Bombay High Court
Govind S/O. Taterao Suryawanshi vs The State Of Maharashtra on 28 July, 2025
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2025:BHC-AUG:19734-DB
{1} APEAL-683-2018
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 683 OF 2018
Govind s/o Taterao Suryawanshi,
Age: 30 years, Occu.: Agriculture,
R/o: Village Halki, Taluka: Shirur,
Anantpal, District: Latur.
[At Present the appellant is in Nashik
Central Jail, Nashik Road, Nashik] ...APPELLANT
[Orig. Accused No. 1]
VERSUS
The State of Maharashtra,
through the Police Station
Shirur Anantpal, Taluka: Shirur,
Anantpal, District: Latur. ...RESPONDENT
Ms. Poonam V. Bodke Patil, Advocate for appellant
Mrs. Uma S. Bhosale, APP for respondent-State
WITH
APPLN. FOR LEAVE TO APPEAL BY STATE NO. 232 OF 2018
The State of Maharashtra,
through the Police Station
Shirur Anantpal, Taluka: Shirur,
Anantpal, District: Latur. ...APPLICANT
VERSUS
1. Govind s/o Taterao Suryawanshi,
Age: 30 years, Occu.: Agriculture,
R/o: Village Halki, Taluka: Shirur,
Anantpal, District: Latur.
2. Maroti s/o Hariba Suryawanshi
Age: 63 years, Occupation: Agriculture,
R/o Halki, taluka Shirur Anantpal
District Latur.
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3. Uttam s/o Maroti Suryawanshi
Age: 39 years, Occupation: Agriculture,
R/o Halki, taluka Shirur Anantpal
District Latur.
4. Sunil s/o Taterao Suryawanshi
Age: 25 years, Occupation: Agriculture,
R/o Halki, taluka Shirur Anantpal
District Latur.
5. Rahul @ Babasaheb s/o Maroti Suryawanshi
Age: 29 years, Occupation: Agriculture,
R/o Halki, taluka Shirur Anantpal
District Latur. ...RESPONDENTS
[Orig. Accused]
Mrs. Uma S. Bhosale, APP for applicant-State
Ms. Poonam V. Bodke Patil, Advocate for respondent No. 1
.......
CORAM : NITIN B. SURYAWANSHI AND
SANDIPKUMAR C. MORE, JJ.
RESERVED ON : 09th JULY, 2025
PRONOUNCED ON: 28th JULY, 2025
JUDGMENT :
[PER NITIN B. SURYAWANSHI, J.]
1. This appeal is directed against the judgment and
order of conviction of appellant under Section 302 of Indian
Penal Code and sentence of life imprisonment imposed on him by
learned Additional Sessions Judge, Nilanga in Sessions Case No.
04 of 2016.
2. It is the prosecution case that, Madhav Govind
Waghe (PW4) lodged report with Shirur Anantpal Police Station
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on 14.10.2015 alleging that he along with his family resides at
village Wanjarkheda. His elder brother Rambhau Waghe
(deceased) was residing at Hyderabad since last 15 years. On
14.10.2025 his brother had been to his native place and he
wanted to proceed to Tuljapur. Earlier his brother had purchased
1 Acre 1½ guntha land at Wanjerkheda. The dispute about said
land was going on with the family members of accused Govind
Taterao Suryawanshi. A civil suit resulted in favour of his brother,
therefore, accused Govind and his family members were having
grudge against them. Govind and his brothers were threatening
to kill them saying that though the result of the Court has gone
in your favour, they will determine their fate. Though, PW4 and
his family members tried to give them understanding, it was of
no use.
On 14.10.2015 at about 2.00 O'clock in the noon,
Rambhau (deceased) reached to his field from Hyderabad and
stayed there up to 5.00 pm. Later on they decided to bring
mutton from village Halki. Therefore, deceased, PW3- Santosh
Surwase and informant have gone triple seat on a motorbike to
village Halki to bring mutton. After taking mutton they started
back towards their village at about 6.30 pm. PW3 Santosh was
riding the bike. PW4 was sitting in the middle and deceased was
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sitting behind him. When they reached at a distance of about 1
km from village Halki, near a bridge, they came across accused
Govind, Maroti, Sunil, Uttam and one unknown person. Accused
asked them to stop their motorbike. Upon stopping of the
motorbike, Accused No. 1- Govind came near them and gave a
blow of axe on back side of the head of deceased, second blow
was dealt on the forehead. Other accused assaulted deceased
with kicks and fist blows. Accused Govind was exhorting that
Ramya should not go live and after Ramya, catch hold of the
informant. Therefore, PW3 and PW4 ran away from the spot. He
therefore stated that all the accused have committed murder of
deceased Rambhau on account of land dispute.
