The State Of Mah vs Balu @ Balasaheb Ganpat Pagare
2017 Latest Caselaw 7447 Bom

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD


                       CRIMINAL APPEAL NO. 1 OF 2006

The State of Maharashtra
through Public Prosecutor,                                 APPELLANT
High Court, Bench at Aurangabad                          (Prosecution)

       VERSUS

Balu @ Balasaheb Ganpat Pagare,
Age : Major, R/o Vilad, Taluka Nagar,
District Ahmednagar, at present
Bhavani Chawl, Station Road,             RESPONDENT 
Ahmednagar, Dist. Ahmednagar         (Orig. Accused)

                         ----
Mr. S.Y. Mahajan, A.P.P. for the appellant/State 
Mr. A.K. Gawali, advocate for the respondent
                         ----

                                       CORAM : SUNIL P. DESHMUKH AND
                                               SANGITRAO S. PATIL, JJ.

       JUDGMENT RESERVED ON  :                   14th SEPTEMBER, 2017
       JUDGMENT PRONOUNCED ON :                  22nd SEPTEMBER, 2017



JUDGMENT (PER : SANGITRAO S. PATIL, J.)  :

Heard the learned A.P.P., representing the

appellant/Prosecution and the learned counsel for the

respondent-accused.

2. The appellant has taken exception to the

judgment dated 20th September, 2005, delivered in

2 criapl1-2006

Sessions Case No. 25 of 2005 by the learned Additional

Sessions Judge, Ahmednagar, whereby the respondent has

been acquitted of the offence punishable under Section

302 of the Indian Penal Code ("IPC", for short).

3. The case of the prosecution is that the

deceased Surekha and the respondent got married prior to

ten years of the year of the incident. From this

wedlock, they got two sons namely Sagar and Vishal, who

were 7 years and 5 years of age respectively at the time

of the incident. The respondent was serving at a petrol-

pump at Pune. The deceased Surekha was residing in one

of the rooms of her father namely Sahebrao Govind

Nikalje (i.e. the informant), situate in Bhauri chowl,

Station Road, Ahmednagar. The informant i.e. Sahebrao

Nikalje was residing in another room, situate in another

lane, which was at the distance of about 100 feet from

the room of the deceased Surekha. The respondent used to

cohabit with the deceased Surekha in that room. He used

to commute from Pune to Ahmednagar after alternate day.

It is alleged that the respondent used to suspect

chastity of the deceased Surekha and on that count, used

to beat and illtreat her. He used to frequently quarrel

with her. He had severely beaten the deceased Surekha 5

3 criapl1-2006

to 6 days prior to the date of the incident. Therefore,

the informant had taken her to his house. However, on

the next day, the mother of the respondent came to take

her and assured that the respondent would treat her

properly. Therefore, the informant allowed the deceased

Surekha to go to cohabit with the respondent. It is

alleged that the respondent had been at Ahmednagar only

and had not joined his duty since before two months of

the day of the incident.

4. On 23rd October, 2004, the respondent took meals

along with the deceased Surekha and his elder son Sagar

at about 9.00 p.m. Thereafter, quarrel took place

between the respondent and the deceased Surekha. The

younger son namely Vishal was at the house of the

informant in that night. The deceased Surekha, the

respondent and Sagar only were in their room in that

night. Sagar slept on a diwan along with the

respondent. The deceased Surekha slept on the floor.

Sagar heard some noise of the door and got up from the

sleep. He saw the respondent going out of the room. He

further saw that the deceased Surekha was covered with a

quilt. He thought that the deceased Surekha was

sleeping. Therefore, he also went to sleep. In the

4 criapl1-2006

morning, his younger brother Vishal came there and gave

calls to the deceased Surekha. As she did not wake up,

he went back to the house of the informant and narrated

him about that fact. The informant visited the room of

the deceased Surekha along with his wife. After

removing the quilt from the person of the deceased

Surekha, he noticed that she was strangulated and had

expired. Sagar was still sleeping. The informant made

him to wake up. At that time, he narrated before the

informant about having heard the sound of the door and

seeing the respondent going out of that room. After

leaving the room, the respondent did not come back. The

informant, therefore, lodged report against the

respondent in Police Station, Kotwali, Ahmednagar.

5. Crime No. 209 of 2004 came to be registered

against the respondent for the above mentioned offence.

