Akash Pandurang Jahire vs The State Of Maharashtra And ...
2021 Latest Caselaw 12864 Bom

                                                                239-14 CriApeal
                                       1


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO. 239 OF 2014

 Akash S/o Pandurang Jahire
 Age : 22 Years, Occu.: Labourer,
 R/o : Junna, Tq. Mukhed,
 District Nanded                                 ... Appellant
                                                 (Orig. Accused)

          Versus

 The State of Maharashtra
 Through Police Station Officer,
 Police Station Mukhed,
 Tq. Mukhed, Dist. Nanded                        ... Respondent

                                       ....

 Mr. Hanmant V. Patil, Advocate for the Appellant
 Mr. Anand S. Shinde, A.P.P. for Respondent / State.

                                       ....

                               CORAM : V. K. JADHAV AND
                                       SHRIKANT D. KULKARNI, JJ.

Reserved on : 09.08.2021 Pronounced on : 08.09.2021

JUDGMENT (PER V.K. JADHAV, J.) :-

1. This Appeal is directed against the judgment and order of

conviction passed by the Additional Sessions Judge, Kandhar, Link

Court, Mukhed dated 28.02.2014 in Sessions Case No. 74 of 2012.

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2. Brief facts of the prosecution case are as follows:

a. PW-1 Pandurang is having two sons namely Shivaji and the

appellant-accused Akash. He was also having two daughters namely

Bhagyashri and deceased Ganga. Deceased Dhrupadabai was his wife.

Marriage of his daughter Bhagyashri was performed two years prior

to the incident. She was residing at her matrimonial home along with

her husband and his family members. The elder son Shivaji was

residing at Kurduwadi and his wife was residing at her parental

house. PW-1 Pandurang was residing at Junna, Taluka Mukhed,

District Nanded along with his deceased wife Dhrupadabai, his son

Akash (appellant-accused) and deceased daughter Ganga. As per the

prosecution story, on 08.09.2012 when all of them were slept in the

residential house of PW-1 Pandurang, at about 1.30 a.m. the

appellant-accused Akash had committed murder of his mother

deceased Dhrupadabai and his sister deceased Ganga by giving blows

of axe. As per the prosecution story, though marriage of appellant-

accused Akash was likely to be performed with one girl Taibai, which

was not performed under one or another pretext, appellant-accused

was insisting for performing his marriage as early as possible.

According to the prosecution story, the appellant-accused got annoyed

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because his marriage was not performed with Taibai. Thus, appellant-

accused Akash committed murder of his mother and sister probably in

the heat of anger.

b. On the basis of the complaint lodged by PW-1 Pandurang Jahire

Exhibit 9, crime no.141 of 2012 for the offence punishable under

Section 302 of IPC came to be registered at Mukhed Police Station.

c. On 08.09.2012 at about 2.00 a.m., API Ashok Bele attached to

the Police Station Mukhed at the relevant time had received a phone

call from the Police Patil, Junna, informing that one person committed

murder of his mother and sister. The Police Patil had also informed

that the said person was caught hold by the villagers. PW-5 API Ashok

Bele thus immediately rushed to village Junna. On reaching to the

spot, he found two dead bodies on a cot in the house. PW-1

Pandurang was also present in the house. The villagers caught hold

the appellant-accused Akash. The appellant-accused Akash was in

angry mood. PW-5 API Ashok Bele also observed that the clothes on

the person of appellant-accused were stained with blood at that time.

Thus he drew inquest panchanama of the dead bodies of the mother

and the sister of accused, Exhibits 18 and 19 respectively. He also

drew the spot panchanama Exhibit 23 in presence of panchas and

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collected all the articles lying on the spot. He also seized the clothes

of the deceased persons, shirt of the complainant, clothes on the

person of the appellant-accused by drawing seizure panchanama.

PW-5 API Ashok Bele also seized an axe by drawing seizure

panchanama at Exhibit 28. PW-5 API Ashok Bele recorded statements

of the witnesses during the course of investigation and also sent the

seized articles to the C.A. for analysis. After completion of

investigating, PW-5 API Ashok Bele submitted the charge-sheet before

the Court against the appellant-accused for having committed an

offence punishable under Section 302 of the IPC.

d. Learned Additional Sessions Judge, Kandhar framed charge

against the appellant-accused for the offence under Sections 302 of

IPC. The contents of the charge-sheet were read over and explained to

the appellant-accused. The appellant-accused pleaded not guilty to

the charge and claimed to be tried. The defence of the appellant-

accused is of denial and false implication. The prosecution has

examined in all 5 witnesses to substantiate the charge levelled against

the accused. After completion of the prosecution evidence, the

appellant-accused has given a statement under Section 313 of Cr.P.C.

in response to the examination under Section 313 of Cr.P.C. to explain

the intimidating circumstances appearing against him in the

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prosecution evidence. The appellant-accused has not examined

himself as a defence witness.

e. After hearing both sides, the learned Additional Sessions Judge,

Kandhar, by judgment and order dated 28.02.2014 in Sessions Case

No. 74 of 2012, convicted the appellant-accused for the offence

punishable under Section 302 of IPC and sentenced him to suffer

imprisonment for life and to pay fine of Rs.1,000/-, in default to

suffer further rigorous imprisonment for six month. Hence, this

appeal.

