1 APEAL-582&905-03 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.582 OF 2003 Smt.Durgavati Ramparvesh Sharma ] Age - 28 years, Occ.Household, ] R/o. Tamgaon, Taluka Karveer, ] Dist. Kolhapur. Presently lodged in ] District Prison, Kalamba, Kolhapur. ]...Appellant. [Orig. Accused No.3] Vs. State of Maharashtra ] through P.I. Karveer ] Police Stateion, Kolhapur, ] Dist. Kolhapur in CR No.82/2002 ] U/S. 302, 201, 34 of I.P.C.. ]..Respondent. ......... Mr.Shekhar Ingawale, Advocate for the Appellant. Mrs.A.S. Pai, A.P.P. for the Respondent - State. ......... WITH CRIMINAL APPEAL NO.905 OF 2003 State of Maharashtra. ]..Appellant. Vs. 1. Ravishankar Ramparvesh Thakur, ] Age 32 yrs. ] 2. Ashokkumar Kusheshwar Thakur, ] Age 22 yrs. ] 3. Smt.Durgavati Ramparvesh Sharma, ] Age 28 yrs. ] 2 APEAL-582&905-03 All R/o Tamgaon, Tal.Karveer, ] Dist.Kolhapur. ] ..Respondents. [Orig.Accused Nos.1 to 3] .... Mrs.A.S. Pai, A.P.P. for the Appellant-State. Mr.Shekhar Ingawale, Advocate for Respondent No.1 & 3. Mr.P.V. Dhopatkar, Advocate(appointed) for respondent No.2-Absent. .... CORAM : D.D.SINHA & A.R.JOSHI, JJ. DATE OF RESERVING ) : 27.8.2010 THE JUDGMENT ) DATE OF PRONOUNCING ) : 08.9.2010 THE JUDGMENT ) JUDGMENT (PER A.R.JOSHI,J.). 1. By the present judgment both these appeals are being disposed of as they are arising out of the same judgment and order dated 7th April, 2003. 2. Sessions Case No.146/2002 was heard and decided by the Adhoc Additional Sessions Judge, Kolhapur vide judgment and order dated 7th April, 2003. By the said order and judgment, original accused Nos.1 & 2 were acquitted of the charges framed against them for the offences punishable under Sections 302, 201 read with Section 34 of Indian Penal Code. Being aggrieved by such acquittal of accused Nos.1 & 2, present Criminal Appeal No.905/2003 was preferred by the State. 3 APEAL-582&905-03 3. By the same judgment and order dated 7th April, 2003, original accused No.3, a woman by name Smt.Durgavati Sharma, was convicted of the offence punishable under Section 302 of Indian Penal Code and was sentenced to suffer rigorous imprisonment for life. However, she was acquitted for the offence punishable under Section 201 of Indian Penal Code. Being aggrieved by such conviction, accused No.3 preferred Criminal Appeal No.582/2003. As such, both the present appeals are being disposed of by this common judgment. 4. Prior to appreciating rival arguments advanced by the learned APP Mrs.Pai for the State and learned Advocate Mr.Ingawale for original accused Nos.1 & 3, certain factual position and the evidence as recorded by the Sessions Court can be narrated as under. Again at this stage, it may be mentioned that original accused No.2, who is respondent No.2 in Criminal Appeal No.905/2003, is reportedly absconding however is represented by Advocate appointed under Legal Aid Scheme of the State Government. However, today we have no opportunity to hear him in the present appeals due to his absence. On 30th March, 2002 dead body of one unknown person was found in the stone quarry area within the precincts of Tamgaon village, near Gautam Society, Taluka - Karveer, District - Kolhapur. Information was received by the concerned police station Karveer, regarding accidental death. As such, A.D.R. was registered and investigation was started. Inquest panchanama was drawn. Dead 4 APEAL-582&905-03 body, which was beheaded, was in mutilated condition and infact putrefaction was at the advanced stage showing that the death must have occurred 3-4 days prior to finding of the dead body. Noticing the mutilated condition of the dead body, detailed postmortem was not conducted, however, viscera and parts of the body were sent for scientific examination by orthopedician of Miraj Medical College. Opinion was obtained from the medical expert that the death must have occurred due to beheading and also due to injury by some weapon. In view of these observations, API Sutar (PW-19) lodged FIR on behalf of the State being C.R. No.82/2002 for the offences punishable under Section 302 read with Section 201 of Indian Penal Code. Said FIR was registered on the night of 3rd April, 2002. 5. During the investigation, role of three persons was ascertained i.e. accused Nos.1 & 2 being Ravishankar Thakur and Ashok Kumar and accused No.3 Smt.Durgavati Sharma. All the three accused were arrested in the evening of 4th April, 2002. According to the case of the prosecution, accused Nos.2 & 3 had illicit relations and allegedly it was the motive in the killing of the husband of accused No.3. Incidentally during investigation, the head of the dead body was recovered allegedly at the instance of accused No.1 and it was identified by various witnesses as that of one Rampravesh Sharma, husband of accused No.3. 