Dismissed

The State of Maharashtra v. Balaji Basuraj Kamthane

Bombay HC13 Apr 2018APPLN/4673/2015

Case brief

AI extract

What is this about?

The High Court dismissed the appeal against the acquittal of the respondent in a murder case. The court upheld the Sessions Judge's view that the prosecution failed to prove the case beyond reasonable doubt due to weak circumstantial evidence and inconsistencies in key witness testimonies.

What did the court decide?

The criminal application is dismissed. The respondent is set at liberty.

The State of Maharashtra Vs Balaji Basuraj… — Murder and Culpable Homicide | Bombay HC (2018)

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1 CriAppln No. 4673 of 2015

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO. 4673 OF 2015

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The State of Maharashtra, Through Police

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Inspector, MIDC Police Station,
Ahmednagar, Dist. Ahmednagar.

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...Applicant.

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(Ori. Complainant)

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 Versus

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Balaji Basuraj Kamthane,

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Age : 22 years, Ori. R/o Joljapka,
Tq. Bhalki, Dist. Bidar,
Karnataka State, at present R/o
Dangatmala, Navnagapur, Ahmednagar.

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...Respondent.
(Ori. Accused)

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Mr. D. R. Kale, Addl. Public Prosecutor, for applicant /
State.

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Mr. R. D. Sanap Adv. for respondent.

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CORAM : PRASANNA B. VARALE &
SMT.VIBHA KANKANWADI. JJ.
DATE : 13-04-2018.

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JUDGMENT : [Per Smt. Vibha Kankanwadi, J]

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(1) Present application has been filed for

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leave under Section 378 (1) (3) of Code of Criminal
Procedure for challenge to the judgment and order
passed by the learned Sessions Judge, Ahmednagar in
Sessions Case No. 295/2014, dated 11.6.2015, thereby
acquitting the respondent / accused from the charge

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2 CriAppln No. 4673 of 2015

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punishable under Section 302 of Indian Penal Code.

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(2) Prosecution case in brief was that one

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Savita Kanse was tenant in the room owned by Gumfabai
Dangat in her Chawl situated at Dangat Mala,
Ahmednagar. A lady residing in the neighbourhood of
Savita informed telephonically to the landlady that
something unusual had happened in the room occupied
by Savita. Said telephone call was given around 11
AM on 4.6.2014. After Gumfabai came, the

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neighbouring lady Savita Karande went to the room of
Savita Kanse. They found Savita in dead condition
beneath heap of clothes in her room. The fact was
informed to one Sangle who gave first information to
the police around 4.30 PM on 4.6.2014. An accidental
death bearing No. 70/2014 was registered in respect
of death of Savita Kanse. At that time the spot
panchnama as well as inquest panchnama was carried
out. On the next day, the son of the deceased by
name Amol lodged first information report about the
incident. It was stated in the report that he was
residing with his mother Savita earlier. His sister

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got married and is co-habiting with her husband.
Thereafter, Amol and Savita continued to stay at

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3 CriAppln No. 4673 of 2015

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Balajinagar, Bolhegaon, Ahmednagar. Accused used to
visit their residence which was disapproved by Amol
and, therefore, he had quarrel with accused.
Thereafter, Savita shifted her residence elsewhere a

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year prior to the incident. Amol was residing at the
place of his work i.e. Hotel Sairaj. He was informed
at about 2.30 PM on 4.6.2014 about death of his
mother. He went to the place where his mother was
found dead. He came to know that there was quarrel
between Savita and accused when they had gone to
obtain (Adhaar Card) a day earlier. The informant

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also came to know that in the evening, on the earlier
day, also there was quarrel between the deceased and
accused. Therefore, he lodged report with the police
to state that the accused has committed the murder in
the intervening night between 3.6.2014 to 4.6.2014.

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(3) Offence vide C. R. No. 110/2014 came to be
registered on the basis of the said first information
report. During the course of the investigation
police have recorded the statements of the witnesses.
Post Mortem Report was collected. Certain articles
were seized at the time of executing spot panchnama.
The blood samples of the deceased as well as the

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4 CriAppln No. 4673 of 2015

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accused and the seized articles were sent for
analysis to the Chemical Analyzer. During the period
of police custody, the accused had discovered the
place of occurrence in presence of Panchas. After
completion of the investigation, charge-sheet came to
be filed before the concerned Magistrate.

