The High Court dismissed the State's appeal against the acquittal of an accused in a murder case. The court held that the prosecution failed to establish the complete chain of circumstances via circumstantial evidence due to lack of independent corroboration for the child witness.
The criminal appeal is dismissed. The accused is set at liberty.
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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 1 OF 2006
The State of Maharashtra
through Public Prosecutor,APPELLANT
High Court, Bench at Aurangabad (Prosecution)
VERSUS
Balu @ Balasaheb Ganpat Pagare,
Age : Major, R/o Vilad, Taluka Nagar,
District Ahmednagar, at present
Bhavani Chawl, Station Road,RESPONDENT
Ahmednagar, Dist. Ahmednagar (Orig. Accused)
(Orig. Accused)
Mr. S.Y. Mahajan, A.P.P. for the appellant/State
Mr. A.K. Gawali, advocate for the respondent
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON :14th SEPTEMBER, 2017
JUDGMENT PRONOUNCED ON:22nd SEPTEMBER, 2017
JUDGMENT (PER : SANGITRAO S. PATIL, J.) :
Heard the learned A.P.P., representing the
appellant/Prosecution and the learned counsel for the
respondent-accused.
2.The appellant has taken exception to the
judgment dated 20th September, 2005, delivered in
criapl1-2006
2
Sessions Case No. 25 of 2005 by the learned Additional
Sessions Judge, Ahmednagar, whereby the respondent has
been acquitted of the offence punishable under Section
302 of the Indian Penal Code (“IPC”, for short).
3.The case of the prosecution is that the
deceased Surekha and the respondent got married prior to
ten years of the year of the incident. From this
wedlock, they got two sons namely Sagar and Vishal, who
were 7 years and 5 years of age respectively at the time
of the incident. The respondent was serving at a petrol-
pump at Pune. The deceased Surekha was residing in one
of the rooms of her father namely Sahebrao Govind
Nikalje (i.e. the informant), situate in Bhauri chowl,
Station Road, Ahmednagar. The informant i.e. Sahebrao
Nikalje was residing in another room, situate in another
lane, which was at the distance of about 100 feet from
the room of the deceased Surekha. The respondent used to
cohabit with the deceased Surekha in that room. He used
to commute from Pune to Ahmednagar after alternate day.
It is alleged that the respondent used to suspect
chastity of the deceased Surekha and on that count, used
to beat and illtreat her. He used to frequently quarrel
with her. He had severely beaten the deceased Surekha 5
criapl1-2006
3
to 6 days prior to the date of the incident. Therefore,
the informant had taken her to his house. However, on
the next day, the mother of the respondent came to take
her and assured that the respondent would treat her
properly. Therefore, the informant allowed the deceased
Surekha to go to cohabit with the respondent. It is
alleged that the respondent had been at Ahmednagar only
and had not joined his duty since before two months of
the day of the incident.
4.On 23rd October, 2004, the respondent took meals
along with the deceased Surekha and his elder son Sagar
at about 9.00 p.m. Thereafter, quarrel took place
between the respondent and the deceased Surekha. The
younger son namely Vishal was at the house of the
informant in that night. The deceased Surekha, the
respondent and Sagar only were in their room in that
night. Sagar slept on a diwan along with the
respondent. The deceased Surekha slept on the floor.
Sagar heard some noise of the door and got up from the
sleep. He saw the respondent going out of the room. He
further saw that the deceased Surekha was covered with a
quilt. He thought that the deceased Surekha was
sleeping. Therefore, he also went to sleep. In the
criapl1-2006
4
morning, his younger brother Vishal came there and gave
calls to the deceased Surekha. As she did not wake up,
he went back to the house of the informant and narrated
him about that fact. The informant visited the room of
the deceased Surekha along with his wife. After
removing the quilt from the person of the deceased
Surekha, he noticed that she was strangulated and had
expired. Sagar was still sleeping. The informant made
him to wake up. At that time, he narrated before the
informant about having heard the sound of the door and
seeing the respondent going out of that room. After
leaving the room, the respondent did not come back. The
informant, therefore, lodged report against the
respondent in Police Station, Kotwali, Ahmednagar.
5.Crime No. 209 of 2004 came to be registered
against the respondent for the above mentioned offence.
The inquest panchanama of the body of the deceased
Surekha was prepared. The spot panchanama was prepared.
