Appeal against life imprisonment for murder. The High Court upheld the conviction relying on circumstantial evidence, corroborating a child witness who saw the accused with an axe, and rejecting arguments regarding hostile witnesses and the credibility of the pancha who recovered the weapon.
Appeal dismissed; conviction maintained; sentence upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
APEAL145_2014
vidya
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 145 OF 2014 WITH CRIMINAL APPLICATION NO. 639 OF 2015 IN
CRIMINAL APPEAL NO. 145 OF 2014
Balu Dattu Thakre ... Appellant/Applicant vs. The State of Maharashtra ... Respondent
Mr. Hitesh P. Shah, Advocate for the appellant/applicant. Mrs. A.S. Pai, APP for the respondent/State.
CORAM: MRS. V.K. TAHILRAMANI & MRS. MRIDULA BHATKAR, JJ.
JUNE 7 , 2016.
ORAL JUDGMENT (PER MRS. MRIDULA BHATKAR, J.)
This Appeal is directed against the judgment and order dated 31st May, 2004 passed by the Additional Sessions Judge, Phalghar in Sessions
Case No. 77 of 2002. The appellant is convicted for the offences punishable under section 302 of the Indian Penal Code and is sentenced to undergo R.I. for life and pay fine of Rs.500/-, in default of fine to undergo
further R.I. for three months.
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place on 22nd March, 2002. The appellant/accused and deceased are the residents of Village Manikpur. The appellant/accused was having illicit relationship with one lady named Shilu. Few days prior to the incident, the appellant/accused and Shilu had quarrel , so she left the house and went to her village. The deceased Motiram Mali went to the house of Shilu and brought her back. She started residing with Motiram in her house 2 to 3 days prior to the incident. Rama Motiram Mali, wife of deceased Motiram, is informant in this case. She was working in one plastic company. Shilu's stay with Motiram was not liked by the appellant/accused, therefore, he held animus against the deceased. On 22nd March, 2002, Motiram visited the house of his sister, who was the mother of Kunda (PW-4). Kunda and Avinash (PW-3) were the children of his sister. At around 1.30 to 2 p.m. Avinash returned home from school for lunch and went out to answer nature call, at that time, Vaibhav (PW-6), husband of Kunda (PW-4) was in the house alongwith Motiram. The appellant/accused, the neighbour of Kunda, who entered the house with axe and assaulted deceased Motiram on his head and throat. Rama Motiram Mali was in the company at around 2.15 p.m., Her nephew Avinash came to the company and told her that
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accused had assaulted her husband. So she went to the house of Kunda,
niece of Rama and real sister of Avinash and saw the body of her husband in the pool of blood. She shifted him to the hospital and was declared dead. Rama gave information to Manikpur Police Station and the offence was registered on the same day at C.R. No. 100 of 2002. The postmortem was conducted on the same day by Dr. Dongre (PW-2). The police drew spot panchnama, recorded statements of the witnesses and arrested the accused. They recovered axe at the instance of the accused and drew panchnama under section 27 of the Evidence Act. After completion of the investigation, police filed charge in the Court of Magistrate and the learned Magistrate committed the case to the Court of Sessions.
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appellant/accused is innocent. There is no sufficient evidence to hold the accused guilty. The learned counsel argued that PW-4 Kunda Mhatre and PW-6 Vaibhav Mhatre did not support the case of the prosecution but the case stands only on the weak evidence of PW-3 Avinash Laxman Thakre, who is a child witness. He submitted that the learned Sessions Judge has erred in believing the evidence of PW-3 Avinash on the point of incident. He submitted that the Avinash has not seen the actual incident. He is not an eye witness. His evidence appears doubtful. He further submitted that the prosecution has tendered evidence of pancha PW-5 Sanjay Prabhakar Sawant to prove the recovery of the axe and towel. He relied on the crossexamination of the panch PW-5 Mr. Sanjay Prabhakar Sawant. Though he had said that axe was recovered at the instance of accused on 28th March, 2002, the said recovery is to be disbelieved, as pancha in the crossexamination has given admission that he has signed number of panchnamas and he has acted as pancha in false and fake currency note cases. The learned counsel further submitted that the panchnama (Exhibit 26) is a manipulated document and no weightage is to be given to the recovery of axe (Article 4). Therefore, it is a case of acquittal and the Appeal is to be
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allowed.