3. Learned counsel for the appellant-accused submits that PW-1

Pandurang Jahire / informant, who happens to be an eye witness, has

not supported the prosecution case. PW-1 Pandurang Jahire has

denied the presence of the appellant-accused on the spot at the

relevant time. He has denied the contents of the FIR. P.S.I. Boinwad

has recorded the FIR Exhibit 10, however, the prosecution has not

examined him. Learned counsel submits that PW-2 Balaji Jahire, who

reached to spot immediately after the incident, has also not supported

the prosecution case. As per the prosecution story, PW-2 Balaji Jahire

had snatched the axe from the hands of the appellant-accused and

handed over the same to the Investigating Officer. However, PW-2

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Balaji Jahire has not supported the prosecution case and also not

supported the case of seizure of axe.

4. Learned counsel submits that though 20 villagers are named as

witnesses in the charge-sheet and number of villagers were allegedly

present at the time of arrest of the appellant-accused, no independent

witness has been examined by the prosecution. Learned counsel

submits that seizure panchanamas at Exhibits 25 to 28 regarding

clothes and the axe are inadmissible in evidence because the

prosecution has not proved the same by examining panch witnesses.

Those panchanamas were exhibited by the trial court on the basis of

the evidence of the Investigating Officer. Learned counsel submits that

the seizure of the clothes and axe as per panchanamas Exhibit 25 to

28 is also doubtful and not reliable because all the those articles,

particularly the clothes of the appellant-accused and the axe, were not

sealed immediately after the seizure. Thus, the possibility of

tampering those articles cannot be ruled out.

5. Learned counsel submits that the arrest panchanma Exhibit 41

is also doubtful because the panch witnesses are not examined on it.

He submits that no independent witness is examined to prove that the

appellant-accused was caught hold by the villagers on the spot itself

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and was tied to a tree by the villagers and later on handed over to the

police. Thus, alleged arrest of the appellant-accused on the spot is

also doubtful. Learned counsel submits that though the axe was

allegedly seized from the spot itself, as it was snatched from the

hands of the appellant-accused, no blood was found on it. Though

blood of the deceased was found on the clothes of the appellant-

accused, the recovery of clothes of the appellant-accused is not proved

and the prosecution has not examined independent witnesses and

panchas on seizure of the clothes and the axe. The prosecution has

failed to prove the case beyond reasonable doubt and in view of the

same, the appellant-accused is entitled for the benefit of doubt.

6. Learned counsel or the appellant-accused, in order to

substantiate his contention, placed reliance on the following cases :

1. Sahebrao Lukdu Jadhav Vs. The State of Maharashtra reported in 2015 ALL MR (Cri) 3179.

2. Bhanudas Bagaji Salve Vs. State of Maharashtra reported in 2006 ALL MR (Cri) 67.

3. Sunil S/o Manoharrao Pandhare Vs. The State of Maharashtra, reported in 2018 ALL MR (Cri) 481.

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4. Mukhtiar Ahmed Ansari Vs. State (N.C.T. of Delhi) , reported in 2005 ALL MR (Cri) 1775 (S.C.)

5. Ramchandra Laxman Waghmare Vs. State of Maharashtra, reported in 2005 ALL MR (Cri) 374.

6. Lingu S/o Dharma Meshram Vs. State of Maharashtra, reported in 2004 ALL MR (Cri) 200.

7. State of Maharashtra Vs. Mandabai Ashok Sawant, reported in ABC 2016 (II) 173 BOM.

7. Learned APP submits that the prosecution has proved its case

beyond reasonable doubt. It is a case of murder of two persons. The

prosecution has established the motive for committing murder of

deceased Dhrupadabai and deceased Ganga. The appellant-accused

got annoyed because though his marriage was fixed, it was not

performed under one or another pretext for which he held his mother

responsible. He was repeatedly insisting for performing his marriage

with Taibai at the earliest. It is not disputed that PW-1 Pandurang

Jahire, deceased Dhrupadabai and deceased Ganga and appellant-

accused Akash were residing in the house jointly. It has also come in

the evidence that in the night of 07.09.2012, deceased Dhrupadabai

along with her minor daughter Ganga slept on one cot inside a room

in the house. Learned APP submits that though PW-1 Pandurang and

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PW-2 Balaji had not supported the prosecution case, however, the

conviction on the basis of evidence of a hostile witness is permissible

in law if such evidence is corroborated by other reliable evidence.

