he became frightened and went to his house.
27A. He further deposed that he had undergone eye
operation. He further deposed that he knew Sidhharth
Gajbhiye, Police Patil of Village Dhushala and he used to
come to the house of Bhaiyyalal Bhotmange but he did not
know anything about beating of Sidhharth Gajbhiye as at
that time he was residing with his sister at Nagpur. He
further deposed that the police recorded his statement after
23 days of the incident and CBI also recorded his statement
but he did not remember the date. His statement was also
recorded by the Judicial Magistrate, First Class, Mohadi but
he did not remember the date. The witness admitted that
after his statement was recorded by the Magistrate it was

75
read over to him and he also read the same and found to be
correct. The CBI also recorded his statement but it was not
read over to him. He deposed that he did not know what
Prabhakar Mandalekar, Jagdish Mandalekar, Sakru
Binjewar, Vishwanath Dhande, Shatrughana Dhande,
Ramuji Dhande and Purshottam Titirmare were doing
while standing surrounding Surekha Bhotmange. The
witness stated that he did not remember whether he told
the Magistrate as to what those persons were doing
surrounding Surekha. He went to the extent of saying that
even if his statement to Magistrate was shown to him, he
was not able to recollect about it but he could not give any
reason for the same. He further deposed that he did not
know what those persons were having in their hands when
they surrounded Surekha as he could not see due to
darkness. At this stage, the permission was sought by the
Special Public Prosecutor to cross examine the witness
which was granted by the learned trial Judge. In cross
examination on behalf of the prosecution nothing tangible
has been brought on record in support of the prosecution
since the witness denied that he had made statement to CBI
76
as reflected in the statement. The witness was confronted
with the statement to the Magistrate in which he has stated
that he saw Surekha coming out of her house. He admitted
the fact that Jagdish Mandalekar, Vishwanath Dhande,
Shatrughana Dhande, Ramu Dhande, Sakru Binjewar,
Prabhakar Mandalekar, Gopal Binjewar and Purshottam
Titirmare beat Surekha and some of the persons were
holding sticks in their hands while had no weapon and
Surekha was shouting while those persons were shouting
“beat, beat” was correct. However, he stated that he did not
see such incident but he had made false statement before
the Magistrate. The witness admitted that Vishwanath
Dhande, Shatrughna Dhande and Ramu Dhande were
related to each other and they belonged to Kunbi caste and
he also belonged to Kunbi caste. He further stated that
Prabhakar Mandlekar and Jagdish Mandlekar belonged to
Kalar caste.
28. We do not deem it necessary to refer in detail the
cross examination on behalf of the Public Prosecutor as well
as on behalf of the accused because we find it extremely

77
difficult to place reliance upon any of the statements made
by him either in examination in chief or in the cross
examination since the witness had the audacity to admit
that he had made false statement to the Magistrate.
Admittedly, the witness was prosecuted for giving false
evidence before the learned trial Judge and it has been
submitted by both the sides that he was convicted for giving
false evidence. This being the position, we find it extremely
difficult to place reliance upon any of the statements made
by him either in the chief or in the cross examination on
behalf of the Special Public Prosecutor or by advocate on
behalf of the accused.
29. We are unable to accept the submission of Mr.
Khan that part of his testimony that some of the accused
surrounded Surekha and that witness heard shouts of
Sudhir can be relied upon as corroborative piece of
evidence for other witnesses. The witness who has the
audacity to accept that he has made a false statement to the
Magistrate and who has been convicted for giving false
evidence deserves no credence. In our considered opinion
78
though the principle of falsus in uno falsus in omnibus is
not applicable in India, the same can not be invoked while
appreciating the evidence of this witness who has been
convicted for giving false evidence. The testimony of such
witness deserves to be rejected outright. We are, therefore,
of the considered opinion that his evidence except to the
extent that he has deposed about the castes of some of the
accused which has not even been disputed by the accused,
has to be rejected.
30. The next witness examined and relied upon by the
prosecution is Premlal Walke (P.W.22). He deposed that he
was residing in the village Khairlanji since last 10 to 12
years. His house is situated at the western side of the house
of Bhaiyyalal Bhotmange. On 29.9.2006 at about 6.30 p.m.
he heard shouts as “Mara Mara” from the side of the house
of Bhaiyyalal. At that time he was busy in preparing for Puja
of Durga Devi. They were shouts of Vishvanath Dhande and
Shatrughana Dhande. He claimed that he was frightened
and he did not come out of the house. After some time he
heard words “where are boys”. After some time there was
79
peace and he came out of the house and came up to gate.
He saw one bullock cart passing through the road which is
situated in front of the house of Bhaiyyalal. The bullock cart
was proceedings towards Kandri from the side of Dhusala
road. There were some dead bodies in the bullock cart and
Jagdish Mandlekar was riding that bullock cart. Vishvanath
Dhande, Shatrughana Dhande, Ramu Dhande, Sakru
Binjewar and some other persons were following that
bullock cart and they were having sticks in their hands. The
bullocks of the cart were reddish in colour. After some time
police vehicle came but since he was frightened he did not
say anything to the police. One policeman asked him as
where the family members of Bhaiyyalal Bhotmange but he
feigned ignorance. He further deposed that his statement
was recorded by the Judicial Magistrate First Class, Mohadi.
In cross examination the witness stated that there are about
15 houses in Toli. He was on visiting terms with Bhaiyyalal
Bhotmange but there were no quarrels between Bhaiyyalal
Bhotmange and villagers at any time. He admitted that
Surekha and her children used to keep fast and used to
come to his house for prasad of Durga Mata. He denied the
80
suggestion that they had come to his house on the day of
incident for prasad. He further admitted that there were
about six families of Gond caste and about 34 families of
caste of Kunbi in their locality. Mukesh Pusam was residing
in their locality and he was his brotherinlaw. Mukesh was
residing in front of his house and Suresh Khandate was also
residing in front of his house but he is not his relative but
belongs to his caste. Witness stated that police did not
record statement of his wife in his presence. Witness
claimed that on the day of incident he went to his employer
Bhagwan Dhenge in the morning and returned at about
6.00 p.m.. The witness was confronted with the police
statement in which it was stated that on the night of the
incident he had returned home at 8.00 p.m.. The witness
stated that it was not correctly recorded. The witness
claimed that police did not record the statement as per his
say. He stated that he had given statement to the Judicial
Magistrate. The witness initially stated that he came alone
in the court but thereafter corrected saying that he had
come with Malewar Police Constable who was his security
guard. The witness stated that on the night of the incident
81
he did not tell police anything when he came to the village
and he did not tell the police anything before 3.10.2006
although they used to come to inquire about incident. CID
police had recorded his statement a month after his
statement was recorded by police but he did not tell them
correct facts as he was under fear since police arrested
many persons. He denied the suggestion that he was taken
to Mohadi by police for recording his statement. He denied
the suggestion that he deposed against the accused at the
instance of CBI although he did not know anything about
the incident. In cross examination on behalf of the accused
nos. 1,2 , 8 and 9 the witness denied the suggestion that he
could not see properly during the night hours or he could
not identify any person from the distance of 15 to 20 feet
even if he remains in darkness. The witness admitted that
he had given statement to CBI after two and half months of
the incident. The witness denied the suggestion that he had
participated in the village election or that he had given vote
to the candidates to the group of Mukesh. The witness
admitted that he was religious minded and used to worship
regularly. The witness admitted that he could not read and
82
write but he could put his signature. The witness stated that
after the incident many Leaders and Ministers came to the
village for about two months and during that period police
arrested many villagers. He further deposed that he know
Mr. Gajbhiye as Police Patil of Dhusala but he did not know
his name. He admitted that Gajbhiye used to come to the
house of Bhaiyyalal but he did not know whether Gajbhiye
used to help Bhaiyyalal and his family members. He denied
the suggestion that due to political rivalry with the accused
he is deposing falsely against them.
30A. A close scrutiny of the evidence of the above
witness discloses that core of his testimony has not been
shaken in the cross examination and there is absolutely no
reason forthcoming in the cross examination of the witness
as to why he should falsely implicate accused he has
named. He specifically named the accused who were found
in and near the bullock cart in which dead bodies were
carried out. The evidence of this witness inspires
confidence and there is absolutely no reason to disbelieve
his version that the accused named by him had carried the
dead bodies in the bullock cart on the day of the incident.
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31. At this stage we would like to deal with the
arguments advanced on behalf of the accused that there is
variance between the evidence of eye witnesses and
medical evidence tendered through Dr. Avinash John
Shende (P.W.14) who deposed that the incised injuries on
the deceased could not have been caused by hard and blunt
object. Mr. Khan is justified in placing reliance upon the
Judgment of the Apex Court in Kailash vs. State of M.P..
((2006) 11 Supreme Court Cases, 420) in which the Apex
Court has held that the wounds produced by a blunt
instrument may simulate appearances of an incised wound.
In holding so the Apex Court placed reliance upon the
Medical Jurisprudence and Toxicology by Glaister and
Rentoul's in which it has been stated as under:
“Under certain circumstances, and in certain