The inquest panchanama of the body of the deceased

Surekha was prepared. The spot panchanama was prepared.

Post-mortem of the body of the deceased Surekha was

conducted. The Medical Officer opined that she died of

asphyxia due to strangulation. The statements of

witnesses were recorded. The respondent was not found

till 27th October, 2004, on which day, he was arrested.

5 criapl1-2006

After completion of the investigation, the respondent

came to be chargesheeted for the above mentioned

offence.

6. The learned Trial Judge framed charge against

the respondent for the above mentioned offence and

explained the contents thereof to him in vernacular. The

respondent pleaded not guilty and claimed to be tried.

His defence is that since there were three successive

holidays, including that of Dassehara, his employer had

not sanctioned him leave which made him difficult to

visit his room at Ahmednagar on 23 rd October, 2004. His

cousin telephonically informed him in the morning on 24 th

October, 2004 about the death of Surekha. He got

shocked and was mentally disturbed. He was not in a

position to take proper decision as to what he should

do. Therefore, he went to the house of his sister, who

was residing in Ramwadi at Pune and ultimately, he went

to Ahmednagar on 27th October, 2004, when he was arrested

by the police. He denied that he ever quarrelled with

the deceased Surekha and strangulated her.

7. The prosecution examined eleven witnesses to

establish guilt of the respondent for the above

mentioned offence. The important evidence is that of the

6 criapl1-2006

informant Sahebrao (Exh-14) and Sagar (PW5) (Exh-23).

The learned Trial Judge, evaluated the evidence on

record and held that the death of Surekha was homicidal.

However, the learned Trial Judge did not find sufficient

and clinching evidence to establish that it is the

respondent only, who strangulated the deceased Surekha

in the night of the incident. Considering the

inconsistencies and material discrepancies in the

evidence of the informant and that of Sagar (PW5), the

learned Trial Judge did not believe their evidence in

the absence of any independent corroboration to show

that the respondent was present in his room with the

deceased Surekha in the night of the incident.

According to the learned Trial Judge, the case being

based on circumstantial evidence, it was essential for

the prosecution to establish the complete chain of

circumstances, which should be consistent only with the

hypothesis of the guilt and guilt of the respondent.

He, therefore, acquitted the respondent.

8. The learned A.P.P. submits that though Sagar

(PW5) was a child witness, his evidence creates a great

confidence. The manner in which he deposed before the

Trial Court shows that he was not at all tutored by

7 criapl1-2006

anybody. The said witness narrated before the Court the

circumstances from which an absolute inference could be

drawn that it is the respondent only who committed

murder of the deceased Surekha. He submits that the

evidence of Sagar (PW5) was corroborated by the evidence

of the informant - the father of the deceased Surekha.

According to him, the sole testimony of Sagar (PW5) was

sufficient to bring home guilt to the respondent for the

above mentioned offence. He submits that the learned

Trial Judge has wrongly rejected the evidence of these

material witnesses on the basis of minor and

insignificant inconsistencies.

9. On the other hand, the learned counsel for the

respondent submits that Sagar (PW5) was completely under

the thumb of the informant. He was hammered by the

informant that the respondent used to illtreat the

deceased Surekha. Sagar (PW5) himself states that the

respondent always used to scold and beat him. He

further states that after his mother, the informant and

his wife i.e. his grandparents, are liked by him more

than the respondent. He admits that he would immediately

believe whatever is stated before him by his

grandparents. The learned counsel, therefore, submits

8 criapl1-2006

that there was every possibility that Sagar (PW5) was

tutored by the informant. He further submits that the

informant does not state that he had actually seen the

respondent present in the room of the deceased Surekha

in the night of the incident. The said room is situate

in a thickly populated area. There are a number of

houses nearby that room. However, none of the neighbours

has been examined by the prosecution to show that the

respondent was present at the room of the deceased

Surekha in the night of the incident. He submits that

the respondent was on his duty at Pune. This fact is

established by Raosaheb (DW1) (Exh-45), who was serving

with the respondent on at the petrol-pump namely New

Auto Corner, Somwarpeth, Pune. The attendance card

(Exh-47) has been produced by this witness to show

presence of the respondent on his duty from 6.30 p.m. of

23rd October, 2004 to 9.45 a.m. Of 24th October, 2004. He

submits that the learned Trial Judge has rightly

appreciated the evidence and rightly held that the

prosecution failed to establish guilt of the respondent

for the above mentioned offence.

