1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1346 OF 2003 Anil Anant Pawar, Age 34 years ] residing at Digas Karivane, ] Tembwadi, Tal : Kudal, ] Dist. Sindhudurg ] Appellant (Orig. Accused No.1) Vs State of Maharashtra ] (at the instance of Kudal Police ] Station) ] Respondents (Orig. Complainant) WITH CRIMINAL APPEAL NO. 1345 OF 2003 1.Anandi Anant Pawar, Age 58 years ] residing at Digas Karivane, ] Tembwadi, Tal. Kudal, ] Dist. Sindhudurg ] 2.Ujwala Ramesh Mayekar, Age 23 years ] residing at Kinjwade Dolwadi, ] Tal. Deogad, Dist. Sindhudurg. ] Appellants (Org Accused Nos. 3 and 4) Vs State of Maharashtra, ] (at the instance of Kudal Police ] Station) ] Respondents (Orig. Complainant) apeal1345&1346­03 2 Mr. Sangarm Desai i/b Mr.A.S. Khandeparkar for the Appellants Mr. S.S. Pednekar, APP for State in 1345 of 2003 Mr. Rajesh More, APP for the State in 1346 of 2003 CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ. DATE OF RESERVING THE ORDER : 30.04.2010 DATE OF PRONOUNCING THE ORDER : 28th JUNE, 2010 JUDGMENT (PER SMT. V.K. TAHILRAMANI, J): 1. The appellant - original accused no. 1 Anil Pawar has preferred Criminal Appeal No. 1346 of 2003 and the appellants Anandi Anant Pawar and Ujwala Ramesh Mayekar - original accused nos. 3 and 4 have preferred Criminal Appeal No. 1345 of 2003. Both these appeals are directed against the Judgment and Order dated 16.09.2003 passed by learned Additional Sessions Judge, Sindhudurg-Oros in Session's Case No.25 of 2001. By the said judgment and order, the learned Sessions Judge convicted the appellant - Anil Pawar for the offence punishable under section 302 of IPC and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 500/- in default to suffer further R.I. for one month. He also convicted appellant Anil Pawar under section 201 r/w 34 of I.P.C. and sentenced him to suffer R.I. for 2 years and to pay a fine of Rs. 100 in default to suffer further R.I. apeal1345&1346­03 3 for 10 days. The learned Sessions Judge directed that both the substantive sentences of imprisonment imposed on appellant Anil Pawar shall run concurrently. By the very same judgment and order, the learned Sessions Judge convicted Appellant No. 3 - Anandi Anant Pawar and Appellant NO. 4 - Ujwala Ramesh Mayekar under section 201 r/w 34 of I.P.C. and sentenced each of them to R.I. for two years and to pay a fine of Rs. 300/- each in default to suffer further R.I. for one month. 2. The prosecution case briefly stated is as under: Anuja alias Geeta was the sister of PW8 - Janardan. She was married to accused no.1 - Anil in the month of May 1992. Accused NO. 3 - Anandi is the mother of accused no. 1 There was love affair between accused no. 1 Anil and accused no. 4 Ujwala. Anuja was residing at her matrimonal house at Digas, Tal. Kudal along with her husband Anil, their children and her mother-in-law Anandi. Accused no.1 Anil was insisting that his wife Anuja should give her no objection to the said marriage in writing. As Anuja did not do so, on the night between 24.05.2001 and 25.05.2001, accused no. 1 Anil committed murder of his wife Anuja by strangulating her. Thereafter, he with the help of accused no. 3 - Anandi and accused no. 4 - Ujwala caused the evidence of murder of Anuja to disappear by throwing the body of Anuja in a well. People apeal1345&1346­03 4 were informed that Anuja had gone to answer call of nature in the morning of 25th April, 2001 and thereafter she had disappeared. Hence,on 28.05.2001, PW8 - Janardan Gurav who is the brother of Anuja lodged a missing complaint. Thereafter, dead body of Anuja was found floating in a well in the village. The body was sent for postmortem. PW12 - Dr. Arvind Chopade conducted the postmortem. Dr. Chopade interalia found ligature marks around the neck, ligature was completely encircling the neck horizontally below thyroid cartilage. He also found that the eyes and tongue had protruded. In the opinion of Dr. Chopade, death was caused due to asphyxia but not due to drowning. PW8 Janardan lodged FIR with Kudal Police Station. After completion of investigation, charge sheet came to be filed against these three appellants and one other under sections 302 and 201 r/w 34 of I.P.C. In due course, the case was committed to the Sessions Court. 3. Charge came to be framed against the Appellants under sections 302 and 201 r/w 34 of I.P.C. All the accused pleaded not guilty to the said charge. On going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellants as stated in para 1 above. Hence, this Appeal. apeal1345&1346­03 5 4. We have heard Mr. Desai, learned advocate appearing for all the appellants as well as the learned APP in this case. We have also perused the judgment and order passed by the learned Sessions Judge as well as the evidence in the present case. After giving anxious hearing to the matter, for the reasons stated herein below, we are of the opinion that the Judgment and Order of the learned Sessions Judge does not call for any interference. 