6. It is the case of the prosecution that deceased had knowledge regarding 5 APEAL-582&905-03 illicit relations between his wife and accused No.2 and as such he had reprimanded accused No.2 on that count. Also, according to the prosecution all the three accused infurtherance of their common intention decided to do away with the deceased and as such on the night between 29th and 30th March, 2002 the deceased was assaulted by means of a kitchen-knife and after killing him his head was severed from the body and was thrown in the stone-quarry filled with water, away from the house of the deceased. Also according to the prosecution, the beheaded dead body was taken from the house of the deceased and was thrown in the area near the stone-quarry and attempt was made to burn the said body by using petrol. 7. During investigation, statements of various witnesses were recorded. So also, various panchanamas were drawn. During recording of the evidence, total 22 witnesses were examined. The case of the prosecution is based on circumstantial evidence and the circumstances against the accused are narrated at the appropriate place here under. 8. Motive, according to the prosecution, is illicit relationship between accused Nos.2 & 3, and also strained relations between the deceased and his wife (accused No.3). At this juncture, it must be mentioned that so far as the alleged illicit relations, there is no material whatsoever available on record. So far as the strained relations of deceased and his wife (accused No.3), there is evidence of 6 APEAL-582&905-03 two witnesses (1) PW-4 Rajani Patil and (2) PW-11 Shivaji Gondhalekar. Their substantive evidence disclose that deceased used to consume liquor and used to assault his wife on many occasions and due to which their relations were strained and infact allegedly there was a reason for wife (accused No.3) to get rid of her husband. 9. Admittedly the entire case of the prosecution is based on circumstantial evidence, as such the circumstances alleged against all the three accused are narrated and it is to be ascertained whether or not such circumstances clinchingly incriminate the accused persons for the offence of murder. As against all the three accused, there is a circumstance as to seizure of their clothes at the time of their arrest. Four days after the incident of murder, all the three accused were arrested on 4th April, 2002. The clothes on their person were seized under the panchnama. PW-1 Panch Balasaheb is examined to prove said panchnama. According to prosecution, clothes of all the accused persons were having some blood stains. Subsequently, clothes were sent for chemical analysis along with other articles. In C.A. report though it is mentioned as to finding of blood of human origin on such clothes, the blood group could not be determined as the results were inconclusive. As such, admitted position remains that this circumstance of finding blood stains on the clothes of the accused cannot be considered as a clinching evidence to rule out any other hypothesis consistent 7 APEAL-582&905-03 with innocence of the accused. During the arguments, learned A.P.P. for the State had fairly conceded to this position. 10. As against accused No.3 there is another circumstance brought to the notice of this Court on behalf of the prosecution and this is regarding recovery of blood stains from her house and recovery of one rope having blood stains. It is not at all case of the prosecution that the death of the victim was caused by use of any rope to strangulate. In view of this position, it is innocuous as to finding of a rope with blood stains in the house of accused No.3. Recovery of blood stains and rope with blood stains was substantiated by evidence of PW-3 Dipak Nalawade (a panch witness). Said panchnama was drawn on 5th April, 2002. It must be said that this circumstance also cannot lead this Court to hold that accused No.3, and none else, had committed murder of the victim. At the cost of repetition it must be mentioned that the result of the chemical analyzer as to non-determination of the blood-group of the blood found in the house of accused No.3 and the blood on the rope, is an aspect which is required to be accepted against the case of the prosecution. Needless to mention that when the case is based on circumstantial evidence, the circumstances must be of such a nature and of such an evidential value so as to lead the Court to the only hypothesis as to the guilt of the accused. In any event, the circumstances as available against accused No.3 are not of such a nature to point out towards the guilt of accused 8 APEAL-582&905-03 No.3 for the offence of murder. 