situations on the body, wounds produced by a
blunt instrument may simulate the appearances
of an incised wound. These wounds are usually
found over bone which is thinly covered with
tissue, in the regions of the head, forehead,
eyebrow, cheek, and lower jaw, among others.
When such a wound exposes hair bulbs at its
edges, it is possible by examining these carefully
to decide whether they have been cut or crushed
84
and thus establish whether the wound was
caused by a sharp or blunt instrument. As a rule,
especially in the living subject, a wound produced
by a blunt instrument will disclose some degree
of bruising and swelling of the edges and the
deeper tissues will be less cleanly severed than
when divided by a sharp cutting instrument.”
31A. Similar view has been taken by the Apex Court in
the case of State of Rajashthan vs. Laxman Singh (2002 (10)
SCC, 65. Therefore, we find it extremely difficult to accept
the submission made by both the learned counsel for the
accused that since medical evidence runs counter to the
evidence of the eye witnesses the entire prosecution case
deserves to be rejected and, therefore, the complicity of the
accused has not been established. The medical evidence
tendered by Dr. Avinash (P.W.14) who conducted post
mortem on the four dead bodies can not outweigh the
cogent evidence of the above referred eye witnesses which
clearly proves the complicity of the accused in the crime.
32. We shall now deal with the evidence of Bhaiyyalal
Bhotmange (P.W.17), the husband of Surekha and father of
Sudhir, Roshan and Priyanka, who lodged report on

85
30.9.2006 at Andhalgaon Police Station. He deposed that he
belongs to Mahar caste. He married Surekha in the year
1982 and Sudhir, Roshan and Priyanka were his children.
Sudhir was physically handicapped and all the accused
were the residents of Khairlanji village. He further deposed
that all the accused killed Sudhir, Roshan and Priyanka. On
29.9.2006 in the evening he was present at his house.
Incident took place at about 6 to 6.30 p.m.. At that time all
his family members were present in the house. He further
claimed that villagers attacked their house in the evening
shouting that “Mahar Dhed people falsely implicated us in
police case”. He saw sticks and chains in their hands. He
was frightened on seeing them. On seeking them he ran
away towards Dhusala. He further claimed that out of the
villagers he knew 12 to 13 persons and they were Gopal
Binjewar, Sakru Binjewar, Jagdish Mandle, Prabha Mandle,
Nanya Manya Mandle, Hahipal Dhande, Ramu Dhande,
Shatrughna Dhande, Purushottam Titirmare, Premlal
Khurpe and others. He ran towards Dhusala as he was
frightened after looking to the fury of the mob. He met
Police Patil Sidhharth and told him about the incident.

86
Siddharth made phone call to the Andhalgaon Police
Station on his mobile phone. At about 9 to 10 p.m. he went
to Andhalgaon Police Station to lodge report. At that time
he was in a frightened condition and as such he could not
lodge report. On that night he resided with Siddharth at
Dhusala.
32A. He further deposed that on the next day i.e. on
30.9.2006 he went to his house at about 4 to 5 a.m. and
found that his house was in ransacked condition and he
could not find his family members there. Thereafter, he
went to Yadnyapal Khobragade at village Deulgaon and
asked him whether his family members had come to him
but he replied in negative. Thereafter, he along with
Yadnyapal went to Andhalgaon Police Station and lodged
written complaint. At that time he was also in frightened
condition. He was shown the report (Exh. 133). He
confirmed its contents as correct. He further deposed that
on 30.9.2006 dead body of Priyanka was found which was
shown to him at Mohadi Government Hospital. He went to
Mohadi Hospital at the instance of police and saw the dead
body of Priyanka which was in a naked condition with many
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injuries of sticks and chains.
32B. On the next day, he saw the dead bodies of
Surekha , Roshan and Sudhir. He went near the stream after
getting information about finding of the dead bodies. At
that time police had already prepared the panchanama. He
had seen the dead bodies in Mohadi Government Hospital
and bodies were having injury marks of sticks and chains.
Blouse of Surekha was in torn condition. He identified the
white colour blouse (article 25) and blue skirt (article 24)
which were worn by Priyanka. He identified the petticoat
(article 36) and red colour blouse (article 35) as those of
Surekha. He also identified the blue and white strip shirt
(article 37) and white colour banian (article 38) as those of
Roshan and the under wear(article 39) which was worn by
Sudhir at the time of incident. He further deposed that on
3.9.2006 at about 6 to 6.30 p.m. some villagers beat
Siddharth Gajbhiye at Khairlanji village. At that time he was
present in his house since he was ill. Thereafter, Surekha
and Priyanka brought Siddharth at their house to give first
aid. On 14.9.2006 statements of Surekha and Priyanka were
recorded regarding assault on Siddharth Gajbhiye. He