Post-mortem of the body of the deceased Surekha was
conducted. The Medical Officer opined that she died of
asphyxia due to strangulation. The statements of
witnesses were recorded. The respondent was not found
till 27th October, 2004, on which day, he was arrested.
criapl1-2006
5
After completion of the investigation, the respondent
came to be chargesheeted for the above mentioned
offence.
6.The learned Trial Judge framed charge against
the respondent for the above mentioned offence and
explained the contents thereof to him in vernacular. The
respondent pleaded not guilty and claimed to be tried.
His defence is that since there were three successive
holidays, including that of Dassehara, his employer had
not sanctioned him leave which made him difficult to
visit his room at Ahmednagar on 23rd October, 2004. His
cousin telephonically informed him in the morning on 24th
October, 2004 about the death of Surekha. He got
shocked and was mentally disturbed. He was not in a
position to take proper decision as to what he should
do. Therefore, he went to the house of his sister, who
was residing in Ramwadi at Pune and ultimately, he went
to Ahmednagar on 27th October, 2004, when he was arrested
by the police. He denied that he ever quarrelled with
the deceased Surekha and strangulated her.
7.The prosecution examined eleven witnesses to
establish guilt of the respondent for the above
mentioned offence. The important evidence is that of the
6 criapl1-2006
informant Sahebrao (Exh-14) and Sagar (PW5) (Exh-23).
The learned Trial Judge, evaluated the evidence on
record and held that the death of Surekha was homicidal.
However, the learned Trial Judge did not find sufficient
and clinching evidence to establish that it is the
respondent only, who strangulated the deceased Surekha
in the night of the incident. Considering the
inconsistencies and material discrepancies in the
evidence of the informant and that of Sagar (PW5), the
learned Trial Judge did not believe their evidence in
the absence of any independent corroboration to show
that the respondent was present in his room with the
deceased Surekha in the night of the incident.
According to the learned Trial Judge, the case being
based on circumstantial evidence, it was essential for
the prosecution to establish the complete chain of
circumstances, which should be consistent only with the
hypothesis of the guilt and guilt of the respondent.
He, therefore, acquitted the respondent.
8.The learned A.P.P. submits that though Sagar
(PW5) was a child witness, his evidence creates a great
confidence. The manner in which he deposed before the
Trial Court shows that he was not at all tutored by
criapl1-2006
7
anybody. The said witness narrated before the Court the
circumstances from which an absolute inference could be
drawn that it is the respondent only who committed
murder of the deceased Surekha. He submits that the
evidence of Sagar (PW5) was corroborated by the evidence
of the informant – the father of the deceased Surekha.
According to him, the sole testimony of Sagar (PW5) was
sufficient to bring home guilt to the respondent for the
above mentioned offence. He submits that the learned
Trial Judge has wrongly rejected the evidence of these
material witnesses on the basis of minor and
insignificant inconsistencies.
9.On the other hand, the learned counsel for the
respondent submits that Sagar (PW5) was completely under
the thumb of the informant. He was hammered by the
informant that the respondent used to illtreat the
deceased Surekha. Sagar (PW5) himself states that the
respondent always used to scold and beat him. He
further states that after his mother, the informant and
his wife i.e. his grandparents, are liked by him more
than the respondent. He admits that he would immediately
believe whatever is stated before him by his
grandparents. The learned counsel, therefore, submits
8 criapl1-2006
that there was every possibility that Sagar (PW5) was
tutored by the informant. He further submits that the
informant does not state that he had actually seen the
respondent present in the room of the deceased Surekha
in the night of the incident. The said room is situate
in a thickly populated area. There are a number of
houses nearby that room. However, none of the neighbours
has been examined by the prosecution to show that the
respondent was present at the room of the deceased
Surekha in the night of the incident. He submits that
the respondent was on his duty at Pune. This fact is
established by Raosaheb (DW1) (Exh-45), who was serving
with the respondent on at the petrol-pump namely New
Auto Corner, Somwarpeth, Pune. The attendance card
(Exh-47) has been produced by this witness to show
presence of the respondent on his duty from 6.30 p.m. of
23rd October, 2004 to 9.45 a.m. Of 24th October, 2004. He
submits that the learned Trial Judge has rightly
appreciated the evidence and rightly held that the
prosecution failed to establish guilt of the respondent
for the above mentioned offence.