3. The information that one person has been murdered
on Halki to Mushirabad road was received to the police station
through Police Patil of village Halki. PW6- Ashok Anantare took
entry in the station diary and visited the spot along with his
staff. On reaching their he found that dead body of Rambhau
was lying on road facing down. He also noticed Police Patil and
PW4 on the spot. Dead body was inspected in the lights of
lantern, torch and vehicles. Inquest panchnama was conducted
on the spot. Dead body was then sent for post mortem.
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Informant-PW4 was then taken to police station and his report
was recorded at Exhibit-83. Crime No. 83 of 2015 was registered
and investigation was handed over to PW6. During the
investigation, spot panchnama was conducted. Accused were
arrested. Their clothes were seized under panchnamas. On the
basis of memorandum statement of accused Govind (Exhibit-64),
alleged murder weapon axe used in the crime was recovered
vide panchnama (Exhibit-65). On completion of investigation
charge sheet was filed.
Five accused persons were charged under Sections
302, 307, 341 read with 149 of IPC and Section 37(1) (3) of
Bombay Police Act. Accused denied the charge. Prosecution
examined 7 witnesses in support of the charge. On appreciation
of evidence Trial Court convicted the appellant as aforesaid and
acquitted Accused No. 2 to 5.
4. By filing Application No. 232 of 2018 State has
sought leave to file appeal challenging the acquittal of Accused
No. 2 to 5. By filing Criminal Appeal No. 683 of 2018, appellant
has challenged his conviction.
5. Heard learned advocate for the appellant and learned
APP for State.
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6. PW3 and PW4 are the eye witnesses in the present
case.
PW3 Santosh Surwase has not supported the
prosecution and was declared hostile. He deposed that he knows
complainant Madhav Waghe and Rambhau Waghe. Rambhau had
agricultural land at village Wanjarkheda. He did not know
whether there is any dispute of Rambhau Waghe with anyone
regarding said land. Rambhau is not alive. He was residing at
Hyderabad. On 10.04.2015 he had been to Wanjarkheda from
Hyderabad for going to Tuljapur. His field and Rambhau's field
were adjacent to each other, so he met him on that day in the
field. Till 5.00 pm he and Rambhau were present in their fields.
At about 5.45 to 6.00 pm they both went to bring mutton. At
about 6.30 pm while returning to the field with mutton on the
motorcycle, 5 to 6 unknown persons stopped them by signal with
their hand for robbery. It did not happen that he, Rambhau and
Madhav had gone to bring mutton and at that time Accused No.
1 Govind stopped them by signaling with his hand and other
accused were with him. Then Govind gave blow of axe over the
head of deceased Rambhau. It did not happen that Govind also
gave blow on his leg with iron bar.
Learned APP was permitted to cross examine this
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witness. In the cross examination, he deposed that he knows
Accused No. 1 to 4 present before the Court. They are his
adjacent land owners, but he is not frequently sitting with them.
Even after the death of Rambhau he is on talking terms with
accused. He denied that he along with Rambhau and Madhav
went to village Halki for bringing mutton and they were returning
home at 6.30 pm. At that time Accused No. 1 and 2 stopped
them by giving signals with their hands. At that time, he was
driving motorcycle, Madhav was sitting in between and deceased
Rambhau was sitting behind. He denied that Govind gave blow of
axe on the head of Rambhau and Govind gave him a blow with
iron rod and therefore they all fell down. He admitted that they
ran away from the said spot. He again stated that he ran away
from the said spot. He denied that due to the injuries sustained
by him he had been to Garad Hospital, Latur for treatment. He
denied that he made statements in portion mark A, B and
before police. He also denied the statement portion mark A was
made by him in his supplementary statement. He admitted that
the statement was recorded earlier before the Court. Statement
dated 22.12.2015 (under Section 164 Cr.P.C.) was shown and
read over to him. He admitted that it is the same statement and
it bears his signature and its contents are true and correct. This
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statement is mark Exhibit-77. He denied that due to fear of
accused and as there is no powerful male member in the family
of victim therefore he is deposing false about the incident.
7. In the cross examination by accused, he admitted
that his statement was recorded before the Judicial Magistrate
after 02 months and 8 days of the incident and he was forcibly
brought to the Court by the police at that time. Police threatened
him to tell such facts before the Court otherwise they would join
him as accused and due to that fear he stated before the
Magistrate.