Learned APP submits that in the instant case, the appellant-accused

was caught hold by the villagers on the spot itself holding the blood

stained axe in his hands at that time. PW-2 Balaji though has not

supported the prosecution case, he admitted that when he heard the

shouts of the PW-1 Pandurang, he rushed to the house of the

appellant-accused, he noticed that the mother and the sister of the

appellant-accused were in dead condition on one cot and there were

injuries on their heads. He has also admitted that several villagers

were gathered there and they caught hold the appellant-accused

Akash. He has also admitted in his cross-examination that the

villagers tied the hands of the appellant-accused with a rope to a tree

to prevent him from running away from the spot. PW-2 Balaji has

admitted that when police came to the village, the appellant-accused

was in tied condition to a tree. Learned APP submits that PW-1

Pandurang has not supported the prosecution case, however, he has

admitted that the marriage of the appellant-accused was fixed with

one Taibai, but the same could not be performed in that year because

the parents of Taibai had gone for labour work to other place. PW-1

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Pandurang has also admitted that his wife had disclosed to him that

appellant-accused Akash was frequently asking for performing his

marriage. PW-1 Pandurang has also admitted that appellant-accused

was caught hold in the house and he was taken out of the house.

Learned APP submits that PW-1 Pandurang has admitted in his cross-

examination that appellant-accused should be released so that his

marriage will be performed. He required a daughter-in-law for doing

household work and preparing the meals. He is intending to perform

marriage of the appellant-accused Akash to solve his own problem,

and therefore, he is intending that appellant-accused Akash should be

acquitted in the case. PW-2 Balaji has also admitted in his cross-

examination that he is intending that the appellant-accused Akash

should not be convicted. Learned APP submits that the postmortem

reports of the dead bodies of deceased Dhrupadabai and deceased

Ganga indicate that they died a homicidal death. PW-3 Dr. Gajanan

Swami, after noticing the injuries on their respective bodies in detail,

found that the death of deceased Dhrupadabai was caused due to

hemorrhagic and neurogenic shock due to head injury with multiple

fracture on skull vault and the death of Ganga was caused due to

hemorrhagic and neurogeic shock due to injury of multiple fracture of

skull vault. According to him, the injuries on their person are possible

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to be caused by sharp and heavy object such as an axe. Deceased

Ganga was aged about 13 years. The injuries on their person are

homicidal in nature. Learned APP submits that the evidence of the

Investigating Officer is important in this case because the villagers

handed over the appellant-accused to him during his first visit to the

spot of incident. The villagers apprehended the appellant-accused on

the spot itself and tied him to one tree. Learned APP submits that the

witnesses from the village did not support the prosecution case or

they were not likely to support the prosecution case. Consequently,

the APP before the trial Court had not examined the panch witnesses

on the seizure panchanama at exhibits 25 to 28 respectively. Learned

APP submits that the prosecution, however, proved the seizure of the

clothes of the accused and the seizure of the axe. As per the C.A.

reports Exhibit 49 and Exhibit 51, the blood of deceased Dhrupadabai

and deceased Ganga is of blood group 'O'. The blood detected on

clothes of the appellant-accused is of blood group 'O'. Learned APP

submits that recovery of the axe immediately after the incident is an

piece of evidence. It is thus not fatal for the prosecution if blood was

not detected on the axe. It is not disputed that the axe was used for

causing murder of deceased Dhrupadabai and deceased Ganga.

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Learned APP submits that the prosecution has proved its case beyond

reasonable doubt. The appeal is liable to be dismissed.

8. To substantiate his contention, learned APP has placed reliance

on the following cases:

1. Kashinath Vishwanath Lulekar Vs. The State of Maharashtra (Criminal Appeal No. 499 of 2010 decided on 11.08.2011 by the Division Bench of this Court.

