1 cr-apeal-381-05 jpc/- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 381 OF 2005 Urmila Suresh Mourya C/4839, Central Prison Nashik Road. ..Appellant Versus Government of Maharashtra ..Respondent .... Ms. Bhagyashri P. Jakhade (appointed), for Appellant Mrs. A.S.Pai, Additional Public Prosecutor for State CORAM : D.D.SINHA AND SMT.V.K.TAHILRAMANI, JJ. RESERVED ON : 13th December, 2010 DECLARED ON : 23rd December, 2010 JUDGMENT: [PER SMT. V.K. TAHILRAMANI, J.] 1. Through this appeal the appellant-original accused has challenged the judgment and order dated 30.7.2004 passed by the learned First Adhoc Additional Sessions Judge, Nashik in Sessions Case No. 56 of 2004. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced her to RI for life and to pay a fine of Rs. 200/- in default, RI for one month. 2 cr-apeal-381-05 2. The prosecution case briefly stated, is as under: i. The appellant/accused was married to one Suresh Morya. A son Sonu was born to her out of the said marriage. Her husband deserted her. Meanwhile, the appellant came in contact with PW-9 Hemant Tejale. A love affair developed between the two and since 6/7 months prior to the incident, the accused Urmila was residing with PW-9 Hemant Tejale alongwith her son Sonu in Shivajiwadi at Vadala Road, Nashik. Frequent quarrels took place between Hemant Tejale and the accused used to level charge against Hemant that he was having affair with some other girl. Hemant Tejale used to go for work every day at about 7 a.m. and used to return back at 11/11.30 a.m. for meals. On 27.1.2004, at about 4 to 4.30 p.m. a quarrel took place between the accused and Hemant. On 28.1.2004 in the morning as usual PW-9 left his house for work and at about 11.30 a.m. he returned home for meals. Again there was quarrel between the accused and PW-9 and thereafter he left for work. At about 4 p.m. when he returned home, the accused was found sitting on a Tapari near his house and she told him that Sonu was not at home. He enquired with her the whereabouts of Sonu whereupon she informed 3 cr-apeal-381-05 that she had handed over Sonu to her husband. PW-9 Hemant told her that they would go to her husband and bring Sonu back from him. Thereafter accused told him that she had kept Sonu with her girl friend at Vadala. Hence, Hemant Tejale and accused went to Vadala. However, they did not find Sonu there. At Vadala also Hemant enquired with the accused about whereabouts of Sonu but she did not give any reply. Hemant thought that accused must have kept her son Sonu with her maternal uncle at College Road, Nashik. Therefore at 9 p.m. he alongwith the accused went to the maternal uncle of the accused. Sonu was not found there. While returning back, the accused told him that she threw Sonu in a well on Vadala Road. ii. According to the prosecution, PW8 Shankar Palve used to go to graze she-goats alongwith PW-2 Eknath Palve. At about 1.30 p.m. they were grazing she-goats near the well on Vadala Road. The accused lady came there alongwith her son and threw him in the well and left the spot. PW-8 Shankar and PW-2 Eknath were frightened and due to fear they went away from there. At about 3 to 4 p.m. they again came near the well and they saw dead body floating in 4 cr-apeal-381-05 the well. At about 6 to 6.30 p.m. they returned to Shivajiwadi. They saw Hemant Tejale and accused Urmila were quarreling. Hemant was asking Urmila about whereabouts of Sonu but she was reluctant to tell him. Thereafter, they left the house. On 29.1.2004 the complainant Shankar Palve went to Bhadrakali Police Station, Nashik and gave his first informtion report (Exh.30). iii. In the meanwhile, on 28.1.2004, one Narayan, a watchman who was working at Suyojit Layout, Vadala had informed Bhadrakali Police station vide Exh.16 that he saw dead body of a small child floating in the well. On his information AD No. 8 of 2004 came to be registered at about 7.30 p.m. PW-5 ASI Chandrakant Zend, was instructed with the task of carrying out investigation into the said ADR. PW-5 visited the spot and found dead body of a boy aged 3 to 4 years floating in the well. He took out the body with the help of fire brigade personnel. He then conducted inquest Panchanama (Exh.8) of the dead body and sent the body for postmortem. As per the postmortem notes, the cause of death was asphyxia due to drowning. After completion of investigation, the charge sheet came to be filed. In due course, the case was committed to the Court of Sessions. 