10.Dr. Deokar (PW6) (Exh-27) conducted post-mortem
of the body of the deceased Surekha on 24th October, 2004
criapl1-2006
9
between 3.30 p.m. and 4.15 p.m. in the Civil Hospital at
Ahmednagar. He noticed the following injuries on her
body:-
(i)Contused lacerated wound right arm above elbow
joint, admeasuring .5 x .5 cm
(ii) C.L.W. Right side of forehead, 0.5 x 0.5 cm(iii) Four C.L.Ws. on left side cheek, .5 x .5 cm(iv) Imprint abrasion 1 cm broad all around neck (like by rope)(v) Imprint abrasion plus CLW at the nape of neck 2.5 cm below hair-line, round in shape, 1 x .5 cmHe further found that the neck of the deceased Surekha
was moving freely because of fracture of cervical spine.
All these injuries were ante-mortem. On internal
examination, he found dislocation between 2nd and 3rd
cervical vertebrae. He opined that Surekha died of
asphyxia due to strangulation. He specifically states
that her death was homicidal. In his cross-examination,
it was tried to be suggested that the deceased Surekha
committed suicide by hanging herself. However, he
denied that possibility.
11.From the evidence of the informant, Sagar (PW5)
10 criapl1-2006
and Dattatraya (PW2) (Exh-16), the panch to inquest
panchanama (Exh-17) of the deceased Surekha, it is clear
that the body of the deceased Surekha was lying on the
floor of the room where she was sleeping on a quilt. A
rope was found tied around her neck. There is nothing
on record to show that the deadbody was found hanging
inside the room against any fan, ceiling or any other
upper side article. In the circumstances, the finding
of the Trial Court that the deceased Surekha met with
homicidal death, being unassailable, will have to be
accepted and accordingly accepted.
12.Admittedly, there is no direct evidence
connecting the respondent with the homicidal death of
Surekha. The prosecution case is based on the
circumstantial evidence. The main circumstances relied
on by the prosecution are as under:
(i) The presence of the respondent in the room of the deceased Surekha in the night of the incident.(ii) Quarrel between the deceased Surekha and the respondent in the night of the incident.criapl1-2006
11
(iii)Abscondence of the respondent from the room of
the deceased Surekha after the incident.
(iv)Motive i.e. suspicion about the character of
the deceased Surekha in the mind of the
respondent.
13.The prosecution has mainly relied on the
evidence of the informant Sahebrao and that of Sagar
(PW5) to establish the chain of the circumstances to
connect the respondent with the homicidal death of
Surekha.
14.The informant states that since before two
months of the incident, the respondent had not joined
his duty and was residing in the room of the deceased
Surekha only. He then states that the respondent used
to suspect character of the deceased Surekha and on that
count, used to assault her. He states that eight days
prior to the incident, the respondent severely beat the
deceased Surekha and therefore, he had brought her to
his house. He then states that on the next day, the
mother of the respondent namely Tarabai came to take her
and after her giving assurance that the respondent would
treat her properly in future, the deceased Surekha went
criapl1-2006
12
to cohabit with the respondent in her room.
15.This version of the informant does not find
corroboration from the evidence of Sagar (PW5). He does
not at all whisper in respect of the alleged severe
beating of the deceased Surekha by the respondent prior
to eight days of the incident, taking of the deceased
Surekha by the informant to his room and coming of the
deceased Surekha back to her room from the house of the
informant with her mother-in-law Tarabai. Had the
deceased Surekha been severely beaten and taken by the
informant to his house, considering the age of Sagar
(PW5), who was hardly of seven years old, at that time,
he also would have gone with her to the house of the
informant. He would not have missed to narrate this
glaring fact before the Court. The absence of narration
about that fact in the evidence of Sagar (PW5) certainly
would create grave doubt about the evidence of the
informant in respect of the alleged incident of beating
the deceased Surekha by the respondent prior to about
eight days of the incident.
16.Sagar (PW5) states that the respondent used to
visit his room at Ahmednagar within a month or two and
some times, he used to send money by money-order. It
criapl1-2006
13
is, thus, clear that the respondent used to be at Pune
for doing his duty for a period of about a month or two
and then, he used to visit the room of the deceased
Surekha at Ahmednagar. It follows that the respondent
was not permanently residing in the room of the deceased
Surekha at Ahmednagar. If that be so, his presence in
the room of the deceased Surekha cannot be presumed and
it would be necessary for the prosecution to establish
his presence in the room of the deceased Surekha in the
night of the incident by positive and clinching
evidence.