2. Koli Lakhmanbhai Chanabhai Vs. State of Gujarat , reported in 2000 (2) B Cr C 65.

3. Bhagwan Singh Vs. State of Haryana, reported in 1975 DGLS (SC) 507 (Supreme Court).

4. Khujji Surendra Tiwari Vs. State of Madhya Pradesh , reported in 1991 DGLS (SC) 307 (Supreme Court).

5. Kripal Singh Vs. State of Rajsthan, reported in 2019 DGLS (SC) 238 (Supreme Court).

9. We have perused the material exhibits tendered by the

prosecution, the evidence of the prosecution witness, the statement of

the appellant-accused recorded under Section 313 of Criminal

Procedure Code, the evidence of the appellant-accused himeself and

the impugned judgment. After giving our thoughtful reflection to the

matter, we are wholly satisfied that there is no substance in this

appeal and the same must be dismissed.

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10. PW-1 Pandurang (father of the appellant-accused) and PW-2

Balaji (cousin of appellant-accused) are the important witnesses in

this case. However, they have not supported the case of the

prosecution. Learned APP before the trial Court had declared both of

them as hostile witnesses and subjected them to cross-examination at

length after obtaining leave of the Court.

11. It is well settled that the testimony of a hostile witness cannot

be rejected in toto as the evidentiary value of his testimony is not lost

and can be accepted to the extent that the version is found

corroborated with other material evidence. So far as this settled legal

position is concerned, reference can be made to the following cases

on that point.

1. Duleshwar Vs. State of Madhya Pradesh (Now Chhattisgarh), reported in (2020)11 SCC 440.

2. Manoj Suryavanshi Vs. State of Chhattisgarh, reported in (2020) 4 SCC 451.

3. Arjun and another Vs. State of Chhattisgarh, reported in (2017) 3 SCC 247.

4. Birju Vs. State of Madhya Pradesh, reported in (2014) 3 SCC 421.

5. Selvaraj @ Chinnapaiyan Vs. State represented by Inspector of Police, reported in (2015) 2 SCC 662.

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6. Koli Lakhmanbhai Cyhanabhai Vs. State of Gujrat , reported in 2000(2) B Cr C 65.

7. Bhagwan Singh Vs. State of Haryana, reported in 1975 DGLS (SC) 507.

12. Pw-1 Pandurang had deposed that he is having two sons

namely Shivaji and Akash and he was having two daughters namely

Bhagyashri and deceased Ganga. Bhagyashri is married two years

prior to the incident. His son Shivaji was residing at Kurduwadi and

Shivaji's wife was residing at her paternal place. In para 1 of in his

examination-in-chief, PW-1 Pandurang has deposed that he himself,

his wife deceased Dhrupadabai, his daughter deceased Ganga and

appellant-accused Akash used to reside at village Junna. He is

knowing one Vithal Laxman Bandgire resident of Undri. Taibai is his

daughter. Marriage of said Taibai was settled with the appellant-

accused Akash. According to him, the incident occurred prior to 15

months approximately. In that night, his wife deceased Dhrupadabai

and daughter deceased Ganga were slept in the house and he was

slept in the outer room of tin shed. In order to save the appellant-

accused Akash, he has tried to explain that his deceased wife

Dhrupadabai and his deceased daughter Ganga were slept inside the

room by latching the door from inside and he was alone slept on the

cot in front of the room. At about 3.00 a.m. approximately, he woke

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up for urination. He saw his wife and daughter in dead condition on

their cot. There were bleeding injuries on their person. He has further

deposed that somebody entered into the house and committed

murder of his wife and daughter. However, he has admitted the

contents of the FIR Exhibit 9 and further admitted his signature on it.

13. PW-1 Pandurang has further admitted in his cross-examination

by the APP that the distance in between his cot and his wife's cot,

which was inside the room, was about 15 feet. The bulb in the room

where his wife and daughter were slept was on. In that night, the

bulbs of both the rooms were burning. He has also admitted that on

the date of the incident PW-2 Balaji and one Madhav came to his

house. He has also admitted that the parents of Taibai had gone for

labour work to other place, the marriage of appellant-accused Akash

was not performed in that year. The parents of Taibai were saying not

to make hurry for marriage of appellant-accused Akash. Prior to the

incident he had also gone for work of sugarcane cutting. Appellant-

accused Akash and deceased Ganga had also accompanied him. He

has also admitted that his wife deceased Dhrupadabai stated that

appellant-accused Akash was frequently insisting for performing his

marriage. He has also admitted that the villagers had taken the

appellant-accused Akash out of the house. The appellant-accused was

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caught hold in the house and he was taken out of the house. He has

also admitted in respect of murder of his wife deceased Dhrupadabai

and daughter deceased Ganga. He has also admitted that he has

lodged the FIR, which was seen by him. The police had written the

FIR as per his say and he had made signature on it. The contents of

the FIR were read over to him and he admitted the same. According

to him, the matter is settled by him. He is intending that the

appellant-accused Akash should be released so that his marriage will

be performed. He required a daughter-in-law for doing household

work and meals, and therefore, he is intending to perform the

marriage of appellant-accused Akash to solve his own problem. He is

intending that the appellant-accused Akash should be acquitted in this

case. According to him, he is an old aged person, and therefore, he

desires his son Akash to reside with him. He is intending that his son

appellant-accused Akash should not be punished. Though PW-1

Pandurang was subjected to cross-examination by the accused,

however, the cross-examination is very brief and nothing has been

suggested to him, nor PW-1 Pandurang admitted anything in his cross-

examination to discard his above admissions.

