:1: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.48 OF 1988 Sou. Sangita Kisan Pawale, Age about 22 years, Occ. Household, Residing at Shel-Pimpalgaon, Daunsdkarwadi, District-Pune. (At present in Yerawada Central Prison,Pune.) ...Appellant. Vs. The State of Maharashtra. ...Respondent. Mr. Abhaykumar Apte for the Appellant. Mr. P.S. Hingorani, APP. for the Respondent. CORAM: F.I.REBELLO & R.S.MOHITE, JJ. DATE : 20th November,2008 ORAL JUDGMENT : (Per R.S. MOHITE, J.) 1. By this appeal the appellant-Sangita Kisan Pawale who was the original accused No.2 impugns a judgment and order dated 24.12.1987 passed by the Additional Sessions Judge, Pune in Sessions Case No.102 of 1987. By the impugned judgment and order, Sangita was convicted for an offence punishable under Section 302 of the Indian Penal Code and was sentenced to suffer Rigorous Imprisonment for life. She was also separately convicted for an offence punishable under Section 201 of the I.P.C. but no separate sentence was imposed on this count. Two other accused being original accused No.1-Bhikubai Nivruti Lande who was the mother of the :2: original accused No.2 and the original accused No.3 Kisan Vithal Pawale who was husband of the accused No.2 came to be acquitted in the case. 2. The brief facts of the case were as under: a) That the original accused No.2-Sangita was married to original accused No.3 Kisan. The original accused No.1 was her mother. The original accused No.3 and his wife i.e. accused No.2 were residing at Shel-Pimpalgaon, Tal. Khed, District Pune. The mother of the original accused No.2 Bhikubai was residing in a different village by name Kalus Pawalewadi, b) Deceased Machindra Lande was the son of the Dattu Lande and he was residing alongwith his brother Sahibrao, two sisters Mangala and Sindhu and his mother Kalubai in a village by Name Daundkarwadi, Shel Pimpalgaon, Tal. Khed. Deceased Machindra was about 12 years old and was studying in the 4th standard of the vernacular primary school situated in Village Davdi. c) The father of the deceased Machindra, Dattu knew the accused No.s 1 to 3 well because they were his :3: distant relatives. Deceased Machindra used to travel a distance of two miles from his house for going to his school. He used to go to his school at 8.00a.m. and used to return at about 5.30p.m. d) On 26.8.1986, Machindra put on his school uniform and left for school. One Sushila Shevale (P.W.2) was his class teacher and as per the practice in the school, she used to hold a roll call at 11.a.m. and again at 3.00p.m. to mark the presence of the students. On 26.8.1986, when she undertook the roll call at 11.a.m. she found that Machindra was present. She also saw Machindra before the recess began at 2.00p.m. The lunch recess got over at 2.45p.m. and the regular class started . When the first period after recess started at 3.00p.m. Mrs. Shevale noticed that Machindra had not present in the class. e) It is further the prosecution case that at about 4.00p.m. P.W.No.5-Abasahib Satpute who was the brother of the Police Patil of the Village saw the deceased going towards his cattle shed from the field of Shivaji Narayan Godge. He saw stab injuries on both sides of his throat and saw that his clothes were stained with blood. The student was not able to speak at all. Abasahib Satpute asked him as to what had happened and :4: the student gave signals and gestures by his both hands. Abasahib also asked him as to who were his assailants and he signaled him by showing round object along the wrist side. He then signaled him by showing two fingers and also pointed towards his forehead by putting his finger in between the two eyebrows. Abasahib understood to him meaning a vermilion mark. Abasahib asked him if he could write the names of the assailants and the student nodded by moving his head. Abasahib took a sheet from a diary in his pocket and gave it to the injured. Many villagers had gathered there and one of them handed over a pen to the deceased. Deceased then wrote down his name as Machindra Dattatraya Lande. Abasahib again asked as to who had assaulted him and then the boy wrote the name of the accused No.2 Sangita Nivruti Lande on that sheet of paper. However, according to the prosecution, this paper was not available as it was lost, as it was washed away when the clothes were washed on the next day. f) In the meanwhile, in the school, there was a short recess