1 Cri.Appeal No.235/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.235/2011 Sheetal @ Sunita Sanjay Jadhav Age: 30 Yrs., occu. Labour work, R/o Shirdi, Tq. Rahata, District Ahmednagar. = APPELLANT VERSUS The State of Maharashtra, Through Loni Police Station, Tq. Rahata, Dist. Ahmednagar. = RESPONDENT Mr.Sandeep S.Deshmukh, Adv. for Appellant; Mr.VD Godbharale, APP for Respondent/State ----- CORAM : A.H.JOSHI & A.R.JOSHI,JJ. DATE OF RESERVING JUDGMENT : 9th September,2011. DATE OF PRONOUNCING JUDGMENT: 26th September,2011. JUDGMENT (PER:- A.R.JOSHI,J.) 1) Heard rival arguments at length on this criminal appeal preferred by original accused Nos.1 and 3, challenging the judgment and order of conviction dated 27th December, 2010 passed by Additional Sessions Judge, Kopargaon in Sessions Case No.19/2009. 2) By the impugned judgment and order, the appellants/accused Nos.1 and 3 were convicted for the offence punishable under Section 302 r/w 34 of Indian Penal Code and were sentenced to suffer imprisonment 2 Cri.Appeal No.235/2011 for life and to pay fine of Rs.1,000/- each, in default, to suffer simple imprisonment for three months each. The appellant/accused no.1 was also convicted for the offence punishable under Section 201 of Indian Penal Code and sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.1,000/-, in default, to suffer simple imprisonment for three months. Case of the original accused/appellant no.2 was separated as during pendency of the matter before the Sessions court, he did not remain present while released on bail on medical grounds. NBW is pending against him. 3) Case of the prosecution, in nutshell, is as under:- (1) One Bhamabai Gangawane (PW No.3) married with one Changdeo Shingade and had four daughters out of the said marriage. Present appellant no.2/original accused no.3 – Suneeta is eldest daughter of said Bhamabai. Alka, Lata and Seema are three other daughters of Bhamabai. Alka is PW No.1. She is wife of accused no.1 – Ulhas Waghmare. (2) Bhamabai (PW No.3) after death of her husband married with one Walmik Gangawane and out of said second marriage; she begot two sons, by names – Sandip and Tukaram. Sandip is the victim/deceased in the present matter. (3) Bhamabai (PW No.3) was residing with Walmik Gangawane and working on the brick kiln of owner Vijay Godse (PW No.9). While working on 3 Cri.Appeal No.235/2011 the brick kiln, Walmik died in an accident, and as such, compensation of Rs.50,000/- was given to Bhamabai by the owner. She expended Rs.10,000/- and remaining amount of Rs. 40,000/- was given to her daughter from first marriage, accused No.3 – Suneeta @ Sheetal. (4) Accused Sheetal initially married to one Dilip Gangawane, who is brother of Walmik Gangawane. The marriage did not last long and accused No. 3 and Dilip Gangawane separated from each other. (5) Accused No.3 then married to one Sanjay Jadhav. This marriage also did not last long and both of them separated. Thereafter, accused No.3 changed her residence and started residing at Shirdi and came in contact with accused No.2 – Anil and both had illicit relations and stayed together as husband and wife. (6) Apparently, said accused No.3 Suneeta changed her name to Sheetal while staying at Shirdi. Apparently, she was given Rs.40,000/- by her mother PW No.3 – Bhamabai, which amount was received by Bhamabai as compensation due to the death of her husband Walmik in the brick kiln accident. (7) Deceased Sandeep was the son of Bhamabai and Walmik. He had no known avocation and was having his livelihood by stealing the articles and as such was arrested by the police on various occasions being a thief. At times, accused no.3 his step-sister had arranged for 4 Cri.Appeal No.235/2011 getting him arrested in various cases. Victim Sandeep was insisting on accused no.3 for getting back the amount of Rs.40,000/- from her as he wanted to have the separate residence along with his mother – Bhamabai and to start some business. Accused No.3 was refusing to give said amount and on this count also the relations between them were strained. (8) Victim Sandeep was on visiting terms with his another step-sister – Alka (PW No.1), who is the wife of present appellant/accused No.1. After release from the police custody, some time during the year 