5 cr-apeal-381-05 3. Charge came to be framed against the appellant under section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. Her further defence is that she has been falsely implicated by PW-9 Hemant Tejale. After considering the defence of the accused and the evidence led by the prosecution, the learned Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal. 4. We have heard the learned advocate for the appellant- accused and the learned Additional Public Prosecutor for the State. We have perused the impugned judgment and order and the evidence on record. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that the judgment and order of conviction and sentence cannot be sustained. 5. In order to prove its case, the prosecution has relied on the evidence of two eye witnesses i.e. PW-2 Eknath Palve and PW-8 Shankar Palve. PW 8 Shankar Palve has stated that he used to go to graze she-goats along with PW-2 Eknath Palve. At about 1.30 p.m. they were grazing she-goats near the well on 6 cr-apeal-381-05 Vadala road. The accused lady came there along with her son and threw him in the well and left the spot. PW-8 Shankar and PW-2 Eknath were frightened and due to fear they went away from there. At about 3 to 4 p.m. they again came near the well and saw the dead body floating in the well. At about 6 to 6.30 p.m. they returned to Shivajiwadi. They saw Hemant Tejale and accused Urmila were quarreling. Hemant was asking Urmila about whereabouts of Sonu but she was reluctant to tell him. Thereafter, Hemant and Urmila left the house. On 29.1.2004 the complainant Shankar Palve went to Bhadrakali Polices Station, Nashik and gave his first information report. The evidence of PW-2 Eknath Palve is on the same lines as that of PW-8 Shankar Palve. 6. We find the conduct of both these witnesses PW-2 Eknath & PW 8 Shankar who claim to be eye witnesses to be very unnatural. Both of them claim to be eye witnesses to the incident. According to them, on 28,1,2004 both of them saw that the accused came to the well and threw her small son into the well. It is surprising to note that both these young men did not make any attempt to pull out the child from the well nor did they make any efforts to seek help from other persons to pull the child out from the well. It is common knowledge that if a 7 cr-apeal-381-05 drowning person is immediately taken out from the water, the person can survive. However, both these young men made no attempt at all to pull out the child. They also did not make any attempt to stop the accused nor did they raise any shout and try to get help from other persons to pull out the child nor did they make any effort to go to the police station and inform the police about the incident. This conduct on their part is very unnatural. They claim that some hours thereafter, they again went to the well and they found the body of the child floating in the well. At that time also they made no attempt to inform the police or to inform any one about the incident. It has also come on record that in the evening both these witnesses returned to Shivajiwadi where the accused and PW-9 Hemant were also residing. They saw Hemant and the accused quarrelling. Hemant was asking the accused Urmila the whereabouts of Sonu, but Urmila was reluctant to tell him. Even on seeing this quarrel, both these witnesses did not think it fit to inform Hemant that Sonu had been thrown in the well. In view of this total silence and inaction on the part of these two witnesses, which brings out their abnormal and unnatural conduct we find it difficult to place any reliance on the evidence of PW- 8 Shankar Palve and PW-2 Eknath Palve. 8 cr-apeal-381-05 7. One more reason why the evidence of these two witnesses i.e. PW-2 and PW 8 does not inspire confidence is that the statements of both these witnesses have been recorded belatedly. The FIR has been registered on the statement given by PW 8 Shankar Palve which statement was given by him on the next day of the incident. It is pertinent to note that Shankar Palve claims to have witnessed the incident on 28.1.2004 at about 1 to 1.30 p.m., yet he lodged the FIR only on 29.1.2004 at 7.20 p.m. There is no satisfactory explanation for the delay in lodging FIR. We find that this delay casts serious doubt regarding the credibility of these witnesses and the prosecution case. 8. The appellant lady was separated from