88
further deposed that village Khairlanji consists of 150
houses and there are three houses of Mahar caste including
his house. The other two houses are of Shri Khobragade and
Shri Meshram and his children only were taking education.
He had about five acres of ancestral agricultural land at
Khairlanji. The villagers wanted right of way from his field
and as per the order of the Tahsildar Mohadi he had given
15 feet of land. He identified his signature on printed FIR
(Exh. 124).
32C. In the cross examination on behalf of the accused
1,2,8 and 9 he admitted that he had not mentioned in the
report (Exh. 133) that villagers were shouting “Mahar Dhed
people falsely implicated them in a police case”. He
claimed that he did not state so since he was in a frightened
condition. He did not remember whether his statement was
recorded by CID on 5.10.2006 or whether it was recorded
twice on 29.9.2006. He admitted that he had not told the
CBI that villagers were shouting as “Mahar, Dhed” and that
they were falsely implicated in police case. He further
deposed that he had not mentioned in the report (Exh. 133)
that villagers had come to his house with sticks and chains.
89
He admitted that in the report (Exh.133) names of Gopal
Binjewar, Sakaru Binjewar, Mahipal Dhande, Sishupal
Dhande, Ramu Dhande, Shatrughna Dhande, Purushottam
Titirmare and Premlal Khurpe were not shown as non
applicants. He admitted that the name of Prabha
Mandlekar was not mentioned in the report (Exh. 133) and
he could not state any reason for the same. He also
admitted that he had not stated in the report (Exh. 133) that
he was frightened due to fury of mob (omission is in respect
of fury of mob). Similarly, he admitted that in the report he
had not stated that he met Siddharth and he could not give
any reason for the same. Similarly, he could not state as to
why the fact that Siddharth had made a phone call to
Andhalgaon Police Station by his mobile phone was not
mentioned in the police report. Similarly he could not give
any reason as to why in the report it was not mentioned
that he had gone to house at 4 to 5 a.m. and he found the
house in ransacked condition. He further stated that
portion marked 'A' of the report which shows time of his
return to the house as 6.00 a.m. was not correct. He further
stated that the report (Exh. 133) was scribed by the petition
90
writer who resides in front of Andhalgaon Police Station.
The witness was confronted with the statement to CBI in
which he had not mentioned the names of the attackers but
he could not assign any reason for not finding the same in
his statement. He further deposed that apart from 14
names he has not stated any other names to police, CID and
CBI. He was confronted with the statement made to Police
on 29.11.2006 in which names of several persons were
mentioned but he could not assign any reason for the same.
He further stated that CBI recorded his statements on
7.12.2006, 8.12.2006 and 22.12.2006. He further deposed
that his house hold expenses were about Rs. 25,000/ per
year and there was no electric meter in his house. His son
was having mobile. He denied the suggestion that
Siddharth used to pay charges of that mobile. In further
cross examination he stated that he did not remember
whether he went to Khairlanji village to the house of his
relative before the day of the incident. He stated that he was
originally resident of village Ambagad in Taluka Tumsar
which is at the distance of 20 to 25 km from Khairlanji. He
further stated that he did not know whether he returned to
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Khairlanji on the next day of the incident. He denied the
suggestion that no incident had taken place in his presence.
In cross examination on behalf of the accused nos. 3 to 7
and 11 he stated that he obtained his caste certificate and
those of his children before the incident. He admitted that
his family members had good relations with the family of
Mukesh and Suresh Khandate. He admitted that there is a
big cow dung behind his house but he denied that grass
had grown in that cow dung in September. In further cross
examination, he stated that on the day of incident Surekha
returned to the house and thereafter he returned. He
further stated that the incident occured during the rainy
season.
32D. In cross examination on behalf of the accused no.
10 he stated that he went to Khairlanji on foot on 30.9.2006
early in the morning and he reached Khairlanji within 15
minutes. On 30.9.2006 he reached Andhalgaon Police
Station at about 9 to 10 a.m. and he got his report scribed
through petition writer and put his signature on it. He
submitted report to Police at about 11.00 a.m.. He was told
by the police that on 30.9.2006 itself they had registered the
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offence. Witness claimed that after lodging report he went
to Mohadi Government Hospital. He stated that the portion
marked 'A' in the statement recorded by CBI on 7.12.2006
which shows that he went to Mohadi Government Hospital
along with Incharge Police Station Officer, Andhalgaon
Police Station was not correctly recorded but he could not
assign any reason for the same. He denied the suggestion
that he used to pick up quarrels with villagers and make
false allegations against Purshottam Titarmare and his
family. He denied the suggestion that he was not aware
about the incident and, therefore, he did not give statement
to Magistrate when he was taken to the Magistrate for
recording his statement.
33. Perusal of the report (Exh. 133) which the witness
claimed to have lodged on 30.9.2006 in the morning
discloses that in the report he named seven persons
including accused nos. 5,6,8 and 9 and three others viz.
Kanhaiyya Mandale, Nanya Mandale and Kiran Khurape
who were not charge sheeted by CBI. Perusal of the Exh. 134
which is a printed FIR discloses that in the said report

93
specific names of 12 persons viz. Dilip Dhenge, Jagdish
Mandlekar, Prabha alias Prabhakar Mandlekar, Gopal
Binjewar, Sakru Binjewar, Nanya Mandlekar, Prakash
Kadav, Pankaj Atilkar, Mahipal Dhandge, Shatrunghna
Dhande, Prem Khurpe and Dharmpal Dhande are found.
There is absolutely no explanation either from the witness
or from the Police Inspector S.S.Bharne (P.W. 23) as to how
in the printed FIR some more names were added.
34. The evidence of this witness who happens to be
unfortunate husband and father of the deceased has been
assailed on the ground of delay inasmuch as printed FIR
(Exh. 134) discloses that it was recorded on 30.9.2006 at
20.40 hours. No doubt FIR is an important document in a
criminal trial to test the veracity of the prosecution case but
in the present case it is the case of the State itself that
investigation was not carried out properly by Andhalgaon
Police Station and also by CID and, therefore, investigation
was handed over to CBI. Moreover, Bhaiyyalal does not
claim to be an eye witness to the assault on his family
members. He claims that after seeing the crowd he ran
94
away and went to Siddharth Gajbhiye and spent night with
him and lodged report on the next day morning and this
being the position, mere fact that the names of all the
accused do not find place in the FIR. (Exh. 133) by itself
would not be fatal to the prosecution case. No doubt there
are certain contradictions and omissions in the testimony
of this witness visavis earlier statements. The same are
not sufficient to discredit the evidence of the eye witnesses
to which we have made reference hereinabvoe more
particularly having regard to the fact that Bhaiyyalal himself
does not claim that he was an eye witness to the incident of
assault on his family members. The evidence of this witness
read with report Exh. 133 clearly establishes that he
identified the accused nos. 5,6,8 and 9 as the persons
present near his house on 29.9.2006 in the evening. Mere
fact that the names of other accused are not found in the
report by itself would not be sufficient to discredit the
prosecution case about complicity of the other accused
inasmuch as the version of the witness that he was in
frightened condition even when he went to lodge report can
not be lightly brushed aside. However, his version that the
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assailants who had gathered on the spot were shouting that
“Mahar, Dhede people falsely implicated us in police case''
can not be accepted in view of the omissions visavis his
report and statements recorded during investigation.
Therefore, the fact that the names of all the accused have
not been mentioned in the report and that the report (Exh.
134) was lodged at 8.40 p.m. on 30.9.2006 would not be
sufficient to discredit the entire prosecution case about
complicity of the accused in the commission of the crime.
The evidence of this witness also clearly establishes that he
identified the dead body of Priyanka on 30.6.2006 and those
of Surekha, Sudhir and Roshan on 1.7.2006.
35. The prosecution has also relied upon the extra
judicial confessions made by the accused nos. 2 and 8 to
Anil Lede (P.W.10), Gopichand Mohature (P.W.15), Sunil
Lede (P.W.16). Anil and Sunil are brothers and Sunil was
arrested by Police and he was discharged by CBI. P.W.10
Anil deposed that on 29.9.2006 at about 9 p.m. while he was
going to his house accused no.2 Sakru met him on the way.
Accused no.2 Sakru asked him to provide “kharra” but he

96
did not possess it and as such he informed him that he did
not possess the same. Thereafter, he asked Sakru (A2) as to
where he went to which Sakru told that four members of
Bhotmange family were murdered. Anil asked him who
murdered them to which Sakru replied that he along with
accused 2,3,7,8,9 and 11 had committed those murders. It
is extremely difficult to place reliance upon the evidence of
this witness in respect of extra judicial confession alleged to
have been made to him by Sakru (A2). There is absolutely
nothing on record to suggest that Anil was close friend of
Sakru so as to place complete confidence in Anil justifying
such disclosure. There is absolutely no reason for Sakru to
make such confession to Anil. Ordinarily, extra judicial
confession is made to a person of confidence or to a person
from whom the accused wants some help to get out of the
trouble. This is not a factual situation in the present case.
Moreover, disclosure about extra judicial confession has
been made about one and half month after the incident.
The circumstances in which the witness claims that Sakru
made confession to him raise serious doubt about the
authenticity of the extra judicial confession made to the

