1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPEAL NO.623 OF 2008. Lalsing Sutarya Pawara, age 41 years, r/o Nevali, Ta. Pansemal, (M.P.) at Present Nashik Central Jail, Nashik. .... APPELLANT. ( Original accused) VERSUS The State of Maharashtra. .... RESPONDENTS. ... Smt. Maya Jamdade, Advocate (appointed) for appellant. Shri V.D. Godbharle, A.P.P. for State. ... CORAM: S.B. DESHMUKH & S.S. SHINDE,JJ. RESERVED ON : 27.07.2010. PRONOUNCED ON : 06.08.2010. JUDGMENT: [Per Shinde, J] 1. The appellant – accused herein was tried by the learned Ad-hoc Addl. Sessions Judge-3, Dhule in Sessions Case No.89 of 2007 for the offence punishable under Section 302 and 201 of I.P.C. The learned trial Court vide its judgment and order dated 18th March, 2008, convicted the appellant – 2 accused for the offences punishable under Sections 302 and 201 of I.P.C. and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 2000/-, in default, to suffer further simple imprisonment for six months for offence punishable under Section 302 of I.P.C. The appellant was further sentenced to suffer R.I. for two years and to pay a fine of Rs.500/-, in default, to suffer simple imprisonment for one month for the offence punishable under Section 201 of I.P.C. It is against this judgment and order of conviction and sentence, the appellant – accused has preferred the present appeal. 2. Briefly stated, the prosecution case is, as under: Ramdas Kisan Pawara, the informant is brother of the deceased Yadibai. Marriage of Yadibai with Madhu Pawara, resident of Moida, Tal. Sendhawa took place prior to 20 years. The accused Lalsing Sutarya was not doing any work. Therefore, his brother Istrya Pawara ousted him. Therefore, Lalsing had started residing in the house of 3 Yadibai and Madhu Pawara. Two years prior to the incident, accused Lalsing took away Yadibai to unknown place. In spite of search, Yadibai and Lalsing were not found. Thereafter on 17.6.2007 in the evening, Yadibai along with the accused Lalsing were found by Sanju Raju Pawara near the S.T. Stand of Thalner. At that time, Yadibai had worn a yellow sari, and accused Lalsing had worn a white shirt and black pant. When Sanju Pawara returned to his house, he found that accused Lalsing alone had come at the house of his brother. Two days thereafter when Ravindra Pawara had been at the house of Sanju Pawara, he came to know that Yadibai and accused Lalsing were found to Sanju at Thalner S.T. Stand and thereafter the accused Lalsing alone had returned to the house. On 20.6.2007 in the evening Ravindra met Ramdas Pawara the brother of Yadibai and informed the fact about Yadibai and Lalsing, which was disclosed to him by Sanju. Thereafter, they went to the field where the accused Lalsing was doing work. They found the accused Lalsing alone there. The accused Lalsing told them that he along with Yadibai had gone to the market, but thereafter 4 Yadibai alone went to unknown place and he does not know her whereabouts. Thereafter, the son of the landlord arrived there but Lalsing did not disclose the whereabouts of Yadibai to him. However, thereafter when the landlord himself arrived at the spot, the accused Lalsing disclosed to them that he had killed Yadibai and thrown her dead body at the corner of Hatkoi nallah. Thereafter, the police along with the accused Lalsing, complainant Ramdas and others, went to Hatkoi nallah where the accused Lalsing showed them the dead body of Yadibai. On the basis of the report lodged by Ramdas, Crime No.29/2007 came to be registered at Thalner police station. API Daga Khairnar took over and conducted the investigation. During the investigation, the accused gave a confession statement to hand over the wooden log by which he had beaten and killed Yadibai. Thereafter, the API Khairnar along with the panch witnesses, went to Hatkoi nallah, as led by the accused, and at that place the accused took out one wooden log from one tree, and the same was seized by the Investigating Officer. Thereafter, the I.O. and police went to the hut of the 5 accused, as led by the accused, where the accused took out his shirt and pant from the said hut and handed over to the API Khairnar, who seized the same under panchanama. The seized articles were forwarded to the Chemical Analyzer. During the investigation it was disclosed that as Yadibai was consuming liquor the accused Lalsing was suspecting of her character and therefore, he killed her by beating with the wooden log. After completion of necessary investigation, the I.O. filed charge-sheet in the Court of J.M.F.C., Shirpur. The offences under Sections 302 and 201 of I.P.C. being exclusively triable by Sessions Court, the case was committed to the Court of Sessions, Dhule. 