14. PW-2 Balaji has deposed that the incident occurred in the house

of PW-1 Pandurang (father of the accused). His house is situated to

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the side of the house of appellant-accused. He deposed that on

hearing the shouts of PW-1 Pandurang, he woke up. Madhav Talikote

was with him. After some time, they went to the house of appellant-

accused. The door was opened. They entered into the house of

appellant-accused. They saw the mother and the sister of appellant-

accused in dead condition on same cot. There were injuries on the

head of deceased Dhrupadabai and deceased Gangabai. When they

entered into the house, there was an axe in the hands of appellant-

accused and the same was snatched by PW-2 Balaji. PW-1 Pandurang

was weeping at that time. The wife of PW-1 Pandurang and his

daughter were died due to injuries. When he returned back to his

house, several persons gathered there and they caught hold appellant-

accused Akash. He has also admitted in his cross-examination at the

hands of the APP that when police came to the village, appellant-

accused Akash was in tied condition to a tree. The villagers tied his

hands with a rope to a tree. In order to prevent appellant-accused

Akash from running away from spot, he was tied with a tree. The

police rescued Akash and brought him to the police station. The police

brought the rope and the axe along with Akash. He has also admitted

in his cross-examination that he is intending that the accused should

not be convicted. If his marriage will be performed, the problems of

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his uncle Pandurang will be finished. As the marriage of Akash was

not performed, the present matter came into existence. There is no

cross-examination by the defence counsel on the aforesaid

admissions. Only one line cross is there.

15. The testimony of a hostile witness cannot be rejected in toto

as the evidentiary value of his testimony is not lost and can be

accepted to the extent that the version is found corroborated with

other material evidence. In the instant case, firstly, most of the facts

admitted by PW-1 Pandurang and PW-2 Balaji are not disputed.

Secondly, there is enough corroboration to their version which can be

considered even though they are declared hostile witnesses by the

prosecution.

16. Thus considering their evidence, certain uncontroverted facts

can be summarized in the following manner, i.e. Parts A, B, C and D

PART - A

(i) PW-1 Pandurang, appellant-accused Akash, deceased Dhrupadabai and deceased Ganga, who were only residing in their house at Junna, Taluka Mukhed, District Nanded.

(ii) The incident occurred in the night time.

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(iii) In that night, deceased Dhrupadabai and deceased Ganga slept in the house.

(iv) Deceased Dhrupadabai and deceased Ganga found in dead condition on their cot having bleeding injuries on their person.

(v) The distance in between the cot of PW-1 Pandurang and the cot of his wife, which was inside the room, was about 15 feet and they were at audible distance.

(vi) On that night the bulbs of both the room were burning.

(vii) Deceased Dhrupadabai and deceased Ganga slept on the same cot in that night.

(viii) PW-1 Pandurang slept in the room adjacent to the room where his deceased wife Dhrupadabai and deceased daughter Ganga slept.

(ix) The appellant-accused Akash was caught hold in the house and he was taken out of the house.

PART -

(i) As the parents of Taibai had gone for labour work to other place, the marriage of Akash was not performed in that year.

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(ii) The parents of Taibai were saying not to make hurry for marriage.

(iii) PW-1 Pandurang had also gone for the work of cutting of sugarcane along with his daughter deceased Ganga 15 days prior to the incident.

(iv) Deceased wife Dhrupadabai had informed to PW-1 Pandurang that accused Akash was frequently saying for performing his marriage.

PART -

(i) PW-1 Pandurang admits the contents of the FIR Exhibit 9 and his signature thereon.

(ii) According to him, in respect of the murder of his wife and daughter, he lodged the FIR against Akash.

(iii) According to PW-1 Pandurang, he lodged the FIR about the incident which had taken place and which was seen by him.

(iv) Police wrote the FIR as per the say of PW-1 Pandurang and he made signature on it.

(v) The contents of the FIR were read over to PW-1 Pandurang. The same were found correct, therefore, he made his signature on it.

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PART - D

(i) PW-1 Pandurang has deposed that the matter is settled by him.

