1 Criminal Appeal No.608 of 2009 with Criminal Appeal No.410 of 2004 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.608 OF 2009 Sunita @ Sunanda Baburao Pandhawle, Age-36 years, Subhedar Ramji Nagar, Labour Colony, Latur, Presently in Yerwada Central Prison, Yerwada, Pune APPELLANT VERSUS The State of Maharashtra RESPONDENT WITH CRIMINAL APPEAL NO.410 OF 2004 The State of Maharashtra APPELLANT VERSUS Sikandar S/o.Saber Patel, Age-37 years, R/o.Labour Colony, Latur RESPONDENT Mr.P.S.Koshti h/f. Smt.S.S.Jadhav, learned counsel for appellant in Cri.Appeal No.608/2009 Mr.Satej S.Jadhav h/f. Smt.S.S.Jadhav, learned counsel for the respondent in Cri.Appeal No.410/2004 Mr.K.G.Patil, learned A.P.P. for State in both appeals. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 01/03/2011 2 Criminal Appeal No.608 of 2009 with Criminal Appeal No.410 of 2004 ORAL JUDGMENT :(Per P.V.Hardas, J.) 1. Appellant in Criminal Appeal No.608/2009 stands convicted for an offence punishable u/s. 302 r/w. 34, and section 120-B of The IPC and sentenced to imprisonment for life and to pay fine of Rs. 500/-, in default of which to undergo rigorous imprisonment for 6 months. The appellant also stands convicted for an offence punishable u/s. 201 of The IPC and sentenced to rigorous imprisonment for 3 years and to pay of Rs.500/-, in default of which to undergo further rigorous imprisonment for 6 months, by the Ad- hoc Additional Sessions Judge, Latur, by judgment dated 03/03/2004, by this appeal questions the correctness of her conviction and sentence. 2. Criminal Appeal No.410/2004 has been filed by the State being aggrieved by the said judgment of the Trial Court acquitting the respondent for the offences with which he was charged. Since both these appeals arise from the same judgment, these appeals are being decided by us by this common judgment. 3. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus : P.W.No.11 P.S.I. Sainath Dadarao Avhad, who was attached to MIDC Police Station Latur, was handed over the missing report for inquiry on 23/07/2002 at about 9.15 p.m. The aforesaid missing 3 Criminal Appeal No.608 of 2009 with Criminal Appeal No.410 of 2004 report have been lodged by the present appellant at Exh.56. P.W.No. 11 P.S.I. Avhad thereafter addressed a communication to the Tahsildar, requesting him to remain present at the scene of the offence. The aforesaid communication is at Exh.16. P.W.No.11 P.S.I. Avhad thereafter approached the scene of the offence, i.e. the residential house of the appellant and inspected the scene of the offence in the presence of the Tahsildar. The appellant is alleged to have pointed out the place and in the presence of 2 panch witnesses, soil from the said spot was excavated and after excavation of the soil, odour was noticed. While excavating the soil, a gunny bag was discovered beneath the tank which has been constructed over the sack. On opening the sack, a dead body of a male person was noticed. The dead body was identified by the appellant as that of her husband. Inquest panchnama of the dead body was drawn at Exh. 25 in the presence of panchas. The Medical Officer was requested to perform the post mortem. The detailed panchnama regarding the removal of the dead body from the soil is at Exh.15. The gunny bag/sack, wire and concrete portion of the tank came to be seized. The Medical Officer performed the post mortem at the scene. The clothes of the deceased came to be seized under panchnama at Exh. 26. Thereafter the further investigation was handed over to P.W.No. 10 A.P.I. Prakash Prabhakarrao Kulkarni. P.W.No.10, A.P.I. Who was also attached to MIDC Police Station, Latur was entrusted with the investigation by P.W.No.11 P.S.I. Avhad. He recorded the statements 4 Criminal Appeal No.608 of 2009 with Criminal Appeal No.410 of 2004 of witnesses i.e. P.W.No.2 Karuna d/o.Baburao Pandhawale, who was the solitary eye witness to the incident. Thereafter, the appellant and the acquitted accused came to be arrested under the arrest panchnamas at Exh.42 and 43. Statements of witnesses came to be recorded and the viscera of deceased came to be forwarded to the Central Forensic Laboratory alongwith requisition at Exh.45. Statements of other witnesses also came to be recorded. Information came to be solicited from the bank where the deceased had his account. Section 120-B came to be added with the permission of the Court. Further to the completion of investigation, a charge sheet against the appellant and other accused came to be filed. 4. On committal of the case to Court of Sessions, Trial Court vide Exh.3 framed the charge against the appellant and original accused no.2 for offence punishable u/s. 302 r/w. 34, 120-B, and 201 of The IPC. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 12 witnesses. The Trial Court implicitly accepted the evidence of P.W.No.2 Karuna and came to the conclusion that the prosecution had proved the offence against the accused beyond reasonable doubt. The Trial Court, accordingly, convicted and sentenced the appellant but acquitted the original accused no.2. The State, being thus aggrieved by the acquittal, has filed an appeal against the acquittal, while the appellant has filed an appeal questioning her conviction and sentence. 