3. The learned Ad hoc Addl. Sessions Judge-3, Dhule framed charge (Exh.9) for the offences punishable under Sections 302 and 201 of I.P.C. and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried. 4. In order to prove the guilt of the accused, the prosecution has examined in all ten witnesses 6 namely, Dr. Prakash Ramesh Gavit P.W.1 at Exh.14, the Medical Officer who performed autopsy on the deceased Yadibai, Ramdas Kisan Pawara P.W.2 at Exh.16 the complainant, Sanjay Shankar Savale P.W. 3 at Exh.18 the panch witness to the seizure panchanama Exh.20, Sanju Raju Pawara P.W.4 at Exh. 27 who had lastly seen the accused in the company of the deceased Yadibai, Ravindra Zunzarsing Pawara P.W.5 at Exh.28 the husband of sister of Sanju, Khatik Sohil Altaf P.W.6 at Exh.29 son of landlord of the accused, Yusuf Usman Khatik P.W.7 at Exh.30 uncle of P.W.6 Sohil, Mangalsing Ramsing Deshmukh P.W.8 at Exh.31, Naik Police Constable Asaram Sonu Vadile P.W.9 at Exh.32, API Daga Deoman Khairnar P.W.10 at Exh.33 the Investigating Officer. 5. The learned trial Judge, after recording the evidence and hearing the learned Counsel for respective parties, convicted the appellant / accused as stated in the foregoing paragraph. 6. We have heard the learned Counsel Smt. Maya Jamdade (appointed) for the appellant – accused 7 and the Mr. Godbharle, learned A.P.P. for the State. 7. The learned Counsel for the appellant submitted that the circumstance taken into consideration by the prosecution that the deceased Yadibai was seen last in the company of the accused is required to be accepted cautiously. It is further submitted that as per the prosecution story, P.W.4 Sanju is examined on the point of the deceased being last seen in the company of the accused. He is a child witness and at the relevant time, his age was 11 years and when he deposed before the Court, he was hardly 12 years. The evidence of this witness is not corroborated by any other piece of evidence. It is further submitted that even the prosecution story is taken as it is, P.W.4 Sanju saw the deceased in the company of the accused on 17.6.2007 and the dead body of the deceased was found on 21st June, 2007. The crime was also registered on 21st June, 2007. Therefore, the time gap between the point of time when the deceased was last seen alive in the company of accused, as claimed by the prosecution, 8 is not so small so as to believe the evidence of P.W.4 Sanju. It is further submitted that the complainant P.W.2 Ramdas in his evidence has stated before the Court that in their community, even women folk is in the habit of consuming liquor. In the statement recorded under Section 313 of Cr.P.C., the appellant – accused has stated that the deceased Yadibai had habit of going out for 8 to 10 days and she used to consume liquor, which appears to be correct. It is further submitted that in case of circumstantial evidence, the prosecution should convincingly prove that the chain of circumstances is complete and then only the accused can be convicted. According to the learned Counsel for the petitioner, the extra judicial confession given by the appellant before the P.Ws.2, 5, 6 and 7 and other persons who accompanied them was not voluntary in nature. It has come in the evidence of the prosecution witnesses that 6 to 7 persons from Pawara community assaulted the appellant and then he confessed the crime. It is further submitted that once extra judicial confession is taken out from the chain of the circumstances, the chain of 9 circumstances becomes incomplete and the conviction of the appellant cannot be sustained. Even, according to the prosecution story, the extra judicial confession is given before 6 to 7 persons including P.Ws.2, 5, 6 and 7 and in pursuant to that, the dead body was recovered, which is required to be accepted cautiously. The learned Counsel further submitted that there are material contradictions in the statements of the P.Ws.2, 5 and 6. As per the evidence of P.W.5 Ravindra, confession made by the appellant was on telephone to the land-owner in whose agricultural field the accused was working at the relevant time. It is further submitted that there was no relationship between the appellant and Yadibai as husband and wife. Therefore, the appellant is not obliged to discharge the burden under Section 106 of the Evidence Act. The Medical evidence has not supported the prosecution story, no blood stains were detected on the seized articles i.e. wooden log and clothes of the appellant and the deceased. The C.A. Report does not support the prosecution story. It is further submitted that recovery of articles