1 jud786.04 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.786 OF 2004 Laxmibai Datta Mishra residing at Kamble Vasti, Dhayari, Taluka Haveli, District Pune .. Appellant. Vs. The State of Maharashtra .. Respondents. Ms.Sharmila Kaushik for the Appellant/accused. Mr.P.S.Hingorani APP for the Respondent/State. CORAM : NARESH H PATIL & K U CHANDIWAL, JJ. DATED : 19TH JULY, 2011. JUDGMENT: (PER NARESH H PATIL, J.) 1. The appellant has questioned the judgment and order of conviction and sentence passed by the trial Court under section 302 of IPC. 2. The prosecution case in brief is that P.W.1 – Sambhaji Shivaji Babar at the relevant time was residing at Dhayari, Taluka Haveli, District Pune alongwith his family including his wife P.W.2 – Baby Babar and three children two daughters, namely, Kishori aged 8 years, Mayuri aged 5 years and son – Roshan aged 10 years. The father of deceased Mayuri was doing painting work with help of labourers. On 18.7.2003, P.W.1 returned to his home at about 6.15 S 2 jud786.04 pm and asked his wife to prepare herself to go to attend “Satsang”. At that time wife informed Sambhaji that Mayuri was not traceable. She further informed that Mayuri had gone to distribute Prasad and thereafter she did not return home. P.W.1 after getting refreshed proceeded to attend Satsang on motor-bike. While he was attending Satsang at that time he received telephone call from his wife that Mayuri was not traced. He continued to remain at Satsang but by that time his wife reached the place of Satsang. He found his wife crying and on enquiry she stated that daughter – Mayuri was still not traced out. At about 11 pm P.W.1 went to Haveli police station and lodged a report regarding missing of his daughter – Mayuri Exhibit-14. At about between 1.30 am to 2 am in the night wife of P.W. 1 was standing near Hotel Raj alongwith his friends. He received call from Rambhau Kamble that Mayuri was traced out and she was at home. When he reached home he found that his wife was crying. He noticed Mayuri in sleeping condition having wire surrounded on her neck and her tongue had come out of mouth. He found Mayuri dead. P.W.1 thereafter lodged complaint Exhibit-15. P.W.1. suspected one Anil Shekote, who was working as labourer with him. Prior to the incident there was a quarrel between two labourers one Anil Shekote and Bablu. P.W.1 reached Khopoli in view of that incident and tried to solve problem, he had noticed injury caused by Anil Shekote to Bablu. P.W.1 had slapped Anil. Anil Shekote was in drunken condition and he threatened P.W.1 that he will see him. 3 jud786.04 3. The police started investigation. The police initially suspected Anil Shekote who according to police surrendered to them on 25.7.2003. During investigation it transpired that Anil Shekote did not commit any offence. The I.O. visited the spot, prepared inquest panchnama, spot panchnama. At the behest of the appellant the police recovered one Vati and one plair (pakkad). The medical officer conducted post-mortem on corpse of Mayuri. The opinion as to cause of death was “asphysia due to strangulation associated with multile injuries on body ? Sexual assault ?”. The police had forwarded clothes recovered from person of deceased, blood sample of accused Laxmibai, blood sample of Mayuri, vaginal swab of Mayuri for chemical analysis. The appellant was arrested on 27.7.2003. The prosecution after completion of investigation, filed charge-sheet and the appellant came to be tried. The charge was framed by learned Additional Sessions Judge in Sessions Case No. 426 of 2003 against the appellant to which appellant denied and claimed to be tried. 4. The prosecution examined 12 witnesses including father, mother and sister of deceased Mayuri as P.W.1, P.W.2 and P.W.3 respectively, panch witnesses, neighbourer and P.W.12 – Medical Officer. 5. Ms.Kaushik, learned counsel for the appellant submitted that 4 jud786.04 the prosecution case is based on circumstantial evidence. The prosecution has failed to link chain of circumstances so as to complete the same by pointing out at the appellant that she must be culprit. The appellant was arrested merely on suspicion which has no foundation. P.W.1 to P.W.3 are related to deceased and highly interested witnesses. Even the parents of deceased – Mayuri did not suspect the appellant when missing report was filed. The family of complainant and the appellant were residing in close vicinity of the locality. The locality consisted of hutments and basically of persons working as labourers or on petty jobs. The appellant was arrested after ten days of incident for no reason. The learned counsel further submitted that there is no motive for the appellant to commit crime. Neither the appellant had any enemical relation with family of the complainant. The explanation of defence is plausible and there is no reason to reject the defence. Inspite of recovery made from house