Bombay High Court
Buvaji Sahadeo Hajare vs The State Of Maharashtra on 20 December, 2012
Bench: V.K. Tahilramani, A. R. Joshi
judgment in appeal 740-05.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO. 740 of 2005.
Buvaji Sahadeo Hajare,
Convict No. C/2554, at
present undergoing imprisonment
in Kolhapur Central Prison,
Kalmba, Taluka and District
Kolhapur .. Appellant.
(Original Accused).
Versus
The State of Maharashtra
ig ..Respondent.
Mr H.S.Venegavkar, Advocate, appointed for the Appellant.
Mr J. P. Kharge, Additional Public Prosecutor, for the State.
CORAM :- SMT. V.K. TAHILRAMANI AND
A.R. JOSHI, JJ.
DATE RESERVING JUDGMENT : 12.12.2012.
DATE FOR PRONOUNCEMENT OF
JUDGMENT :- 20th DECEMBER, 2012.
JUDGMENT (PER A.R.JOSHI):-
1. Heard rival submissions on this criminal appeal preferred
by the appellant-accused challenging the judgment and order of
conviction dated 31.3.2004 passed by the learned Additional
Sessions Judge, Satara in Sessions Case No. 1 of 2003.
2. By the said impugned judgment and order the appellant-
accused was convicted for the offence punishable under Section
302 of IPC for committing murder of both the victims, one
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Pandurang Vithoba Hirave and one Manubai Pandurang Hirave
and was sentenced to suffer imprisonment for life and to pay
fine of Rs.5,000/-, in default to suffer further RI for three years.
It appears that the trial Court convicted the appellant-accused
and awarded sentence of life imprisonment and fine for each
offence of murder. However, the substantive sentences were
directed to run concurrently.
3. The case of the prosecution, in nut shell, is as under :-
Deceased Pandurang and deceased Manubai were
husband and wife and were residing at Limbachiwadi, taluka
Khandala, District Satara. Complainant PW-2 Vishnu Dhebe is
also resident of village Limbachiwadi. He is related to the
victims and is a son of sister of deceased Pandurang. The couple
had no male issue but had only one daughter by name
Prabhavati (PW5). She was married to one Ananda Dhebe. PW-5
Prabhavati and her husband were residing along with parents of
PW-5 i.e. the victim couple. PW-8 Jayashri Hirve is also related
to the victim couple as she is cousin daughter-in-law of deceased
Pandurang. She was residing in the neighbourhood of the victim
couple. One Laxmibai PW-6 was also residing in the
neighbourhood of the couple. The appellant-accused Buvaji is
also resident of the same village Limbachiwadi and was known
to the family of the victim couple and also their other relations.
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4. According to the case of the prosecution, about 20 years
prior the deceased Pandurang had purchased some agriculture
land from the father of the appellant-accused. An amount of
Rs.11,000/- was also taken as a loan by the appellant-accused
from the deceased, about seven to eight years prior to the
incident which took place on the night of 23.9.2002. Allegedly,
the appellant-accused was raising quarrel with the victim
deceased Pandurang on account of such sale of agriculture land
and loan amount of Rs.11,000/- and the appellant-accused was
refusing to repay the said amount.
5. Also, according to the case of the prosecution, the
appellant-accused was of bad character and had outraged the
modesty of PW-6 Laxmibai Dhebe about five months prior to the
incident. Out of said incidence of outraging the modesty a
criminal complaint was also lodged against the appellant-
accused and in fact he was arrested and kept in detention and
the matter was still pending till the date of the incident in the
present matter.
6. It is also the case of the prosecution that on 23.9.2002 at
about 5:00 pm in the evening the appellant-accused had been to
the house of Jayshri PW-8 and caught hold of her hand with bad
intention, probably asking for sexual favour. This was revealed
to the victim couple and other relatives and on this the
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appellant-accused was reprimanded by the victim couple and at
that time victim Pandurang had warned the appellant-accused
not to indulge in such activities otherwise he would face bad
consequences. Apparently, this was the immediate cause for the
incident occurred on the night of 23.9.2002 in which the victim
couple was severely assaulted on their heads while in sleeping
condition and their murder was committed by the appellant-
accused.