8. Informant Madhav Govind Waghe (PW4) is the
brother of deceased Rambhau. He testified that he has one
brother namely Rambhau, he possessed 1 Acre 1 Ghunta land.
He is no more. He was doing bakery business at Hyderabad. On
14.10.2015 he came from Hyderabad to Wanjarkheda in order to
go to Tuljapur. Santosh Uttam Patil has known to him, he is
friend of his brother. He came to Wanjarkheda at about 2.00 pm.
He was with him along with Santosh at the field till 5.00 O'clock
in the evening. Thereafter they went to bring mutton on the
motorbike at Halki. At the time of returning from mutton shop
Santosh was rider of the motorbike, his brother (deceased) was
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pillion rider and he was sitting in between them. At about 6.00 to
6.30 pm they reached upto a bridge which was on the way to
Halki to Mushirabad. One Sunil Suryawanshi, Maruti
Suryawanshi, Govind Suryawanshi, and Uttam Suryawanshi
along with one unknown person stopped their motorbike.
Accused Govind dealt a blow to his brother over the back of his
head with the help of axe, his brother fell down. Again Accused
Govind dealt another blow over his forehead. Thereafter, rest of
the accused started assaulting to his brother with fists and kick
blows. Accused Govind was shouting that Ramya should not live
alive and he should be killed. Accused were also saying that he
should be caught. Therefore, he along with Santosh ran away.
Their village is at a distance of 3 km from the said spot. He met
some people from the village on the outskirt of their village, then
again they reached to the spot. Police had reached on the spot.
Police asked him as to the identity of his brother. He confirmed
the identity. Police had brought lantern (Batti) and drew scene of
occurrence panchnama. Then he was taken to police station. He
was asked how the incident has happened. He lodged report
Exhibit-83.
Again next morning he was called at 6.00 am to the
police station. Two panchas were called. He showed the spot to
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them. Blood stained soil was collected from the spot. Then he
went to village Halki for his work where he noted presence of
unknown person who was along with accused at the time of
assault. He inquired the name of that person and came to know
his name is Babasaheb Maruti Suryawanshi. Then he went to
police station and gave them the name of 5 th assailant.
Accordingly his supplementary statement was recorded. After
couple of days he was called to identify Babasaheb Suryawanshi.
His statement was recorded in the Court. There was land dispute
in between Govind and his brother. The Court ruled in their
favour, therefore accused were holding grudge against them.
They used to say that we will deal with you properly. He
identified clothes of deceased. He also identified the weapon axe
used in the crime. His mother had lodged number of complaints
alleging that accused had given threats of life.
9. In the cross examination, he admitted that on
05.10.2017 he had received court summons. On that date he
appeared before the Court to sought adjournment as he was not
prepared to testify. He did not remember whether after that day
for 14 to 15 days, he did not attend the Court. He admitted that
on 2 to 4 occasions bailable warrant was issued against him and
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his bond was also taken in the Court for further appearance. He
did not know whether non bailable warrant was issued against
him. He denied that since he was not eye witness he was
seeking multiple adjournments to get prepared for making
statements before the Court. He further stated that civil suit was
in respect of partition of Suryawanshi family, it was a dispute in
between step brothers, mother and father. Out of that subjudice
property he had purchased 1 Acre land from Maruti Suryawanshi.
He did not know whether Accused No. 1 and his father were
party to that suit or not. He denied that the civil suit was not
against Accused No. 1. He did not sustain any injury in the
incident. His clothes were also not stained with blood. He did not
notice as to whether motorcycle was present over the spot. He
did not notice whether mutton carried by them was lying over
the spot in the night and in the morning as well. He denied a
suggestion that he is deposing false about assault to his brother
and the assailants and he lodged false complaint owing to civil
dispute. He denied that accused are involved in the said crime
out of enmity, though they have no concern with present crime.
10. By examining Dr. Balaji Devanagare (PW5),
prosecution has proved homicidal death of deceased Rambhau.
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Dead body of Rambhau was forwarded to him on 15.10.2025 for
post mortem. He noticed 8 chop injuries over the head i.e.
(i) Just above right eyebrows cut lacerated wound 5
x 3 x 0.5 cm deep penitentiary almost to the brain.
(ii) Cut lacerated wound on the right ear 4 x 1 x 0.5
cm runs obliquely.
(iii) Cut lacerated wound 4x1x0.5 cm above
forehead.