5. The case is mainly based on the evidence of the sole eyewitness i.e PW11 Trupti alias Madhavi who is niece of accused no. 3 and cousin sister of accused no. 1. Father of accused no. 1 was the maternal uncle of Trupti. On the date of incident, Trupti was in the house of accused nos. 1 and 3. She has stated that on 23.05.2001, she had gone to Digas to meet her maternal aunt i.e accused no. 3 - Anandi Pawar. At about 8.00 to 8.30 p.m., accused no. 1 - Anil assaulted Anuja due to which she fell down. At that time, Anil, Anuja and accused no. 4 - Ujwala were in the house. On the next day, Anuja demanded money from Anil for going to the Doctor but Anil assaulted her by slaps and fist blows and by holding her hair. That night, all of them went to sleep. At 12.00 to 12.30 midnight, accused no. 1 Anil asked Ujwala to switch on the light. Ujwala switched on the light. Then, Trupti saw that Anuja was lying on one side in the adjacent room and apeal1345&1346­03 6 there was no movement from her. Her saree was tied around her neck. Then, Anil put a noose of rope around the neck of Anuja. Trupti was taken to the center room where they tied her to the cot. Ujwala was sitting by the side of Trupti. Thereafter, Anil put on patromax light which he handed over to accused no. 3 - Anandi and wrapped Anuja in a blanket and lifted her on his shoulder and Anil and Anandi went out of the house with Anuja. At about 2.00 to 2.30 a.m. midnight, Anil and Anandi returned home. They untied Trupti at about 05.00 a.m and Anil threatened Trupti that he would kill her in the same manner as he had killed Anuja. Anil then, told all family members that they should declare that Anuja was missing. Anil and Anandi then, pretended to search for Anuja. On the next day, Anil's brother Pravin came from Mumbai. He asked as to what happened to Anuja but nobody told him anything. Pravin made inquiry as to who was Ujwala but Anil did not give any reply. Anil then left Ujwala at her house in a nearby village. Two days thereafter, Trupti came to know that the body of Anuja was found in a well in the village. 6. The learned counsel for the appellants submitted that the evidence of Trupti is full of omissions and contradictions and hence, no reliance can be placed on the same. However, the evidence of Trupti as reproduced above by apeal1345&1346­03 7 us as does not suffer from any omissions or any contradictions. No doubt, there are omissions and contradictions but none of them go to the root of the matter because the basic substratum of the prosecution case remains unshaken. 7. A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events,or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him/her perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment. Discrepancies which do not go to the root of the matter and shake the basic version of the witness, therefore cannot be annexed with undue importance. More so when the all important "probabilities-factor" echoes in favour of the version narrated by the witnesses. 8. The learned counsel for the appellants submitted that the evidence of PW11 Trupti cannot be relied upon because she apeal1345&1346­03 8 has deposed on account of fear and pressure. In support of his contention, he has placed reliance on the evidence of Trupti wherein she has admitted that she had also been arrested in the said case, hence, she gave statement to the police. However, after making this statement, Trupti has categorically stated that she did not make the statement due to fear of police. She also stated that she was told by the police to tell the event in the Court as they had taken place,hence, we do not find any merit in this contention. Moreover, Trupti is the cousin of accused no. 1 Anil and niece of accused no. 3 - Anandi. She is closely related to both of these accused. She had no enmity against any of these accused persons. In such case, it is difficult to believe that she would falsely involve her cousin Anil and her maternal aunt Anandi by deposing against them in the Court. It is also to be borne in mind that when Trupti deposed before the Court, at that time, charge sheet had already been filed and there was no question of Trupti being made an accused in the case. Thus, there was no compulsion whatsoever on Trupti to stick to her statement under section 164 of Cr.P.C. while deposing before the Court. 9. The learned counsel for the appellants also submitted that if actually Trupti was witness to the incident, she should have stated the true facts to the police at the first apeal1345&1346­03 9 possible instance. However, she kept silent. Trupti has clearly stated in her evidence that accused Anil had threatened that he would kill her in the same manner that he had killed Anuja. Thus, it is clear that Trupti did not disclose anything to the police as she had been threatened by the accused. Moreover, at the time of the the incident, Trupti was barely 17 years of age and as such she would succumb to the threats given by her cousin brother. Thus, we do not find any merit in the submission. We also state here that the appellant Anil even had the temerity that even during the trial, when Trupti was in the witness box, appellant Anil made threatening gestures to her. Due to this, she started weeping in the Court. Hence, appellant Anil came to be warned by the Court that if he makes such gestures again, his bail would be cancelled and he would be taken into the custody. It is only after the said warning was given to appellant Anil, he stopped making threatening gestures to Trupti. 