7. According to the case of the prosecution, on the night of
23.9.2002 the victim couple had left their house at village
Limbachiwadi and went to their agriculture field called as Adka
for sleeping under one cattle-shed like structure having roof
above but no walls around. Apparently, it was the daily habit of
the couple to go to Adka and sleep there instead of sleeping in
the village house. The daughter of the couple i.e.PW-5
Prabhavati and her husband as usual were sleeping in the house
of the couple at village.
8. Also, according to the case of the prosecution, there was
some commotion at Adka where the victim couple was sleeping
and in fact the appellant-accused had reached there on that
night and assaulted the couple while both the victims were
sleeping. He assaulted them on their heads and other parts of
body by means of wooden log/bamboo stick. Noticing this
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commotion at Adka one person by name Arvind Mandare got
awakened from sleep and he noticed that there was some
commotion from the side of cattle-shed in the field of victim
couple. Thereafter, said Arvind awakened PW-2 Vishnu, who in
turn, awakened Prabhavati PW-5 and her husband Ananda. PW-
2 Vishnu, PW-5 Prabhavati and her husband reached near the
cattle-shed and noticed the presence of the appellant-accused
there. They witnessed the situation from about 15 feet distance
and found that the victim couple i.e. Pandurang and his wife
were lying on the ground in severely injured condition in a pool
of blood. It is noticed that the appellant-accused was standing by
the side holding one bamboo stick / wooden log. He was
accosted by PW-2 Vishnu as to what he was doing there. On this,
allegedly the appellant-accused told that he had beaten the
maternal uncle and aunt of Vishnu and if Vishnu also come
forward he will show him. Thereafter, the appellant-accused ran
from the spot towards hilly area beyond the said agriculture
field of the victim. The complainant Vishnu and others reached
near the victim couple. They found out that victim Manubai was
already dead. However, victim Pandurang was alive.
Arrangements were made to take them to the house of victim
couple at Limbachiwadi village. Vehicle was brought for taking
victim Pandurang to the hospital. However, on arrival of the
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vehicle it was noticed that said Pandurang had also succumbed
to the injuries and died. Victim Manubai was already dead when
found at the spot of the offence. In the same vehicle which was
brought,PW-2 Vishnu went to the police station Khandala and
lodged his complaint (Exh.31). It was lodged at 5:15 am. In the
complaint, the name of the present appellant-accused was given
as assailant. Offence was registered against the appellant-
accused for the offence punishable under Section 302 of IPC. PI
Shinde PW-10 took over the investigation after the complaint
was lodged and registered by PSI Bhure PW-11.
9. During investigation inquest panchnamas were conducted
on the dead bodies of Pandurang and Manubai. Scene of offence
was visited and spot panchnama (Exh.34) was conducted .
Various articles found on the spot were taken charge of
including the blood-stained mud and other samples. As, by that
time the appellant-accused was absconding, his house was
visited, his photograph was collected from his house and was
published along with the letter addressed to all the police
stations within the jurisdiction. Statements of witnesses were
recorded, dead bodies were sent for postmortems and
postmortem reports were obtained (Exhs.18 and 19). Clothes
from the persons of the dead bodies were taken charge of under
panchnama.
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10. During investigation whereabouts of the appellant-
accused were revealed and on 27.9.2002, the appellant-accused
was apprehended from the area of one company on the road
from Pandavdara to Gavadewadi. At the time of arrest, during
the personal search of the accused one spear with wooden
handle was found. It was also taken charge of. Thereafter,
during the investigation on 4.10.2002 at the instance of the
appellant-accused a wooden log article-25 was recovered. In
that panchnama one PW-3 Santosh took part as panch witness.
11.
At the conclusion of the investigation seized articles were
sent for chemical analysis and CA reports Exhs. 71, 72 and 73
were obtained. On completion of investigation, charge-sheet was
filed and the matter was committed to the Court of Sessions and
it ended in conviction of the appellant-accused as mentioned
above.