(iv) Cut lacerated wound on upper surface of head 5
x 0.5x 0.5 cm almost cutting the bone and exposing
the brain matter.
(v) CLW 4x1x 0.5 cm L-ve left ear.
(vi) CLW occipital area horizontally 5x1x0.5 cm
(upper)
(vii) CLW occipital a/w middle area 4.4x1x0.5 cm
horizontally.
(viii) CLW occipital lower area 5x1x0.5 cm horizontally
almost exposing the brain.
The injuries were antemortem cut lacerated wounds.
He opined that death was due to multiple chop wounds over the
head with fracture of skull with injuries to brain. Provisional
injury certificate (Exhibit-96) was issued by him and post
mortem notes (Exhibit-97) was proved by him.
11. In the cross examination, he deposed that such
injuries are possible by sickle. All the injuries were on the
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forehead and head. There were no injuries on the other parts of
the body. Several assaults are required for all the injuries
sustained by the deceased. The deceased might have taken meal
earlier to 4 to 6 hours of death.
The defence has not seriously disputed the homicidal
death of the deceased. The prosecution has therefore proved the
homicidal death of the deceased.
12. Anant Kulkarni (PW1) is the panch to spot
panchnama (Exhibit-62). The spot was shown by PW4. He is also
panch to memorandum statement of appellant (Exhibit-64)
agreeing to produce axe which was kept by him under the tin.
After recording the memorandum statement of the appellant, he
led them to village Halki and took them near one house. He took
out axe and iron rod from the roof of fowl house. The same was
seized vide panchnama (Exhibit-65).
13. In the cross examination he has admitted that
accused was handcuffed at the time when police asked him by
which weapon he had beaten the victim. He admitted that spot
of incident is a public road and it is full of traffic.
14. Waman Surwase (PW2) is panch to the panchnama
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of seizure of clothes of deceased (Exhibit-71).
15. Police Inspector Ashok Anantre (PW6) was attached
to Shirur Anantpal police station at the relevant time. On
14.10.2015 while he was on duty, police patil of Halki informed
on telephone that one person is murdered on Halki Mushirabad
road. Accordingly, he took entry in the station diary and visited
the spot along with staff. On reaching over the spot he found
that dead body of Rambhau Waghe was lying there facing
downward. Brother of deceased (PW4) and police patil were also
present there. He therefore conducted inquest panchnama
(Exhibit-100) on the spot and handed over the dead body for
postmortem. Brother of deceased (PW4) was taken to the police
station and his statement was recorded. Accordingly, Crime No.
83 of 2025 was registered for offence under Section 302, 307,
143, 341, 323 of the IPC and Section 135 of B.P. Act. He
deposed that clothes of the accused were seized under
panchnama by searching their house vide Exhibits-58 to 61. On
16.10.2015 accused Govind agreed to recover axe and iron rod
used in the crime. His memorandum statement (Exhibit-64) was
recorded and axe and iron rod were seized vide panchnama
Exhibit-65. He got the map of scene of offence (Exhibit-104)
Bhagyawant Punde
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prepared. He forwarded muddemal property to CA through Police
Constable Gaware along with covering letters Exhibits-105 and
106.
He deposed that statement of PW3 was recorded as
per his say and portion mark A,B, and C in his statement and
portion mark A of supplementary statement were recorded as
per his say. They were mark Exhibits-108, 109 respectively. He
identified seized property before the Court.
16. In the cross examination he admitted that Govind
was not party in the civil dispute. The copy of the judgment in
civil dispute is at Exhibit-110. The name of accused Govind also
does not reflect in the 7/12 extract (Exhibit-111). Arrest
panchnamas were confronted to him and were marked Exhibits-
112 to 115. He stated that clothes of informant-PW4 and
Santosh-PW3 were not seized. He stated that blow of axe was
given to the deceased when he was seated on the motorbike in
the middle of informant and Santosh. PW3 was the rider. The
accused have assaulted all the three who were on the bike.
Medical certificate of complainant and Santosh were obtained.
Santosh PW3 was assaulted with iron rod. He denied to go for
medical. No test identification parade was taken.
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17. Rajkumar Gulbhele (PW7) was attached to the
outpost Nitur at the relevant time. On 06.09.2014 he was on
duty. PSO Shinde was working at Shirur-Anantpal Police Station.