97
witness. No doubt suggestion was given to the witness that
when Sakru met him he was in a drunken condition which
has been accepted by the witness. Therefore, in any case
extra judicial confession upon which reliance has been
placed by the prosecution can not be said to be voluntary to
inspire confidence. Moreover, in crossexamination Anil
has admitted that at the time when Sakru met him he was
murmuring like a drunken man. Considering all these
factors, we find it extremely difficult to place reliance upon
the extra judicial confession alleged to have been made by
Sakru (A2) to Anil Lede. In any case, Mr. Jaiswal is justified
in placing reliance upon the Judgment in the case of
C.K.Raveendran vs.State of Kerala (2000) 1 SCC 225 in
which the Apex Court refused to place reliance upon the
extra judicial confession made by an accused after
consuming liquor in arrack shop on the ground that same
could not be said to be voluntarily and truthful.
36. The prosecution has also relied upon the extra
judicial confession made by Jagdish (A8). P.W.16 Sunil
deposed that on 30.9.2006 at 6.00 to 6.30 a.m. he opened his
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tea stall. Then accused no. 8 Jagdish came there.
Gopichand (P.W.15) also came there. Accused Jagdish
demanded tea on credit but Sunil refused to give tea on
credit in the morning hour. Jagdish told him that he had Rs.
150 in his shirt pocket which was burnt. On questioning
why the shirt was burnt, Jagdish told him that he had killed
four members of the family of Bhayyalal and as such his
clothes were stained with blood and, therefore, he burnt
those clothes with that cash. Gopichand (P.W.15) who was
present at the stall at the relevant time has also claimed that
he had heard such conversation between Sunil and Jagdish.
In crossexamination, Sunil admitted that when he refused
to give tea to Jagdish, he became angry and he left his shop
murmuring. Admittedly, Gopichand (P.W.15) and Sunil
(P.W.16) were arrested by police in connection with the
same crime and they claimed that they had told the police
about the extra judicial confession made by Jagdish but no
attention was paid to the same. Upon close scrutiny of the
evidence of Sunil and Gopichand, we find it extremely
difficult to place reliance on the evidence of Sunil as well as
Gopichand that Jagdish had made extra judicial confession
99
as deposed by them. It is well settled that extra judicial
confession should be voluntary and truthful. In the present
case, we find it extremely difficult to accept the version of
the two witnesses about extra judicial confession alleged to
have been made by accused no. 8. It is highly improbable
that Jagdish, upon being asked by Sunil as to why Jagdish
had burnt the shirt in which he had Rs. 150/, would
disclose him the reason for burning shirt. It is not the case
of the prosecution that Sunil was a close friend of Jagdish or
that he had confidence on him so as to disclose to him that
he had committed murder of four family members of
Bhayyalal Bhotmange. We, therefore, find it extremely
difficult to place reliance upon the extra judicial confession
alleged to have been made by Jagdish (A8) to Sunil (P.W.16)
in presence of Gopichand (P.W.15).
37. We shall deal with the aspect of motive for the
commission of the crime. According to the accused, there
was absolutely no motive to commit ghastly crime for which
they have been convicted by the learned trial court.
According to the prosecution itself, motive was to take

100
revenge. The evidence regarding motive comes from
Suresh (P.W.3), Siddharth (P.W.18), Rashtrapal (P.W.5).
According to Suresh (P.W.3) on 3.9.2006 at 6.00 a.m.
Siddharth (P.W.18) came to the house of Bhayyalal at
Khairlanji. Sakru (A2) came there and demanded wages.
There was altercation between both of them and Siddharth
slept Sakru (A2). Siddharth (P.W.18) deposed that on
3.9.2006 he came to the house of Bhayyalal and met
Priyanka and then proceeded towards Kandri on his motor
cycle. After proceeding for about half k.m. some persons
accosted him and beat him. Thereafter, Priyanka and
Surekha came there and brought him to their house.
Siddharth lodged report after two days which was registered
as Crime No. 52/06. Mr. Bharne, PSI (P.W.23) confirmed
filing of the report by Siddharth and stated that he recorded
statements of Priyanka and Surekha Bhotmange who
claimed that they had seen the incident. P.W.2 Mukesh
and P.W.3 Suresh also deposed that at the time of the
incident accused shouted that Surekha got them entangled
in police case. The above evidence clearly suggests that
accused suspected that they were implicated in the crime
101
of assault on Siddharth by Priyanka and Surekha
Bhotmange by claiming to be eye witnesses to the incident
of assault and that was the motive for commission of the
crime. No doubt as held by the Apex Court the motive is
double edged weapon and proof of motive by itself can not
be the ground to hold the accused guilty. But, the evidence
of the above referred witnesses to which we have made
reference clearly proves complicity of the appellants in the
commission of the crime. Proof of motive lends assurance
to the prosecution case. Therefore, we have no hesitation to
hold that the prosecution has been able to establish the
motive on the part of the accused to commit the crime.
38. The prosecution also examined Yadnapal
Khobragade (P.W.4) brother of deceased Surekha. His
evidence discloses that in the morning hours on 30.9.2006
Bhaiyyalal came to his house at Deulgaon and asked
whether his sister had came there. He told him that
Surekha did not come there and asked him as to what
happened whereupon he told him that some villagers of
Khairlanji village attacked their house and beat Surekha,

102
Roshan, Sudhir and Priyanka by giving blows of bicycle
chains and sticks and since he was frightened he ran away
from the spot. He further deposed that thereafter he and
Bhaiyyalal went to Dhusala at the house of Siddharth
Gajbhiye. Siddharth Gajbhiye asked Bhaiyyalal to lodge
report to Police. Thereafter he and Bhaiyyalal went to
Andhalgaon Police Station to lodge report. They reached
the Andhalgaon Police Station at 11.00 a.m.. P.S.O. Mr.
Bharne was not available. They told the Head Constable
that they wanted to lodge compliant. Head Constable made
phone call to P.S.O., Bharne who gave message that they
should be kept waiting there and that he would return after
some time. After some time Shri Bharne came to the Police
Station and told them that one body of a girl was found
having name 'Priyanka' engraved on her hand as 'Priyanka'
and they should come there for identification and thereafter
they went to Mohadi Government Hospital along with Mr.
Bharne and found that it was the dead body of Priyanka
and there were no clothes on the person of the dead body
and there were various marks of injuries on her person.
Thereafter, on 1.10.2006 at about 8.30 a.m. Rashtrapal

