Balu Dattu Thakre vs The State Of Maharashtra
2016 Latest Caselaw 2598 Bom

                                                                                     APEAL145_2014

vidya

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                          
                      CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO. 145 OF 2014




                                                                  
                                    WITH
                      CRIMINAL APPLICATION NO. 639 OF 2015
                                      IN
                        CRIMINAL APPEAL NO. 145 OF 2014




                                                                 
        Balu Dattu Thakre                                   ...   Appellant/Applicant
              vs.
        The State of Maharashtra                           ...    Respondent




                                                       
        Mr. Hitesh P. Shah, Advocate for the appellant/applicant.
                                       
        Mrs. A.S. Pai, APP for the respondent/State.

                                       CORAM: MRS. V.K. TAHILRAMANI &
                                      
                                             MRS. MRIDULA BHATKAR, JJ.

JUNE 7 , 2016.

ORAL JUDGMENT (PER MRS. MRIDULA BHATKAR, J.)

This Appeal is directed against the judgment and order dated 31st

May, 2004 passed by the Additional Sessions Judge, Phalghar in Sessions

Case No. 77 of 2002. The appellant is convicted for the offences

punishable under section 302 of the Indian Penal Code and is sentenced to

undergo R.I. for life and pay fine of Rs.500/-, in default of fine to undergo

further R.I. for three months.

1 of 13

APEAL145_2014

2. It is the case of the prosecution that the incident of murder has taken

place on 22nd March, 2002. The appellant/accused and deceased are the

residents of Village Manikpur. The appellant/accused was having illicit

relationship with one lady named Shilu. Few days prior to the incident, the

appellant/accused and Shilu had quarrel , so she left the house and went to

her village. The deceased Motiram Mali went to the house of Shilu and

brought her back. She started residing with Motiram in her house 2 to 3

days prior to the incident. Rama Motiram Mali, wife of deceased Motiram,

is informant in this case. She was working in one plastic company. Shilu's

stay with Motiram was not liked by the appellant/accused, therefore, he

held animus against the deceased. On 22nd March, 2002, Motiram visited

the house of his sister, who was the mother of Kunda (PW-4). Kunda and

Avinash (PW-3) were the children of his sister. At around 1.30 to 2 p.m.

Avinash returned home from school for lunch and went out to answer

nature call, at that time, Vaibhav (PW-6), husband of Kunda (PW-4) was in

the house alongwith Motiram. The appellant/accused, the neighbour of

Kunda, who entered the house with axe and assaulted deceased Motiram on

his head and throat. Rama Motiram Mali was in the company at around

2.15 p.m., Her nephew Avinash came to the company and told her that

2 of 13

APEAL145_2014

accused had assaulted her husband. So she went to the house of Kunda,

niece of Rama and real sister of Avinash and saw the body of her husband

in the pool of blood. She shifted him to the hospital and was declared

dead. Rama gave information to Manikpur Police Station and the offence

was registered on the same day at C.R. No. 100 of 2002. The postmortem

was conducted on the same day by Dr. Dongre (PW-2). The police drew

spot panchnama, recorded statements of the witnesses and arrested the

accused. They recovered axe at the instance of the accused and drew

panchnama under section 27 of the Evidence Act. After completion of the

investigation, police filed charge in the Court of Magistrate and the learned

Magistrate committed the case to the Court of Sessions.

3. The charge of murder was framed against the appellant for the

offences punishable under section 302 of IPC. The appellant pleaded not

guilty and defended the case that he was innocent. The prosecution

adduced oral as well as documentary evidence by examining 7 witnesses.

The learned Sessions Judge after considering the evidence of the

prosecution and the defence adopted by the accused held the accused guilty

for the offence of murder and sentenced him for life. Hence, this appeal.

3 of 13

APEAL145_2014

4. The learned counsel for the appellant/accused has submitted that the

appellant/accused is innocent. There is no sufficient evidence to hold the

accused guilty. The learned counsel argued that PW-4 Kunda Mhatre and

PW-6 Vaibhav Mhatre did not support the case of the prosecution but the

case stands only on the weak evidence of PW-3 Avinash Laxman Thakre,

who is a child witness. He submitted that the learned Sessions Judge has

erred in believing the evidence of PW-3 Avinash on the point of incident.

He submitted that the Avinash has not seen the actual incident. He is not

an eye witness. His evidence appears doubtful. He further submitted that

the prosecution has tendered evidence of pancha PW-5 Sanjay Prabhakar

Sawant to prove the recovery of the axe and towel. He relied on the cross-

examination of the panch PW-5 Mr. Sanjay Prabhakar Sawant. Though he

had said that axe was recovered at the instance of accused on 28 th March,

2002, the said recovery is to be disbelieved, as pancha in the cross-

examination has given admission that he has signed number of panchnamas

and he has acted as pancha in false and fake currency note cases. The

learned counsel further submitted that the panchnama (Exhibit 26) is a

manipulated document and no weightage is to be given to the recovery of

axe (Article 4). Therefore, it is a case of acquittal and the Appeal is to be

4 of 13

APEAL145_2014

allowed.