He was also knowing ASI Kamble. He could identify their
signatures. Deceased had given application to Shirur-Anantpal
Police Station about dispute of the land as against Maroti, Uttam
and Govind Suryawanshi. The said application was given to him
for inquiry. Two to three such applications were filed. He called
both the parties and chapter case was filed against them. He
proved the Entry No. 225 of 2014. The extract of the same is at
Exhibit-117. Copy of preventive measures taken under Section
107 Cr.P.C. is at Exhibit-118.
18. In the cross examination, he stated that preventive
action was taken on the applications given by Phulabai.
It is mentioned in Exhibit-118 that applicant-
Phulabai (mother of the deceased) gave an application that
Maruti Suryawanshi, Uttam Suryawanshi and Govind
Suryawanshi gave threats on account of dispute in respect of
agricultural land. They claimed that they had taken loan from the
deceased and towards security, the land was given to him.
Though the loan was repaid, he was not returning the land.
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Hence, apprehension of serious crime being committed on
account of said dispute is expressed. Therefore, bond under
Section 116(3) is obtained from the parties and chapter case
under Section 107 is initiated.
19. On careful scrutiny of prosecution evidence we find
that evidence of PW4-informant is truthful and reliable. He being
brother of the deceased, his presence on the spot at the time of
incident is natural. He has vividly described the manner in which
accused assaulted the deceased with axe. Medical evidence
corroborates his version. Though he has stated that in his
presence two blows of axe were given by accused on the head of
the deceased, in the medical evidence it has come that there
were eight chop wounds on the person of the deceased. But
merely because he has not stated about remaining six chop
wounds is not sufficient to raise doubt about his version which is
otherwise found reliable. He has stated that after hearing
exhortation of the accused to catch him, he and PW3 ran away
from the spot. It appears that after he left the spot remaining
injuries were inflicted on the deceased. His evidence could not be
shattered in the cross examination.
Bhagyawant Punde
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20. His evidence is assailed on the ground that he being
brother of the deceased is interested witness and therefore his
evidence should be disbelieved, particularly in the light of
evidence of PW3.
21. It is by now well settled that a " close relative cannot
be characterised as an "interested" witness. He is a "natural"
witness. His evidence, however, must be scrutinised carefully. If
on such scrutiny, his evidence is found to be intrinsically reliable,
inherently probable and wholly trustworthy, conviction can be
based on the "sole" testimony of such witness. Close relationship
of witness with the deceased or victim is no ground to reject his
evidence. On the contrary, close relative of the deceased would
normally be most reluctant to spare the real culprit and falsely
implicate an innocent one." [See Namdeo Vs. State of
Maharashtra1]
22. In Shivaji Sahebrao Bobade vs. State of
Maharashtra2 it is held that "even where a case hangs on the
evidence of a single eyewitness it may be enough to sustain the
conviction given the sterling testimony of a competent, honest
man although as a rule of prudence courts call for corroboration ."
(2007) 14 SCC 150
(1973) 2 SCC 793
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23. Merely because PW4 has not sustained any injury
and he has not tried to save the deceased, his presence on the
spot cannot be doubted on these grounds. " Human behaviour
depends upon the facts and circumstances of each given case.
How a person would react and behave in a particular situation
can never be predicted. Every person who witnesses a serious
crime reacts in his own way. Some are stunned, become
speechless and stand rooted to the spot. Some become hysteric
and start wailing. Some start shouting for help. Others run away
to keep themselves as far as removed from the spot as possible.
Yet others rush to the rescue of the victim, even going to the
extent of counter-attacking the assailants. Some may remain
tightlipped overawed either on account of the antecedents of the
assailant or threats given by him. Each one reacts in his special
way even in similar circumstances, leave alone, the varying
nature depending upon variety of circumstances. There is no set
rule of natural reaction. To discard the evidence of a witness on
the ground that he did not react in any particular manner is to
appreciate evidence in a wholly unrealistic and unimaginative
way." (Vide Rana Pratap and Others V/s State of Haryana3).
1983 (3) SCC 327
Bhagyawant Punde
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24. The next argument of the accused that since PW3
has not supported the prosecution case his evidence is liable to
be discarded from the consideration.
In the cross examination of PW3 conducted by
learned APP his previous statements were confronted to him.