103
Narnavare made phone call to them and told that three
dead bodies were found and he was asked to come to
Andhalgaon. He went to Andhalgaon where he did not find
any dead body so he went to Mohadi Government Hospital
where he saw the dead bodies of Surekha, Roshan and
Sudhir in a tractor. After looking at the dead bodies he felt
giddiness. The witness has been crossexamined on behalf
of the accused but nothing tangible to shake his testimony
has been brought on record. The evidence of this witness
substantially corroborated the evidence of Bhaiyyalal
Bhotmange (P.W.17).
39. The prosecution also examined Rashtrapal
Narnavare (P.W.5) the nephew of Surekha, who deposed
that Surekha was real youngest sister of his mother and she
got married with Bhaiyyalal Bhotmange about 20 to 21
years back and they used to reside at Khairlanji along with
their children Sudhir, Roshan and Priyanka. He further
deposed that on 29.9.2006 at about 5.30 p.m. he received
phone call from Surekha Bhotmange and she asked him to
come to Khairlanji. She informed him that 12 persons who
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were arrested in the case of Siddharth Gajbhiye were
released on bail and they returned to village. She further
told that these persons with sticks boarded a tractor to go to
Kandri to beat Siddharth Gajbhiye and Rajan Gajbhiye.
She told him that because of this she and her family
members are in danger of life and, therefore, he should
come to Khairlanji. He told her that it was evening and he
was unable to come there and that she should come to their
village to which she stated that she could not come there.
He told her to complain to Andhalgaon Police Station but
she told him that she could not go to Andhalgaon Police
Station as about 23 days prior Dy. Sarpanch and PSO
Bharne threatened her by coming to her house that since
she was giving statements against the villagers if anything
could happen then they will not be responsible as
supporters of MLA and MP are behind them. He further
deposed that on 30.9.2006 at about 10.00 a.m. Yagyapal
Khobragade (P.W.4) made a phone call to him and told
him that he was waiting in Andhalgaon Police Station and
he should come there. He further told that Bhaiyyalal was
with him and that Surekha, Sudhir, Roshan and Priyanka

105
were missing since previous night. He told him that he
should lodge complaint to Andhalgaon Police Station. He
further deposed that he went to Andhalgaon Police Station.
After some time P.S.O. Bharne came and told that dead
body of the girl was found in a canal at Wadegaon village
limit. Thereafter he came along with Bhaiyyalal and
Yadnapal and identified the dead body. He stated that
again on the next day he went to Andhalgaon Police Station
where he was informed that three dead bodies were found
in the limits of Wadegaon. Thereafter he went to the spot
and identified the three dead bodies as those of Surekha,
Sudhir and Roshan. Though the witness was cross
examined visavis earlier statement we do not deem it
necessary to discuss the evidence of this witness being of
formal nature and the same proves that Surekha had given
a phone call to him at about 5.30 p.m. On 29.9.2006
apprehending danger to life and that he had gone to the
Police Station on 30.9.2006 and he had identified the dead
bodies of Priyanaka, Surekha, Sudhir and Roshan.
40. The prosecution also examined the Investigating
106
Officers viz. Milind Bansod (P.W.13), Vinayak Susatkar
(P.W.25), Avinash Rajurkar (P.W. 26), Sanjay Nimje
(P.W.28), Vitthal Dhage (P.W.29), Nareshkumar Sharma
(P.W.30), Binayakumar Thakur (P.W.31), Pradip Mane
(P.W.32), Maroti Patil (P.W.33), Nandkumar Kutti (P.W.34)
who deposed about investigation carried by each one of
them and through the evidence of these witnesses
contradictions and omissions in the complaint visavis the
statements recorded by the respective witnesses have been
proved by the accused. The prosecution also examined Shri
Pradip Ladekar (P.W.35), the Judicial Magistrate, First
Class, Mohadi, who had recorded the statements under
Section 164 of Cr.P.C. of the witnesses at the instance of
CBI. His evidence proves that he recorded the statements
of Mahadeo Zanzad (P.W.20), Premlal Walke (P.W.22), Anil
Lede (P.W.10), Suresh Khandate (P.W.3) and Mukesh
Pusam (P.W.2).
41. Insofar as the submission advanced on behalf of
the accused that there has been considerable delay in
recording the statements of the witnesses and more

107
particularly of the eye witnesses is concerned it is to be
noted that unfortunately the crime was not investigated by
local police as well as by State CID and as such State
Government handed over the investigation to the CBI only
on 20.11.2006 although the crime was committed on
29.9.2006. The delay is , therefore, inevitable. Moreover,
having regard to the situation prevailing in the village
Khairlanji soon after incident it can be safely inferred that
in view of the indiscriminate arrests made by the local
police the witnesses were not ready to come forward to give
statements which was quite natural because of the fear that
they might be arrested in connection with the crime.
Therefore, considering the situation existing in the village
Khairlanji after the incident till the CBI took over the
investigation we are of the considered opinion that the
delay by itself would not be a factor to discredit the version
of the eye witnesses. We have tested the evidence of the eye
witnesses on the touch stone of probabilities having regard
to the situation prevailing in the village soon after the
incident upon reappreciation of the entire evidence we
find that the conviction recorded by the learned trial Judge
108
who have been convicted by the learned trial Judge for the
offences under Sections 302 read with Section 149 of Indian
Penal Code, Section 148 read with Section 149 of the Indian
Penal Code and 201 of the Indian Penal Code does not
deserve any interference. At this stage, we would like to
quote what the Apex Court observed in the case of Krishna
Mochi and others vs. State of Bihar (2002 Supreme Court
Cases (Criminal) 1220. The Supreme Court observed thus;
“ Thus, in a criminal trial a Prosecutor is faced

with so many odds. The Court while
appreciating the evidence should of lose sight
of these realities of life and cannot afford to take
an unrealistic approach by sitting in an ivory
tower. I find that in recent times the tendency to
acquit an accused easily is galloping fast. It is
very easy to pass an order of acquittal on the
basis of minor points raised in case by a short
judgment so as to achieve the yardstick of
disposal. Some discrepancy is bound to be there
in each and every case which should not weigh
with Court so long it does not materially affect
the prosecution case. In case discrepancies
pointed out are in the realm of pebbles, the
Court should tread upon it, but if the same are
boulders, the Court should not make an attempt
to jump over the same. These days when crime is
109
looming large and humanity is suffering and the
society is so much affected thereby, duties and
responsibilities of the courts have become much
more. Now the maxim “ Let hundred guilty
persons be acquitted, but not a single innocent
be convicted” is, in practice, changing the world
over and courts have been compelled to accept
that “society suffers by wrong convictions and it
equally suffers by wrong acquittals”. I find that
this Court in recent times has conscientiously
taken notice of these facts from time to time. In
the case Inder Singh vs. State (Delhi Adm.)
Krishna Iyer, J. laid down that: (SCC P. 162, para
2) “Proof beyond reasonable doubt is a
guideline, not a fetish and guilty man cannot get
away with it because truth suffers some infirmity
when projected through human processes.” In
the case of State of U.P. vs. Anil Singh it was held
that a Judge does not preside over a criminal trial
merely to see that a guilty man does not escape.
One is as important as the other. Both are public
duties which the Judge has to perform. In the
case of State of W.B. vs. Orilal Jaiswal it was held
that justice cannot be made sterile on the plea
that it is better to let a hundred guilty escape
than punish an innocent. Letting the guilty
escape is not doing justice, according to law. In
the case of Mohan Singh vs. State of M.P. It was
110
held that the courts have been removing chaff
from the grain. It has to disperse the suspicious
cloud and dust out the smear of dust as all these
clog the very truth. So long chaff, cloud and dust
remain, the criminals are clothed with this
protective layer to receive the benefit of doubt.
So it is a solemn duty of the courts, not to merely
conclude and leave the case the moment
suspicions are created. It is the onerous duty of
the court, within permissible limit to find out the
truth, it means on one hand no innocent man
should be punished but on the other hand to see
no person committing an offence should get scot
free. If in spite of such effort suspicion is not
dissolved,it remains writ at large, benefit of
doubt has to be credited to the accused.”
We would like to quote what the Apex Court has
observed in the case of State of Panjab vs. Jagir Singh Baljit
Singh and Karam Singh (AIR 1973 S.C. 2407). The Apex
observed in para 23 as under:
“ A criminal trial is not like a fairy tale

wherein one is free to give flight to one's
imagination and phantasy. It concerns itself
with the question as to whether the accused
arraigned at the trial is guilty of the crime
with which he is charged. Crime is an event
111
in real life and is the product of interplay of
different human emotions. In arriving at the
conclusion about the guilt of the accused
charged with the commission of a crime, the
court has to judge the evidence by the
yardstick of probabilities, its intrinsic worth
and the animus of witnesses. Every case in
the final analysis would have to depend upon
its own facts. Although the benefit of every
reasonable doubt should be given to the
accused, the courts should not at the same
time reject evidence which is ex facie
trustworthy on grounds which are fanciful or
in the nature of conjectures.”
We have reappreciated the evidence bearing in
mind the above observations of the Apex Court and have
come to the conclusion that the conviction of the accused
nos. 1,2,3, 6 to 9 and 11 for the offences for which they have
been convicted does not warrant interference by this court.
42. In our opinion, the prosecution has been able to
establish that accused 1 to 3, 6 to 9 assaulted Surekha,
Priyanka, Roshan and Sudhir with sticks, cycle chains, fists
and kicks blows and caused their injuries which resulted in
their death. All the accused shared common object to

