Criminal Appeal No.605 of 2009 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 605 OF 2009 Narayan s/o Gangadhar Deshmukh, Age 28 years, Occu.Agriculture, R/o Revna, Taluka Ghansawangi, District Jalna ..APPELLANT VERSUS The State of Maharashtra ..RESPONDENT Smt S.S.Jadhav, Advocate for appellant Mr N.H.Borade, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 18th February 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) 1. The appellant, who stands convicted for an offence punishable under Section 364, 302 of the Indian Penal Code and 201 of the Indian Penal Code and sentenced to rigorous imprisonment for five years and to pay fine of Rs.5,000/-, in default of which to undergo further rigorous imprisonment for six months, imprisonment for life and to pay fine of Rs.10,000/-, in default of which to undergo further rigorous imprisonment for one year and rigorous imprisonment for six months and to pay fine of Criminal Appeal No.605 of 2009 2 Rs.5,000/-, in default of which to undergo further rigorous imprisonment for three months, by the Ad-hoc Additional Sessions Judge-1, Jalna, by judgment dated 13.11.2009, in Sessions Case No.150 of 2008, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.12, Limbaji Shelke, a P.S.I. who was attached to the Ambad Police Station, recorded the complaint of the appellant at Exh.50. On the basis of the said complaint of the appellant/accused, P.W.12 P.S.I. Shelke registered an offence punishable under Section 302 and 364 of the Indian Penal Code. The investigation was thereafter entrusted to P.W.13 A.P.I. Dilpak. P.W.13 A.P.I. Dilpak, who was also attached to the Ambad Police Station, was entrusted with the investigation of the crime registered by P.W.12 P.S.I. Shelke. During custodial interrogation the appellant/accused expressed his willingness to point out the place where the dead body was concealed. Accordingly, a memorandum at Exh.38, came to be recorded in the presence of panchas. The appellant/accused took the Police and the panch to the place pointed out and on the basis of the information of the accused the dead body was found. Inquest panchnama at Exh.42 Criminal Appeal No.605 of 2009 3 came to be drawn. Similarly scene of the offence panchnama at Exh.43 came to be drawn. The panchnama in respect of the discovery of the dead body is at Exh.40. From the scene of the offence blood mixed mud, simple mud, pieces of Saree, which were partly burnt, a pair of chappal, three used match sticks and pieces of bangles came to be seized. The appellant/accused was brought back to the Police Station and the dead body was referred for post mortem examination. Post mortem on the dead body of deceased Sangeeta came to be performed by P.W.8 Dr.Sandhyadevi Rajput. P.W.8 Dr.Rajput noticed the following external injuries. 1. CLW over forehead left upper side of 3 x 3 cms deep, 1 cm bone deep; 2. CLW over forehead 1 cm below to above wound of 4 x 1.5 cms, bone deep. Maggots coming from wound; 3. CLW over lower lip extending laterally oblique size 5 cm x 2.5 cms, 1 cm deep; 4. Penetrating wound over left hand dorsam side size 1 x 1.5 cms; 5. Penetrating wound over right hand below 4th finger depth 1 x ½ cms/2 cms; Criminal Appeal No.605 of 2009 4 6. Contusion over left arm and forearm, contusion on right shoulder joint; 7. Evidence of contusion over right hypocontrium extending upto iliac retgion; 8. Contusion over left thigh upper to medial side; Dr.Rajput opined that all the injuries were ante mortem injuries. On internal examination the following injuries were noticed. 1. Scalp haematoma over temporal bone; 2. Depressed fracture over temporal bone size 0.5 cms; 3. Fracture over frontal bone size : 5 cms; 4. Brain matter oozing out from fracture site; Dr.Rajput, therefore, opined that the probable cause of death was due to head injury with fracture skull bone with laceration to brain. The viscera was referred for chemical examination. The post mortem report is at Exh.34. Statements of witnesses came to be recorded and during custodial interrogation on 12.8.2008, the appellant/accused expressed his desire to point out where the motorcycle was kept. The memorandum accordingly came to be recorded at Exh.30 and the Criminal Appeal No.605 of 2009 5 motorcycle came to be seized at the behest of the accused vide panchnama at Exh.31. The clothes on the person of accused came to be seized as well as other documents vide panchnama at Exh.23. The seized articles were referred to the Chemical Analyzer along with the requisition at Exh.53. Statements of witnesses came to be recorded under Section 164 of the Code of Criminal Procedure. Further to the completion of investigation a charge-sheet against the appellant/accused came to be filed. 