(ii) He is intending that the appellant-accused Akash should be released so that his marriage will be performed.

(iii) He required a daughter-in-law for doing household work and meals.

(iv) He is intending to perform marriage of appellant-

accused Akash to solve his problem.

(v) He is intending that appellant-accused Akash should be acquitted in this case.

(vi) He is an old aged person and intending that his son Akash to reside with him.

(vii) He is intending that his son appellant-accused Akash should not be punished.

17. PW-2 Balaji had not supported the prosecution case, however,

his uncontroverted testimony can be summarized in the following

manner, i.e. Parts A, B and C.

PART - A

(i) The incident occurred at the house of PW-1 Pandurang, the father of the accused.

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(ii) On hearing shouts of father of the accused, he woke up. Madhav Talikote was with him.

(iii) After some time, both of them went to the house of father of the accused. The door was opened. They entered into house of accused.

(iv) They saw the mother and the sister of the accused in dead condition on same cot.

(v) There were injuries on the head of deceased Dhrupadabai and deceased Ganga.

(vi) The wife and the daughter of Pandurang were died due to injuries.

PART -

(i) When Balaji returned back to his house, several persons gathered there and they caught hold Akash.

(ii) The villagers tied hands of appellant-accused with a rope to a tree.

(iii) In order to prevent accused Akash from running away from the spot, he was tied to a tree.

(iv) Police rescued Akash and brought him to the police station.

(v) Police brought the rope and axe along with Akash.

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PART -

(i) He is intending that the accused should not be convicted.

(ii) Marriage of Akash will be performed so that problems of his uncle Pandurang will be finished.

18. The evidence of PW-1 Pandurang and PW-2 Balaji to the extent

as discussed above inspires confidence. Their evidence is corroborated

with the other material evidence.

19. PW-5 API Ashok Bele has deposed that on 08.09.2021 at about

2.00 a.m. he had received a phone call from police Patil Junna,

thereby informed that one person committed murder of his sister and

mother. The said police Patil also informed that the said person was

caught hold by the villagers. PW-5 API Ahok Bele has told Police Patil

not to beat the said person and to caught hold of him till arrival of

police. He forthwith rushed towards the village Junna along with

police staff. On reaching their, he found that the villagers caught hold

accused Akash and there were two dead bodies in the house of

accused on the cot. The father of the accused as well as the other

persons were present in the house. The accused was in angry mood.

The villagers told PW-5 API Ashok Bele that accused was not ready to

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hand over the axe by which he assaulted his mother and sister. The

clothes of the accused were stained with blood at that time. He had

drawn inquest panchanama of the dead bodies of mother and sister of

the accused Exhibit 18 and 19 respectively. He had also drawn the

spot panchanama Exhibit 23. He had collected the blood fallen on the

spot as well as the blood-mixed earth from the spot of the incident.

He had sent the dead bodies for postmortem examination. He had

also forwarded the seized articles for chemical analysis. He was

shown the axe in sealed condition by removing its seal. PW-5 API

Ashok Bele has further deposed that it is the same axe, which was

seized from PW-2 Balaji. PW-2 Balaji had snatched the said axe after

the incident. He has also deposed that the clothes of the accused

Akash were found stained with blood. The shirt is at article 'C' and

that pant is at article 'D'. The clothes of the deceased were also seized

after the postmortem examination and all the sized articles were

forwarded for the chemical analysis.

20. We have carefully gone through the contents of the inquest

panchanama Exhibits 18 and 19, which are admitted by the defence.

The injuries on the person of deceased Dhrupadabai and deceased

Ganga, who was only 13 years of the age, are mentioned in detail in

the inquest panchanama. We are shocked to see the injuries on the

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head, particularly on the middle portion of the forehead of deceased

Dhrupadabai.

21. PW-3 Dr. Gajanan Swami, who has conducted the postmortem

examination of both the bodies, has noticed the following injuries on

the dead body of deceased Dhrupadabai:

1. Fracture of frontal lobe of scalp size 9 x 4 x 3 cm at middle with brain parts oozing.

2. CLW of size 6 x 4 x 2 cm on middle of nose to right eye with fracture of nasal bone.

3. CLW with fracture of right maxillary bone with right incisor teeth and CLW of size 5 x 3 cm.

4. Fracture of left femural lobe of skull with CLW of size 3 x 2 x 2 cm".

In his opinion, the death of deceased Dhrupadabai was caused

due to hemorrhagic and neurogenic shock due to head injury with

multiple fracture on skull vault.

22. PW-3 Dr. Gajanan Swami has noticed the following injuries on

the dead body of deceased Ganga:

"1. CLW over palm 4 x 2 x 2 cm.