112
commit murders of Surekha, Priyanka, Roshan and Sudhir.
The prosecution has also been able to establish that the
accused nos. 2,3 and 6 to 9 were involved in disposal of the
dead bodies by carrying them in bullock carts towards
Kandri.
43. We shall now deal with Criminal Appeal No.
171/2009 preferred by Central Bureau of Investigation
challenging acquittal of respondents/accused for the
offences under Sections 3(1)(x), 3 (1)(xi), 3(2)(v) and 3(2)(vi)
of The Scheduled Castes and The Scheduled Tribes
(Prevention of Atrocities) Act, 1989 ( “The Act” in short).
Before considering the rival submissions we deem it
appropriate to quote the above referred provisions. They
read thus;
“3(1)(x) Whoever, not being a member of a
Scheduled Caste or a Scheduled Tribe
intentionally insults or intimidates with intent
to humiliate a member of a Scheduled Caste
or a Scheduled Tribe in any place within
public view;
3(1)(xi)—Whoever, not being a member of a

assaults or uses force to any woman
belonging to a Scheduled Caste or a
113
Scheduled Tribe with intent to dishonour or
outrage her modesty;
3(2)(v) Whoever, not being a member of a

Scheduled Caste or a Scheduled Tribe—
commits any offence under the Indian Penal
Code (45 of 1860) punishable with
imprisonment for a term of ten years or more
against a person or property on the ground
that such person is a member of a Scheduled
Caste or a Scheduled Tribe or such property
belongs to such member, shall be punishable
with imprisonment for life and with fine;
3(2)(vi)—Whoever, not being a member of a

knowingly or having reason to believe that an
offence has been committed under this
Chapter, causes any evidence of the
commission of that offence to disappear with
the intention of screening the offender from
legal punishment, or with that intention gives
any information respecting the offence which
he knows or believes to be false, shall be
punishable with the punishment provided for
that offence;
43A. The learned trial Judge held that the assault on
four deceased was not on the ground that they belonged to
Scheduled Caste but the motive for the commission of the
offence was because the accused felt that Surekha and
Priyanka falsely implicated them in the offence of assault
on Siddharth Gajbhiye. The learned trial Court also placed
reliance upon the Judgment of this Court in which it has

114
been held that the First Information Report should disclose
ingredients of offence under the Act failing which crime can
not be registered or investigated. No doubt the earlier view
taken by this Court has been reversed by the Full Bench of
this court placing reliance upon the Judgment of the Apex
Court in the case of Ashabai Machindra Adhagale vs. State
of Maharashtra and others (supra). However, the question
which arises for consideration is whether even if the
prosecution evidence to which we have made reference
hereinabove is accepted the offences under Section 3(1)(x),
3(1)(xi), 3(2)(v) and 3(2)(v) of the Act are made out against
the accused.
43B. In order to attract Section 3(1)(x) of the Act it is
necessary that the accused should insult or intimidate a
member of a Scheduled Caste or Scheduled Tribe in any
public place with intention to humiliate him/her. In the
present case, the whole object of the accused was to take
revenge against Surekha and Priyanka because the accused
believed that they were falsely implicated in the assault of
Siddharth Gajbhiye by them and in the process they
committed not only murders of Surekha and Priyanka but
115
of Sudhir and Roshan. Therefore, it is difficult to hold that
accused intended to insult Surekha or other deceased who
admittedly were belonging to Scheduled Caste.
43C. In our opinion, there was no intention on the part
of the accused to insult the deceased. In order to attract
Section 3(1)(xi) of the Act, it is necessary that the accused
not belonging to Scheduled Caste or Scheduled Tribe must
use force to any woman belonging to a Scheduled Caste or a
Scheduled Tribe with intent to dishonour or outrage her
modesty. In the present case as stated above, the whole
object was to take revenge against Surekha and Priyanka
because the accused believed that they were falsely
implicated and as such it is difficult to accept the
prosecution version that offence under Section 3(1)(xi) of
the Act is made out against the accused. Moreover, the
prosecution has not challenged the acquittal of the accused
for the offence punishable under Section 354 of the Indian
Penal Code.
43D. In order to attract Section 3(2)(v) of the Act a
person not belonging to Scheduled Caste or Scheduled
Tribe should commit offence under Indian Penal Code

116
punishable imprisonment for a terms of ten years or more
against a person or property on the ground that such
person is a member of a Scheduled Caste or a Scheduled
Tribe or such property belongs to such member. In the
present case, it is the case of the prosecution itself that the
accused with a view to take revenge against Surekha and
Priyanka assaulted them and family members of Surekha
causing their death. Merely because the deceased belong to
Scheduled Caste it can not be said that ingredients of
Section 3(2)(v) of the Act are made out. The prosecution
evidence does not establish that the accused committed
murder of Surekha and other deceased because they
belonged to Scheduled Caste and, therefore, in our
considered opinion, ingredients of Section 3(2)(v) of the Act
are not made out against the accused.
43E. In order to attract Section 3(2)(vi) of the Act it is
necessary for the prosecution to prove that a person not
being a member of Scheduled caste or Scheduled Tribe
knowingly or having reason to believe that an offence has
been committed under this chapter should cause
disappearance of the evidence of the commission of that