2008, he was residing with PW No.1 – Alka in her family consisting of herself, her husband/Accused no.1 and her children, including young age daughter by name Manisha. (9) The incident of alleged strangulation of victim Sandeep occurred at the house of accused No.1 and PW no.1 – Alka on the night of 19th November, 2008. During the day of 19th November, 2008, Accused No.1 and victim had been to other village for some work and they returned at 5.00 p.m. to the house of Accused No.1. On that evening, Accused No.1 went away from the house and returned by night. In the meantime, PW no.1, her children and victim Sandeep, her step-brother were at home. After the meals, Sandeep was lying on the bed and was sleeping. On that late night, Accused No. 1 came home along with Accused Nos. 2 and 3. PW No.1 opened the door and let them in. 5 Cri.Appeal No.235/2011 Accused No.2 (who is presently absconding) went towards the bed and sat on the chest of victim Sandeep. Accused No.2 used a nylon cord and strangulated the victim Sandeep. Allegedly, in that act of strangulation, Accused Nos.1 and 3 assisted him in catching hold of the hands and legs of the victim. After ascertaining that victim Sandeep was dead, his dead body was taken in a gunny bag and the gunny bag was put in a nylon bag and was taken by Accused Nos. 1 and 2 out of the house and was thrown in Rampur Bandhara in Pravara river bed at village Songaon. After throwing the dead body, Accused Nos. 1 and 2 came back to the house of Accused No.1 and then accused Nos. 1 and 2 left for Shirdi and Accused No.1 remained in the house. (10) On 23rd November, 2008, one unknown dead body was found in Rampur Bandhara and report to that effect was given to Loni police station. Accidental death report was registered and investigation was started. The dead body was sent for post mortem, requisite panchanamas were drawn and it was revealed that it was the dead body of victim Sandeep. Knowing identity of the dead body, search of his relations was started and involvement of Accused Nos. 1 to 3 was revealed in the offence. Initially, there was no trace of Accused No.1 and his family members and also the other accused. However, subsequently, finding their whereabouts near Pune on a brick kiln, Accused No.1 was put 6 Cri.Appeal No.235/2011 under arrest. Statement of PW No.1 – wife of accused No.1, was recorded on 23rd December, 2008. Thereafter statement of said PW no.1, wife of accused no.1 was recorded under the provision of Section 164 of Cr.P.C., vide Exhibit-40 on 9th of January, 2009. It was so recorded on the request of the police by PW No.1 – Ramkrishna Kulkarni, Special Judicial Magistrate. Statements of various witnesses were recorded including PW No.3 – Bhamabai Gangawane, mother of PW No.1. During investigation statement of owner of the motor- cycle used in carrying the dead body, was recorded. So also, statement of owner of the agricultural land, was recorded, at whose premises, Accused No.1 and PW No.1 were staying. Statement of PW No. 9 – Vijay Godse, brick kiln owner, was also recorded. (11) On completion of investigation, charge sheet was filed and matter was committed to the Court of Sessions and was taken up being Sessions Case No.19/2009 and only Accused Nos. 1 and 3 were tried as Accused No.2 was absconding while enlarged on bail on medical grounds. 4) We have perused substantive evidence of the prosecution witnesses and mainly evidence of PW No.1 – Alka Waghmare, wife of Accused No.1. In fact, the entire case of prosecution revolves around the trustworthiness or otherwise of evidence of PW No.1. Certain factual position can be mentioned in order to 7 Cri.Appeal No.235/2011 ascertain whether reliance can be placed on the testimony of PW no.1 in order to uphold the conviction of Accused Nos.1 & 3 for the offence of murder and conviction of accused No.1 for the offence punishable under Section 201 of Indian Penal Code. Said points are as under: (i) The incident of strangulation occurred on the night of 19th November, 2008 and dead body was found on 23rd November, 2008; (ii) Statement of PW No.1 was recorded on 23rd December, 2008, i.e. after about one month on discovery of the dead body; (iii) Second statement of PW No.1, which was recorded under the provisions of Section 164 of Cr.P.C., vide Exhibit-40, was recorded on 9th of January, 2009, i.e. after about 18 days of the first statement; (iv) Apart from PW No.1, the alleged eye- witness to the incident, there is no other eye-witness to the incident of strangulation and throwing of the body in Rampur Bandhara. 