5. The learned APP while opposing the appeal has supported the

judgment and order passed by the learned Additional Sessions Judge. She

argued that the evidence of PW-3 Avinash is reliable. He has maintained

his version about the presence of the accused where the dead body of

Motiram was lying. He has also stated that the appellant/accused was

trying to conceal the axe in the house and told him that he should not

disclose this fact to anybody. Learned APP further argued that the axe

(Article 4) was identified by PW-3 Avinash. She submitted that the

evidence of panch PW-5 Sanjay Sawant is to be believed. There is

recovery of axe at the instance of the appellant. Hence, the Appeal is to be

dismissed.

6. We have carefully perused the evidence produced by the prosecution.

So far as the evidence is concerned, this case stands on the circumstantial

evidence. It is to be noted that the prosecution could not prove the

evidence of eye witness PW-6 Vaibhav Mhatre who did not support the

case of the prosecution. He turned hostile and therefore he was cross-

5 of 13

APEAL145_2014

examined by the prosecution during the trial. Therefore, the case entirely

stands on the circumstantial evidence as it is recorded and produced before

the Court. PW-3 Avinash is a star witness in the present case. His

evidence is recorded on 26th December, 2003 and the incident has taken

place on 22nd March, 2002, i.e., nearly 1 ½ year. At the time of recording

of evidence, he was 14 years old. Thus, he was nearly 12 ½ years old when

the incident took place. Avinash is a real brother of Kunda Mhatre. At the

relevant time, Kunda along with her husband Vaibhav (PW-6) was residing

in the house of her parents. Kunda has deposed accordingly and has also

stated that appellant Balu Dattu Thakre is residing by the side of her

parents house. Thus, the accused was neighbour of Avinash. At the

relevant time, Avinash was school going boy. He used to come home in the

recess for lunch everyday. On 22 nd March, 2002, at around 2 p.m. he came

home to take meal during the recess. He has stated that at that time, his

sister Kunda, her husband Vaibhav and uncle Motiram (Deceased) were

present in the house. Thereafter he went out to answer nature call and

when he came back, he saw his uncle Motiram was lying in the courtyard

of their house in pool of blood. He saw accused in the house who was

trying to conceal the axe. Avinash has deposed that when appellant saw

6 of 13

APEAL145_2014

him, he told him not to disclose this fact to anybody. It is true that Avinash

has made a specific statement in his examination-in-chief that he has not

seen the assailant who assaulted his maternal uncle, however, in the cross-

examination he maintained his evidence that when he returned from school,

appellant was present in the house. Thus, evidence of PW-3 on certain

material points is supported with the evidence of other two witnesses, i.e.,

PW-4 Kunda and PW-6 Vaibhav. It is a settled position of law that the

evidence of hostile witness, can be considered to the extent of what he has

said in the examination-in-chief for the purpose of corroboration. Kunda

has deposed that she was staying with her parents. Her brother Avinash

used to come to house for lunch during recess, as he was studying in

Ashram school. The incident has taken place at 2 p.m.. She has stated that

her uncle Motiram Mali had come to her house. PW-6 Vaibhav has deposed

that the accused is paternal uncle of his wife and he was staying earlier

with one Shilu. He further stated that when he came home along with his

wife Kunda at 2 p.m. he saw Motiram was lying dead in their house. Thus,

the evidence of these two witnesses support the evidence of PW-3 Avinash

on material points, i.e., Motiram was present in their house. The incident

took place at 2 p.m. The presence of Avinash was natural as he used to

7 of 13

APEAL145_2014

come for lunch. It can be inferred from the evidence of PW-3 Avinash that

when he came home, Motiram was alive, however, when he went out to

answer nature call, at that time also Motiram was alive and when he

returned, he found Motiram was lying injured and accused holding axe was

in the house. Though the evidence of Avinash is completely silent on the

presence of PW-4 Kunda and PW-6 Vaibhav at the relevant time, the

truthfulness of his evidence cannot be doubted, as there is no improvement

or contradiction in his evidence. As argued by learned APP, in the cross-

examination, his evidence remained unshaken.

7. It is to be noted that appellant is the paternal uncle of PW-4 Kunda

and therefore, PW-4 and her husband Vaibhav (PW-6) did not want to

speak against the accused . So, they did not support the case of the

prosecution. If witness does not want to support the prosecution and if the

prosecution is in a position to give a satisfactory reason for the refusal to

stand by his version in the statement recorded under section 161 of Cr. P.C.,

then it is necessary for the Court while analyzing the circumstances to take

into account the said reason and then weigh the evidence of other witness

and those hostile witnesses. Thus, the fact that PW-4 Kunda and PW-6

8 of 13

APEAL145_2014

Vaibhav did not support the prosecution is not unnatural, therefore, their

refusal to support the case of the prosecution could not imbalance the

evidence of PW-3 Avinash.