3. On committal of the case to Court of Sessions, trial Court vide Exh.8 framed charge against the appellant for offence punishable under Section 302, 364 and 201 of the Indian Penal Code. The appellant/accused denied his guilt and claimed to be tried. Prosecution in support of its case examined thirteen witnesses. The defence of the appellant/accused is of denial. The trial Court accepted the evidence of the prosecution and came to the conclusion that the prosecution had established the offence against the appellant beyond reasonable doubt and accordingly convicted and sentenced the accused. The appellant being thus aggrieved by his conviction and sentence filed the present appeal questioning the same. 4. In order to appreciate the submissions advanced before us by the learned Counsel for the appellant and learned Assistant Criminal Appeal No.605 of 2009 6 Public Prosecutor for the State, it would be useful to refer to the evidence of the prosecution witnesses. The pivot of the prosecution case revolves round the identification of the dead body of deceased Sangeeta by P.W.1 Godawaribai, P.W.2 Laxmibai and P.W.3 Raju. P.W.1 Godawaribai, mother of deceased Sangeeta states that Sangeeta was married to the appellant about four years prior to the incident. According to P.W.1 Godawaribai, Sangeeta was treated well for initial four to five months, but thereafter the appellant started ill-treating her. The appellant used to assault her and was asking her to go to her mother’s house and to bring money. Godawaribai claims that they were providing the money to Sangeeta as per their capacity. Sangeeta was brought to her house because of the festival. On the day of the incident Godawaribai along with Sangeeta and P.W. 2 Laxmibai were working in the agricultural field. The appellant/accused arrived there on his motorcycle and the appellant/accused called Sangeeta towards him. The appellant/accused and Sangeeta conversed for some time and thereafter the appellant took Sangeeta on the motorcycle. The time, as stated by Godawaribai, was 2.00 p.m. when Sangeeta left along with the appellant. Godawaribai claims that after her return to her house she had narrated this to her son P.W.3 Raju. Godawaribai claims that on the next day while Raju was returning from Pareshwar temple the accused had met him and Raju had Criminal Appeal No.605 of 2009 7 questioned him about Sangeeta, upon which the accused had replied that Sangeeta was dead. Subhash, brother of accused had also come to the house of Godawaribai on the same day at about 9.45 to 10.00 a.m. According to Godawaribai Subhash told her that certain goons had assaulted the appellant and had taken Sangeeta along with them. The Police Patil who was present there asked Subhash that these facts be disclosed by the appellant/accused. Subhash then stated that they would bring Sangeeta home by evening. On the next day Godawaribai along with her son and others went to the Ambad Police Station for lodging the complaint. The appellant/accused was already present there. The appellant/accused, it appears in the presence of Police disclosed that he had killed Sangeeta and a dead body was lying in the jungle at Chikhali. P.W.3 Raju along with the appellant and others, therefore, proceeded towards the spot. The exact place was pointed out by the appellant. 5. In cross-examination, Godawaribai has admitted that deceased Sangeeta was the youngest amongst her daughters. Sangeeta was beautiful to look at. She has also admitted that the appellant has two brothers who are also agriculturists and earn about Rs.7 to 8 lacs per year. She has admitted that it was not possible for her to state exactly when the accused started ill- treating or assaulting Sangeeta by demanding money to Criminal Appeal No.605 of 2009 8 Sangeeta. Godawaribai has admitted that she has 4 to 5 acres of agricultural land. In further cross-examination she has admitted that there were tattooing marks on the fore head and hands of deceased. There were no permanent identification marks on the deceased except the tattooing marks. She has further admitted that the accused had purchased a tractor for Rs.1,65,000/- from them. She volunteers to state that the accused did not pay them a single farthing. She has admitted that when they had met P.S.I. Dilpak, Dilpak had told them that the dead body is lying in the jungle at Chikhali. She has stated that P.S.I. Dilpak had told them that they would unearth the body first. She states that thereafter they proceeded to the spot. She has admitted that the Police Patil, Sarpanch, Police Officers and about 10 to 15 other persons had also gone to the spot of the incident. Certain omissions