5 Criminal Appeal No.608 of 2009 with Criminal Appeal No.410 of 2004 5. In order to effectively deal with the submissions advanced before us by the learned counsel for the appellant and the learned counsels for the respondents in both the appeals, it would be useful to refer to the evidence of prosecution witnesses. 6. The entire prosecution case revolves around the testimony of P.W.No.2 Karuna, daughter of deceased Baburao and the appellant. P.W.No.2 Karuna is a solitary witness to the incident, whose statement came to be recorded during investigation after about a month of the incident. Karuna had maintained stoic silence for the period of one month till her statement came to be recorded by the police. P.W.No.2 Karuna states that she alongwith her brother and sister was residing in the house with her parents. She states that her father deceased Baburao was employed as a peon in the Indira Gandhi Ashram Shala at Renapur. She has identified original accused no.2 who was a frequent visitor to their house, and who used to visit their house in the absence of her father and chit chat with the appellant, her mother. She claims that her mother had illicit relations with original accused no.2. She states that about a year prior to the incident, she alongwith her mother and Pushpa and original accused no.2 had visited Tuljapur and her mother and accused no.2 Sikandar had stayed in a hotel while she and Pushpa had gone to the temple. She also states that about a month and half prior to the incident, accused no.2, who was in inebriated condition, 6 Criminal Appeal No.608 of 2009 with Criminal Appeal No.410 of 2004 had visited their house and outraged her modesty by pressing her breast. She states that she had informed the incident to her father and her father had abused the appellant and quarrel had conceived between them. She claims that one Amina @ Bhabhy, who was their neighbourer, had visited their house and there was some discussion between Amina and her mother about taking action against the deceased. She claims to have heard that Amina had told her mother that she knew one Kondiram and his colleagues, who would do the work. She states that prior to two months of the incident, accused no.2 had telephoned to their house and her mother talked on telephone explaining to accused no.2 that it would not be possible for her to come to Pune as her husband would scold her and un- necessary publicity would be given. She states that subsequently her mother and their neighbourer Amina had visited the village of one Kondiram and thereafter the said Kondiram had come to their house and her mother had given him Rs.8,000/- Kondiram had stated to her mother that her work would be done. She further states that 2-3 days thereafter, Amina had come to their house and telephoned Kondiram and informed about the arrangements of money and asked him to come during the night. Amina had taken her younger brother and sister at her house. Her father had returned at about 9.30 p.m. and after his dinner had retired to bed. Thereafter, P.W.No.2 Karuna, Amina and the appellant had also taken their dinner and then Amina had gone to her house. Karuna remain 7 Criminal Appeal No.608 of 2009 with Criminal Appeal No.410 of 2004 in the house watching television and at about 11.00 p.m.. accused no.2 had come on a motor-cycle. Her mother had conversation with him by going outside the house. Accused no.2 thereafter went away. P.W.No.2 Karuna states that she had dozed while watching the television and at about 12.00 in the night, Amina had awakened her and at that time deceased Baburao was sleeping while the appellant was watching the television. Karuna states that Amina took her in the kitchen and asked her to stay there and not to come unless she was called. She states that she waited in the kitchen for about 1 hour and as she was feeling sleepy, she asked Amina whether she should come out. Thereafter Amina had called her in the bedroom and at that time she had seen Kondiram, Motiram, Sugriv, Alauddin, and the appellant present there. Amina had asked her to retire to bed immediately and accordingly she went to sleep. Thereafter she just picked from the bed-sheet and noticed the accused and the other absconding accused placing her father in the gunny bag. P.W.No.2 Karuna states that on account of fear, she kept mum. The accused thereafter stitched the opening of the gunny bag by a wire and then the appellant gave money from the cup-board to Kondiram. Gunny bag was lifted and kept in the kitchen. In the morning, Karuna questioned her mother and the appellant had informed her not to disclose this incident to anyone otherwise the accused would kill them. She states that accused no.2 had come to their house in the morning and after