10. Dr. Deokar (PW6) (Exh-27) conducted post-mortem

of the body of the deceased Surekha on 24th October, 2004

9 criapl1-2006

between 3.30 p.m. and 4.15 p.m. in the Civil Hospital at

Ahmednagar. He noticed the following injuries on her

body:-

(i) Contused lacerated wound right arm above elbow joint, admeasuring .5 x .5 cm

(ii) C.L.W. Right side of forehead, 0.5 x 0.5 cm

(iii) Four C.L.Ws. on left side cheek, .5 x .5 cm

(iv) Imprint abrasion 1 cm broad all around neck (like by rope)

(v) Imprint abrasion plus CLW at the nape of neck 2.5 cm below hair-line, round in shape, 1 x .5 cm

He further found that the neck of the deceased Surekha

was moving freely because of fracture of cervical spine.

All these injuries were ante-mortem. On internal

examination, he found dislocation between 2nd and 3rd

cervical vertebrae. He opined that Surekha died of

asphyxia due to strangulation. He specifically states

that her death was homicidal. In his cross-examination,

it was tried to be suggested that the deceased Surekha

committed suicide by hanging herself. However, he

denied that possibility.

11. From the evidence of the informant, Sagar (PW5)

10 criapl1-2006

and Dattatraya (PW2) (Exh-16), the panch to inquest

panchanama (Exh-17) of the deceased Surekha, it is clear

that the body of the deceased Surekha was lying on the

floor of the room where she was sleeping on a quilt. A

rope was found tied around her neck. There is nothing

on record to show that the deadbody was found hanging

inside the room against any fan, ceiling or any other

upper side article. In the circumstances, the finding

of the Trial Court that the deceased Surekha met with

homicidal death, being unassailable, will have to be

accepted and accordingly accepted.

12. Admittedly, there is no direct evidence

connecting the respondent with the homicidal death of

Surekha. The prosecution case is based on the

circumstantial evidence. The main circumstances relied

on by the prosecution are as under:

(i) The presence of the respondent in the room of

the deceased Surekha in the night of the

incident.

(ii) Quarrel between the deceased Surekha and the

respondent in the night of the incident.

                                       11                             criapl1-2006

(iii)            Abscondence of the respondent from the room of 

the deceased Surekha after the incident.

(iv) Motive i.e. suspicion about the character of

the deceased Surekha in the mind of the

respondent.

13. The prosecution has mainly relied on the

evidence of the informant Sahebrao and that of Sagar

(PW5) to establish the chain of the circumstances to

connect the respondent with the homicidal death of

Surekha.

14. The informant states that since before two

months of the incident, the respondent had not joined

his duty and was residing in the room of the deceased

Surekha only. He then states that the respondent used

to suspect character of the deceased Surekha and on that

count, used to assault her. He states that eight days

prior to the incident, the respondent severely beat the

deceased Surekha and therefore, he had brought her to

his house. He then states that on the next day, the

mother of the respondent namely Tarabai came to take her

and after her giving assurance that the respondent would

treat her properly in future, the deceased Surekha went

12 criapl1-2006

to cohabit with the respondent in her room.

15. This version of the informant does not find

corroboration from the evidence of Sagar (PW5). He does

not at all whisper in respect of the alleged severe

beating of the deceased Surekha by the respondent prior

to eight days of the incident, taking of the deceased

Surekha by the informant to his room and coming of the

deceased Surekha back to her room from the house of the

informant with her mother-in-law Tarabai. Had the

deceased Surekha been severely beaten and taken by the

informant to his house, considering the age of Sagar

(PW5), who was hardly of seven years old, at that time,

he also would have gone with her to the house of the

informant. He would not have missed to narrate this

glaring fact before the Court. The absence of narration

about that fact in the evidence of Sagar (PW5) certainly

would create grave doubt about the evidence of the

informant in respect of the alleged incident of beating

the deceased Surekha by the respondent prior to about

eight days of the incident.