Portion Mark A, B and C from his police statement dated
16.10.2015 are at Exhibit-108 collectively. They are as follows:
Portion Mark 'A'
ÞR;kps 'ksrkr lka;dkGh ikp oktsi;Zar Fkkacyks R;kaurj R;kaP;k
eksVkjlk;dyus eh] jkeHkkm ok?ks] egknso ok?ks vls fr?kst.k gYdh ;sFks
vkyks o rsFkhy ,dk eqLyheP;k ekulkdMwu ,d fdyks eV.k ?ksowu
eksVkjlk;dyus ijr okatj[ksMk xkokdMs vankts la/;kdkGh 6-30 ok-
lqekjkl tkr vlrkauk gYdh xkokiklwu okatj[ksMk tkukjs jksMoj vankts
1@2 km oj gYdh ;sFkhy xksfoan rkrsjko lq;Zoa'kh ;kus vkeP;k
eksVkjlk;dyk gkr dsyk R;keqGs eh eksVkjlk;dypk osx deh dsyk-
R;kosGh rks ekÖ;k toG ;sowu eksVkjlk;dyyk /k:u o R;kps gkrkrhy
dqÚgkMhus ikBhekxs clysY;k jkeHkkm ok?ksP;k Mksdhr dq ÚgkMhus tksjkr
okj dsyk-ß
Portion Mark 'B'
ÞR;kps nqlÚ;k gkrkrhy lGbZus ¼jkWMus½ ek>s ik;koj tksjkr ek:u ek>k
Mkok ik; xaHkhj t[keh dsyk- rso<;kr vkEgh fr?ksgh [kkyh tehuhoj
iMyks- R;kosGh gYdh ;sFkhy ek:rh lq;Zoa'kh] lquhy lq;Zoa'kh] mRre
lq;Zoa'kh gs i.k jksMP;k cktwu Fkkacysys rsFks vkys o R;kauhi.k jkeHkkm
ok?ksyk ykFkk cqDd;kauh ekjgk.k dj.;kl lq:okr dsyh o gs loZ t.k
jkE;k ftoar ukgh jkfgyk ikfgts vls Eg.kr gksrs o R;kaP;k cktwu ,d
vuksG[kh ble i.k Fkkacysyk gksrk- jkeHkkmP;k Mksdhr o dikGkoj
dqÚgkMhpk tcj ekj ykxyk vlY;kus rks jksMojp jDrcackG gksowu iMwu
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gksrk- eh o egknso ok?ks ?kkc:u rsFkwu fto okpowu iGwu xsyks- rs
loZt.k ;k nks?kkaukgh ftoar tkow nsow udk vls Eg.kr gksrs- R;kuarj
vkEgh iGr xkoh okatj[ksMk ;sFks xsyks- R;kuarj vankts lOoklkr ok-
lqekjkl letys dh jkeHkkm ok?ks gk tkxhp ej.k ikoyk vkgs- R;kuarj
ek>s ek>s MkOks ik;kyk tkLr ekj ykxysus eh byktklkBh [kktxh
nok[kkuk xjM gkWLihVy ykrqj ;sFks xsyks-Þ
Portion Mark 'C'
Þrjh vkePks xkokrhy ek>k fe= jkeHkkm ok?ks o gYdh ;sFkhy xksfoan
rkrsjko lq;Zoa'kh ;kaps cÚ;klP;k fnolka iqfoZ iklqu vankts ,d rs lOok
,dj 'ksrhpk okn pkyw gksrk- rks okn dksVkZr gksrk- dksVkZus R;k
oknkP;k 'ksrhpk fudky jkeHkkm ok?ks ;kaP;k cktwus fnysyk gksrk- R;kpk
jkx eukr /k:u fn- 14@10@2015 jks- 18-30 ok- lq-ß
25. Exhibit-109, Portion Mark 'A' from his supplementary
statement is as follows:
ÞR;kuarj vkt eyk vk.kwu ikpO;k vuksG[kh O;Drhyk nk[koys R;k
ckcr ek>s lkax.ks vls dh vkEgkyk fn- 14@10@2015 jksth ekj.kkjk
ikpok vuksG[kh O;Drh rks gkp vkgs- eh rqeps le{k R;kyk R;kps uko
fopkjys vlrk R;kus R;kps uko jkgqy mQZ ckcklkgsc dkacGs vls
lkafxrys o R;kyk egknso ok?ks ;kauhi.k vksG[kys- vkEgkyk ekj.kkjk o
jkeHkkm ok?ks ;kauk ekj.kkjk gk ikpok vuksG[kh O;Drh jkgqy mQZ
ckcklkgsc dkacGs gkp vkgs-ß
26. It is well settled by catena of decisions of the Apex
Court that "Statement of hostile witness can be relied on by the
Court, to the extent it supports prosecution case and is
corroborated by other evidence."
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27. In Prem Singh vs. State (NCT of Delhi) 4, it is held
that, "such part of evidence of a hostile witness which is found
to be credible could be taken into consideration and it is not
necessary to discard the entire evidence."