have been pointed out in her further cross-examination that she had not stated in her previous statement that the accused was asking Sangeeta to go to her brother’s house and that P.W.1 Godawaribai was providing Sangeeta with money as per their capacity. Omission has been duly proved that she had not stated in her previous statement that accused had called Sangeeta from a distance of 25 feet and that there was some conversation between them. Omission has been duly proved that she had not stated that P.W.3 Raju had met the appellant and had questioned the appellant about the whereabouts of Sangeeta and the Criminal Appeal No.605 of 2009 9 appellant had replied that Sangeeta was dead. Omission has been duly pointed out that she had not stated that brother of the appellant by name Subhash had been to their house at about 9.45 to 10.00 a.m. Similarly, other omission about the Police Patil asking Subhash to let the appellant disclose the facts was proved. She has denied the suggestion that the accused never ill-treated Sangeeta nor had he ever made demand to her. 6. P.W.2 Laxmibai, sister-in-law of Sangeeta states that on the day of the incident she was working in the agricultural field along with Sangeeta who had been brought to their house for the religious festival. She states that while they were winning the cotton crop the appellant/accused came there and called Sangeeta. Both of them conversed and thereafter the appellant/accused took Sangeeta along with him on motorcycle. It was about 2.00 p.m. when Sangeeta had left with the appellant. She further states that on the next day P.W.3 Raju, while returning from the Pareshwar temple, had met the appellant and had questioned him about the whereabouts of Sangeeta and the appellant had told him that certain goons had taken Sangeeta with them. On the same day Subhash, brother of the appellant had arrived at their house and had informed him that they should search for Sangeeta. Accordingly, the Police Patil told Subhash and the appellant to bring Sangeeta. They assured that they Criminal Appeal No.605 of 2009 10 would bring Sangeeta by 5.00 p.m. She states that on the next day her husband and others had gone to Police Station for lodging a complaint. In cross-examination she has admitted that there was a discussion amongst the relatives that Sangeeta might have gone to the house of other relatives and therefore, some enquiry be made with the other relatives. She has denied the suggestion that the appellant had not come to the field and that Sangeeta had not gone along with the appellant. 7. P.W.3 Raju, brother of deceased Sangeeta states that Sangeeta had been brought to their village for participating in the religious festival. He states that on the day of the incident his mother P.W.1 Godawaribai had informed him that the accused had come to their field and had called Sangeeta and after conversing with Sangeeta had taken Sangeeta along with him on his motorcycle. P.W.3 Raju further states that on the same day his uncle P.W.4 Bhanudas had come to his house at about 4.00 p.m. and had informed that the appellant along with his wife deceased Sangeeta had visited the house of P.W.4 Bhanudas and after taking tea both of them went away towards village Limbgaon. He further states that on 9.8.2008 he had been to the Mahadeo Pareshwar temple and while returning from the temple he had met the appellant who was on his motorcycle. The appellant informed him that he had taken Sangeeta with him but Criminal Appeal No.605 of 2009 11 some anti social elements had abducted her. Raju states that he narrated these facts to P.W.1 Godawaribai and while he was talking to the other persons, brother of the appellant by name Subhash had come there and had requested them to accompany him in order to search Sangeeta. Raju then states that after about 5 to 10 minutes the appellant/accused also came to his house and the appellant/accused promised that he would bring Sangeeta by evening. P.W.3 Raju then states that they waited for some message from the appellant/accused but since no message was forthcoming he along with others had gone to Ambad Police Station for lodging the complaint. In the police station they had noticed the appellant present in the Police Station. The Police questioned the appellant about the whereabouts of Sangeeta and the appellant expressed his willingness to point out the place where the dead body of Sangeeta was concealed. Accordingly, the appellant along with the Police and others took them to the place where the dead body was concealed and pointed out the place of concealment of the dead body. The dead body was not visible as it had been covered with stones. The dead body was thereafter