under Section 27 of the Evidence Act is 10 from the open place which is accessible to everybody. It is further submitted that P.W.3 Sanju Savale has not supported the seizure panchanama of clothes of the appellant. It is further submitted that the extra judicial confession is weak type of confession and in the instant case, on perusal of the evidence of the prosecution witnesses it clearly emerges that the said extra judicial confession was obtained from the accused by coercion and force. The learned Counsel further invited our attention to the statement of the appellant under Section 313 of Cr.P.C. To contend that the deceased Yadibai used to consume liquor and used to go out for 8 to 10 days in every month. The sum and substance of the argument advanced on behalf of the appellant is that the prosecution case entirely rests upon the circumstantial evidence, the chain of circumstances is not complete, the last seen together theory is hit by time gap between the registration of crime and the P.W.4 Sanju seeing the deceased in the company of appellant. The alleged extra judicial confession by the appellant was a result of coercion and said confession was 11 obtained by force. The alleged recovery in pursuance to the extra judicial confession loses its importance once the extra judicial confession is discarded. The learned Counsel for the appellant invited our attention to the judgments of this Court as well as Honourable Apex Court on the point of last seen together and also on the point of recording extra judicial confession and the manner in which the circumstantial evidence has to be appreciated by the Court. The learned Counsel for the appellant placed reliance on the following reported judgments: i) Ramreddy Rajeshkhanna Reddy & anr. Vs. State of A.P. (2006 ALL MR (Cri) 1533 (S.C.); ii) Malleshappa Vs. State of Karnataka (2008 ALL MR (Cri) 280 (S.C.); iii) Prabhakaran Vs. State of Kerala (2008 ALL MR (Cri) 288 (S.C.); iv) Sattatiya @ Satish Rajanna Kartalla v. State of Maharashtra (2008 AIR SCW 1136); V) State of Rajasthan v/s Rajaram (2003 LawSuit(SC) 746); vi) Keshav vs. State of Maharashtra ((2007) 13 SCC 284). 8. On the other hand, the learned A.P.P. appearing for the respondent / State submitted 12 that the complainant has categorically stated in his evidence before the Court that the appellant / accused was residing with Yadibai even prior to death of husband of Yadibai. The learned A.P.P. further submitted that a general statement is made by the complainant P.W.2 Ramdas that even women folk consumes liquor in their community and there is no specific statement in his evidence that Yadibai was in habit of consuming liqauor and therefore, the argument advanced by the learned Counsel for the appellant that Yadibai was in habit of consuming liquor is required to be rejected. It is further submitted that the dead body of the deceased was recovered from Hatkoi nallah, at the instance of the appellant and prior to that nobody knew about the dead body of the deceased Yadibai. It is further submitted that at the relevant time and even prior to the incident, for months together the deceased Yadibai and the appellant used to reside together and, therefore, the appellant / accused was bound to explain the circumstances under which Yadibai died. There is evidence of P.W.2 Ramdas and P.W.6 Khatik that deceased and appellant used to live together. 13 P.W.4 Sanju had seen the deceased in the companyof appellant on 17th June, 2007. Though he is a child witness, he has deposed before the competent court and his evidence is believed by the trial Court and there is no reason to discard the evidence of P.W.4 Sanju. It is submitted that that on 19th June, 2007 P.W.4 Sanju narrated the fact to P.W.5 Ravindra that deceased was last seen in the company of the appellant on 17th June, 2007. Therefore, there is no considerable time gap between the narration by P.W.4 Sanju to P.W.5 Ravindra. It is further submitted that on 20th June, 2007 P.W.5 Ravindra went to P.W.2 Ramdas – complainant and told him that P.W.4 Sanju has told him that Yadibai was last seen in the company of the appellant on 17th June, 2007 and thereafter, Yadibai was not seen. It is further submitted that the evidence of P.W.4 Sanju that the deceased was last seen in the company of appellant is corroborated by the evidence of P.W.5 Ravindra and P.W.2 Ramdas – complainant, since these three witnesses had informed each other. It is further submitted that in the cross-examination of P.W.2 Ramdas, no suggestion was given to him that 14 Yadibai was in habit of consuming liquor and, therefore, now it is not open for the defence to say that at the relevant time