16. Sagar (PW5) states that the respondent used to

visit his room at Ahmednagar within a month or two and

some times, he used to send money by money-order. It

13 criapl1-2006

is, thus, clear that the respondent used to be at Pune

for doing his duty for a period of about a month or two

and then, he used to visit the room of the deceased

Surekha at Ahmednagar. It follows that the respondent

was not permanently residing in the room of the deceased

Surekha at Ahmednagar. If that be so, his presence in

the room of the deceased Surekha cannot be presumed and

it would be necessary for the prosecution to establish

his presence in the room of the deceased Surekha in the

night of the incident by positive and clinching

evidence.

17. The informant does not state that he had an

occasion to go to the room of the deceased Surekha and

see the respondent staying there on 23rd October, 2004.

He states that the room of the deceased Surekha was at a

distance of 100 feet from his residence. He then states

that there is one more room belonging to him situate

adjacent to the room of the deceased Surekha, in which

his son Raju and wife Anita used to sleep in the night.

The said Raju and Anita have not been examined by the

prosecution, without assigning any reason, to show that

the respondent was present in the room of the deceased

Surekha in the night of the incident. These two

14 criapl1-2006

witnesses certainly had the opportunity to see as to who

was present in the room of the deceased Surekha in the

night of the incident. However, their evidence has been

withheld by the prosecution without any reason.

18. The evidence on record shows that the room of

the deceased Surekha was situate in a thickly populated

area. Dattatraya (PW2) (Exh-16) and Gulab Shaikh (PW3)

(Exh-18), who happened to be the panchas to inquest

panchanama (Exh-17) and spot panchanama (Exh-19),

respectively, are the neighbours of the deceased

Surekha. Dattatraya (PW2) states that his house is

situate at the distance of 10 to 15 feet from the room

of the deceased Surekha. Gulab (PW3) states that his

house is at the distance of 12 feet from the room of the

deceased Surekha. Both these witnesses, in the natural

course, would have noticed presence of the respondent in

the room of the deceased Surekha not only in the night

of the incident, but even prior to that. Gulab (PW3)

states that he had seen the respondent in that locality

prior to about fifteen days of the incident. However,

neither Dattatraya (PW2), nor Gulab (PW3) state that

they had seen the respondent in the room of the deceased

Surekha prior to eight days of the incident and also on

15 criapl1-2006

the day of the incident. The family members of these

witnesses also have not been examined to establish the

presence of the respondent in the room of the deceased

Surekha on the day of the incident.

19. The respondent specifically states that he was

on his duty at Pune on 23rd October, 2004. He examined

his colleague Raosaheb (DW1) (Exh-45) in support of his

contention. The said witness produced attendance card

(Exh-47) of the respondent wherein his presence on duty

has been shown from 6.30 p.m. of 23rd day of the month to

9.45 a.m. of the next day. Thereafter, he is shown to

be absent. This attendance card has been disbelieved by

the learned Trial Judge on the ground that the month and

year have not been mentioned at the appropriate places

in this attendance card. However, it may noted that on

the top of the front page of that card, there is mention

of the month and year as "Oct. 2004". From the evidence

of Raosaheb (DW1) and the contents of the attendance

card (Exh-47), a strong doubt is created about presence

of the respondent in the room of the deceased Surekha in

the night of the incident. The Investigating Officer

did not collect any evidence to show absence of the

respondent from his working place since before two

16 criapl1-2006

months of the day of the incident or even in the night

of the incident. He could have examined the manager of

the petrol pump to establish this fact. In the absence

of such evidence, the defence evidence will have to be

accepted on the touchstone of preponderance of

probability.

20. Sagar (PW5) was aged about 7 to 8 years at the

time of the incident. The informant states that in the

room, which is situate adjacent to the room of the

deceased Surekha, his son Raju and daughter-in-law Anita

used to sleep in the night. However, Sagar (PW5) states

that some tenant was residing in that room. He could not

tell the name of that tenant. He does not state that his

maternal uncle Raju with his wife used to stay in that

room in the night. Thus, there is a material

discrepancy/inconsistency in the evidence of the

informant and Sagar (PW5) in respect of the user of the

another room situate adjacent to the room of the

deceased Surekha.