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examined by the prosecution during the trial. Therefore, the case entirely stands on the circumstantial evidence as it is recorded and produced before the Court. PW-3 Avinash is a star witness in the present case. His evidence is recorded on 26th December, 2003 and the incident has taken place on 22nd March, 2002, i.e., nearly 1 ½ year. At the time of recording of evidence, he was 14 years old. Thus, he was nearly 12 ½ years old when the incident took place. Avinash is a real brother of Kunda Mhatre. At the relevant time, Kunda along with her husband Vaibhav (PW-6) was residing in the house of her parents. Kunda has deposed accordingly and has also stated that appellant Balu Dattu Thakre is residing by the side of her parents house. Thus, the accused was neighbour of Avinash. At the relevant time, Avinash was school going boy. He used to come home in the recess for lunch everyday. On 22nd March, 2002, at around 2 p.m. he came home to take meal during the recess. He has stated that at that time, his sister Kunda, her husband Vaibhav and uncle Motiram (Deceased) were present in the house. Thereafter he went out to answer nature call and when he came back, he saw his uncle Motiram was lying in the courtyard of their house in pool of blood. He saw accused in the house who was trying to conceal the axe. Avinash has deposed that when appellant saw
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him, he told him not to disclose this fact to anybody. It is true that Avinash
has made a specific statement in his examination-in-chief that he has not seen the assailant who assaulted his maternal uncle, however, in the crossexamination he maintained his evidence that when he returned from school, appellant was present in the house. Thus, evidence of PW-3 on certain material points is supported with the evidence of other two witnesses, i.e., PW-4 Kunda and PW-6 Vaibhav. It is a settled position of law that the evidence of hostile witness, can be considered to the extent of what he has said in the examination-in-chief for the purpose of corroboration. Kunda has deposed that she was staying with her parents. Her brother Avinash used to come to house for lunch during recess, as he was studying in Ashram school. The incident has taken place at 2 p.m.. She has stated that her uncle Motiram Mali had come to her house. PW-6 Vaibhav has deposed that the accused is paternal uncle of his wife and he was staying earlier with one Shilu. He further stated that when he came home along with his wife Kunda at 2 p.m. he saw Motiram was lying dead in their house. Thus, the evidence of these two witnesses support the evidence of PW-3 Avinash on material points, i.e., Motiram was present in their house. The incident took place at 2 p.m. The presence of Avinash was natural as he used to
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come for lunch. It can be inferred from the evidence of PW-3 Avinash that
when he came home, Motiram was alive, however, when he went out to answer nature call, at that time also Motiram was alive and when he returned, he found Motiram was lying injured and accused holding axe was in the house. Though the evidence of Avinash is completely silent on the presence of PW-4 Kunda and PW-6 Vaibhav at the relevant time, the truthfulness of his evidence cannot be doubted, as there is no improvement or contradiction in his evidence. As argued by learned APP, in the crossexamination, his evidence remained unshaken.
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Vaibhav did not support the prosecution is not unnatural, therefore, their refusal to support the case of the prosecution could not imbalance the evidence of PW-3 Avinash.
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axe are very important connecting circumstances. He also warned PW-3
Avinash that he should not disclose this to anybody. This is a concrete and sufficient circumstances which establishes nexus between the accused and the offence. We do not find any reason to disbelieve the evidence of PW-3 Avinash , who is a child witness. We do not find any exaggerated or false statement in his evidence and he has no vested interest in the incident.
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assaulted her husband. The statement made by Rama that she was
informed by Avinash that accused assaulted her husband cannot be given weightage. Only on the point that she received information of assault from Avinash is material which corroborates the presence of Avinash immediately after the incident. Thus, it fortifies evidence of Avinash. Her evidence proves motive behind the murder.
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which was kept under the leaves and hay, was recovered on 28th March, 2002 and panchnama is marked as Exhibit 26. It is true that in the crossexamination, panch gave admission that he has signed number of panchnamas. He has acted panch in many cases. Other panch Jitendra and he together have acted in number of panchnamas in the said police station. The submission of learned counsel for the appellant are accepted that he was a panch, however, there is nothing on record to show that the panch was having any criminal record and he is not a person of disrepute. It is to be noted that sometimes in cases it is difficult for the police to get panch, as people refuse to take part in the police investigation and judicial proceedings. The persons who are available and who understand their responsibility to come forward and participate in the judicial process are called as panch. Unless there is a criminal record or unless it shows that evidence of panch is doubtful due to his misdeeds, then only it is to be discarded. However, apart from recovery panchnama, evidence of PW-3 and other occural and medical evidence as discussed above though is short but sufficient. Therefore, we are of the view that it is not a case where the judgment of the trial Court is to be disturbed. We maintain the conviction and dismiss the Appeal.
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3 issues framed by the court
Whether the conviction under section 302 IPC should be disturbed in view of weak prosecution evidence and a hostile eyewitness.
Whether the evidence of a child witness regarding the presence of the accused and the weapon is sufficient to sustain the conviction.
Whether the recovery of the axe constitutes a connecting circumstance despite the pancha's lack of credibility.
2 provisions across 2 enactments
Balu Dattu Thakre
The State of Maharashtra
MRS. V.K. TAHILRAMANI
MRS. MRIDULA BHATKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
