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Cri.Appeal No.230/2022:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.230 OF 2022Balasaheb @ Balu Vasant KalbhorAge 49 years, Occ. Nil,R/o Loni-Kalbhor, Tq. Haveli,District Pune… APPELLANTVERSUSThe State of Maharashtra Through Police Station, Tuljapur,Tq.Tuljapur, Dist. Osmanabad… RESPONDENT.......Mr. A.V. Indrale Patil, Advocate for appellantMr. A.R. Kale, A.P.P. for respondent....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.DATE :10th JULY, 2024. JUDGMENT (PER R.G. AVACHAT, J.) : The challenge in this appeal is to a judgment andorder of conviction and consequential sentence, dated24/1/2017, passed by learned Special Judge, Osmanabad inSpecial (Atro.) Case, No.21/2013. Vide impugned judgmentand order, the appellant was convicted for the offencepunishable under Section 302 of the Indian Penal Code and Cri.Appeal No.230/2022:: 2 ::sentenced to suffer imprisonment for life and to pay fine ofRs.3000/-, with default stipulation. He was acquitted of theoffence punishable under Section 3(2)(v) of the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Act,1989. The State has not preferred appeal against acquittal.2.The facts giving rise to the present appeal are asfollows :The appellant committed murder of one Shobha on30/6/2012 in a room taken on rent at Tuljapur and left the roomfor no return, after locking the room from outside.3.Heard. Learned Advocate appointed to representthe appellant would submit that, the appellant’s name was notBalasaheb @ Balu Vasant Kalbhor. He is Ashok Kadam,resident of Satara. He had no occasion to be at Tuljapur onthe given day or therebefore. The witnesses examined onbehalf of the prosecution did not know the appellant. On hisarrest, he was shown to the witnesses by the police. He could,therefore, be identified in the test identification parade, whichwas held in breach of mandatory directions issued in respect ofholding a valid test identification parade. According to learnedAdvocate, the case is based on circumstantial evidence. Cri.Appeal No.230/2022:: 3 ::Motive has not been proved. No chain of circumstances hasbeen conclusively established so as to indicate the appellantand none else to have committed the murder. He, therefore,urged for allowing the appeal.4.The learned A.P.P. would, on the other hand,submit that, there is voluminous evidence to indicate theappellant to have committed murder of Shobha. According tohim, it is an open and shut case. He took us through theevidence of the prosecution and the reasons given by the TrialCourt in support of the impugned judgment and order. Thelearned A.P.P. ultimately urged for dismissal of the appeal.5.Perused the evidence on record. Also gonethrough the judgment impugned herein. Let us appreciate thesame.6.The prosecution, in order to bring home the charge(Exh.7), examined 13 witnesses and produced in evidencecertain documents for deciding the present appeal. We wouldbe referring to relevant evidence on record.7.P.W.9 Dr. Rahul conducted post mortemexamination on the mortal remains of deceased Shobha Cri.Appeal No.230/2022:: 4 ::Harishchandra Shinde. The post mortem report is at Exh.35.The evidence of P.W.9 Dr. Rahul indicates the deceased hadsuffered following injuries :-(1)Bruise with violet blue colour of size 10x5 cm. present onleft side back at the angle of scapula.(2)Depressed skull fracture over occipital bone of head ofsize 4x5 cm. present – depth 0.5 cm. In the opinion of P.W.9 Dr. Rahul, Shobha died ofcardio respiratory arrest due to asphyxia and head injury. 8.The inquest (Exh.16) and crime scenepanchanama (Exh.15) have been admitted by the defencebefore the trial Court. The crime scene panchanama indicatesit to be a two room premises with tin roof. Dead body ofShobha was found lying in injured condition. It was indecomposed state. Death might appear to have occurred 4-5days before the crime scene panchanama was drawn on30/6/2012.9.P.W.1 Jankabai (informant) was the mother ofdeceased Shobha. Her evidence indicates that, Shobha wasmarried with one Harishchandra Shinde. The couple was Cri.Appeal No.230/2022:: 5 ::blessed with two daughters and two sons. All was not wellbetween the couple. Shobha had, therefore, returned back toher parental house. She had filed criminal case against herhusband Harishchandra. A compromise was worked out. Shehad