8. PW-3 Avinash was a child witness, however, he was not so young

who do not understand much. He was a boy of 12 ½ years old. His

presence was the matter of his routine. He did not claim that he saw the

actual assault. Thus, it shows that the witness did not want to exaggerate

the facts. He put the facts as he saw and perceived by him. A fact that

Motiram had visited the house of his niece Kunda and he was alive when

Avinash went out, is brought on record. When he returned, he saw his

maternal uncle Motiram lying in a pool of blood and the appellant was

standing with axe. The appellant was staying in the neighbouring house of

Kunda. Therefore, the spot where the incident has taken place was very

much accessible to the appellant. In village, axe, sickle are routinely found

in the house, as these articles are used for the agricultural purpose.

Therefore, the appellant with axe would not have been something

abnormal. However, the fact that the appellant/accused was standing with

axe where Motiram was lying in a pool of blood and he tried to hide the

9 of 13

APEAL145_2014

axe are very important connecting circumstances. He also warned PW-3

Avinash that he should not disclose this to anybody. This is a concrete and

sufficient circumstances which establishes nexus between the accused and

the offence. We do not find any reason to disbelieve the evidence of PW-3

Avinash , who is a child witness. We do not find any exaggerated or false

statement in his evidence and he has no vested interest in the incident.

9. PW-1 Rama Motiram Mali, wife of deceased Motiram, is the first

informant. She has stated that her husband has brought Shilu from her

village and she was staying with him 3 days prior to the incident and she

told Shilu that she must leave the house. She has stated that the accused

used to threaten her husband, as Shilu was staying in their house. She has

stated that at about 2.15 p.m., when she was at her work place, Avinash

PW-3 came there and told her that accused had assaulted her husband and

when she went she saw her husband lying in a pool of blood in the

courtyard of house of Kunda. Though she has admitted in the cross-

examination that the accused did not threat him in her presence but her

husband had told her about the threats. Avinash has not stated in the

evidence that he went to plastic company and told Rama that accused has

10 of 13

APEAL145_2014

assaulted her husband. The statement made by Rama that she was

informed by Avinash that accused assaulted her husband cannot be given

weightage. Only on the point that she received information of assault from

Avinash is material which corroborates the presence of Avinash

immediately after the incident. Thus, it fortifies evidence of Avinash. Her

evidence proves motive behind the murder.

10. PW-2 Soham Dyandeo Dongre is a medical officer who performed

postmortem on 22nd March, 2002, i.e., on the day of assault. He found

three external injuries on the body of Motiram. As per the evidence and as

per the postmortem notes (Exhibit 16), one wound was found in the inner

side front neck and other was on the head. He deposed that according to

him the cause of death of the deceased is due to cerebral hemorrhage due to

fracture of skull due to bleeding of neck because of hard sharp object. As

the report shows that skull was fractured and he was bleeding from neck

injury, this shows that the accused mounted assault on vital part of

Motiram, i.e., skull and neck which manifest intention to kill the deceased.

11. PW-5 Sanjay Prabhakar Sawant is a panch, who has stated that axe,

11 of 13

APEAL145_2014

which was kept under the leaves and hay, was recovered on 28 th March,

2002 and panchnama is marked as Exhibit 26. It is true that in the cross-

examination, panch gave admission that he has signed number of

panchnamas. He has acted panch in many cases. Other panch Jitendra and

he together have acted in number of panchnamas in the said police station.

The submission of learned counsel for the appellant are accepted that he

was a panch, however, there is nothing on record to show that the panch

was having any criminal record and he is not a person of disrepute. It is to

be noted that sometimes in cases it is difficult for the police to get panch,

as people refuse to take part in the police investigation and judicial

proceedings. The persons who are available and who understand their

responsibility to come forward and participate in the judicial process are

called as panch. Unless there is a criminal record or unless it shows that

evidence of panch is doubtful due to his misdeeds, then only it is to be

discarded. However, apart from recovery panchnama, evidence of PW-3

and other occural and medical evidence as discussed above though is short

but sufficient. Therefore, we are of the view that it is not a case where the

judgment of the trial Court is to be disturbed. We maintain the conviction

and dismiss the Appeal.

12 of 13

APEAL145_2014

12. Criminal Application No. 639 of 2015 filed by the appellant for

speedy trial is disposed of, as it has become infructuous.

13. Office to communicate this order to the concerned jail authorities and

to the appellant, who is in jail.

                                            
    (MRS. MRIDULA BHATKAR,J.)
                                     ig       (MRS. V.K. TAHILRAMANI, J.)
                                   
            
         






                                                                                       13 of 13