11. It must be mentioned that vide impugned judgment and order only accused No.3 was convicted for the offence punishable under Section 302 of Indian Penal Code and accused Nos.1 & 2 were acquitted for all the charges. As such, there is no application of Section 34 of Indian Penal Code, the common intention of the accused. Considering this position, it must be said that there was more burden on the prosecution to establish the guilt of accused No.3 for the offence punishable under Section 302 of Indian Penal Code simplicitor. While appreciating the arguments advanced on behalf of accused No.3 in the matter of Criminal Appeal No.582/2003, the admitted factual position is of much significance. According to the case of the prosecution assault on the victim occurred in his house, whereas his beheaded dead body was found much away near the stone quarry. Considering this factual position, the evidence on record do not show as to in what manner accused No.3 could arrange for taking the dead body of her husband from the house to a distant place and that also to behead it in order to conceal the identity and throw away head in the stagnant water of stone quarry. For want of such evidence, it must be said that the Additional Sessions Judge had fallen in an error while holding accused No.3 guilty of the offence of murder. It is significant to note that by the impugned judgment and order, accused No.3 was acquitted of the offence punishable under Section 201 9 APEAL-582&905-03 of Indian Penal Code. Hence, in view of the above discussion we hold that the circumstances as alleged against accused No.3 are not at all sufficient to bring home guilt of accused No.3 for the offence punishable under Section 302 of Indian Penal Code. In the result, Criminal Appeal No.582 of 2003 shall succeed. 12. So far as Criminal Appeal No.905/2003 is concerned, it is filed by the State against the acquittal of accused Nos.1 & 2. According to the prosecution, as argued by learned A.P.P. Mrs.Pai for the State, there are six circumstances against accused No.1 and there are three circumstances against accused No.2. The circumstances alleged against the respective accused are narrated in nutshell here under so also the reasoning for not accepting those circumstances as clinching evidence is given against each circumstance. The six circumstances as against accused No.1 are as under: [i] Evidence of PW-12 Mohammed Ali regarding purchase of knife : So far as the first circumstance of purchase of knife is concerned, according to PW-12 he had identified accused No.1 when brought to his shop by the police subsequently after the incident of murder. According to said PW-12 (shopkeeper) though he admitted during the cross-examination as to selling similar such articles to number of persons on usual working hours, still according to him he could identify accused No.1 as the person who has purchased the same knife which was shown to him by the police. It is significant 10 APEAL-582&905-03 to note that during the cross-examination it has come on record that the knives similar to the Article 27, are available in the market. Moreover the said knife did not have any blood stains much less the blood stains of same group as that of the deceased. [ii] Evidence of PW-14 Parshuram Kamble regarding purchase of petrol on 30th March, 2002 : This circumstance is not of much significance in as much as there is nothing on record that the dead body was burnt or at least the clothes of the dead body were tried to be destroyed by burning. At this juncture, it must be mentioned that the clothes of the deceased were recovered under Section 27 of the Indian Evidence Act, allegedly on the statement of accused No.2, and PW-9 Sunder Kamble acted as a panch. Nowhere in the panchnama, it is mentioned that the said clothes were burnt or half-burnt as such it is of no relevance for implicating accused No.1 and for that matter accused No.2 with the offence of murder. [iii] Evidence of PW-13 Mahesh Pimple as to accused No.1 taking his bicycle for the entire night of 30th March, 2002 and returning it back on the next day : This circumstance is innocuous in as much as the panchnama regarding recovery of cycle is admitted by the accused and there is no evidence that said bicycle was used in the offence for carrying the dead body or the head of the 11 APEAL-582&905-03 deceased from the place of offence to the place where it was thrown. [iv] Recovery of blood stained clothes of accused No.1 and which