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2. Fracture of 2, 3 and 4th finger from middle of palm.

3. CLW over right maxilla towards right nostril size 4 x 3 x 3 cm.

4. Fracture of right maxillary bone.

5. CLW over forehead to frontal region of scalp size 9 x 3 x 3 cm. towards right eye.

6. Fracture of right fronto occipital region of scalp".

In his opinion, the death of deceased Ganga was caused due to

hemorrhagic and neurogenic shock due to injury of multiple fracture

on skull vault.

23. The injuries on the dead bodies are homicidal in nature and

they are possible to be caused by a weapon such as an axe.

Postmortem report Exhibit 13 is about the dead body of deceased

Dhrupadabai and postmortem report Exhibit 14 is about the dead

body of deceased Ganga which are duly proved by the prosecution.

Though PW-4 has not supported the prosecution case, however, he

has admitted the contents of the spot panchanama Exhibit 23. As

discussed in detail in the forgoing paras, it is not disputed that the

incident had taken place in the residential house of PW-1 Pandurang.

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24. PW-5 API Ashok Bele has also drawn panchanama Exhibit 25 of

seizure of the shirt of PW-1 Pandurang. PW-1 Pandurang has admitted

the contents of the FIR. PW-5 API Ashok Bele has also drawn

panchanama Exhibit 26 and seized the clothes on the person of both

the dead bodies. The said clothes were having blood stains. He has

also drawn panchanama Exhibit 27 for seizure of clothes of accused

having blood stains on it. PW-5 API Ashok Bele has also draw

panchanama Exhibit 28 for seizure of the axe, which was removed

from the hands of the accused immediately after the incident.

25. Learned counsel for the appellant has assailed this evidence on

the ground that the prosecution has not examined the panch

witnesses on Exhibits 25 to 28. However, it appears that since the

witnesses were not ready to support the prosecution case, the APP has

not examined those panch witnesses. However, the prosecution has

proved the contents of the said panchanamas through the

Investigating Officer PW-5 API Ashok Bele. We do not find any animus

between the Investigating Officer PW-5 API Ashok Bele and the

accused in any manner. There is no reason for him to draw falls

panchanamas. Learned counsel has also assailed the evidence in the

form of seizure of the clothes of the decease and accused Akash and

the weapon axe on the ground that those were not sealed. However, it

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has come in para 6 of the examination-in-chief of PW-5 API Ashok

Bele, that when he was shown the axe in the Court, it was in sealed

condition and he was shown the said axe by removing the seal.

Further, it appears that the clothes of accused Akash stained with

blood i.e. articles 'C' and 'D' were also kept in a box, which was in

sealed condition.

26. We have carefully perused the C.A. reports Exhibits 48 to 51.

The blood found on the clothes of the deceased persons is of blood

group 'O'. The same blood group was detected on the clothes of the

appellant-accused Akash. It is pertinent to note that no blood was

detected on Exhibit 28, which is the axe. Learned counsel for the

appellant has assailed the prosecution evidence on this count that

there is no corroboration to the evidence of PW-1 Pandurang, PW-2

Balaji and PW-5 API Ashok Bele to conclude that the weapon axe was

seized from the spot after it was snatched from the hands of the

appellant-accused. However, we find no substance in it. PW-1

Pandurang, PW-2 Balaji and PW-5 API Ashok Bele, in their

uncontroverted evidence, have deposed about the axe being snatched

from the hands of the accused immediately after the incident and

thereafter it was seized under panchanama Exhibit 28.

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27. Learned counsel for the appellant has placed his reliance on

Bhanudas Bagaji Salve Vs. State of Maharashtra (supra), wherein in

para 17, the Division Bench of this court has made following

observations:

"17. In the circumstances, we find that it would not be safe to base conviction solely on the basis of the evidence of the hostile witness P.W. 4 Chhabu as there is no adequate corroboration by individually proved circumstances and acceptable evidence. There are inherent lacunas in the version given by the hostile witness P. W. 4 and independent witnesses, one of whom was actually named by Chhabu, have not been examined. It is well settled that suspicion, however grave, should not be allowed to take place of proof. In the circumstances, we feel that the benefit of doubt must go to the accused".

28. In the instant case, however, there is corroboration to the

evidence of PW-1 Pandurang and PW-2 Balaji though they have not

supported the prosecution case. They have deposed many

uncontroverted facts, which are adequately corroborated by the other

evidence.