117
offence with the intention of screening the offender from
legal punishment or with intention gives any information
respecting the offence which he knows or believes to be
false. We have already held that the offences under Section
3(1)(x), 3(1)(xi) and 3(2)(v) of the Act are not made out
against the accused and, therefore, necessary sequitur is
that the offence under Section 3(2)(vi) of the Act is not made
out against the accused.
43F. At this stage we would like to deal with the
authorities relied upon by Mr. Khan in support of his
submission that the offences under the Scheduled Castes/
Scheduled Tribes Act are made out against the accused. In
the case of Ashabai Machindra Adhagale (supra) the Apex
Court held that merely because in the FIR caste of the
accused is not mentioned the proceedings could be
quashed and whether the accused belongs to Scheduled
Caste/ Scheduled Tribe can be gone into in the course of
investigation. In the case of Swaran Singh and others vs.
State (2008 CRI.L.J., 4369) the Apex Court held that calling
the member of Scheduled Caste as 'Chamar' with intent to
insult or humiliate would amount an offence and whether
118
there was intent to insult or humiliate by using word
'Chamar' would depend on the context in which it was
used. In Bachcha vs. State of U.P. (2008 CRI.L.J. 483)
Allahabad High Court has held that Section 3(2)(v) of the
Act can be pressed into service only for enabling the Court
to pass a sentence of imprisonment for life and fine when
person has been found guilty of committing an offence
under IPC which is punishable with imprisonment of term
of ten years or more and the provision does not prescribe a
substantive sentence. In Vidyadharan vs. State of Kerala
(2004 CRI. L.J., 605) it has been held that mere knowledge
that the modesty of a woman is likely to be outraged is
sufficient to prove the offence under Section 354 of IPC and
intention is not the sole criteria. It has been further held
that the offence under Section 3(1)(xi) of the Act is an
aggravated form of offence under Section 354 IPC. In our
considered opinion, the authorities relied upon by Mr.
Khan do not advance the case of the prosecution. On the
contrary, the fact that the CBI has not challenged the
acquittal of the accused for the offence under Section 354
IPC makes it difficult to uphold the challenge of CBI to the
119
acquittal of the accused the offence punishable under
Section 3(1)(xi) of the Act inasmuch as the offence under
Section 3(1)(xi) is an aggravated form of offence under
Section 354 of IPC as held in Vidyadharan's case(supra).
43G. We, therefore, find no substance in the appeal
filed by the Central Bureau of Investigation challenging the
acquittal of the respondents/ accused for the offences
punishable under Sections 3(1) (x), 3(1) (xi), 3(2)(v) and 3(2)
(vi) of the Act.
44. We shall now deal with Criminal Appeal No.
170/2009 filed by the CBI challenging imposition of
sentence of life imprisonment on accused nos.1 and 11 on
the ground of inadequacy. We shall also deal with the
aspect whether death sentence awarded to accused nos.
2,3,6,7,8 and 9 deserves to be confirmed. The learned Judge
in paragraph nos. 191 to 217 of the Judgment has dealt with
the aspect of sentences to be imposed on the accused and
has made reference to several authorities relied upon by the
rival parties. The learned trial Judge has not awarded death
sentence to accused nos. 1 and 11 on the ground that they
120
were aged 23 and 20 years respectively and as such they
were immature. The learned trial Judge has further held
that they could have been emotionally carried away by
presence of their fathers' actions and also could have been
guided by their fathers. The learned trial court further held
that accused no.1 Gopal might have been emotionally
charged as his father was beaten by Siddharth Gajbhiye.
The learned trial Judge has further held that both these
accused were absent for disposal of the dead bodies and
they did not see naked body of Priyanka with serious
injuries.
45. According to the learned trial Judge the
aggravating circumstances against the accused nos. 2,3,
6,7,8 and 9 are as follows:
1) All the convicts came together at the
house of Surekha Bbhotmange to commit
crime.
2) The accused came with sticks and iron
chains to commit rioting.
3) All the convicts formed an unlawful
121
assembly with common object to commit rioting
and murders of Surekha Bhotmange and her
family members. Then they acted in unison in
prosecution of common object of their unlawful
assembly.
4) Convicts were furious and were
shouting to search and kill other members of
family of Surekha Bhotmange after killing
Surekha Bhotmange.
5) Victims were unarmed and two of the
victims were ladies.
6) Killings made one after the other by
chasing and surrounding each of the victims.
7) Victims and specially Sudhir, Roshan
and Priyanka did not cause any provocation
at the time of incident.
8) No justification for killing Sudhir
Bhotmange and Roshan Bhotmange who never
caused any harm to convicts.
9) All the victims were severely beaten to
death with many injuries on their persons.
Thereby process of death of each of the victims,
was slow and painful.
122
10) There was depravity in the acts of
convicts which includes
a) killing of unarmed Surekha by all the male
convicts with brutality.
b) convicts shouted to search for others.
c) Roshan pleaded his innocence, but he was not
spared. He was chased and killed.
d) Two victims were searched and killed.
e) Accused were threatening others, so that none
should come to rescue of victims and thereby
enjoyed killings.
f) Accused no.2 Sakru and accused No. 8 Jagdish
made extra judicial confession without any
hesitation showing no remorse for committing
such heinous crime.
11. Convicts acted in revolting manner by
killing the victims in presence of mob, without
fear of anyone and acted as if they did heroism.
12. Accused Nos. 2,3,6 to 9 removed clothes
of Priyanka before disposing her severely injured
dead body and thereby wanted to get
123
satisfaction to their sexual eyes at such extreme
circumstances.
45A. The learned trial court further held that victims
were unarmed. Two of them were women and one of them
was physically handicapped. One of the victim was aged 19
years and they were brutally assaulted with sticks, cycle
chains and with kicks and fist blows. According to the
learned trial Judge the mitigating circumstances are as
under:
a) There was no prior conspiracy to kill all
the four victims;
b) There was no caste hatred for these
killings;
c) First Victim Surekha Bhotmange set fire
to her own cattle shed, which might have
provoked the accused to commit the crime;
d) Accused extinguished the fire;
e) Accused claimed that they were falsely
implicated in crime of beating of Siddharth
Gajbhiye by Surekha and Priyanka;
124
f) They are ordinary villagers with no
criminal past; and
g) Their families depend on their earnings.
46. In the case of Bachansingh vs. State of Punjab
(AIR 1980 Supreme Court, 898) the Apex Court has
observed ;
i) The extreme penalty of death may not
be inflicted except in gravest cases
of extreme culpability;
ii) Before opting for the death penalty,

the circumstances of the offender
also require to be taken into
consideration along with the
circumstances of the crime;
iii)Life imprisonment is the rule and

death sentence is an exception;
iv) A balance sheet of aggravating and

mitigating circumstances has to be
drawn up and in doing so the
mitigating circumstances have to be
accorded full weightage and a just
balance has to be struck between the
125
aggravating and the mitigating
circumstances before the option is
exercised.
47. In Machhi Singh and others vs. State of Punjab,
(1983) 3 SCC 470 the Apex Court has held that for deciding
whether the crime is rarest of rare, following factors be
considered which are; i) manner of commission of murder;
ii) motive for commission of murder, iii) anti social or
socially abhorrent nature of the crime and iv) magnitude of
the crime and personality of the victim of murder.
48. The learned trial Judge in the Judgment has
mentioned the aggravating and mitigating circumstances to
which we have already made reference. Insofar as
aggravating circumstance no. 10 ( f ) is concerned, we have
already disbelieved the extra judicial confessions made by
accused nos. 2 and 8 and, therefore, the said circumstance
can not be used against the accused as aggravating
circumstance.
49. After considering the aggravating and mitigating

126
circumstances and having regard to the observations made
in Bachansingh case (supra) and the factors which are to be
considered while considering the sentence as laid down in
Machhisingh's case we are of the considered opinion that
case for awarding death sentence to accused nos. 2,3 and 6
to 9 is not made out and, therefore, the accused nos.
2,3,6,7,8 and 9 do not deserve death sentence. The
incident had not occurred on account of caste hatred but
the incident occurred since the accused felt that they were
falsely implicated in the crime of beating Siddharth
Gajbhiye by Surekha and Priyanka. Moreover, there is no
evidence brought on record that the accused have a
criminal record. Considering the nature of the crime and
the circumstances leading to the commission of the crime
and the past record of the accused, we are of the considered
opinion that accused nos. 2,3,6 to 9 do not deserve death
sentence. However, having regard to the manner in which
the four murders were committed we are of the considered
opinion that all the convicted accused deserve sentence of
imprisonment exceeding 14 years. This Court in the case of
Dipak Vasant Kale vs. State of Maharashtra, 2006 ALL

127
MR(Cri), 686 set aside death sentence and imposed
sentence of life imprisonment placing reliance upon
various Judgments of the Apex Court with a further
direction that the accused should not be released unless
he completes actual term of imprisonment of twenty years.
In the said Judgment reliance was placed upon various
Judgments of the Apex Court. The Apex Court in the case of
Ram Anup Singh and others vs. State of Bihar (2002) 6 SCC,
686 set aside the death sentence awarded by the trial
court and confirmed by the High Court to the appellants
and sentenced them to suffer imprisonment for life with a
condition that they shall not be released before completing
actual term of twenty years including the period already
undergone by them. Similar order was passed by the Apex
Court in the case of Shri Bhagwan vs. State of Rajashthan
(2001) 6 Supreme Court Cases, 296). In Jayawant
Dattatraya Suryarao vs. State of Maharashtra (AIR 2002
Supreme Court, 143) the Apex Court set aside the death
sentence imposed on the appellant and sentenced him to
undergo imprisonment for life with a further direction that
the accused would not be entitled to premature release.