is established by evidence of PW-1 panch Balasaheb. This circumstance is innocuous for the same reason as mentioned earlier while discussing the seizure of clothes of accused No.3. At the cost of repetition, it must be mentioned that the C.A. report do not show any blood grouping and the recovery of the clothes is after four days of the incident of murder and allegedly accused was wearing the same clothes on his person till seizure on 4th April, 2002. [v] Relation of accused No.1 with accused No.3 as brother and sister : This circumstance in itself will not have any bearing on the present matter, more so when it is held by us that accused No.3 has been wrongly convicted by the Sessions Court. In other words, mere relation as brother and sister between accused Nos.1 & 3 cannot lead this Court to hold accused No.1 guilty of the offence of murder. [vi] Discovery of head without body, at the instance of accused No.1 as per the panchnama dated 4th April, 2002 i.e. memorandum statement and subsequent discovery under Section 27 of Evidence Act : This last circumstance is the main circumstance according to the prosecution against accused No.1 as to his statement for showing the place where 12 APEAL-582&905-03 the head of the deceased was thrown. On this recovery much is argued by the learned APP and further submitted that the Sessions Court had not appreciated the said evidence of discovery. After going through the reasoning given by the learned Sessions Judge and considering the circumstances under which said head of the deceased was recovered from the stagnant water accumulated in the stone quarry, we are of the view that there is no error committed by the Sessions Court in not accepting the said circumstance against accused No.1. 13. During the arguments, learned APP for the State brought to the notice of this Court mainly three circumstances as against accused No.2 as under. [i] Finding of blood stained clothes of accused No.2 on the day of his arrest i.e. on 4.4.2002: Again for the reasons mentioned hereinabove the said circumstance is innocuous in view of finding in the CA report as blood grouping could not be determined and improbability as to accused persons using the same clothes from the date of the incident till their arrest i.e. since 29.3.2010 or 30.3.2010 till 4.4.2010. [ii] Discovery of the clothes of the deceased at his instance as per his memorandum statement dated 6.4.2002. PW-9 panch Sunder Kamble is examined by the prosecution on this aspect. On this aspect, reasoning given by the learned Sessions Judge not 13 APEAL-582&905-03 accepting this circumstance as incriminating against accused No.2 is acceptable. More so when the recovery is from the open public place accessible to the public at large. Otherwise also even acceptance of such discovery at the instance of accused No.2 will not be a clinching evidence so far as offence under Section 302 of Indian Penal Code is concerned. [iii] Conversation heard by PW-17 STD booth operator : According to this witness, he had overheard the conversation between the deceased when the deceased was talking to the brother of accused No.2. Few days prior to the incident of murder, there was a telephone call at the STD booth of PW-17 received from the brother of accused No.2. During such conversation, PW-17 overheard the deceased reprimanding the brother of accused No.2 and asking said brother to instruct accused No.2 to stop illicit relations accused No.2 had with accused No.3 (the wife of the deceased). Apart from the evidence of PW-17, there is no evidence in order to substantiate the said talk. At the cost of repetition, it must be said that there is absolutely no evidence to establish the alleged illicit relations between accused No.2 & accused No.3 and hence this circumstance of alleged talk is of no help to further the case of the prosecution. 14. In the final analysis, we hold that there is nothing to entertain the Criminal Appeal No.905 of 2003 preferred by the State against acquittal of accused Nos.1 & 2. In the result, both the appeals are disposed of with following 14 APEAL-582&905-03 order :- :: O R D E R:: [i] Criminal Appeal No.582 of 2003 is allowed. The impugned judgment and order dated 7.4.2003 passed by the learned Adhoc Additional Sessions Judge, Kolhapur in Sessions Case No.146/2002 is quashed and set-aside. The appellant (original accused No.3) Smt.Durgavati Ramparvesh Sharma shall be released from the jail custody forthwith, if not required in any other case. The fine amount, if already paid, shall be refunded back to her. [ii] Criminal Appeal No.905 of 2003 stands dismissed. (D.D.SINHA,J.) (A.R.JOSHI,J.)