Yadibai had consumed liquor or she was in the habit of consuming liquor. It is further submitted that the extra judicial confession is admissible in the evidence and even, it can form basis of conviction. It is further submitted that the dead body of Yadibai was concealed by the appellant in the trench of the nallah. When P.W.2 Ramdas along with other prosecution witnesses approached the concerned Police Station, two constables were deputed and the accused / appellant, in their presence, had shown the dead body of the deceased. The dead body was identified by P.W.2 Ramdas and clothes of the deceased were also identified by P.W.4 Sanju. It is further submitted that the extra judicial confession is not the result of either tutoring or using threats or any coercion and, therefore, the extra judicial confession is admissible in the evidence. There is spot panchanama and inquest panchanama carried out by the prosecution. The sari wore by the deceased was seized, statement of the appellant / accused was recorded under Section 15 313 of Cr.P.C. However, he had given evasive answers to the questions asked to him. Therefore, the learned A.P.P., relying on the entire prosecution evidence, would submit that the impugned judgment and order cannot be faulted with and, therefore, the appeal is devoid of any merits and the same deserves to be dismissed, confirming the impugned judgment and order passed by the trial Court. 9. With the assistance of the learned Counsel for the appellant as well as the learned A.P.P. for the respondent, we have carefully perused the record and proceedings of the case. The entire evidence is made available for our perusal. 10. We have seen the charge framed by the learned trial Judge. The first charge which was framed against the accused reads as follows: “That, on 17/6/2007 at about 8.00 p.m. within the limits of Thalner village, Tal. Shirpur, in the Hatkoi stream-let, you did commit murder of your wife viz-Yadibai Lalsing Pawara, by intentionally or knowingly causing her death, by assaulting her with wooden log on her head and stomach and thereby caused injuries she died and that you 16 thereby committed an offence punishable under Section 302 of the Indian Penal Code and within my cognizance. Secondly, that at the same date, time and place, you knowing or having reason to believe that the offence of murder punishable under Section 302 of I.P. Code punishable with imprisonment for life has been committed, caused certain evidence connected with the said offence viz. after committing murder of your wife hidden the dead body in a long narrow trench of stream-let, with intention to screen the offender from legal punishment and that you thereby committed an offence punishable under Section 201 of the Indian Penal Code and within my cognizance.” 11. On careful perusal of the first charge, it is clear that the entire story of the prosecution has been tested by the trial Judge on the basis that Yadibai was wife of the appellant. (Emphasis supplied). However, it is not the case of the complainant or any other prosecution witness that Yadibai was wife of the appellant / accused. P.W. 2 Ramdas, who is complainant and brother of the deceased Yadibai, has stated in his evidence that the appellant / accused and Yadibai had left house of her husband and thereafter whereabouts were not known to the complainant and others who tried to search them. However, they were not found and ultimately, search of Yadibai and accused / appellant was stopped. On careful 17 scrutiny of the entire evidence, it is seen that it has not come on record that deceased Yadibai was wife of the accused. Therefore, the relationship of the appellant / accused with deceased Yadibai as mentioned in first charge by the trial Court itself was without any basis. The evidence of P.W.2 Ramdas, complainant was recorded on 20th February, 2008. In his evidence, he has stated that Yadibai was his real sister. All his sisters including Yadibai are married and they are residing at their husband’s houses. It is further stated that Yadibai’s married with Madhu Pawara took place prior to 17 years. She is having one son and one daughter. They are also residing at Wadi, which is place of residence of this witness. This witness has stated that he knows accused. He is brother of his maternal aunt’s husband. Istrya Sutarya Pawara is husband of his maternal aunt. He was also residing at Wadi. Lalsing was residing at the house of Istrya. However, Lalsing was not doing any work and therefore, Istrya ousted him. Therefore, Lalsing was residing with Yadibai. He resided there for 7 to 8 months and thereafter, Lalsing took away Yadibai. He took 18 search