(-1-) MGN IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL APPEAL NO.563 OF 2006 Nageshwar Anupalal Poddar )..Appellant Vs. The State of Maharashtra )..Respondent CRIMINAL APPEAL NO.564 OF 2006 Arvindkumar Anupalal Poddar ..Appellant Vs. The State of Maharashtra ..Respondent Mr. Arfan Sait, Advocate for the Appellants Mrs. V.R. Bhosale, APP for Respondent State. CORAM: F.I. CORAM: F.I. CORAM: F.I. REBELLO REBELLO REBELLO & K.U.CHANDIWAL, JJ. K.U.CHANDIWAL, JJ. K.U.CHANDIWAL, JJ. DATED: 24th April,2008 DATED: 24th April,2008 DATED: 24th April,2008 JUDGMENT (PER F.I. REBELLO, J.) . Advocate Mr. Arfan Sait is appointed as Counsel for the Appellants under the Legal Aid Scheme at State expense in both the Appeals. 2. Appellant in Appeal No.564 of 2006 is the husband of deceased Sitadevi. The Appellant Nageshwar Anupalal Poddar in Criminal Appeal No.563 of 2006 is the brother of Arvindkumar Anuplal Poddar, Appellant in Criminal Appeal No.564 of 2006. Both Appeals are being disposed of by this common (-2-) order as they arise from the same judgment which has resulted in conviction of the Appellants under Section 302 read with Section 34 of the I.P.C. who were consequently sentenced for life imprisonment. They are also ordered to pay a find of Rs.5,000/- each, in default to suffer further R.I. for a further period of two years each. 3. The case of the prosecution is that on 6th December, 2001 at about 7.00 a.m. at Gorai Creek the accused in furtherance of their common intention killed one Sitadevi by means of a knife causing her death and thereby committing offence punishable under Section 302 read with Section 34 of the I.P.C. They also threw the dead body of Sitadevi in the creek causing disappearance of evidence in order to screen themselves and thereby committed offence punishable under Section 201 read with 34 of the I.P.C. 4. The prosecution in all examined 10 witnesses including Panch witnesses. The body was recovered pursuant to the statement made by Accused No.1 Arvindkumar Anuplal Poddar The Police in the course of search also attached the knife. C.A. report shows blood stains on the knife. 5. The prosecution through evidence of P.W.1 and P.W.6 had sought to establish that the deceased (-3-) was last seen in the company of accused No.1. Through the evidence of P.W.1 and P.W.2 the prosecution sought to establish that there were disputes between Accused No.1 and Sitadevi who was his first wife. Accused No.1 had married a second time. P.W.7 is the Panch for recovery of the body. Panchas for the attachment of the knife were not available. Hence prosecution sought to prove the attachment of the knife through I.O. P.W.5 is Dr. Manohar Pandurang Shivcharan, who had performed post-mortem, in the examination in chief has deposed to the cause of death of the deceased. 6. In the first instance it would be appropriate that we consider the evidence of Dr. Manohar Pandurang Shivcharan, P.W.5 who conducted post-mortem, who has described the various injuries. According to him the death was due to cut throat neck injury. The injuries were fatal and could be caused by a sharp edged weapon like a knife. This witness opined that the weapon shown to him could cause such injuries. It will thus be clear from the evidence of this witness that death is homicidal. 7. In the instant case there is no eye witness to the incident and what we have to consider is the circumstantial evidence led on behalf of the prosecution. (-4-) . P.W.1 - Sadanand Baleshwar Potdar in his evidence has set out that Sitadevi was the daughter of Anand Potdar, who was his brother in law and she had married Accused No.1 about 8 years back and was staying with her parents even after marriage and was brought to Bombay about two months prior to the incident, by her father and was cohabiting with the Accused No.1. In his evidence he has deposed that the accused No.1had married once again to one Ranjanadevi through whom he has one daughter. He was keeping both the wives with him. They were fighting amongst themselves and accused No.1 disliked Sitadevi. The difference between deceased and the accused were established by the evidence of Mrs.Parvin Yakub Shaik, the landlady. She has also deposed to the fact that the deceased used to go for work at 8.30 a.m. and return at about 6.00 to 7.00 p.m. 7. According to P.W.1 on the day of the incident he had met accused No.1 and deceased going out for a stroll at about 8.00 a.m. as he was so informed by Accused No.1. At about 11.00 a.m. on the same day he had seen accused No.1 and Accused No.2, but deceased was not with them. He had seen their blood stained clothes. According to this witness Accused No.1 had informed the neighbours that the deceased had run away and that they were unable to trace her. After two days the Police have (-5-) arrested both the Accused Nos.1 and 2 and he also was taken away by the Police. They were all taken for recovery of body and accused No.2 took out the body from the creek. The body was identified by the witness because of the toe ring in the second toe and the petticoat. In his cross examination attention was invited to the fact that he had not stated to the Police that both wives used to fight with each other. Also his statement that accused No.1 along with Sitadevi had met them at 8.00 a.m. on the date of incident. Various other discrapancies and omissions in the evidence of this witness was put to him. The body, according to this witness was traced after the accused No.1 and Accused No.2 and the witness himself had been detained. The other witness who, according to the prosecution, has seen accused No.1 and deceased together is P.W.6 Mohd. Jahid Abdul Jabbar. According to this witness he is the neighbour of accused No.1 and he knew that he was married to deceased Sitadevi and Ranjanadevi and that Sitadevi was working elsewhere. He had seen the accused going out with deceased Sitadevi at 10.00 a.m. He had seen crowd infront of her house and people were enquiring about Sitadevi and the people were told that they did not know where she had gone. At that time he saw the palms of both the accused perforated on account of wounds. On 8th December, 2000 at about 10.00 a.m. he had seen Nageshwar going out (-6-) with a loaded bag and he felt suspicious. He opened the bag which was containing dirty cloths. His statement was recorded on 10th December, 2001. He could not explain as to why in his statement he did tell that he had seen Arvind and Sita going together on 6th December, 2000 such a statement was not contained in his police statement, so also seeing perforation on the hands as also finding dirty clothes on 8th December, 2000. From this evidence it is not possible to establish beyond any reasonable doubt that in fact P.W.1 and P.W.6 had seen the accused No.1 going out with Sitadevi in the morning of 8th December, 2000. Therefore, it will not be possible to accept the last seen theory. 