uncovered and a panchnama was drawn. In cross- examination he has admitted that he could not state as to since when the appellant/accused started ill-treating Sangeeta and for what purpose he was demanding the amount. He has also admitted that there was a discussion amongst the relatives as to Criminal Appeal No.605 of 2009 12 the likely place where Sangeeta may have gone and it was also discussed that she may have gone to Limbgaon to the house of her brother-in-law. Raju has admitted that as Sangeeta was missing, therefore, they had gone to the Police Station for giving information. He has denied the suggestion that the appellant had gone to the Police Station for lodging a missing report. He has further admitted in cross-examination as true that P.W.13 A.S.I. Dilpak had told him that he had received information through Police Station, Deulgaon Raja about finding a dead body in the jungle. He has admitted that there was a stench from the place where dead body was buried and therefore, he was standing at a distance of about 50 feet from the dead body. He has admitted that they had identified the dead body as that of Sangeeta. He has denied the suggestion that the appellant and his brother Subhash were claiming that the dead body was not the dead body of Sangeeta and, therefore, they were protesting for performing the funeral at their village. Omission has been duly proved that he had not stated in his previous statement that the Police had interrogated the appellant in his presence and that the appellant had stated that he had taken Sangeeta along with him and had killed her by giving blows of stones. The aforesaid omission, according to us, is completely inconsequential as the said opinion is inadmissible in evidence. Omission has been duly proved that he had not stated in his previous statement that the accused and Criminal Appeal No.605 of 2009 13 the Police were in one vehicle while he and the others were in the other vehicle. Omission has been duly proved that he had not stated that the body was visible. Similarly, omission has been proved that he had not stated that the appellant removed the stones from the body. He has denied the other suggestions on behalf of the accused. 8. Importantly, this witness has not been cross-examined at all about the statement made by the accused that certain goons had abducted Sangeeta. Similarly, there is virtually no cross- examination in respect of the fact that the appellant had come and had promised that he would bring Sangeeta along with him. The evidence of all the three witnesses adverted to above, clearly establishes that the on the day of the incident, the appellant had arrived at the agricultural field of P.W.1 Godawaribai and had called Sangeeta near him and after conversing with her had taken Sangeeta along with him on his motorcycle. Similarly, evidence of P.W.4 Bhanudas clearly discloses that the appellant accompanied by Sangeeta had come to the house of Bhanudas and after taking tea had gone along with Sangeeta. Deceased Sangeeta, therefore, apart from being the wife of the appellant, was in the custody of the appellant. The appellant at the very threshold had offered a false explanation to P.W.3 Raju that goons had abducted Sangeeta. No explanation whatsoever is Criminal Appeal No.605 of 2009 14 forthcoming from the appellant as to what happened to Sangeeta. Appellant has taken a bald defence of denial and beyond that the appellant does not explain the circumstances in which Sangeeta was missing. 9. Prosecution has also examined P.W.6 Ankush Jige, cousin of deceased. Ankush claims that on the day of the incident while he was sitting in front of his hotel he had seen the appellant and Sangeeta passing on a motorcycle at about 12.00 to 12.30 p.m. The cross-examination of this witness clearly reveals that he was at a distance of about 100 to 125 feet and claims to have seen the appellant and Sangeeta passing on the road. We are not much impressed with the testimony of this witness and, therefore, we find that no reliance at all can be placed on the testimony of this witness. Prosecution has examined P.W.10 Kailash Jige and P.W.11 Rajeshwar Jige in respect of the memorandums relating to the discovery of dead body of Sangeeta. P.W.10 Kailash has clearly supported the prosecution and has proved the memorandums. In cross-examination he has admitted that the Police Officer had informed him that the appellant has killed his wife and they have to go to the spot for recovering the dead body. This witness then states that thereafter immediately they proceeded to the spot. Relying on this admission it is urged by the learned Counsel for the appellant that the Police were already Criminal