10. The learned counsel for the appellants, then tried to submit that it was a case of accidental death i.e Anuja may have gone to the well for the purpose of washing clothes etc and she may have slipped and fallen in the well. We are not inclined to subscribe to this theory as from the evidence of panch witness PW1 Sitaram, we find that the well had a apeal1345&1346­03 10 parapet wall which was 3 feet high. In such case, it would not be possible that Anuja would slip and fall into the well. It is also pertinent to note that when the body of Anuja was found in the well,it was found with a noose of rope around her neck. Knot of her saree was also found entangled in the noose. The finding of noose of rope around the neck of Anuja also belies the theory that she slipped and fell in the well. If Anuja had gone to the well to wash clothes or for any other work, she would definitely have worn chappals on her feet. However, no chappals of Anuja were found near the well. The family of the accused was reasonably well off which can be deduced from the fact that a number of gold ornaments were found on the body of Anuja. If she came from such a reasonably well to do family, then certainly she would have worn chappals when she went outside the house. The well is not just outside her house but it is at some distance. Hence, surely, Anuja would wear chappals while going to the well. Not finding of any chappals near the well also shows the defence case that Anuja accidentally slipped and fell into the well is far fetched and hence, not believable. 11. Mr. Desai, learned counsel for the appellants submitted that there is no material to show that Anuja had been strangulated. In support of this contention, he relied on the evidence of the panch witness to show that all the apeal1345&1346­03 11 skin around the neck had gone, hence in such case, he submitted no ligature could have been seen. He has also placed reliance on the evidence of PW12 Dr. Chopade who conducted postmortem wherein the doctor has admitted that no ligature mark was found around the neck as there was high decomposition of the body. However, this admission by the Doctor cannot be seen in isolation and it has to be read and understood along with the other evidence. Dr. Chopade has clearly opined that the death of Anuja was due to asphyxia and not due to drowning. While conducting the postmortem, he has found ligature rope marks around the neck and two wings of ligature marks, ligature completely encircling the neck horizontally below thyroid cartilage, circumference of neck 20 cm in diameter. He also found fracture of larnyx trachia and that the eyes and tongue had protruded. In the opinion of the Doctor, the external injury found by him and death of Anuja is possible in case of noose of rope being placed around the neck and both the ends being pulled with force. The Doctor has clearly stated that noose of ligature was impressed on the neck. Thus, the admission given by Doctor that no ligature mark was found around the neck as there was high decomposition of the body appears to us that as there was no outer skin, no ligature mark could be seen on the other surface of the skin and the ligature mark was found only in the lower layer of the neck. apeal1345&1346­03 12 12. Mr. Desai submitted that this ligature mark and the presence of rope can be explained by the fact that Anuja was pulled out of the well with the help of rope. However, no dead body can be pulled out of a well by putting noose of rope around the neck of the body but if at all, it is pulled out with the help of rope, the rope would be tied around the waist. Moreover, no suggestion has been made to any witness that the body of Anuja was pulled out from the well by putting a noose around the neck. Even in statement under section 313 of Cr.P.C. no such thing has been stated by any of the accused. Moreover, if noose of rope had been used for pulling out the dead body, it would have been removed after pulling out the dead body. The incident had taken place in the village of accused nos. 1 and 3 and maternal relatives of the deceased were not residents of that village, hence, it was not possible for them to plant a noose around neck of Anuja. The postmortem notes and the evidence of Dr. Chopade disclose that maggots were found in the groove of the ligature. This shows that the ligature was not recently caused while pulling out the body. Two wings of ligature around the neck were not possible in case of pulling out the dead body from the well. In any event, the doctor has categorically stated that the death of deceased was caused due to asphyxia and not due to drowning which only leads to the conclusion that death of Anuja was caused by apeal1345&1346­03 13 strangulating her and thereafter her body was thrown in the well. 13 Mr. Desai also submitted that it could have been a case of "Dry Drowning". Cases of dry drowning are found where a victim falls in very cold water. The present incident has taken place in the month of May 2001 when the water in the well cannot at all be cold. Therefore, dry drowning due to sudden impact of very cold water causing cardiac arrest is not at all possible. Further, dry Drowning can occur only if Anuja had fallen into the well. The presence of parapet wall of 3 feet around the well excludes any possibility of Anuja accidentally falling into the well. 14. Mr. Desai submitted that there is no reliable evidence brought on record by the prosecution that any of the accused persons had any motive to do away with Anuja. He submitted that though it is the prosecution case that there was an affair between appellant Anil and appellant-accused