8. P.W.7 is Mohd. Farooq Abdul Aziz. This witness was the Panch for recovery of the dead body of the deceased at the instance of the accused No.1. According to him he was called to the Police Station on 8th December, 2001. The evidence is silent as to whether Accused No.1 made a statement that he has shown the place where the body was. The evidence recorded however, is as under:- "Arvind pointed out the place where the body was." In cross examination he denied that Arvind had not shown any place. According to this witness from the (-7-) Police Station they went to Gorai. From there they took a boat and crossed the creek. At that time the body was pointed out by Accused No.1. The body was taken out. 9. P.W. 8 Shri Mahadeo Dattatray Salve P.S.I. Borivali Police Station. According to this witness that C.R. is registered by Malvani Police Station which was transferred to Borivali Police Station for further investigation. Based on the information received they proceeded to Gorai and at that time the Police and accused persons were present. According to him the dead body was pointed out by both the accused which was at the distance of 25 to 30 ft. from the shore. The body was identified by the uncle. They also traced a knife about 20 ft. south from where the body was lying. In his cross examination in so far as the knife is concerned he has explained that the Panchas relating thereto are not available and the report about it is already on record. So also the slipper which was recovered. In the cross examination he denied that nothing was recovered from Gorai and that the Panchas were not examined as no Panchanama was being drawn up. 10. From this evidence it would be clear that the body was recovered at the instance of accused No.1. Except for the statement of P.W.8 there is nothing on record to show that Accused No.2 had also made (-8-) the statement and or that he had shown the place from where the body was recovered. 11. From the C.A.’s report in so far as Shirt,pant and shoes no blood was detected. In so far as Item No.9 which is the knife human blood was detected though the group was inconclusive. P.W.3 Mohan Inamdar has deposed that they received information on 8th December, 2001 that the lady by name Sitadevi was missing for the last two days and her husband and second wife were planning to fee away. They found that the husband of the missing lady and other family members were packing their bags and about to run away. 12. From the above evidence it is established through LP.W.1 and P.W.6 that the deceased and accused No.1 were cohabiting together. Through the evidence of P.W.7 it has come on record that the body was recovered at the instance of Accused No.1. It has further come on record that through P.W.1 and P.W.2 that there used to be quarrel between the deceased and accused No.1. If the defence case is to be accepted that deceased was missing there is no explanation offered by the accused of not having lodged a complaint of missing person. The knife which was the alleged weapon was not recovered at the instance of either Accused No.1 or Accused No.2, but it was found and the place from where the body (-9-) was recovered. The C.A. report will indicate that it had blood stains. The I.O. has explained non-examiantion of the witnesses for the attachment of the knife. 13. From the evidence of P.W.5 we have already observed that the death was homicidal. The deceased and accused No.1 were cohabiting together but had differences. The body was recovered at the instance of the Accused No.1. Considering all these circumstances in our opinion the learned Judge was right in convicting the Accused No.1 for the offence punishable under Section 302 of the I.P.C. and consequently sentencing the Arvindkumar Anuplal Poddar. 14. In so far as accused No.2 is concerned the only evidence is of P.W.1 that he had seen both the accused on the night of incident with hands perforated. The omission in the statement made to the Police was pointed out. Similarly, though P.W.8, I.O. and P.S.I. sought to contend that the body was recovered at the instance of both Accused No.1 and Accused No.2 that apparently is not supported by the evidence of P.W.7. Considering that the accused No.2 is being charged for the offence under Section 302 of I.P.C. which carries sentence of life imprisonment, it was the duty of the prosecution to prove the guilt of the accused (-10-) beyond reasonable doubt. In the instant case, common intention has not been established. There is no direct or circumstantial evidence linking the death of the deceased Sitadevi to any role played by Accused No.2. The conviction of Accused No.2, therefore, under Section 302 as also 201 in our opinion is unsustainable. The Accused No.2 will have to be given benefit of doubt and acquitted of the said offence. In the light of the above, the following order:- . The conviction and sentence imposed by the learned Sessions Judge against Accused No.1-Arvindkumar Anuplal Poddar is confirmed. His Appeal is dismissed. 2. The Accused No.2-Nageshwar Anupalal Poddar, the Appellant in Criminal Appeal No.563 of 2006 is acquitted of the charges punishable under Section 302 and 201 of the I.P.C. He is to be set forth at liberty immediately, if not required in any other case. (K.U.CHANDIWAL, J.) (K.U.CHANDIWAL, J.) (K.U.CHANDIWAL, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.) (F.I.REBELLO, J.)