5) Bearing in mind the above position, the substantive evidence of PW No.1 is required to be scrutinized with much care and caution, more so, in the light of the marked variance in her evidence vis- à-vis the substantive evidence of PW No.2 – Special 8 Cri.Appeal No.235/2011 Judicial Magistrate as to contents of the statement recorded under Section 164 of Cr.P.C. 6) While analyzing the substantive evidence of PW No.1, we have observed that PW No.1 had repudiated her earlier story as to her husband, accused No.1 and Accused No.3 assisting the Accused No.2 in the commission of the offence. We have also observed that PW No.1 had given another story that her husband/Accused No.1 had sustained fracture of the leg and was unable to move and as such, he had not taken any active part in the alleged incident of strangulation. Believing her evidence as trustworthy, it can be ascertained that she had put blame entirely on Accused No.2, who is absconding. The delay in recording the statement of PW No.1 is much fatal to the case of prosecution. However, this aspect has not been properly scrutinized by the learned Sessions judge while placing reliance on the testimony of PW No.1. This is more so when there was ample opportunity for PW No.1 to approach the police at the earliest opportunity and to inform regarding involvement of Accused Nos.1 to 3, had she really interested in narrating to the police what she had allegedly witnessed on the night of the incident. Moreover, the variance in the testimony of PW No.1 and contents of Exhibit-40, is definitely fatal to the case of prosecution and on this count, it must be said that the learned Sessions Judge had erred in appreciating her evidence. In other words, it must be said that when the case was based on circumstantial 9 Cri.Appeal No.235/2011 evidence and there is a reasonable doubt as to authenticity of the evidence of PW No.1, the learned Sessions Judge should have taken much care and caution in arriving at the conclusion as to guilt of the accused Nos.1 & 3, more so, when Accused No.2 was absconding and substantive evidence of PW No.1 was pointing towards Accused No.2 alone, being the perpetrator of the crime. 7) Present appeal is preferred by Accused No.3 only and as per the Court's record it is revealed that Accused No.1, who is serving the sentence, has not preferred any appeal against his conviction. As we have discussed the effect of substantive evidence of prosecution witnesses, as mentioned above, and as we have come to the conclusion that the learned Sessions Judge had erred in appreciating such evidence, thus erroneously holding the Accused Nos. 1 and 3 guilty of the offences charged, it would be proper in the interest of justice to give suitable directions in the present appeal so far as Accused No.1 is concerned though he had not preferred any appeal. We are of the view that the entire judgment and order of conviction of Accused Nos. 1 and 3 is required to be set aside and reversed and in that event, the present appeal, preferred by the Accused No.3 is required to be allowed, so also the directions are required to be given for release of Accused No.1, acquitting him of the offences charged. 8) In the result, we hold that the learned Sessions Judge had erred in coming to the conclusion 10 Cri.Appeal No.235/2011 of establishment of guilt of Accused Nos.1 and 3 beyond reasonable doubt. Consequently, there is every reason to interfere with the judgment and order of conviction and same is required to be set aside with following order. ORDER Criminal Appeal No.235/2011 is allowed. The impugned judgment and order of conviction dated 27th December, 2010 passed by the learned Additional Sessions Judge, Kopargaon in Sessions Case No. 19/2009, is set aside. The Appellant/accused No.3 so also the Accused No.1 be set at liberty, if not required in any matter. If fine amount is already paid, it be refunded to them. sd/- sd/- (A.R.JOSHI,J.) (A.H.JOSHI,J.) bdv/ fldr.22.9.2011 Authentic copy (BD VADNERE,PS)