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(4) After the case was committed to the Court

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of Sessions, the learned Sessions Judge framed charge
for the offence punishable under Section 302 of
Indian Penal Code at Exh. 10. The contents of the
charge were read over and explained in vernacular. He
claimed to be innocent. The prosecution has led

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evidence, oral as well as documentary. After
recording the statement of the accused under Section
313 of the Code of Criminal Procedure, the arguments
were advanced on behalf of both the sides. After
considering the arguments and the evidence on record
learned Sessions Judge came to the conclusion that
the prosecution has proved that death of Savita Kanse
is homicidal. However, the prosecution has failed to
prove that the accused has committed murder of
Savita. The learned Sessions Judge, Ahmednagar has
acquitted the accused. This acquittal is challenged

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5 CriAppln No. 4673 of 2015

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in this application.

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(5) It will not be out of place to mention here
that notice was issued to the respondent. However,
he could not be found. Ultimately, his presence has
been secured by executing his arrest. He was present
before this Court on 16th March 2018. He was unable
to engage an Advocate to defend himself and,
therefore, legal aid has been given to him by
appointing Adv. R. D. Sanap by order dtd. 4th April
2018.

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(6) Heard learned Addl. Public Prosecutor Shri

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D. R. Kale for the applicant prosecution / State and
learned Advocate Shri R. D. Sanap for respondent.
Perused the documents on record.

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(7) It is to be noted that there is no dispute
and no serious challenge to the finding arrived at by
the learned Sessions Judge that death of Savita was
homicidal in nature. In order to arrive at the said
conclusion, the material that has been relied by the
Sessions Judge is the testimony of PW-1 Dr. Gosavi,
who had conducted the autopsy and had noted in all 5
injuries externally and 5 injuries internally. The

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6 CriAppln No. 4673 of 2015

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opinion has been given by him regarding probable
cause of death is “death due to head injury due to
assault due to hard and blunt object with multiple
intracranial haemorrahages with liver rupture with
hemoperitoneum”. We do not find any error committed
in respect of this finding.

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(8) What the prosecution challenges is the
acquittal of accused from the charge for the offence
punishable under Section 302 of Indian Penal Code.
Admittedly, the case is based on circumstantial
evidence. The learned Sessions Judge has rightly
relied on the decision in Sharad Birdhichand Sarda
V/s State of Maharashtra, reported in AIR 1984 SC
1622,wherein the law regarding circumstantial
evidence has been laid down. The onus was on the
prosecution to show that there is complete chain and
each segment in the chain points towards the accused
to be the culprit. The circumstantial evidence in
this case that has been tried to be brought on record

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is mainly the theory of “last seen together”. The
important witnesses on which prosecution relied to
establish this theory was the evidence of PW-3
Gumfabai. Gumfabai was the landlord of the Chawl.

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7 CriAppln No. 4673 of 2015

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But it has come in the cross-examination that she

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stays at the back side row. She has also admitted
that only on certain occasions she used to come to
the side of the row where Savita was residing.
Therefore, if at all it is to be believed that she
had come and heard quarrel between Savita and accused
on the earlier day, she was intending to say that
only by chance she was at that place at that moment.
How she was knowing the accused earlier is also a
question because accused was not staying with
deceased Savita. Even as per the prosecution story
the accused used to come to Savita’s house
occasionally. In her cross-examination she has given
admission that besides first day of letting out the
room, Gumfabai had not seen the deceased Savita.