12. Defence raised on behalf of the appellant-accused is two
fold. One is that of alibi and secondly that he was falsely
implicated in the matter out of strained relations appellant-
accused had with the complainant Vishnu PW-2. According to
the appellant-accused, the main prosecution witnesses PW-2
Vishnu, PW-5 Prabhavati, PW-6 Laxmibai, PW-8 Jayshri Hirave
are the close relatives of the victim couple and they have falsely
implicated the appellant-accused in the offence of double
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murder, mainly at the instance of PW-2 Vishnu. According to the
appellant-accused he had a quarrel with complainant Vishnu on
account of some loan transaction and, therefore, with the help
of PW-6 Laxmibai, complainant Vishnu had arranged to lodge a
complaint under section 354 of IPC against the appellant-
accused and admittedly in that matter the appellant-accused was
arrested and put behind the bar for sometime prior to bail. Even
after that matter, according to the appellant-accused, it was
designed by PW-2 Vishnu to implicate the accused in this matter
of murder of the victim couple.
13. Prior to appreciating the defences raised above on behalf
of the appellant-accused, certain admitted position is required to
be mentioned in order to have proper perspective of the matter
and scope of the present appeal. The postmortem reports Exhs.
18 and 19 are admitted on behalf of the appellant-accused
during the trial. The incident happened on the mid night of
23.9.2002 and immediately at 5:15 am on 24.9.2002 the FIR
was lodged by PW-2 Vishnu. About four to five months prior to
the incident, there was another incident in which the appellant-
accused had outraged the modesty of PW-6 Laxmibai and on
that count a criminal complaint was lodged against the
appellant-accused and he was put behind the bars for some
period and that matter was pending.
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14. Bearing in mind the above position, now defence raised
on behalf of the appellant-accused is discussed. So far as the
defence of alibi is concerned, the appellant-accused had
examined three defence witnesses. DW No.1 is his friend Vivek
Kasurde, DW No.2 Sangita is wife of the appellant-accused and
DW No.3 Prabhavati Chavan is sister of the appellant-accused.
According to DW-1, he had accepted regarding the earlier case
of outraging the modesty of a woman alleged against the
appellant-accused by Laxmibai PW-6. He also admitted
regarding arrest of the appellant-accused in the matter.
However, according to this witness on 23.9.2002 at about 11.00
a.m. he along with the appellant-accused had been to Wai for
some other work of getting change in the caste certificate of
some relative of DW-1. According to this witness, they both were
at Wai till 5.00 p.m. or even till thereafter and on the night of
23.9.2002 the appellant-accused had visited the house of his
sister Prabhavati Tulshiram Chavan DW-3 and stayed at her
house at village Atit. Admittedly, the distance between Atit and
village Limbachiwadi is 20 to 25 kms. DW No.3 has also deposed
before the court regarding stay of the appellant-accused at her
place at village Atit on that entire night and leaving only on the
next day. Regarding leaving the village Limbachiwadi along with
DW-1 and staying at the house of Prabhavati Chavan DW No.3,
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Sangita Hajare (DW No.2) is examined on behalf of the
defence. She is the wife of the appellant-accused. She deposed
in consonance with the said defence raised on behalf of the
appellant-accused. From the substantive evidence of IO, PW-10 it
is evident that statements of said DW-1 and DW-No.2 were
recorded by the police during investigation. However, it is not at
all the case of these witnesses that immediately they informed
the Investigating agency as to presence of the appellant-accused
at some other place away from Limbachiwadi and his stay on the
night of 23.9.2002 at the residence of his sister Prabhavati
Chavan, DW No.3 at Atit village.
15. On this defence of alibi, we have carefully gone through
the substantive evidence of DW Nos. 1, 2 and 3 and also the
substantive evidence of prosecution witnesses PW Nos. 2, 5, 6
and 8 so also the substantive evidence of Investigating Officer
PW No.10. According to case of the prosecution and also
according to DW-2 Sangita wife of the appellant-accused on the
next day morning i.e. on 24.9.2002 police visited house of the
appellant-accused and they met Sangita and enquired about
whereabouts of her husband i.e. the appellant-. As he was not
found at the house, his photograph was obtained and was
circulated to all other police stations and other police stations
were kept on alert for look out the appellant-accused for his
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arrest. Apparently, that time Sangita had knowledge that her
husband has been shown as an accused in the offence of double
murder. However, she did not try to contact her husband.