28. In "Bhajju V/s State of Madhya Pradesh 5", the Apex
Court held :
"35. Now, we shall discuss the effect of hostile
witnesses as well as the worth of the defence put
forward on behalf of the Appellant/accused. Normally,
when a witness deposes contrary to the stand of the
prosecution and his own statement recorded under
Section 161 of the Code of Criminal Procedure., the
prosecutor, with the permission of the Court, can pray
to the Court for declaring that witness hostile and for
granting leave to cross-examine the said witness. If
such a permission is granted by the Court then the
witness is subjected to cross-examination by the
prosecutor as well as an opportunity is provided to the
defence to cross-examine such witnesses, if he so
desires. In other words, there is a limited
examination-in-chief, cross-examination by the
prosecutor and cross-examination by the counsel for
the accused. It is admissible to use the examination-
in-chief as well as the cross-examination of the said
witness in so far as it supports the case of the
prosecution.
36. It is settled law that the evidence of hostile
witnesses can also be relied upon by the prosecution
to the extent to which it supports the prosecution
version of the incident. The evidence of such
witnesses cannot be treated as washed off the
records, it remains admissible in trial and there is no
legal bar to base the conviction of the accused upon
(2023) 3 SCC 372
(2012) 4 SCC 327
Bhagyawant Punde
{23} APEAL-683-2018
such testimony, if corroborated by other reliable
evidence. Section 154 of the Act enables the Court, in
its discretion, to permit the person, who calls a
witness, to put any question to him which might be
put in cross-examination by the adverse party."
In the light of above observations and considering
the attending circumstances, we cannot accept arguments of the
accused that since PW3 is declared hostile, his evidence is liable
to be discarded from consideration. We find that Exhibit-77,
Exhibit-108 collectively and Exhibit-109 corroborate the evidence
of PW4 and support the prosecution case.
29. By relying on Privy Council decision in Brij Bhushan
Singh v. Emperor, it is argued by the defence that statement
under Section 164 Cr.P.C. is not substantive evidence.
30. PW3 in cross examination by learned APP has
admitted that his statement was recorded before the Court.
When the statement shown and read over to him he admitted it
to be the same. He had stated that contents of said statement
are true and correct and he has signed it. This statement is
marked (Exhibit-77). In this statement he has stated that on
14.10.2015 he, deceased Rambhau and PW4 had gone to Halki
on motorcycle for bringing mutton. After purchasing mutton they
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were returning back at about 6.30 pm. On a bridge prior to Halki
while returning towards the village five persons Govind
Suryawanshi, Taterao Suryawanshi, Maruti Suryawanshi and one
unknown person stopped their vehicle. They all are from Halki.
Govind Suryawanshi assaulted Rambhau with axe on the back of
head and forehead. He was trying to intervene. In the said
assault Rambhau died on the spot. Thereafter accused said
Madhav should be caught. That time Madhav ran away. After
confirming Rambhau's death he went to the village and informed
Police Patil.
31. It is settled legal position that statement under
Section 164 Cr.P.C. is not substantive evidence. In Vijaya Singh
& Another vs. State of Uttarakhand6, the Apex Court has
observed:
"27. The jurisprudence concerning a statement
under Section 164 CrPC is fairly clear. Such a
statement is not considered as a substantive
piece of evidence, as substantive oral evidence
is one which is deposed before the Court and is
subjected to cross-examination. However,
Section 157 of the Indian Evidence Act, 1872
makes it clear that a statement under Section
164 CrPC could be used for both corroboration
and contradiction. It could be used to
corroborate the testimonies of other witnesses.
28. Considering the conceptual requirement of
(2025) 3 SC 378
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recording a statement before a Judicial
Magistrate during the course of investigation
and the utility thereof, as prescribed in Section
157 of Evidence Act, it could be observed that a
statement under Section 164, although not a
substantive piece of evidence, not only meets
the test of relevancy but could also be used for
the purposes of contradiction and corroboration.
A statement recorded under Section 164 CrPC
serves a special purpose in a criminal
investigation as a greater amount of credibility
is attached to it for being recorded by a Judicial
Magistrate and not by the Investigating Officer.
A statement under Section 164 CrPC is not
subjected to the constrains attached with a
statement under Section 161 CrPC and the
vigour of Section 162 CrPC does not apply to a
statement under Section 164 CrPC. Therefore, it
must be considered on a better footing. _ _ _ _"
In view of above enunciation of law, said argument of
the accused is liable to be rejected.