resumed marital relationship. She, however, used tooccasionally visit Osmanabad.10.It is further in her evidence that, while she wasstaying at Osmanabad, she got acquainted with one Ashok(appellant herein). Ashok claimed to be from Satara. Anacquaintance developed between Shobha and Ashok. Ashokwas serving as a Waiter with a hotel of one Gabbar. With thevery hotel, Shobha had joined to serve as a maid. It is furtherin her evidence that, both the appellant and Shobha took aroom on rent and resided together. She learnt about the deathof Shobha. She, therefore, went to the room to find theappellant was nowhere. She, therefore, lodged F.I.R. (Exh.13)at Osmanabad Police Station. Crime vide C.R. No.94/2012was registered for offences punishable under Sections 302 ofthe Indian Penal Code and Section 3(2)(v) of the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Act,1989. Cri.Appeal No.230/2022:: 6 ::11.It is in her cross-examination that, Shobha wasmarried about 20 years before. Shobha worked in the hotel ofGabbar for about 8 days only. That time she was residing in aroom behind the hotel. The room was provided by hotelowner. It is further in her evidence that, initially it was Shobhaand Ashok were residing together. There were householdarticles of Shobha in the room in which she was found dead.She claimed ignorance about many persons to have beenvisiting the house of Shobha. It is further in her evidence that,three months before Shobha breathed her last, she had cometo reside at Tuljapur.12.The case is based on circumstantial evidence. Theevidence of P.W.1 Jankabai (informant) was only in respect ofsetting the criminal law in motion. Her evidence, however,indicates that, she had seen the appellant in the company ofher deceased daughter and appellant had impersonated to beAshok Kadam.13.P.W.2 Satish is a panch witness to a disclosurestatement made by the appellant, pursuant to which a hammercame to be recovered. The same is at Exh.22 and 23. Sincethe C.A. report did not indicate the hammer to have had blood Cri.Appeal No.230/2022:: 7 ::stains, the said recovery is of little consequence. 14.P.W.3 Shital and P.W.4 Shashikala testified thatthey hailed from Tuljapur. They would sell bangles, outsideGoddess Tuljabhavani Temple at Tuljapur. Their evidencefurther indicate that, they had constructed 5 rooms to let onrent. It is in the evidence of P.W.3 Shital that, appellant hadcome to him on 15/6/2012. He gave his name as Ashok. Heinformed to have been serving in the hotel of one Gabbar. Onthe appellant’s request, he rented out him a 2 room premises.The appellant had assured that he would be residing thereinwith his family. It is further in his evidence that, on 25/6/2012he saw the appellant and one lady together. In the evening ofthe very day, his wife Shashikala (P.W.4) told him that Ashokleft the room for his native and locked the room from outside.15.The evidence of P.W.4 Shashikala is on the samelines. She testified that on 25/6/2012, while she returned fromher shop by 7.00 p.m., the appellant met her and informedthat, he was leaving for his native place. The appellant lockedthe room from outside. The evidence of both these witnessesindicate that, 4-5 days thereafter a foul smell/ stink startedemanating from the room. The matter was, therefore, reported
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Cri.Appeal No.230/2022:: 8 ::to the police. The police arrived. The entrance door wasbroken open. A dead body of a woman was found in one ofthe two rooms. It was in highly decomposed condition. Acrime scene panchanama (Exh.15) was drawn. The deadbody was removed for inquest and autopsy.16.P.W.5 Prakash was another resident of villageTuljapur. It is in his evidence that, he had given a room on rentto Ashok and deceased Shobha. Since he learnt Shobha tohave belonged to Pardhi community, he asked them to vacatethe room. Since they did not vacate, he took their householdarticles out of the room and kept the same in a dilapidatedroom. He denied that Shobha and her daughter Priyanka wereresiding in his room taken on rent.17.P.W.6 Priyanka was the daughter of deceasedShobha. She was 24 years of age at the relevant time. It is inher evidence that, she too was residing at Tuljapur with hermother for some days. Her mother Shobha was serving withthe hotel of Gabbar. It is further in her evidence that, she gotacquainted with one Ashok. On one night, she saw her motherShobha and Ashok to have shared a bed. After havingrealised conduct of her mother, Gabbar removed her from the Cri.Appeal No.230/2022:: 9 ::job. Thereafter both, Shobha and Ashok were in search ofroom for their residence. 