128
The Apex Court in the case of Kamalnath vs. State of Tamil
Nadu (2005 Supreme Court Cases, 1121) after confirming
the conviction of the appellant for various offences
including the murder held that any remission of sentence
or amnesty on a special occasion announced by the Central
or the State Government shall not apply to the sentence of
imprisonment imposed on the accused.
In the case of Dilip Tiwari and another vs. State of
Maharashtra, ( 2010 Cri. L.J. 905, ) the Apex Court set aside
the death sentence imposed on the appellants and
sentenced them to life imprisonment with a further
direction that two main accused who had assaulted
helpless ladies should not be released unless they complete
25 years of actual imprisonment. The Apex Court made
reference to the earlier Judgments in the case of Haru
Ghosh vs. State of West Bengal (2009 AIR SCW 6007) and in
the case of Swami Shradhanand alias Murali Manohar
Mishra vs. State of Karnataka (2008 AIR SCW 5110) for
adopting this course.
Having regard to the manner in which the
convicted accused committed the murder of four persons
129
including two persons against whom they had no grudge,
we are of the considered opinion that although the accused
do not deserve death sentence, the interest of justice would
be served by directing that all the accused should not be
released until they complete twenty five years of actual
imprisonment including the period of imprisonment
already undergone.
50. The learned trial Judge awarded separate
sentences on accused nos. 1 to 3, 6 to 9 and 11 for
committing murders of Surekha Bhotmange, Sudhir
Bhotmange, Roshan Bhotmange and Priyanka Bhotmange.
We do not propose to award separate sentences on the said
accused for committing murders of Surekha Bhotmange,
Sudhir Bhotmange, Roshan Bhotmange and Priyanka
Bhotmange. In out opinion, interest of justice would be
served by sentencing each of the accused to life
imprisonment and to pay a fine of Rs. 5000/ each in default
to undergo rigorous imprisonment for one year subject to
the rider that each of the accused shall undergo actual
imprisonment for the period of twenty five years.
130
51. In the light of the above discussion, we dispose of
the Reference and the Appeals filed by the accused and CBI
in terms of the following order.
(i) The reference made by the learned trial Judge is
rejected. Accused nos. 1 to 3, 6 to 9 and 11 are sentenced to
life imprisonment and to pay a fine of Rs. 5000/ each in
default to undergo rigorous imprisonment for one year with
further direction that each of the accused shall not be
released until he completes twenty five years of actual
imprisonment including the period of imprisonment
already undergone.
(ii) The conviction of accused nos. 1 to 3, 6 to 9 and
11 and the sentences imposed on them for the offence
punishable under Section 148 read with Section 149 of the
Indian Penal Code imposed by the trial Judge are
maintained.
(iii) The conviction and sentences imposed on accused
nos. 2,3, and 6 to 9 for the offence punishable under section
201 of the Indian Penal Code are maintained.
All the sentences are ordered to run concurrently;
All the accused are entitled to set of the period of
131
imprisonment already undergone in terms of Section 428 of
Cr.P.C..
The order passed by the learned trial Judge
insofar as the disposal of the property is concerned is
maintained.
Criminal Confirmation Case No. 4/2008 and
Criminal Appeal Nos. 748/2008, 763/2008, 170/2009 and
171/2009 stand disposed of in the aforesaid terms.
JUDGE JUDGE
patle

Khairlanji Massacre Judgement of The Bombay High Court Dated 14th Jul 2010

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1

Confirmation Case No. 4/2008 along with

Section 149, 120­B of the Indian Penal Code and Sections

and 11 have been convicted and sentenced for different

details of conviction and sentences imposed on accused

sentence imposed on accused nos. 2,3,6,7,8 and 9;

Criminal Appeal No. 763/2008 has been filed by original

accused nos. 1,2,8 and 9 challenging the conviction and

sentences imposed on them; Criminal Appeal No. 748/08

challenging the conviction and sentences imposed on

them; Criminal Appeal No. 170/09 has been preferred by

Central Bureau of Investigation under Section 377 of the

Indian Penal Code, aggrieved by inadequacy of sentences

171/09 has been preferred by Central Bureau of

and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Informant Bhaiyyalal Bhotmange (P.W.17) was

Priyanka. They belong to Mahar caste (scheduled caste).

Sidharth Gajbhiye (P.W.11) Police Patil of nearby village

5. On 13.9.2006 Siddharth Gajbhiye came to the

house of Bhaiyyalal Bhotmange in the morning. Accused

No. 2 Sakru met Siddharth Gajbhiye and demanded back

wages on account of which there was a dispute between

them. Sidharth slapped Sakru. On the very day in the

was assaulted by some villagers. On hearing the news of

brought Sidharth to their house. After two days Sidharth

lodged report at Andhalgaon Police Station pursuant to

assaulted Siddharth pursuant to which attackers were

about 40 persons surrounded the house of Bhaiyyalal

falsely implicated by Surekha. They also gave abuses of

their caste. On seeing that Bhaiyalal ran away from the

house. Surekha came out of her house and set fire to her

cattle shed probably to ward off the attackers. Then

the accused. She was assaulted by giving blows of sticks,

bicycle chains and also by giving kicks and fist blows.

by the accused and he was assaulted by giving blows of

body was dragged near the body of Surekha who was

already dead. All the accused then searched for other

caught him near hand pump where he was assaulted by

and fist blows. Thereafter, accused caught Priyanka near

in the same manner. On account of assault, Roshan and

the incident is disclosed they would also meet with the

6A. Bhaiyyalal Bhotmange after running away from

his house went to the house of Siddharth Gajbhiye at

phone call to Andhalgaon Police Station. Thereafter,

Bhaiyalal, accompanied by son of Siddharth, went to

report. By this time, the police had received information

called Bhaiyalal at Mohadi hospital where the dead body

On the same day at about 8.00 p.m. crime was registered

and Roshan Bhotmange were also found. Police prepared

was not being carried out on proper lines, the State

8. By notification dated 20.11.2006 the State of

crime through Central Bureau of Investigation. Central

No. 11­S­2006. Thereafter, investigation was taken up by

SDPO of CBI Shri N.K.Sharma which was followed by Dy.

S.P. CBI Shri Nandkumar. In the course of investigation,

involved in the crime which was granted by the learned

recorded by the Magistrate in terms of Section 164 of the

Code of Criminal Procedure. After completion of the

investigation, CBI submitted charge sheet against eleven

accused for the offences punishable under Sections 147,

offences under The Scheduled Castes and The Scheduled

Tribes (Prevention of Atrocities) Act. The learned Judicial

Section 3(2)(v) and 3(2)(vi) of Scheduled Castes and

Section 149, 120B of the Indian Penal Code and Sections

No. 11S2006. Thereafter, investigation was taken up by