17.The informant does not state that he had an
occasion to go to the room of the deceased Surekha and
see the respondent staying there on 23rd October, 2004.
He states that the room of the deceased Surekha was at a
distance of 100 feet from his residence. He then states
that there is one more room belonging to him situate
adjacent to the room of the deceased Surekha, in which
his son Raju and wife Anita used to sleep in the night.
The said Raju and Anita have not been examined by the
prosecution, without assigning any reason, to show that
the respondent was present in the room of the deceased
Surekha in the night of the incident. These two
criapl1-2006
14
witnesses certainly had the opportunity to see as to who
was present in the room of the deceased Surekha in the
night of the incident. However, their evidence has been
withheld by the prosecution without any reason.
18.The evidence on record shows that the room of
the deceased Surekha was situate in a thickly populated
area. Dattatraya (PW2) (Exh-16) and Gulab Shaikh (PW3)
(Exh-18), who happened to be the panchas to inquest
panchanama (Exh-17) and spot panchanama (Exh-19),
respectively, are the neighbours of the deceased
Surekha. Dattatraya (PW2) states that his house is
situate at the distance of 10 to 15 feet from the room
of the deceased Surekha. Gulab (PW3) states that his
house is at the distance of 12 feet from the room of the
deceased Surekha. Both these witnesses, in the natural
course, would have noticed presence of the respondent in
the room of the deceased Surekha not only in the night
of the incident, but even prior to that. Gulab (PW3)
states that he had seen the respondent in that locality
prior to about fifteen days of the incident. However,
neither Dattatraya (PW2), nor Gulab (PW3) state that
they had seen the respondent in the room of the deceased
Surekha prior to eight days of the incident and also on
criapl1-2006
15
the day of the incident. The family members of these
witnesses also have not been examined to establish the
presence of the respondent in the room of the deceased
Surekha on the day of the incident.
19.The respondent specifically states that he was
on his duty at Pune on 23rd October, 2004. He examined
his colleague Raosaheb (DW1) (Exh-45) in support of his
contention. The said witness produced attendance card
(Exh-47) of the respondent wherein his presence on duty
has been shown from 6.30 p.m. of 23rd day of the month to
9.45 a.m. of the next day. Thereafter, he is shown to
be absent. This attendance card has been disbelieved by
the learned Trial Judge on the ground that the month and
year have not been mentioned at the appropriate places
in this attendance card. However, it may noted that on
the top of the front page of that card, there is mention
of the month and year as “Oct. 2004”. From the evidence
of Raosaheb (DW1) and the contents of the attendance
card (Exh-47), a strong doubt is created about presence
of the respondent in the room of the deceased Surekha in
the night of the incident. The Investigating Officer
did not collect any evidence to show absence of the
respondent from his working place since before two
criapl1-2006
16
months of the day of the incident or even in the night
of the incident. He could have examined the manager of
the petrol pump to establish this fact. In the absence
of such evidence, the defence evidence will have to be
accepted on the touchstone of preponderance of
probability.
20.Sagar (PW5) was aged about 7 to 8 years at the
time of the incident. The informant states that in the
room, which is situate adjacent to the room of the
deceased Surekha, his son Raju and daughter-in-law Anita
used to sleep in the night. However, Sagar (PW5) states
that some tenant was residing in that room. He could not
tell the name of that tenant. He does not state that his
maternal uncle Raju with his wife used to stay in that
room in the night. Thus, there is a material
discrepancy/inconsistency in the evidence of the
informant and Sagar (PW5) in respect of the user of the
another room situate adjacent to the room of the
deceased Surekha.
21.The Circle Officer Durge (PW8) (Exh-30)
prepared the map (Exh-31) of the incident. It shows
that the room of the deceased Surekha is facing towards
south and to the west of the locality in which that room
criapl1-2006
17
is situate, there is railway line. The panchanama (Exh-
19) also shows that the room of the deceased Surekha is
facing towards south. However, Sagar (PW5) states that
the said room is facing towards north. He denies that
railway line is nearby the locality in which that room
is situate. He is not able to state the names of the
persons, who are residing nearby the room of the
deceased Surekha. He could not tell the names of the
boys of his age group residing in that locality. He
could not tell as to in which direction, there is
railway line from the room of the deceased Surekha. The
inability of Sagar (PW5) to state this factual position
reflects on his capacity to grasp the things and to
reproduce them. In the normal course, a boy of average
intelligence, would be in a position to state correctly
the above mentioned factual position. It seems that
Sagar (PW5) did not possess that capacity to comprehend
the factual position and reproduce it correctly.
