Bombay High Court
State Of Maha vs Manika Bhaskare & Ors on 19 January, 2018
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.27 OF 2003
The State of Maharashtra APPELLANT
Through Police Station Naigon
at the instance of Yadav s/o Manika Bhaskare
r/o Temburni, Taluka - Naigaon,
District - Nanded
VERSUS
1. Manika s/o Yadav Bhaskare RESPONDENTS
Age - 58 years, Occ - Agriculture
R/o Temburni, Taluka - Naigaon (K)
District - Nanded
(Appeal abated against respondent No.1)
2. Gangadhar Manika Bhaskare
Age - 25 years, Occ - She goats possessor,
R/o as above
3. Pandurang Manika Bhaskare
Age - 19 years, Occ - She goats possessor
R/o as above
.......
Mr. S. S. Salgare, A.P.P. for appellant - State
.......
[CORAM : SUNIL P. DESHMUKH &
P. R. BORA, J.J.]
DATE : 19th JANUARY, 2018
ORAL JUDGMENT (PER SUNIL P. DESHMUKH, J.) :
1. This is an appeal by the State against judgment of
Additional Sessions Judge at Biloli in Sessions Case No. 45 of
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2000 acquitting respondents No. 1 to 3 who are of committing
murder, an offence punishable under section 302 read with 34 of
the Indian Penal Code.
2. Statement made by Yadav Manika Bhaskare had been
registered as First information report. The statement had been
recoded on 2nd August, 2000. First information report refers to
that Tolba and Yadav were sons begotten to Manika from his first
wife - Rukminibai. Rukminibai died of hanging and thereafter
father Manika had performed second marriage with Laxmibai.
From said wedlock four children - two sons - Gangadhar and
Pandurang and two daughters - Palsabai and Tulsabai have
begotten. Informant alleges that his father Manika and step
brothers Gangadhar and Pandurang used to beat Tolba and him
and used to threaten them that they would not be given share in
agriculture property. Due to harassment, Tolba and him had left
the village around 1983 and were working as labourers. About
four years before the incident, they had come back and had
demanded share in the property. Accordingly, the property had
been partitioned and they were put in possession of partitioned
property. He and Tolba were asking their father to have the
partitioned property registered in their names. However, the
accused persons had threatened that they would kill them, if
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they insist on the same. The brothers i.e. the informant and
deceased Tolba had, therefore, instituted proceedings in the
court. Their father Manika and step brothers Gangadhar and
Pandurang were insisting for withdrawal of the proceedings.
While they had been to the court for withdrawal, father Manika
had not withdrawn proceedings filed by him and as such, they
also did not withdraw proceedings instituted by them. In that
evening, the step brothers and their father had threatened them
that they would kill the informant and Tolba. It is alleged that in
the night intervening 1 st and 2nd August, 2000 while brother
Tolba had been sleeping on a cot outside his house, father
Manika and step brothers Gangadhar and Pandurang had
attacked him and had hit him with axe and had killed him due to
enmity over partition of the property. In the report it is alleged
that respondents No. 1 to 3 have committed murder of Tolba -
the victim - brother of the informant.
3. Investigation was undertaken upon registration of First
Information Report. Inquest and spot panchanamas were drawn,
clothes were seized and statements of witnesses came to be
recorded. On completion of investigation, charge sheet came to
be filed. Since, the offence was triable by the court of sessions,
the same came to be committed to the court of sessions.
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Thereafter, trial court had framed charge of murder punishable
under section 302 read with 34 of the Indian Penal Code against
the respondents - accused. It was explained in vernacular.
Accused claimed to be tried.
4. Prosecution, in order to prove guilt by the accused,
examined about eleven witnesses. PW-1 Suryakant Sambhaji
Wadje, examined at Exhibit-21 is a panch witness in respect of
inquest. PW-2 Dr. Rajaram Jairam Basvante, examined at
Exhibit-23 is a medical officer, who had conducted post mortem
on the dead body. PW-6 Nagorao Gangaram Shelke at Exhibit-
36, PW-7 Sk. Jilani Sk. Shadulsab, at Exhibit-42 and PW-8
Mahadeo Sitaram Gotmukhle at Exhibit-45 are the panch
witnesses. PW-9 Prabhakar Hansgir Giri, examined at Exhibit-50
and PW-10 Arun Hanmantrao Rautwar at Exhibit-52 are the
investigating officers. PW-11, Babu Satwaji Kamble at Exhibit-64
is police Patil of village Temburni who had informed about the
incident to the police.
5. Evidence of PW-4 informant Yadav Manika Bhaskare who
had been examined at Exhibit-29 is similar as appearing in the
first information report. He in his examination in chief refers to
that his supplementary statement had been recorded on next
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day of first information report. It was to the effect that while son
of the informant, Vilas, as usual along with cattle had been
passing over house of Tolba he had noticed that Tolba had been
sleeping beneath the cot. A dog was seeping blood. After
removing bed-sheet he found Tolba in injured condition and
thereafter he went back to his house and had told about the
same to his mother Sakhubai, who in turn informed the same to
the informant. He further refers to that step brother Gangadhar
had purchased a wrist watch from Giridas and the same had
been found lying near the spot of incident and police had seized
the same. In the cross-examination he has stated that after
coming to know about the incident, they all had been to the spot
and were grieving and weeping and had not alleged anything
against the respondents. Then neighbours had gathered around.
A statement has came from him in the cross examination that
while he had seen dead body for the first time, two policemen
were present there. He has claimed ignorance in respect of
dispute over land gut No.102 or about its pendency and also
about some proceedings against other persons in respect of
immovable property in Naigaon. Documents show that the
informant had been staying separately from Tolba. It has been
revealed that there had been omission in the information and /
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or supplementary statement to the police about Rama having
told about the incident.