at about 4.00p.m. and during this recess some students met their teacher Mrs. Sushila Shevale and informed her that Machindra was sitting near the cattle shed of Abasaheb Satpute with a serious injury on his throat. :5: g) On hearing this news Mrs.Sushila Shevale went to the spot and found that Machindra was sitting near the cattle shed in an injured condition and saw that his clothes were stained with blood and that a cloth piece was wrapped around his throat. Machindra was unable to speak. She found that many villagers had gathered near the Machindra including two teachers named Yadav and Kadam (P.W.3) . h) One of the teachers by name Yadav asked Machindra the names of the assailants. He also asked Machindra whether he will be able to write the names of his assailants. Then Machindra nodded by moving his neck by way of assent. Then Kadam teacher handed over one paper to the Machindra and teacher Shevale handed over a fountain pen to him. Machindra then wrote two names . One name was of accused No.2 Sangita Nivruti Lande. He also wrote his own name as Machindra Dattatraya Lande. He also wrote the word "Daudnkarwadi" on that piece of paper. The paper was handed over to his teacher P.W.No.2 Sushila Shevale who in turn handed over it to her husband. Her husband then handed over that piece of paper to the brother of the Police patil one Abasaheb Satpute (P.W.5). The said chit was produced before the court by the State in the trial and was marked at Exh.16. The husband of the teacher-Sushila and one teacher by name Walunj then :6: boarded the injured Machindra on a bicycle and took him to Grampanchayat Office, Davdi. One Dhanaji Gavhane was asked to go on motor cycle and inform the incident to the father of the Machindra. The father of the Machindra Dattatraya (P.W.1) came to the Gram Panchayat office and then took Machindra by tempo to the hospital at Pune. Machindra was admitted and treated in Sasoon hospital but he died on the same day soon thereafter. His father received the dead body of Machindra at mid night and he brought the body to the village. In the same night, the last rites were performed on the dead body of the Machindra. On 27.8.1986, at about 7.00a.m. in the morning, Police from Chakan Police Station came to the house of P.W.No.1 Dattatraya Ganpat Lande. Dattatraya narrated the entire incident to the police and the police recorded his F.I.R. On the basis of the F.I.R., P.W.No.13 P.S.I. Prataprao Patil registered the crime under C.R.No.117/1986 at the Chakan Police Station and commenced the investigation. On 28.8.1986, he went to the village Daudi and Village Kotwal pointed out the place of the offence to him. He conducted the panchanama of the scene of offence (Exh.12). He attached the earth stained with blood, a brown coloured pen with blood stains, some stones with blood stains and plain earth from the spot of the incident. On that day, he recorded the statement of Abasaheb Satpute and others from the village. On 29.8.19876, he recorded the statement of Gulab Kasam Momin and Mohibub Shaikh. On :7: 30.8.1986, he recorded the statements of Shivram Yadav and four others from Gujar locality from Village Daudi. On 6.9.1986, he arrested accused No.3 Kisan Vithal Pawale. On 1.10.1986, he sent the clothes of the deceased, simple earth stained with blood, plain earth and a fountain pen attached from the spot of offence to the Chemical Analyser for analysis. He received the Chemical Analyser’s report (Exh.39) in due course. Mrs. Shevale produced an exercise book (Exh.40) containing the handwriting of the deceased Machindra and the same was attached under panchanaama. It is ultimately produced in the trial as Article-2 and the Investigating Officer then sent the chit written by Machindra and the exercise book Article-2 to the Handwriting Expert to ascertain if the handwriting on the two documents were matching with each other. These documents were sent under a covering letter (Exh.41) by the Investigating Officer on 11.2.1987. The report of the Handwriting Expert (Exh.28) was received by the Investigating Officer and after completing the investigation, the Investigating Officer filed a charge-sheet in the court of J.M.F.C. Court at Khed. 3. In due course, the matter was committed to the Court of Sessions and a charge under Section 302 and 201 read with 34 of the Indian Penal Code was framed by the Sessions Court. In order to prove its case, the :8: prosecution examined as many as 13 witnesses. They were P.W.No.1- Dattu Ganpat Lande- father of the deceased, P.W.No.2 Sushila Dattatraya Shevale- teacher of the deceased, P.W.No.3 Vasantrao Nivruti Kadam another teacher of the deceased, P.W.No.4-Dattatraya Keshav Shevale- teacher of the primary school where the deceased was studying, P.W.No.5-Abasahib Tulsiram Satpute-the brother of the Police Patil, P.W.No.6 Sudas Dhondiba Shinde a panch witness for the recovery of exercise book containing handwriting of the deceased which was seized under panchanama Exh.23, P.W.No.7 Raghunath Tulsiram Satpute-Police patil of the village, P.W.No.8 Vishwas Vinayak Ranjankar- the Handwriting expert, P.W.No.9 Chandrakant S. Kamble -the Police Constable attached to the Chakan Police Station who had recorded the F.I.R and seized the chit produced by the Police Patil under panchanama- Exh.25. P.W.No.10 Shantaram Tukaram Gujar who had seen the accused No.2 Sangita and her sister-Sugandhi going by village Daudi by foot way towards Lande Sthal, P.W.No.11 Sopan Mandale- the second panch for production of the Chit Exh.16 by the Police patil of the village and the seizure under panchanama Exh.35, P.W.No.12 Dr. Laxman G. Ferwani who had conducted the post mortem and P.W.No.13- Investigating officer P.S.I. Prataprao H. Patil. 4. After recording the statement under Section-313 :9: of the Criminal Procedure Code, the defence chose not to lead any evidence. In the circumstances, on the material produced by the prosecution on record, by the impugned judgment and order, the learned Sessions Judge was pleased to pass the impugned judgment and order convicting and sentencing the accused as aforesaid. It is in these circumstances, that this appeal had been preferred in this court. 5. After hearing both the sides and perusing the record in our view appeal deserves to be allowed for the following reasons. 6. This is a case where there are no eye witnesses. The record also indicates that there is no known motive as to why the present appellant Sangita would have assaulted the deceased fatally. The prosecution sought to bring some motive through the evidence of the father of the deceased to the effect that the mother of the appellant Sangita wanted to have an affair with him and that therefore, there was motive for Sangita to do away with the child. We are not convinced that any such desire of her own mother could constitute a motive for Sangita for harming the deceased child. Though Sangita was immediately arrested soon after the incident, there is no seizure of any weapon at her behest. Similarly, :10: there is no seizure of any blood stained clothes. 7 The conviction rests upon the alleged dying declaration made by the deceased to various persons. The first dying declaration according to the prosecution was made to P.W.No.5 Abasahib Satpute. This witness claims in his evidence that when the deceased Machindra reached near his cattle shed he saw stab injuries on both the sides of his throat. He saw that the clothes of the deceased were stained with blood. He categorically stated that the Machindra was not able to speak at all. Abasahib Satpute asked him what had happened and the deceased made signals and gestures by his both hands. Abasahib then asked him as to who were his assailants and he signaled him by showing round object along the wrist side. He then signaled again by showing two fingers and also pointed towards his forehead by putting his finger in between his eyebrows. According to Abasahib, deceased Machindra was trying to signal vermilion mark. Abasahib then claims to have asked him whether he could give the names of the assailants and the deceased Machindra nodded by moving his head. Abasahib then took a sheet from a diary in his pocket. One of the other persons gathered there handed over a pen to the deceased- Machindra. On this deceased-Machindra wrote his full name as Machindra Dattatraya Lande. Abasahib again asked as to who had assaulted him and then the deceased Machindra wrote the :11: name of the accused No.2- Sangita Nivruti Lande on that piece of paper. This evidence has not been substantiated as admittedly even according to the prosecution, the piece of paper on which the victim wrote something was lost when Abasahib’s clothes were washed on the next day. The person who given him a pen to write the name of the assailant has not been examined. None of the other villagers have been examined to corroborate the oral version of this witness. From the questions asked to the victim Machindra there was no need for him to write his own name. The diary of the witness from which the sheet was allegedly torn to enable the Machindra to write down something was also not seized by the police. In our view, it is not possible to place reliance upon such evidence. 