Appeal No.605 of 2009 15 aware about the place where the dead body was buried and, therefore, memorandum of appellant/accused cannot be said to have led to the discovery of the dead body. The admissions, which have been elicited in the cross-examination do not with any degree of certainty establish that the Police were aware about the exact place where the dead body was buried. Similarly, the admission of this witness, adverted to above, clearly indicates the recording of the memorandum and this witness and the accused proceeding to the scene of the offence. It has certainly been established that the dead body was discovered pursuant to the information provided by the appellant/accused. P.W.13 A.S.I. Dilpak also not been questioned about any prior intimation received by him either from the appellant/accused or other sources including Police Station, Deulgaon Raja about the exact place where the dead body was buried. In the presence of adequate material on record, which would satisfactorily affect the credibility of the prosecution case, merely on the basis of certain stray admissions, an inference cannot be drawn that the Police were aware about the exact place where the dead body was buried. 10. Learned Counsel for the appellant has urged before us that there is a missing link especially between the time the appellant was seen in the company of the deceased and the recovery of the Criminal Appeal No.605 of 2009 16 dead body. It is, therefore, urged before us that missing link is extremely vital and failure of the prosecution to fill in the missing link would affect the entire prosecution case and the appellant/accused would be entitled to be acquitted. According to us, there is no missing link at all. The appellant/accused had been to the agricultural field of P.W.1 Godawaribai and in the presence of witness had taken deceased Sangeeta along with him. On the same day in the evening deceased Sangeeta was seen in the company of the accused when the accused had visited the house of P.W.4 Bhanudas. Subsequently, i.e. after about two days the dead body of deceased Sangeeta cmae to be recovered at the behest of the appellant/accused. The putrefaction had set in and, therefore, the time factor would also indicate that murder of deceased Sangeeta had been committed at about the time when Sangeeta was seen alive in the company of the appellant. Moreover, the appellant has failed to offer any reasonable or probable explanation about the whereabouts of deceased Sangeeta. The appellant had taken a bald defence of denial. Coupled with this when P.W.3 Raju had met the appellant on the next day and had questioned the appellant about the whereabouts of Sangeeta, the appellant had offered a completely fictitious and a false answer to Raju. The appellant had claimed that certain goons had abducted Sangeeta. On top of that the appellant promised that he would bring Sangeeta by evening on Criminal Appeal No.605 of 2009 17 the same day. The conduct of the appellant/accused, therefore, clearly is a pointer towards the guilt of the accused. The prosecution has established each and every circumstance on which the prosecution has relied and according to us, the circumstances so established form a complete chain which excludes every hypothesis of the innocence of the accused and unerringly points to the guilt of the accused. We are, therefore, no hesitation of coming to the conclusion that the trial Court has rightly convicted and sentenced the appellant. However, in respect of an offence punishable under Section 364 of the Indian Penal Code is concerned, according to us the prosecution has miserably failed to establish on record that the appellant had taken his wife deceased Sangeeta against her will. In fact, the evidence on record clearly indicates that Sangeeta voluntarily sat on the motorcycle and accompanied the appellant. In such circumstances, therefore, the conviction of the appellant for an offence punishable under Section 364 of the Indian Penal Code is unsustainable. 11. Accordingly, Criminal Appeal is partly allowed. The conviction of the appellant for offence punishable under Section 364 of the Indian Penal Code is hereby quashed and set aside and the appellant is acquitted of the offence punishable under Section 364 of the Indian Penal Code. Fine, if paid by the appellant be Criminal Appeal No.605 of 2009 18 refunded to him. The appeal insofar as it questions the correctness of the conviction and sentence for offence punishable under Section 302 and 201 of the Indian Penal Code is concerned, is dismissed being devoid of any merit, confirming the conviction and sentence. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/605.09criapeal)