32. It is argued on behalf of the defence that no blood
was detected on the axe and therefore, CA report does not
support the prosecution case.
Since we have found the evidence of eye witness
PW4 to be reliable, cogent and trustworthy which is corroborated
by the medical evidence and as axe is recovered from the
accused, in our view, merely because no blood was found on the
axe and on the clothes of accused, the prosecution case cannot
be disbelieved in the entirety.
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33. It is also argued that recovery of axe was not
voluntary, as the accused was handcuffed at the relevant time.
In support of this submission reliance is placed on Deoraj Deju
Suvarna and Etc. vs. State of Maharashtra 7, wherein it is
observed;
"There is another infirmity with regard to recovery of
sword at the pointing out of Raju alias Rajendra Vijayan
Pille and of chopper at the pointing out of Deoraj Deju
Suvarna. P.W. 10 Nandu Namdeo Adsul, the public
panch of recovery of chopper, at the pointing out of
Deoraj Deju Suvarna, states that at the time of the
recovery the accused was in handcuffs. In respect of
Raju alias Rajendra Vijayana Pille we find that in the
recovery memo Exhibits 25 and 25A, it is mentioned
that his left hand was handcuffed. This being the
position it cannot be said beyond reasonable doubt that
the recovery was voluntary and not the result of
duress, threat or pressure by the police authorities.
Recoveries made while accused are hand cuffed, in our
opinion, can be said to be violative of fundamental
right enshrined in Article 20 of the Constitution of
India. We are fortified, in our view, by a Division Bench
decision of our own court reported in 1992 Cri LJ 3034
Cri LJ 3034 Shankar Raju Banglorkar v. State of Goa."
In the case in hand PW1, panch to the memorandum
and seizure panchnama of axe, in the cross examination has
stated that when police asked the accused by which weapon he
had beaten the victim, he was handcuffed. Merely because at the
1994 CRI LJ 3602
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time of interrogation accused was handcuffed is not sufficient to
discard the memorandum as well as seizure panchnama. PW1
has not stated that at the time of recording memorandum
statement of the accused and seizure, he was handcuffed.
Therefore, this case law is of no help to the accused.
34. Next submission is that recovery is from the open
place and it is an ordinary agricultural implement used by all the
agriculturists and therefore not much importance be given to the
recovery of axe and on that basis appellant cannot be convicted.
In support of this submission reliance is placed on Vinodbhai vs.
State of Kerala8, wherein the Apex Court by relying on Manoj
Kumar Soni v. State of M.P.9, has held:
"22. A doubt looms: can disclosure statements per se,
unaccompanied by any supporting evidence, be
deemed adequate to secure a conviction? We find it
implausible. Although disclosure statements hold
significance as a contributing factor in unriddling a
case, in our opinion, they are not so strong a piece of
evidence sufficient on its own and without anything
more to bring home the charges beyond reasonable
doubt."
We do not find any merit in the said submission as the axe
was concealed by appellant on the roof of fowl house. Since the
Criminal Appeal No. 1730/2017
2023 SCC OnLine 984
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appellant is convicted by relying on the evidence of eye witness
PW4, this not a case that only on the basis of recovery at the
instance of appellant, he was convicted.
35. There is no substance in the argument of the
accused that there is delay in lodging FIR as the incident has
taken place at 6.30 pm and the FIR is registered at 11.45 pm.
Record indicates that on receipt of information about murder
from police patil, PW6 has taken station diary entry and
proceeded to the spot. He met PW4 and police patil there. Then
he conducted inquest panchnama on the spot. Time of inquest
panchnama is between 20.15 hrs to 21.00 hrs and thereafter FIR
is registered at 11.45 pm. There is no inordinate delay as such in
lodging the FIR.
36. In Nitya Nand vs. State of U.P. & Another10, the Apex
Court has considered the scope of Section 149 of IPC. In the
present case prosecution has failed to point out any evidence
connecting the acquitted accused to the present crime.
Therefore, we find no merit in the application filed by the State
seeking leave to file appeal challenging the acquittal of Accused
No. 2 to 5. The same is therefore dismissed.
Criminal Appeal No. 1348 of 2014
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{29} APEAL-683-2018
37. The Trial Court has properly appreciated the evidence
and has rightly convicted the accused. In the light of foregoing
reasons we do not find any merit in the appeal and appeal
stands dismissed.
(SANDIPKUMAR C. MORE, J.) (NITIN B. SURYAWANSHI, J.)
Bhagyawant Punde