22.From the evidence of Sagar (PW5), it seems that
he has tried to improve his version by adding something
that was not stated by him before the police when his
statement was recorded. He had not stated before the
police that whenever his father i.e. respondent, used to
criapl1-2006
18
come from Pune, he used to quarrel with the deceased
Surekha. He did not state before the police that in the
night of the incident, when he slept on the diwan, the
respondent asked the deceased Surekha not to raise voice
or else threatened to kill her. He did not state before
the police that when he woke up in the night, he saw his
mother covered with a quilt and that he thought that she
was under the sleep and therefore, he also went to
sleep. He did not state before the police that when the
respondent used to assault the deceased Surekha, he used
to inform that fact to his grandparents. These are the
material omissions in the evidence of Sagar (PW5), which
clearly show that he stated those facts for the first
time before the Court.
23.It has come in the evidence of Sagar (PW5) that
the respondent used to assault him and therefore, he had
grudge against the respondent. He states that it was
his impression that the respondent is not a man of good
character. He states that after the deceased Surekha,
his grandparents are close to him. He states that he
likes his grandparents more than the respondent.
Admittedly, Sagar (PW5) is being maintained by his
grandparents. The evidence of Sagar (PW5) clearly shows
criapl1-2006
19
his affection towards his grandparents and hostile
attitude against the respondent. It is quite natural
that he would prefer to believe on what his grandparents
impress upon him. He certainly would be under the
command of the informant. In the circumstances, the
possibility of tutoring of Sagar (PW5) by the informant
cannot be ruled out.
24.It is true that the evidence of the child
witness cannot be rejected per se, but as a rule of
prudence, it is required to be considered with close
scrutiny, care and caution. If the evidence of Sagar
(PW5), as state above, is considered, it will be risky
and hazardous to believe on his sole testimony on the
point of the presence of the respondent in the room of
the deceased Surekha in the night of the incident.
Though independent evidence was available to establish
that fact, the prosecution has not examined any
independent witness to corroborate the version of Sagar
(PW5). Dattatraya (PW2) and Gulab (PW3), the neighbours
of the deceased Surekha, though independent witnesses,
do not whisper about presence of the respondent in the
room of the deceased Surekha in the night of the
incident. In the above circumstances, the evidence of
criapl1-2006
20
Sagar (PW5) about presence of the respondent in the room
in the night of the incident and his leaving the said
room as claimed by him, cannot be believed for want of
independent corroboration.
25.The prosecution, thus, failed to produce
positive, clinching and dependable evidence on record to
show the presence of the respondent in the room where
the incident took place in the night of the incident.
Though the spot of the incident was in a thickly
populated area, no independent witness has come forward
to state that he had seen the respondent there in the
night of the incident. If the presence of the
respondent in that room in the night of the incident
itself is not proved by the prosecution, the other
circumstances relied on by the prosecution would not
stand to reason.
26.The learned Trial Judge rightly appreciated the
evidence of the informant and that of Sagar (PW5) and
rightly held that their evidence is not sufficient to
clinchingly prove that it is the respondent only who
committed murder of the deceased Surekha. The view
taken by the learned Trial Judge is quite a possible
view. In the circumstances of the case, we are not
21 criapl1-2006
inclined to interfere in the impugned judgment and order
acquitting the respondent. The appeal is without any
substance. It is liable to be dismissed. In the
result, we pass the following order:-
(i) The Criminal Appeal is dismissed and disposed of accordingly.(ii)The bail bonds of the respondent are cancelled.
He is set at liberty.
npj/criapl1-2006
2 issues framed by the court
Whether the court should interfere with the acquittal of the respondent in a murder case based solely on circumstantial evidence.
Whether the testimony of a child witness can be relied upon to establish the presence of the accused at the crime scene without independent corroboration.
State of Maharashtra through Public Prosecutor
Balu @ Balasaheb Ganpat Pagare
Sunil P. Deshmukh
Sangitrao S. Patil
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court