18.P.W.7 Sanjay @ Gabbar testified that he wasrunning a hotel, “Jai Bhavani Hotel” at Tuljapur. He hademployed Ashok and Shobha as Waiter and Maid respectivelyin his hotel. Since he noticed conduct of both of them to benot good, he removed them from the job. P.W.8 Ankush wasManager of the hotel run by P.W.7 Sanjay @ Gabbar. It is inhis evidence that, Ashok left the hotel with a leave for 2 days.Then he telephoned P.W.8 Ankush and made a demand of hisoutstanding salary. He told him to have committed murder of alady.19.The evidence on record indicates that, based on atelephone number, appeared on the cell phone of P.W.8Ankush, the police located the caller. P.W.8 Ankushaccompanied police to village Loni Kalbhor, whereat theappellant was overpowered. It was turned out that theapplicant was not Ashok but Balasaheb @ Balu VasantKalbhor. 20.P.W.10 Gajendra was serving with Yerwada CentralPrison as a Senior Clerk. He placed on record certain Cri.Appeal No.230/2022:: 10 ::documents, wherefrom it could be gathered that, the appellantwas convicted in Sessions Case, No.33/2007. He wasundergoing life imprisonment for offence punishable underSection 302 of the Indian Penal Code. The appellant wasgranted furlough on 27/4/2011. he did not return after expiry ofthe furlough. Those documents find place at Exhs.39 to 44.All are public documents. We find no reason to disbelieve thesame.21.As such, it was revealed that the name of appellantwas not Ashok but Balasaheb @ Balu. He was a convict ofoffence punishable under Section 302 of the Indian PenalCode. He was undergoing life imprisonment. He wasreleased on furlough. He jumped the same. He came toOsmanabad. Secured a job as a Waiter in the hotel of P.W.7Sanjay @ Gabbar by impersonating to be Ashok. There he gotacquainted with Shobha. The acquaintance developed intoemotional relationship. He took a room belonging to P.W.3Shital on rent. On his arrest, P.W.13 Bharat, Tahsildarconducted test identification parade. In the said parade, theprosecution witnesses namely P.W.1 Jankabai, P.W.3 Shital,P.W.4 Shashikala, P.W.5 Prakash, P.W.6 Priyanka and P.W.7Sanjay @ Gabbar identified the appellant as the one who used Cri.Appeal No.230/2022:: 11 ::to be in the company of Shobha (deceased).22.Although learned Advocate for the appellant madefrantic efforts and submissions as well to indicate the offenceto have not been proved beyond reasonable doubt, we find noreason to disbelieve the evidence of any of the prosecutionwitnesses, who recognised the appellant, but only with a nameAshok. It was the appellant who impersonated to be Ashok.He ultimately turned out to be Balasaheb @ Balu VasantKalbhor. Even in the test identification parade, the mother,daughter of deceased Shobha, landlord and landlady of thepremises wherein the appellant and Shobha resided, thehotelier with whom the appellant and Shobha served, and theManager thereof thereof have all identified the appellant asone who was in relationship with Shobha. The landlady P.W.4Shashikala was categorical to state that it was the appellantand none else who left the room after locking it from outside.When stink started emanating from the room, an intimationwas given to the police authorities. Police arrived. Theentrance of the room was broken open to find dead body ofShobha inside. All these facts and circumstances unerringlyindicate it was the appellant and none else who committedmurder of Shobha and left the room for no return. Cri.Appeal No.230/2022:: 12 ::23.P.W.14 Bharat, P.W.15 Sunil, P.W.16 Sharmisthaand P.W.17 Punjabrao are the police officials who took part inthe investigation of the crime. We do not propose to refer totheir evidence since the offence has been duly proved basedon the evidence of the witnesses referred to hereinabove. TheTrial Court has rightly convicted and consequently sentencedthe appellant for the offence of murder. We find no reason tointerfere with the impugned order of conviction andconsequential sentence.24.In the result, the appeal fails. It is dismissed. (NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-