no. 4 Ujwala, this fact has not been brought on record by the prosecution through any reliable evidence. He submitted that there is not even a whisper of affair between Anil and Ujwala in the evidence of Trupti. As far as motive is concerned, besides Trupti, the prosecution has relied upon the evidence of PW6 Madhu Pawar, PW7 Sou Madhumati Madhu apeal1345&1346­03 14 Pawar and PW8 Janardan Gurao. However, Mr. Desai the learned counsel for the appellants submitted that the evidence of these three witnesses on the point of motive is not at all reliable. We find some merit in this contention in respect of the evidence of Madhu and Madhumati. As far as evidence of PW6 Madhu Pawar is concerned, Madhu has stated that Anuja had informed him that her husband was insisting that she should sign on the documents for the purpose of his marriage with accused no. 4 Ujwala. Anuja also informed him that as she was not signing on the documents, Anil used to beat her. The evidence of PW7 Madhumati is also on similar lines. However, it is noticed that the statement of both these witnesses had not been recorded by the police and for the first time, they are making these averments before the Court. Moreover, both these witnesses have also stated that though Anuja had informed this fact to both of them, they did not tell any one one about this fact nor did they inform the police about this fact. Thus, we find that the Trial Court was right in not relying on the evidence of these two witnesses. 15. PW8 Janardan is the brother of deceased Anuja. He has stated that there was love affair between accused no. 1 Anil and accused no.4 Ujwala. He has stated that Anuja informed him that her husband was demanding her signature on a paper apeal1345&1346­03 15 for getting marriage with Ujwala. As Anuja refused to give her signature, accused no.1 Anil used to beat her. However, Mr. Desai submitted that the averments of Janardan has come by way of improvement and no such statement has been made by him before the police. As far as this aspect is concerned, we find that in the missing complaint, there is no mention about the fact that accused no.1 Anil was having an affair with Ujwala and that he wished to marry her. However, the explanation given by Janardan is that he was in a sad mood, hence, he did not mention this fact in his missing complaint. At that time, Janardan did not know that his sister was dead and hence, probably, he did not make any open allegations against her husband as he did not wish the marriage of his sister to break up. However, in his F.I.R., he has categorically stated about this fact. Moreover, in the missing complaint, he has also made mention that on 25.05.2001, he found one unknown woman and one young girl who was the relative of Anil in the house. He made inquiry about this unknown woman with Anil whereupon Anil informed him that she is his guest and she is residing at Deogad. Janardan has identified that lady to be Ujwala. We find one other circumstance which clearly shows that accused Anil had an affair with Ujwala and that he wished to marry her. It is revealed from the Judgment and Order of the learned Sessions Judge that when the accused were asked on the point of apeal1345&1346­03 16 sentence, at that time, appellant Anil stated that he was the only earning member of his family and there was nobody to look after his two children from his first wife Anuja and one child from accused no. 4 Ujwala. So also, accused no.4 Ujwala stated that she had a small child and she has to look after that child as well as children of Anuja. The record shows that during the pendency of the trial of the present case, accused Anil and Ujwala were granted bail, it appears that when they were on bail, Anil got married to Ujwala and from this wedlock, they have one child. This clearly leads to the conclusion that at the relevant time, accused Anil and Ujwala were having an affair and wished to marry one other. This admission clearly brings out the motive that on account of his affair with Ujwala, appellant Anil wanted to do away with his wife Anuja as she was not willing to give consent to his marriage with Ujwala. This is also the motive and reason for Ujwala to help Anil to do away with the dead body. 16. The learned counsel for the appellants submitted that the evidence of Janardan also cannot be relied upon as there is delay in filing the F.I.R. which shows that it is only by way of an afterthought that Janardan being the brother of deceased Anuja has falsely implicated accused no.1 Anil and others. As far as this aspect is concerned, we have not placed much reliance on his evidence but in fact reliance is apeal1345&1346­03 17 placed by us on the evidence of Trupti who is in fact closely related to accused no.1 Anil and accused no.3 Anandi. Looking to the evidence of Trupti, the fact that accused no. 1 Anil and accused no.4 Ujwala admitted that they have got married and they had a child from the said marriage, the fact that death of Anuja was not caused because of drowning but because of Asphyxia due to strangulation, all these facts conclusively point out to the complicity of Anil in an offence u/s 302 and 201 of I.P.C. The evidence of Trupti also shows that Ujwala and Anandi had helped Anil to cause disappearance of the offence. Hence, they along with the Anil have rightly been convicted under section 201 r/w 34 of I.P.C 17. Looking to