conversation with her mother, had left. She then 8 Criminal Appeal No.608 of 2009 with Criminal Appeal No.410 of 2004 states that the husband of Amina had brought 2 labourers, who have dug a ditch to the rear of the house, and subsequently the appellant, Amina and Ismail had brought the gunny bag from the kitchen and had buried the gunny bag in the ditch. Thereafter, a tank was constructed over the place where gunny bag was buried. She then states that the relatives were visiting their house and her grand- mothers, paternal as well as maternal, were residing with them. She states that on 23 rd July at about 5.30 a.m., her grand mother Neelabai who had gone for answering the call of nature, noticed a small ditch and accordingly informed her mother. Her uncle was also informed and thereafter the appellant filed an application before the police station. The dead body of her father was discovered from beneath the tank in the gunny bag. In cross examination, she has admitted that at the time of the incident, she was studying in the 9 th standard. She has also admitted that 2 days after the incident, she had telephoned her uncle and had informed him that her father had not returned home after attending his duties. She has also admitted as true that thereafter her uncle and grand mother had come to Latur and had inquired in the school where her father was employed. She has also admitted as true that the school authorities had informed them that deceased Baburao, after attending his duties in the evening, did not return back. She has further admitted that the relatives from her father as 9 Criminal Appeal No.608 of 2009 with Criminal Appeal No.410 of 2004 well as her mother’s side have searched for her father for about a month, but had failed to trace. She has also admitted that her uncle Gajendra had gone for lodging the missing report and that she had telephoned the Police Station. She has also admitted that immediately after the incident, her uncle and her grand-mother were residing with them. 7. Omission has been elicited in her cross examination that she had not stated in her previous statement about the illicit relations between the appellant and accused no.2. She has admitted as correct that she had not informed about the incident to anyone else prior to recording her statement. Strangely enough, she has admitted that her mother had illicit relations with many persons. 8. Prosecution has also examined Gajendra, brother of deceased Baburao. He states that on 23/06/2002 he had been informed by P.W.No.2 Karuna that deceased Baburao had not returned home. Gajendra states that he had accordingly visited the house of Baburao and had inquired with the appellant as well as P.W.No.2 Karuna. Both of them informed him that the deceased, after attending his duties, did not return home. Gajendra states that they inquired with other relatives, but in vain. He then states that on 27/06/2002, news was published in the newspaper and he had requested the appellant to lodge a report, but the appellant was reluctant to lodge 10 Criminal Appeal No.608 of 2009 with Criminal Appeal No.410 of 2004 the report with the police on the ground that the police used to harass and assault her. He then states that he had seen the excavated portion near the tank and asked the appellant to inform the police and the appellant had raised suspicion that her husband might have been buried in the excavated portion. 9. Prosecution has examined P.W.No.5 Pushpa Wamanrao Somwanshi, but P.W.No.5 Pushpa was declared hostile and did not support the prosecution. Similarly, P.W.No.6 Raju Pralhadrao Dhale also did not support the prosecution and was declared hostile. P.W.No.7 Neelabai, mother of the present appellant states that on learning that her son in law deceased Baburao was missing, she had gone to the house of her daughter and had stayed there. She states that Gajendra had launched a search for the deceased Baburao, but whereabouts of Baburao could not be traced. She states that about a month after the incident, she had gone to answer the call of nature, and had noticed that a ditch had been dug near the water tank. She accordingly informed the appellant and her grant daughter P.W.No.2 Karuna. Thereafter the relatives were summoned and the police were informed. The police excavated the area and noticed the dead body of her son in law in a gunny bag. In cross examination, she has admitted that when she had visited the house of her daughter, she had met P.W.No.2 Karuna, but Karuna had not informed her anything about the incident. She has also admitted in cross 11 Criminal Appeal No.608 of 2009 with Criminal Appeal No.410 of 2004 examination that the appellant had asked P.W.No.3 Gajendra to lodge a report with the police and published news items in the newspapers. 