Though, according to her, he was away and was staying with his
sister Prabhavati Chavan. This conduct of not communicating
the appellant-accused immediately, goes to show that the
defence of alibi raised by the appellant-accused is after thought.
It is an admitted position that apart from the evidence of DW
Nos. 1, 2 and 3, there is no material, much less any
documentary evidence to show that the appellant-accused has
travelled different villages for going to Wai, then coming back to
Atit. In our considered view, the appellant-accused had failed to
establish his defence of alibi.
16. So far as another defence of false implication due to
strained relations with PW-2 Vishnu, apart from the suggestion
given to PW-2 Vishnu regarding some monetary transactions
between the appellant- and PW-2, there is nothing brought on
record to show that both were on cross-terms. Otherwise also if
at all it is accepted that out of some political rivalry in the
village Gram Panchayat politics, PW-2 Vishnu had to take
revenge on the appellant-accused, till it would be far fetched to
accept the submission on behalf of the appellant-accused that
the entire story of double murder has been concocted and for
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that purpose immediately within three to four hours of the
incident an FIR was concocted taking the name of the appellant-
accused as assailant.
17. Again on this aspect, it is established beyond reasonable
doubt by the prosecution that the appellant-accused was
reprimanded by the victim couple due to the incidence taken
place at about 5.00 p.m. on 23.9.2002 when the appellant-
accused had visited the house of PW-8 Jayshri Hirave and caught
hold of her hand. Apparently, that time the victim couple was
present and they reprimanded him. On this aspect, it is tried to
argue on behalf of the appellant-accused by Advocate Shri
Venegaonkar that there is rather difference in the substantive
evidence of PW-2 Vishnu and PW-5 Prabhavati on one side and
PW-8 on the other side. It is pointed out that according to PW-8
on 23.9.2002 there were total three incidences, the appellant-
accused visiting her house, catching holding of her hands and
remaining at the house for about an hour or so. According to
PW-8, the first such incidence occurred at about 12.00 noon,
second one at about 5.00 pm and third one at about 10.00 p.m.
As against this, PWs 2 and 5 are silent regarding the first and
third incident and they speak only of the incident took place at
5.00 p.m. By pointing out this, it is submitted on behalf of the
appellant-accused that this entire story as to the appellant-
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accused catching hold of the hand of Jayshri Hirave is a
concoction and this evidence is fabricated in order to suit the
case of the prosecution for showing alleged motive for doing
away with the victim. Apparently, during second incidence
which occurred at 5.00 p.m. the other persons were present and
had witnessed the situation and reprimanded the appellant-
accused and as such regarding the first and third incident they
had not mentioned anything because of lack of knowledge. In
any event, this argument advanced on behalf of the appellant-
accused does not sound to reason and logic and even for the
sake of argument it cannot be accepted being far fetched.
18. Apart from the above main argument, certain other points
were also raised on behalf of the appellant-accused in order to
show that the prosecution witnesses PW Nos. 2, 5, 6 and 8 are
not trust worthy. It is pointed out that PW-2 had improved his
story as to himself, Prabhavati and her husband stopped on the
spot after seeing the wooden log in the hand of the appellant-
accused. There is no specific mention regarding stopping by
these witnesses on seeing the wooden log in the hand of the
appellant-accused as it has not been stated by PW-2 Vishnu in
his complaint and as such it is an improvement. It is also
brought to our notice that according to PW-5, it takes about
three minutes from her house i.e. the house of the victim to
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reach to the spot at the cattle-shed. Whereas, according to PW-2
Vishnu, it takes about 14 minutes to reach the spot from
Limbachiwadi village. By pointing out this discrepancy in the
timing, it is argued that these witnesses are not giving true and
correct account of the events and as such they never visited the
scene of offence and never saw the appellant-accused there. On
this aspect, it must not be lost sight of the fact that witnesses are
not much educated and are rustic villagers and one cannot
expect from such witnesses to correctly and accurately give the
time or equate the walking distance in terms of minutes. In
other words, certain latitude is required to be given to these
witnesses while giving the distance which can be crossed in
particular time gap.
19. It is also brought to our notice that the panchas allegedly
taken for the arrest panchnama are not examined and as such
the story of the prosecution as to arrest of the accused from the
particular place, as detailed by police officer cannot be accepted.