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Therefore, it is hard to believe such a witness.
Further she has admitted that she has different water

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tap and has no reason to take road in front of
Savita’s room. However, there is inconsistency in
respect of darkness because of cut off of the
electricity supply. Therefore, the learned Sessions
Judge has rightly observed that the isolated evidence

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ofGumfabaiisfullofinconsistencies,
improbabilities and not worthy of credit. The

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8 CriAppln No. 4673 of 2015

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testimony of PW-5 Savita Karande, who is stated to be

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the informant for PW-3 Gumfabai shows that it is
hear-say in nature. PW-5 Savita Karande has stated
that she had gone alongwith deceased Savita and
others to collect the Adhaar Card on 4.6.2014. They
returned at about 4 PM. When they were at the
centre, Savita Kanse took phone number of one Sangle
Sir. Thereafter, there was a quarrel between the
accused and deceased Savita on the ground as to why

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she has taken phone number of Sangle Sir. Accused
thereafter left the said place in anger. Savita
Karande and deceased Savita returned home and
thereafter the witness went to Vikhe Patil Hospital.
Thereafter, she was inromed by Gumfabai on phone that
there was quarrel between Savita and Balaji. Savita

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Karande was returned at 7.00 PM. Gumfabai was
fetching water. At that time also Gumfabai told
about the quarrel between the deceased Savita and
accused Balaji and then it was told that both of them
left the place. Thus, it is to be seen from her
testimony that as per her information accused had
left Savita’s room alongwith Savita. Gumfabai is not
corroborating this fact with PW-5 Savita Karande.
Prosecution has not examined any witness who had seen

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9 CriAppln No. 4673 of 2015

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Savita and accused coming back to the room on
3.6.2014 and were there in the room till next day.

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In State of U. P. V/s Satish reported in AIR 2005
Supreme Court 1000, it has been held that the “last
seen theory” comes into play where time-gap between
the point of time when the accused and the deceased
were seen last alive and when the deceased is found
is so small that possibility of any person other than
accused being author of the crime is impossible. The
ratio as given above has been reiterated in Shankar

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Kisanrao Khade V/s State of Maharashtra, reported in
(2013) (5) SCC 546. Thus, taking into consideration,

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the testimonies of PW-3 Gumfabai as well as PW-5
Savita Karande it can not be stated that in any way,

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the case is covered under the theory of “last seen
together”. The testimony of PW-7 Faridabi Pathan is
also almost on the line of PW-5 Savita Karande. PW-7
Faridabi was also accompanying deceased Savita and
Savita Karande when they had gone to the Adhaar Card
Centre. In her cross-examination she has stated that

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accused had left the Adhaar Centre within one hour
and the other persons remained there till 3 PM. In
her cross-examination she has clearly admitted that
she has no good acquaintance with deceased Savita.

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10 CriAppln No. 4673 of 2015

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She was not on visiting terms with Savita. In such
circumstances, there is very less possibility that
she was knowing the exact relationship between Savita
and the accused. The other evidence on record is

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just to prove the inquest panchnama, spot panchnama,
etc. Even the circumstantial evidence in the nature
of discovery under Section 27 of the Evidence Act is
not helpful to the prosecution. It has been stated
by the prosecution that in such statement the place
of occurrence was discovered by the accused. The
place of occurrence was within the knowledge of the
Police. In fact, in this case the prosecution has
not disclosed or it has not been brought on record as
to how the head injury would have been caused. As
per the probable cause of death, the head injury
might have been due to assault by hard and blunt
object. Investigating Officer does not say that he

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had tried to investigate which could have been the
alleged weapon of murder. Therefore, only on the
basis of scanty circumstantial evidence, it can not
be stated that the prosecution was able to prove the
guilt of the accused beyond reasonable doubt. The
view that has been taken by the learned Sessions
Judge while acquitting the accused is the probable

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11 CriAppln No. 4673 of 2015

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view and, therefore, it need not be changed merely
because a second view is possible. A well reasoned
order and judgment has been passed in this case and,
therefore, there is no necessity to interfere with
the said well reasoned order.

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Hence, following Order;

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ORDER

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(i) The criminal application is

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dismissed.

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(ii) The respondent whose presence was

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secured by bringing him before this Court is set at liberty.

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(iii) The fees payable to the learned
Advocate for representing the
respondent, appointed by this
Court, is quantified at Rs.
3,000/-.

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 (SMT. VIBHA KANKANWADI) (PRASANNA B. VARALE)
 JUDGE JUDGE

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ggd/-.

The State of Maharashtra v. Balaji Basuraj Kamthane

Case brief

What is this about?

What did the court decide?

The State of Maharashtra v. Balaji Basuraj Kamthane

Case brief

What is this about?

What did the court decide?

What the court decided

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