21. The Circle Officer Durge (PW8) (Exh-30)

prepared the map (Exh-31) of the incident. It shows

that the room of the deceased Surekha is facing towards

south and to the west of the locality in which that room

17 criapl1-2006

is situate, there is railway line. The panchanama (Exh-

19) also shows that the room of the deceased Surekha is

facing towards south. However, Sagar (PW5) states that

the said room is facing towards north. He denies that

railway line is nearby the locality in which that room

is situate. He is not able to state the names of the

persons, who are residing nearby the room of the

deceased Surekha. He could not tell the names of the

boys of his age group residing in that locality. He

could not tell as to in which direction, there is

railway line from the room of the deceased Surekha. The

inability of Sagar (PW5) to state this factual position

reflects on his capacity to grasp the things and to

reproduce them. In the normal course, a boy of average

intelligence, would be in a position to state correctly

the above mentioned factual position. It seems that

Sagar (PW5) did not possess that capacity to comprehend

the factual position and reproduce it correctly.

22. From the evidence of Sagar (PW5), it seems that

he has tried to improve his version by adding something

that was not stated by him before the police when his

statement was recorded. He had not stated before the

police that whenever his father i.e. respondent, used to

18 criapl1-2006

come from Pune, he used to quarrel with the deceased

Surekha. He did not state before the police that in the

night of the incident, when he slept on the diwan, the

respondent asked the deceased Surekha not to raise voice

or else threatened to kill her. He did not state before

the police that when he woke up in the night, he saw his

mother covered with a quilt and that he thought that she

was under the sleep and therefore, he also went to

sleep. He did not state before the police that when the

respondent used to assault the deceased Surekha, he used

to inform that fact to his grandparents. These are the

material omissions in the evidence of Sagar (PW5), which

clearly show that he stated those facts for the first

time before the Court.

23. It has come in the evidence of Sagar (PW5) that

the respondent used to assault him and therefore, he had

grudge against the respondent. He states that it was

his impression that the respondent is not a man of good

character. He states that after the deceased Surekha,

his grandparents are close to him. He states that he

likes his grandparents more than the respondent.

Admittedly, Sagar (PW5) is being maintained by his

grandparents. The evidence of Sagar (PW5) clearly shows

19 criapl1-2006

his affection towards his grandparents and hostile

attitude against the respondent. It is quite natural

that he would prefer to believe on what his grandparents

impress upon him. He certainly would be under the

command of the informant. In the circumstances, the

possibility of tutoring of Sagar (PW5) by the informant

cannot be ruled out.

24. It is true that the evidence of the child

witness cannot be rejected per se, but as a rule of

prudence, it is required to be considered with close

scrutiny, care and caution. If the evidence of Sagar

(PW5), as state above, is considered, it will be risky

and hazardous to believe on his sole testimony on the

point of the presence of the respondent in the room of

the deceased Surekha in the night of the incident.

Though independent evidence was available to establish

that fact, the prosecution has not examined any

independent witness to corroborate the version of Sagar

(PW5). Dattatraya (PW2) and Gulab (PW3), the neighbours

of the deceased Surekha, though independent witnesses,

do not whisper about presence of the respondent in the

room of the deceased Surekha in the night of the

incident. In the above circumstances, the evidence of

20 criapl1-2006

Sagar (PW5) about presence of the respondent in the room

in the night of the incident and his leaving the said

room as claimed by him, cannot be believed for want of

independent corroboration.

25. The prosecution, thus, failed to produce

positive, clinching and dependable evidence on record to

show the presence of the respondent in the room where

the incident took place in the night of the incident.

Though the spot of the incident was in a thickly

populated area, no independent witness has come forward

to state that he had seen the respondent there in the

night of the incident. If the presence of the

respondent in that room in the night of the incident

itself is not proved by the prosecution, the other

circumstances relied on by the prosecution would not

stand to reason.

26. The learned Trial Judge rightly appreciated the

evidence of the informant and that of Sagar (PW5) and

rightly held that their evidence is not sufficient to

clinchingly prove that it is the respondent only who

committed murder of the deceased Surekha. The view

taken by the learned Trial Judge is quite a possible

view. In the circumstances of the case, we are not

21 criapl1-2006

inclined to interfere in the impugned judgment and order

acquitting the respondent. The appeal is without any

substance. It is liable to be dismissed. In the

result, we pass the following order:-

O R D E R

(i) The Criminal Appeal is dismissed and disposed

of accordingly.

(ii) The bail bonds of the respondent are cancelled.

He is set at liberty.

        [SANGITRAO S. PATIL]                      [SUNIL P. DESHMUKH]
                JUDGE                                     JUDGE

 
npj/criapl1-2006