of the appellant, the counsel submitted that as regards Vati which was allegedly seized by police, explanation is provided. Even recovery of plair (pakkad) from house of the appellant is of no consequence as both these articles did not provide incriminating circumstance against the appellant. The police did not notice any wire lying in house identical to one which was found around neck of deceased. The prosecution failed to prove time of death of deceased. The death of deceased could have been caused in night also. It was submitted that the appellant was issue-less but that cannot be a circumstance 5 jud786.04 against the appellant. The theory of vagina assault was not possible by women it could be otherwise and male could have been involved in such heinous act. The conduct of the appellant was also highlighted by counsel during crucial time as she was seen sitting outside her house. It was submitted that two spot panchanamas Exhibit-20 and Exhibit-27 were mutually conflicting with the prosecution case. 6. Per contra learned APP for the State submitted that Vati belonging to the complainant’s family was found and seized from house of the appellant. The name of complainant inscribed on steel vati was seized by police and it cannot be said that Vati is available in market. It was further submitted by prosecution witness that Laxmibai had brought the child in her arms and handed over to wife of P.W.1 saying that a scooterist had thrown body of Mayuri at a place near water tap. It is case of the State that none of the prosecution witness stated that vehicle like scooter had passed through small locality. All prosecution witnesses residing in said area apart from P.W.1 to P.W.3 have been examined who are deposing against the appellant. In statement under section 313 of the Code of Criminal Procedure the appellant failed to give any explanation. It was, therefore, submitted that considering conduct of the appellant and circumstances that she had brought Mayuri in her arms and handed over to her mother is strong circumstance going against the 6 jud786.04 appellant. 7. We have perused original record, depositions of witnesses, medical evidence, C.A. report and considered findings of trial Court. The case is based on circumstantial evidence. The prosecution evidence shows that while P.W.1 - father of deceased was busy in Satsang, his wife informed him that Mayuri was still not traced out. It was 11.30 pm. After the father reached police station and filed missing report at midnight at that time on telephone he received information that Mayuri was traced and thereafter he came back and found that Mayuri was dead. It is case of P.W.2 that accused was seen with Mayuri in her hand at distance of 20 to 22 ft. in the night while she was approaching her. She was seen in frightened condition. She came to house of P.W.1, P.W.2 and told that a scooterist had thrown Mayuri near public tap. None of the witnesses had stated that they had seen the appellant coming out of house alongwith Mayuri. The circumstances leading to create suspicion against Laxmibai is that she was residing in close by vicinity. Mayuri was frequent visitor of house of Laxmibai as she used to love Mayuri. Laxmibai was issue-less. She used to play black magic. 8. The evidence of P.W.1 is to the effect that his wife had informed that their daughter was missing. P.W.1 stated before the court that before few days birthday of Kishori was celebrated in house of the 7 jud786.04 complainant and Laxmibai was invited and she attended the function. The evidence of P.W.2 is to the effect that the appellant – Laxmibai handed over child to her and stated that somebody had thrown her near public tap while carrying her on a scooter. The mother of deceased noticed wire around neck of Mayuri. She identified Laxmibai in court. Mayuri used to go to house of other residents of area but according to witness she had more affection towards Laxmibai. She identified clothes of Mayuri. The witness admitted that on day of incident at 5.30 pm the appellant had come to house of the complainant and enquired about Mayuri. 9. P.W.3 – Kishori is sister of Mayuri. She was eight years old and deposed before the court. She stated that she went alongwith Mayuri to distribute Prasad in chawl. She visited persons residing in different houses including the appellant. She further deposed before the court that Mayuri had steel pot (Vati) with her. In her cross examination she deposed that after she returned to her house after distributing Prasad her mother did not ask her about Mayuri. 10. In the evidence of P.W.4 – Raju Sonawane who was resident of Wasti deposed before the court that he too searched Mayuri alongwith her mother. He had also seen the appellant carryiing Mayuri to house of complainant. His statement was recorded by police after 6 to 7 days of incident. Nothing substantial is brought on 8 jud786.04 record through this witness. 