but, they were not found. Six months prior to incident, husband of his sister Yadibai died. Dharsing son of Madhu went to Indore for residence. It has come in the evidence of this witness that on 20th June, 2007, at evening time, Ravindra came to him. Ravindra told him that Sanju stated him that he had seen Yadibai and Lalsing at Thalner S.T. Stand prior to 3 days. Ravindra has also stated to him that Sanju had stated to him that thereafter he had gone to the field of his work and there he saw Lalsing alone. On the next day they had gone to the field where Lalsing was doing labour work. Bhima Ganshya Pawara, Sumarsing Istrya Pawara, had gone ahead by a cycle. This witness and others had gone by walking. They made inquiry with Lalsing about Yadibai. Lalsing stated to them that he along with Yadibai had gone to market, thereafter Yadibai alone went to unknown place and he does not know the whereabouts of Yadibai. Son of the landowner assured them to call his father as Lalsing was not disclosing the address of Yadibai. After arrival of landowner, Lalsing disclosed that he had killed Yadibai and threw her dead body at 19 the corner of nalah. Thereafter they went to police station, Thalner and lodged report there. Initially, they along with police had gone to the spot of incident. They found the dead body of deceased and the witness identified the same and lodged the complaint to the police station. In his cross-e3xamination, it is stated by this witness that Yadibai was residing with the accused however, he has not met Yadibai thereafter. It is specifically admitted by this witness that in their community women as well as gents consume liquor. (Emphasis supplied). It has been further stated that though it was stated to the police that Lalsing had disclosed to them that prior to 2 to 3 days he along with Yadibai had gone to the market and that the witness does not know why it is not mentioned by the police in the complaint. Police did not read over the contents of the complaint to him. 12. On careful perusal of the evidence of this witness, certain things are necessary to be taken note of. This witness has never met Yadibai, after she started residing with the appellant. In 20 his community, women as well as gents used to consume liquor. On 20th June, 2007, one Ravindra P.W.5 came to the complainant and on next day the complainant along with other persons went to Lalsing. Lalsing did not disclose whereabouts of Yadibai and, therefore,son of the landowner where deceased Yadibai and appellant were staying, assured the complainant that he will call his father and after arrival of landlord, Lalsing disclosed that he had killed Yadibai and thrown her dead body in Nallah and thereafter, this witness along with other persons went to the Police Station to lodge report and pursuant to confession, the dead body was found and was identified by the complainant. On careful perusal of the evidence of this witness, it is not in dispute that this witness along with other persons including some prosecution witnesses went to Lalsing to ask the whereabouts of Yadibai. It also emerges from the evidence of this witness that disclosure statement made by the accused is before the complainant, landlord and other persons and at the relevant 21 time, the appellant / accused was not in the custody of the police. According to the complainant, after disclosure by the appellant about the whereabouts of Yadibai, they went to the Police Station to lodge report and thereafter, the dead body was recovered. This witness has admitted in his cross-examination that in his community, gents and women consume liquor. 13. P.W.3 Sanjay Savale was examined on behalf of the prosecution. He is a panch witness. He stated that on 24th June, 2007, police called him at Thalner Police Station. Chandrakant Patil, another panch also had accompanied him. In their presence, accused showed his readiness to hand over a wooden log used for commission of the offence. He admits his signature on the memorandum panchanama (Exh.19). This witness has stated in detail as to how the accused took the police officers and witnesses to the place where wooden log was concealed and also his clothes were kept. As per seizure panchanama, the accused handed over the clothes from one iron box to the police. But, P.W.3 has not stated so. 22 14. The evidence of P.W.4 Sanju Pawara assumes importance in this case. At the relevant time when he deposed before the Court, his age was 12 years. He has stated in his examination-in-chief that at the time of incident, he was residing at Thalner jointly along with his parents, brother, sister and grandmother. He was doing labour work. On 17th