29. In the case of Sunil S/o Manoharrao Pandhare Vs. The State of

Maharashtra (supra) relied upon by learned counsel for the appellant-

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accused, in para 12, the Division Bench of this Court has made

following observations :

"12. It is pertinent to note that recovery itself is not proved by prosecution. Both the panchas are on confessional statement of appellant and recovery of weapon. Both panch witnesses have not supported to the prosecution. Both the panchas have not stated in their evidence that appellant confessed to show the weapon used in the crime. They did not state before the Court that appellant discovered knife and it was seized in their presence. Therefore, recovery of weapon itself is not proved. Learned trial Court has wrongly relied upon the sole testimony of Investigating Officer Subhash Dhawale (PW-10).

30. In the instant case, the evidence of PW-5 API Ashok Bele is

important. He had immediately rushed to the spot and drawn

various panchanamas. So far as the weapon axe is concerned, it

was seized immediately after the incident by drawing

panchanama since the weapon axe was allegedly snatched from

the hands of the accused.

31. In case of Mukhtiar Ahmed Ansari Vs. State (N.C.T. of Delhi)

(supra) relied upon by learned counsel for the appellant, in para 36,

the Hon'ble Supreme Court has observed that, "in the present case,

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evidence of PW-1 Ved Prakash Goel destroyed the genesis of the

prosecution that he had given his Maruti car to police in which police

had gone to Bahai Temple and apprehended the accused. When Goel

did not support the case, accused can rely on that evidence".

32. In the instant case, we have observed in the forgoing

paragraphs that PW-1 Pandurang even though admitted the factual

aspects of the case, which he had narrated in the complaint and PW-2

Balaji has also deposed about the same to some extent, however, there

is no cross-examination of these two witnesses by the defence counsel

and there is nothing in their evidence which can be said to be

supportive to the defence.

33. In case of Ramchandra Laxman Waghmare Vs. State of

Maharashtra (supra), the Division Bench of this Court in para 6 has

made the following observations:

"6. They were definitely in dilemma, to support or not to support the case against the accused-father and this must be troubling them from all angles. Their mental condition in such circumstances need to be seen. But at the same stroke, if prosecution unable to place on the record other corroborative evidence, it is difficult to convict any person based, only on the testimony of such

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hostile or interested witnesses. No other witnesses have supported or corroborated the prosecution case so far as to the involvement of the appellant".

34. In the instant case, as discussed in the forgoing paragraphs,

there is enough corroboration in the evidence of hostile witnesses

PW-1 Pandurang and PW-2 Balaji and to that extent it inspires

confidence.

35. In case of Lingu S/o Dharma Meshram Vs. State of Maharashtra

(supra), relied upon by the learned counsel for the appellant, it is

observed that, "the Court must be extremely cautious and circumspect

before accepting the evidence of hostile witness. The Court must look

for corroboration of the version from other reliable evidence".

36. In the instant case, though PW-1 Pandurang and PW-2 Balaji,

and even though PW-1 is an eye witness to the incident, have not

supported the prosecution case, however, the uncontroverted facts of

their respective evidence corroborated with other evidence on record

unerringly pointed out the guilt of the appellant-accused. It appears

that the appellant-accused got annoyed because even though he

repeatedly insisted for his marriage to be performed with Taibai, it

was not performed under one or another pretext. There were only

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four persons residing in the house at village Junna and those are PW-

1 Pandurang, appellant-accused Akash, deceased Dhrupadabai and

deceased Ganga. Appellant Akash was found in the house at the

relevant time and he was tied to a tree immediately after the incident

by the villagers. PW-5 API Ashok Bele had immediately rushed to the

spot, where he noticed that the appellant-accused was tied with a

standing tree and there were blood stains on his clothes. Thus, he

brought the appellant-accused to the police station along with the

weapon axe, which was allegedly snatched from the hands of the

appellant-accused immediately after the incident. The shirt on the

person of PW-1 Pandurang of which front pocket was found torn and

there were blood stains on the said shirt. Thus cumulative effect of all

these circumstances point out the guilt of the appellant-accused. The

appellant-accused was caught red-handed on the spot by the villagers.

The trial Court has rightly convicted the appellant-accused for having

committed murder of his mother Dhrupadabai and sister Ganga, who

was only 13 years of the age. The villagers, PW-1 Pandurang, PW-2

Balaji and the other witnesses including the panch witnesses have

decided not to support the prosecution case for the sole reason that

the appellant-accused is the only support of PW-1 Pandurang in his

remaining span of life.

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37. Considering the entire aspect of the case, we do not find any

substance in this appeal. Hence the following order:

ORDER

The Criminal Appeal is hereby dismissed.

    ( SHRIKANT D. KULKARNI )                           ( V. K. JADHAV )
            JUDGE                                           JUDGE



 S.P. Rane




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