11. P.W.5 is panch, who was examined to prove panchnama in respect of recovery of article no.5 Steel pot and article no.6 – iron plair, some photos. Through P.W.8 - Ramesh Pawar certain circumstances in respect of conduct of the appellant was brought on record. This witness is resident of same area since last several years. He deposed before the court that he did not hear any noise of vehicle passing through locality. It is version of this witness that about 2 am in midnight of that day accused had knocked door of his house and informed him that somebody had thrown the child near water tap after strangulating her. He had seen Laxmibai sitting in front of house of complainant in comfortable condition. There are material omissions brought on record by defence in respect of this witness. 12. The prosecution basically placed heavy reliance on recovery made from house of the appellant but in light of evidence recorded we find that prosecution has failed to establish any motive for the appellant to commit any crime. The relations between the complainant and appellant were cordial. The deceased – Mayuri was 5 years old and used to play alongwith sister, children in Wasti and visit various persons in the area. She used to go to residence of many persons but according to mother of Mayuri she was more attached to Laxmibai. These factors cannot be considered against the appellant 9 jud786.04 as incriminating circumstance. The defence has given explanation that on birthday of Mayuri’s sister, before 2-3 days, sweets were given to her for her husband and Vati belonging to the complainant had remained in her house. In respect of recovery of plair (pakkad) it was rightly submitted by the defence that said instrument is easily available in house and is not weapon or instrument of assault muchless any incriminating circumstance. 13. One of the noticeable feature in the case is that initially none suspected including parents of Mayuri that the appellant must be culprit. Even in missing complaint they did not express suspicion in respect of the appellant. In fact police suspected one Anil Shekote but who according to police surrendered to them on 25.7.2003. P.W.11 Arun Walture, P.I. Haveli claims that Laxmibai was arrested on 26.7.2003. Considering cordial relations between appellant and complainant we do not find that there was any reason or motive for the appellant to commit murder of Mayuri. One of the reasons put forth by prosecution is that she was affectionate with the appellant but that cannot be a ground to suspect the appellant. On the basis of recoveries made by the prosecution criminal liability cannot be fastened on the appellant. In fact the investigating officer had arrested Anil Shekote thereafter the appellant was arrested and made accused. It is case of prosecution that initially on day of incident the appellant was seen sitting in front of house of the appellant in 10 jud786.04 comfortable condition but after the child was handed over to P.W.2 she was seen in frightened condition. Even if it is considered that the appellant handed over child to her mother that itself cannot be a circumstance that she had killed the child. It was also submitted by learned APP that while handing over Mayuri to her mother the appellant stated that Mayuri was thrown near water tap by a scooterist passing through the area. Considering infirmities in prosecution case the appellant cannot be held guilty on mere suspicion howsoever strong it is conviction cannot be upheld. The circumstance must be incriminating and chain of circumstance must be complete so as to hold that the appellant must have committed murder of deceased – Mayuri. 14. The medical officer had opined that death was due to asphyxia due to strangulation associated with multiple injuries on body. He had suspected sexual assault but vaginal swab did not show any marks of sexaul assault. The blood group of the appellant was “AB” and that of deceased was “A”. Considering the facts and evidence on record we find that the trial Court committed error in convicting and sentencing the appellant for committing offence punishable under section 302 of IPC. The prosecution has failed to prove its case beyond reasonable doubt against the appellant. The circumstances brought on record did not conclusively establish that the appellant must have committed murder of deceased. In the light of quality of 11 jud786.04 evidence we do not find it reasonable and proper to uphold and confirm the judgment and order passed against the appellant by trial Court. 15. Appeal is allowed. The Judgment and Order dated 22nd March, 2004 passed by the learned IIIrd Ad-hoc Additional Sessions Judge, Pune in Sessions Case No.426 of 2003 is quashed and set aside. Appellant-Accused Laxmibai Datta Mishra is acquitted of the charges. She shall be released forthwith, if not otherwise required in any other case. (K U CHANDIWAL,J.) (NARESH H PATIL,J.)