11. Learned counsel for the appellant has urged before us that no reliance whatsoever can be placed on the testimony of P.W.No.2 Karuna because, 1. Karuna, though claims to have witnessed the incident, relating to the murder of her father, had maintained stoic silence for the period of 1 month ; 2. Karuna had not disclosed the incident to anyone i.e. not even to her relatives, who had visited their house ; 3. Karuna had not disclosed the incident to the police when the dead body of her father had been discovered ; 4. Karuna claims that her mother had told her not to disclose the incident else the assailants would kill them. Obviously, according to the learned counsel for the appellant, no reliance can be placed on the testimony of P.W.No.2 Karuna, as the threats had not been given by the assailants and in fact no threat was given by the appellant to Karuna. Next, Karuna had no reason to be afraid and if she had really witnessed the incident, had not disclosed the incident as she has claimed to have telephoned the police also. The learned A.P.P. have supported the findings recorded by the Trial Court. 12 Criminal Appeal No.608 of 2009 with Criminal Appeal No.410 of 2004 12. It is true that a conviction can be based on the testimony of a solitary witness. However, the testimony of the solitary witness should be of a sterling quality, which would inspire confidence of the Court. In other words, the evidence should be of a sterling quality and should be bereft of any omission or un-natural behaviour on the part of the solitary witness. In the present case, upon perusal of the testimony of P.W.No.2 Karuna, though Karuna claims to have witnessed the incident relating to the murder of her father, yet had not disclosed the incident to anyone. No reason is forthcoming as to why Karuna was prevented from disclosing the incident. She was questioned by her grand mothers, her uncle and the police and yet Karuna did not disclose the incident to anyone. The motive for the alleged offence i.e. the illicit relations between the appellant and the acquitted accused, has been proved as an omission in the previous statement of P.W.No.2 Karuna. No threats were administered by the assailants to Karuna which would have prevented Karuna in informing the incident to others. Curiously, we find that when the police had excavated the ditch and had found the dead body of deceased Baburao, Karuna did not choose to inform the police. It was only when the police recorded her statement, Karuna disclosed the incident. The stoic silence for about a month, during which various efforts were undertaken for tracing the whereabouts of deceased Baburao, did not inspire Karuna to narrate the incident to anyone. The aforesaid circumstances, therefore, in our considered 13 Criminal Appeal No.608 of 2009 with Criminal Appeal No.410 of 2004 opinion, require the rejection of the testimony of P.W.No.2 Karuna. The evidence of P.W.No.2 Karuna is not of a sterling quality which would inspire confidence of the Court for its acceptance. A reference in this behalf may usefully be made to the judgment of the Supreme Court in Shivaji Sahebrao Bobade versus State of Maharashtra, AIR 1973, SC 2622. 13. If the evidence of P.W.No.2 Karuna is found to be wholly un- reliable, there is no other evidence on record which would in any manner assist the prosecution in sustaining the conviction. The only circumstance which appears is that the dead body was found in the premises of the house of the appellant and deceased and that appellant was reluctant to lodge the report. Mere finding of the dead body in the open space of the house of appellant, by itself is not enough to justify the conviction for the offence punishable u/s. 302 of The IPC. Reluctance of the appellant in informing the police has been amply explained by the conduct of the appellant in stating that the police used to harass and assault the informant. In any event, even if the aforesaid two circumstances are held to be proved, they are incapable of drawing a presumption about the guilt of the accused. 14. Shri.Jadhav, learned counsel for the respondent in the State appeal has urged before us that no reliance at all can be placed on 14 Criminal Appeal No.608 of 2009 with Criminal Appeal No.410 of 2004 the testimony of P.W.No.2 Karuna and if the testimony of P.W.No.2 Karuna is left out of consideration, there is no other evidence worth the name against the respondent/accused. After carefully scrutinizing the evidence, according to us, there is no merit in the said appeal and the State appeal deserves to be dismissed. Similarly, the appeal filed by the appellant deserves to be allowed and the conviction and sentence deserves to be quashed and set aside. 15. Accordingly, Criminal Appeal No.608/2009 is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offences with which she was charged and convicted. Fine, if paid by the appellant, be refunded to her. Since the appellant is in jail, she be released forthwith, if not wanted in any other case Criminal Appeal No.410/2004 is dismissed confirming the acquittal of the respondent. Bail bonds of respondent stand cancelled. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/FEB. 2011/cri.appeal 608-09