6. There is evidence of two persons, namely, PW-3 Subhash
Joshi examined at Exhibit-28 and PW-5 Baba Kallate at Exhibit-
31, who claim to be residents of area near the spot of incident.
In their evidence they purport to claim that in the midnight
intervening 1st and 2nd August, 2000, they had seen the actual
incident occurring and purport to give ocular account of the
incident. They claim to had seen the accused persons actually
assaulting Tolba, finding Manika holding an axe and Gangadhar a
Kutti and Pandurang was standing by the side. Both the
witnesses further claim that they were frightened and did not
dare to disclose the same to anyone till 8th August, 2000.
7. Trial judge has found evidence of the two claimed
eyewitness to be unreliable on many aspects.
8. Trial judge has observed that the prosecution is
conspicuously silent in respect of sufficient light to see the
incident occurring. He has found that distance as claimed by the
two witnesses, of Tolba's hut from the places of their residence
could be hardly believed, in view of the panchanamas drawn of
the place of occurrence of incident. Distance between places of
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residence of the witnesses and the place of incident in
panchanama are far more than the one claimed by them. Trial
judge has adverted to that there could not have been moonlight
at the time of the incident to see faces of the culprits clearly and
to recognize them and even if it is assumed that these two
witnesses had seen the incident, there is every possibility of
mistaken identity.
9. Trial judge has disbelieved evidence of PW-3 that he was
sleeping outside residential construction, since he had been
suffering asthma. Trial judge has also adverted to that PW-5
Babu had attempted to rectify his versions from time to time.
10. Trial judge found that the plea and excuse put forth by
these two witnesses, about them been frightened and that they
were afraid of the accused, to be untrustworthy, having regard to
their assurance to victim's brother. It was also found that the
evidence by the two witnesses does not get any corroboration
from report of Chemical Analyzer and the same is silent in
respect of injury by Kutti. It was appreciated that seizure of
clothes from the accused persons and the evidence in respect of
the same is of doubtful nature.
11. It emerges that it was in the dark middle of night, the
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incident had occurred causing death of Tolba, which indeed is a
homicidal death and the post mortem sufficiently endorses the
same.
12. It was midnight of August. It is a village place. It is not
the case that there had been sufficient light and persons could
be identified clearly. Evidence of the claimed two eyewitnesses is
doubtful about having witnessed the actual incident. PW-3
Subhash Joshi tells in the cross-examination that the assault was
for about a minute or two, whereas version of PW-5 Baba Kallate
is he heard some sounds from hut of Tolba during the period
between 12.00 midnight and 1.00 a.m. and he got awakened
and saw towards hut of Tolba finding accused Manika hitting
Tolba with axe and Gangadhar with Kutti.
13. Evidence of the two witnesses does not inspire confidence
and their behavioural pattern appears to be unnatural and it
shows that there have been stark omission about them having
been frightened upon seeing the incident, while making
statements to the police.
14. The incident had occurred in the midnight intervening 1 st
and 2nd August, 2000 whereas accused were arrested on 5 th
August, 2000 and their clothes were not seized then and the
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same were seized on 6th August, 2000. The evidence is silent in
respect of as to whether the clothes were seized from the person
of the accused or from some other place and particularly it has
referred to that the place from where the clothes were seized
has been someone else's place, whose place has no reference in
the evidence. It is highly improbable that the accused would
preserve blood stained garments to be produced during trial as
observed by the trial judge. Apart from that, the reason
considered by the trial judge that occurrence of such blood
stains would not be sufficient to implicate the accused persons
carries lot of weight. It could not be definitively related to
deceased Tolba.
15. The wrist watch, which had been found while drawing spot
panchnama, although is claimed by the prosecution to be
belonging to accused Gangadhar, him having purchased the
same from Giridas and though Giridas had been interrogated
during investigation, he had not been examined by the
prosecution. Trial court had aptly considered that his
examination could have possibly linked the accused to the
commission of offence, however, in the absence of examination
of such an important witness, the same would not be relied
upon.
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16. Discovery of weapons for commission of offence has also
been considerably weakened, having regard to that the only
witness who had been examined by prosecution had not
supported prosecution case nor did his cross-examination elicit
anything.
17. The accused have been implicated in the commission of
offence on suspicion by the informant, since there had been a
land dispute between the accused on one side and the informant
and Tolbad on the other and further that the accused were
reluctant to part with the land in favour of deceased Tolba and
the informant. The dispute had been a long standing dispute. As
a matter of fact, the informant has also referred to that some
land had been given in possession of the informant and Tolba
and they had been in occupation of the same. There have been
court matters in respect of the land, in which it appears that,
deceased Tolba as well as informant were involved. Dispute by
the informant and deceased Tolba was sought to be withdrawn
and had not been withdrawn. In such a case, by killing only
Tolba it does not appear that the pending land dispute could
have been resolved or would have come to an end. The
informant and his witnesses were cross-examined in respect of
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some other matters, regarding some lands with third persons.
Although it had not significantly come out anything on that, yet
it appears that deceased Tolba had also been involved in some
other disputes.
18. Evidence of the claimed eyewitnesses is not credible and
rather is doubtful and there is no corroboration to incriminate
the accused on that count. The evidence of other persons with
reference to land dispute is not sufficient to convict the accused
merely on suspicion of the informant.
19. While the trial judge has taken a view, which is a probable
and possible view, on appreciation of evidence, in the absence of
convincing material on record, it may not be proper to reverse
the findings recorded by the trial court. It does not appear to be
a case where the acquittal of the respondent - accused deserves
to be reversed converting into their conviction. The appeal,
therefore, is dismissed.
[P. R. BORA, J.] [SUNIL P. DESHMUKH, J.]
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