On this aspect, it is a factual position that the appellant-accused
was not found at his residence when immediately on the next
day morning police had reached the house of the appellant-
accused and enquired with his wife DW-2 Sangita and only on
27.9.2002 the appellant-accused was traced out and was put
under arrest. Though the panchas as to arrest panchnamas are
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not examined, it is not at all mitigating circumstance to the case
of the prosecution considering the substantive evidence of PW-
2, 5, 6 and 8.
20. It is also tried to argue that PW-11 had no authority to
arrest the appellant-accused and as such the arrest is bad in law.
However, there was no much force in the said argument
considering the allegations against the appellant-accused as to
his involvement punishable under section 302 of IPC and is
arrested by a competent police officer.
21. It is also argued that the doctor who had performed
postmortems on the dead bodies has not been examined, in
order to opine whether the wooden log Art.25 recovered at the
instance of the appellant-accused could have been the weapon
of assault causing the injuries found on the dead bodies. On this
aspect, it must not be lost sight of the fact that the appellant-
accused had admitted both the said postmortem reports. If the
doctor who conducted postmortems would have been brought
before the court for giving evidence, it would have been an
added advantage to the case of the prosecution as to getting
opinion of expert on the weapon of assault and the injuries.
However, absence of such evidence will not negate the case of
the prosecution as otherwise it has been established by the
substantive evidence of prosecution witnesses as detailed above.
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22. Lastly, it is argued that there is change in the scene of
offence as stated by PW Nos. 2 and 5. According to PW-2 Vishnu,
dead bodies were found on the ground and not in the bullock
cart. Whereas, according to PW No.5, bedding which was used
by the couple for sleeping was having blood stains. When the
learned advocate for the appellant-accused was asked to show
such specific substantive evidence of PW No.5, he could draw
our attention only to the portion appearing in paragraph no.8 of
notes of evidence to the following effect.
"It so happened that when we found my parents lying
on the cart road the bullock cart was in the shed. The
bed which my parents took with them for sleeping was
kept in the bullock cart. Vakhal was smeared with
blood. I do not know what the police did with the said
Vakhal."
23. By pointing out this, it is argued on behalf of the
appellant-accused that this Vakhal is the bed and it was lying in
the bullock cart whereas according to PW No.2 there was no
blood stains on the bedding which was kept in the bullock-cart.
On plain reading of substantive evidence of PW No.5 as referred
above, we do not gather any such situation as argued by learned
Advocate for the appellant-accused. The substantive evidence of
PW No.5 cannot be construed to say that bed which was used by
the victim couple on that night was also stained with blood. In
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any event, there is no variance interse between the substantive
evidence of PW Nos. 2 and 5.
24. Again on this count, our attention is drawn towards the
map produced before the trial Court and it is argued that in the
map, it is specifically mentioned that two dead bodies were in
the bullock cart and the bullock cart was stationed below the
cattle-shed having only roof and no side walls. On carefully
examining the said map it is revealed that it bears the signature
of the person who has drawn the map and said signature is with
the date 5.12.2002. Said map is in fact admitted by the defence
and was allowed to be exhibited and marked as Exh.74. There is
nothing on record that the said map was drawn immediately on
the spot prior to removal of the dead bodies from the spot.
Moreover, it cannot be said that whatever mentioned in the said
map which was drawn in December, 2002 is to be taken into
consideration so as to disbelieve the story of the prosecution and
that also only on the aspect of the finding of the dead bodies
whether inside the bullock cart or on the road by the side of the
cart. In any event, all these arguments cannot be accepted in
view of the over-whelming substantive evidence of PW Nos. 2, 5
and other prosecution witnesses.
25. In the result, there is nothing to interfere with the
impugned judgment and order. Consequently, there is no merit
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in the present appeal and same is disposed of accordingly with
the following order:-
ORDER.
(1) Criminal Appeal No. 740 of 2005 is dismissed.
(2) Office to communicate this judgment and order
to the appellant who is in jail custody through the
concerned jail authority.
(A.R. JOSHI, J) (SMT. V.K. TAHILRAMANI,J)
Ladda R.S.(P.A.)
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