8. The prosecution then relied upon the evidence of a teacher of Machindra by name Sushila Shevale. She states in her evidence that at about 4.00p.m. during the recess of the school some students came to her and informed her that Machindra was badly injured and was sitting near the cattle shed of Abasahib. She found that Machindra had a cloth piece wrapped around his throat. He was unable to speak. Many people gathered near the Machindra. There were two other teachers by named Yadav and Kadam. The teacher by name Yadav asked :12: Machindra the names of the assailants who assaulted him and also asked him whether he will be able to write down the names of his assailants. Teacher Kadam then handed over one paper to the deceased Machindra. Teacher Shevale handed him a fountain pen and thereafter Machindra wrote two names. One name was of accused No.2 Sangita Nivruti Lande and the second was his own name Machindra Dattatraya Lande and also words "Daundkarwadi" on that piece of paper. It was the case of the P.W.No.2 Sushila Shevale that she handed over this chit to her husband after about 1.1/2 hours to handover the same to witness Abasahib. In our view, it would not be possible to rely upon such evidence to convict the accused-appellant. Firstly we find that the chit is said to have been written by Machindra in response to a question as to who were his assailants. It is not known as to what exactly the deceased who was badly hurt understood as there was no need to write his own name as well as the name of a place. The chit only mentions the name of the present appellant and does not ascribe any role to her. Admittedly there were no words spoken as deceased Machindra was in an injured condition and was unable to speak. There is thus, no oral dying declaration. The words as stated on the chit do not relate to the cause of circumstances of the death. In our view, it will also not be proper to place reliance on this piece of evidence. :13: 9 There is no other evidence whatsoever and we find that this is a case solely based on circumstantial evidence where there is no chain of proved circumstances to connect the accused-appellant to the crime. Hence, appeal deserves to be allowed and we proceed to pass the following order. ORDER 1. Appeal is allowed. 2. The impugned judgment and order passed by the Additional Sessions Judge on 24.12.1987 in Sessions Case No.102 of 1987 is set aside and the appellant-original accused No.2 is acquitted of all the charges levelled against her. She will be released forthwith unless wanted in any other offence. (R.S. MOHITE, J.) ( F.I. REBELLO, J.) :14: IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOBBY HIGH COURT OF JUDICATURE AT BOBBY HIGH COURT OF JUDICATURE AT BOBBY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.48 OF 1988 Sou. Sanity Kiln Payable, Age about 22 years, Cc. Household, Residing at Shel-Pimpalgaon, Daunsdkarwadi, District-Pune. (At present in Yerawada Central Prison,Prune.) ...Appellant. Vs. The State of Maharashtra. ...Respondent. Mr. Abhaykumar Pate for the Appellant. Mr. P.S. Historian, PAP. for the Respondent. CORAL: F.I.REBELLED & R.S.MODISTE, DJ. DATE : 20th November,2008 ORAL JUDGMENT : (Per R.S. MODISTE, J.) OPERATIVE ORDER 1. For the reasons recorded in the judgment, the appeal is allowed, the impugned judgment and order passed by the Additional Sessions Judge on 24.12.1987 in Sessions Case No.102 of 1987 is set aside and the appellant-original accused No.2 is acquitted of all the charges levelled against her. She will be released forthwith unless wanted in any other offence. (R.S. MOHITE, J.) ( F.I. REBELLO, J.) :15: 1. For the reasons recorded in the judgment, the appeal is allowed, the impugned judgment and order passed by the Additional Sessions Judge on 24.12.1987 in Sessions Case No.102 of 1987 is set aside and the appellant-original accused No.2 is acquitted of all the charges levelled against her. She will be released forthwith unless wanted in any other offence. (R.S. MOHITE, J.) ( F.I. REBELLO, J.)