her husband and thereafter she was living with Hemant Tejale- PW-9 along with her son Sonu. PW-9 Hemant Tejale stated in his evidence that the accused was residing with him alongwith her son Sonu in Shivajiwadi at Vadala Road, Nashik. Frequent quarrels took place between Hemant and the accused and the accused Urmila used to accuse him of having an affair with some other girl. Hemant Tejale used to go for work every day at about 7 a.m. and used to return back at 11/11.30 a.m. for meals. On 27.1.2004, at about 4 to 4.30 p.m. a quarrel had taken place between the accused and PW-9. On 28.1.2004 as usual in the morning 9 cr-apeal-381-05 PW-9 left his house for work and at about 11.30 a.m. he returned home for meals. Again there was quarrel between the accused and Hemant and thereafter he left for work. At about 4 p.m. when he returned home, the accused was found sitting on a Tapari near his house. He enquired with her the whereabouts of Sonu, whereupon she informed him that she had handed over Sonu to her husband. PW-9 Hemant told her to go to her husband and bring Sonu back from him. Thereafter the accused told him that she had kept Sonu with her girl friend at Vadala. Hence, Hemant Tejale and accused went to Vadala. However, they did not find Sonu there. At Vadala also Hemant enquired with the accused about whereabouts of Sonu but she did not give any reply. Hemant thought that the accused must have kept her son Sonu with her maternal uncle at College Road, Nashik. Therefore at 9 p.m. he along with the accused went to the maternal uncle of the accused. Sonu was not found there. While returning back, the accused told him that she threw Sonu in a well on Vadala Road. The prosecution is relying on this circumstance of extra judicial confession to PW-9 Hemant. 9. As stated by us in the earlier para, the prosecution heavily relied on the extra judicial confession made by the appellant to PW-9 Hemant Tejale. We found that the conduct of 10 cr-apeal-381-05 this witness (PW-9) is also highly unnatural which make his evidence suspect. We say so because PW 9 Hemant tried to show that he was very concerned about the child Sonu. According to him, little after 9 p.m. on 28.1.2004, the appellant told him that she had thrown Sonu in a well on Vadala Road. However, surprisingly, his evidence further shows that instead of going to the well, they both returned back to their house in Shivajiwadi that night. Had he really been concerned about Sonu or had accused really told him that she had thrown Sonu in the well, he would have rushed to the well immediately thereafter and tried to trace the body of Sonu in the well. He would have made attempt to get some help to remove Sonu from the well. Surprisingly, he had not taken any such steps. Even on the next day, in the morning he had made no attempt to go to the well to find out Sonu or seek any help to take out the body of Sonu from the well. In fact, on the next day i.e. on 29.1.2004 at about 4.30 to 5 p.m. PW-4 Hanumant More came and told him that dead body of a boy had been taken out by the Police from the well on Vadala Road. It has come in the evidence of PW-9 Hemant that the spot of occurrence was just 2 k.m. away from his house and about 10/15 minutes were required to reach the spot by walk. Despite the fact that the spot was at a distance of 10/15 minutes from the house of this witness, he did not make 11 cr-apeal-381-05 any attempt to go to the well to trace Sonu. Even on the earlier night while returning home he made no attempt to go to the well. We find this conduct on the part of PW-9 to be highly unnatural and on account of this unnatural conduct, we have great doubt about the veracity of his evidence. In view of this abnormal conduct, we find it unsafe to rely on his testimony. 10. Besides the evidence of PW-2 Eknath, PW 8 Shankar and PW-9 Hemant Tejale, there is no other evidence to connect the appellant with the crime. We have also discussed in detail as to why, we are of the opinion that the evidence of these three witnesses cannot be relied upon. In this view of the matter, the appeal succeeds. The judgment and order dated 30.7.2004 passed by the learned First Ad hoc Additional Sessions Judge, Nashik is hereby set aside. The appellant is acquitted under Section 302 of IPC. 11. Accordingly the Appeal is allowed. 12. Office to communicate this order to the appellant who is in jail. [D.D.SINHA, J.] [ SMT. V.K.TAHILRAMANI, J.]