Case: Lalsing Sutarya Pawara Vs. The State of Maharashtra

2. Briefly stated, the prosecution case is, as under:Ramdas Kisan Pawara, the informant is brother of the deceased Yadibai. Marriage of Yadibai with Madhu Pawara, resident of Moida, Tal. Sendhawa took place prior to 20 years. The accused Lalsing Sutarya was not doing any work. Therefore, his brother Istrya Pawara ousted him. Therefore, Lalsing had started residing in the house of Yadibai and Madhu Pawara. Two years prior to the incident, accused Lalsing took away Yadibai to unknown place. In spite of search, Yadibai and Lalsing were not found. Thereafter on 17.6.2007 in the evening, Yadibai along with the accused Lalsing were found by Sanju Raju Pawara near the S.T. Stand of Thalner. At that time, Yadibai had worn a yellow sari, and accused Lalsing had worn a white shirt and black pant. When Sanju Pawara returned to his house, he found that accused Lalsing alone had come at the house of his brother. Two days thereafter when Ravindra Pawara had been at the house of Sanju Pawara, he came to know that Yadibai and accused Lalsing were found to Sanju at Thalner S.T. Stand and thereafter the accused Lalsing alone had returned to the house. On 20.6.2007 in the evening Ravindra met Ramdas Pawara the brother of Yadibai and informed the fact about Yadibai and Lalsing, which was disclosed to him by Sanju. Thereafter, they went to the field where the accused Lalsing was doing work. They found the accused Lalsing alone there. The accused Lalsing told them that he along with Yadibai had gone to the market, but thereafter Yadibai alone went to unknown place and he does not know her whereabouts. Thereafter, the son of the landlord arrived there but Lalsing did not disclose the whereabouts of Yadibai to him. However, thereafter when the landlord himself arrived at the spot, the accused Lalsing disclosed to them that he had killed Yadibai and thrown her dead body at the corner of Hatkoi nallah. Thereafter, the police along with the accused Lalsing, complainant Ramdas and others, went to Hatkoi nallah where the accused Lalsing showed them the dead body of Yadibai. On the basis of the report lodged by Ramdas, Crime No.29/2007 came to be registered at Thalner police station. API Daga Khairnar took over and conducted the investigation. During the investigation, the accused gave a confession statement to hand over the wooden log by which he had beaten and killed Yadibai. Thereafter, the API Khairnar along with the panch witnesses, went to Hatkoi nallah, as led by the accused, and at that place the accused took out one wooden log from one tree, and the same was seized by the Investigating Officer. Thereafter, the I.O. and police went to the hut of the accused, as led by the accused, where the accused took out his shirt and pant from the said hut and handed over to the API Khairnar, who seized the same under panchanama. The seized articles were forwarded to the Chemical Analyzer. During the investigation it was disclosed that as Yadibai was consuming liquor the accused Lalsing was suspecting of her character and therefore, he killed her by beating with the wooden log. After completion of necessary investigation, the I.O. filedin the Court of J.M.F.C., Shirpur. The offences under Sections 302 and 201 of I.P.C. being exclusively triable by Sessions Court, the case was committed to the Court of Sessions, Dhule.3. The learned Ad hoc Addl. SessionsDhule framed charge (Exh.9) for the offences punishable under Sections 302 and 201 of I.P.C. and explained to the accused. The accused pleaded not guilty to the charge and claimed to be tried.4. In order to prove the guilt of the accused, the prosecution has examined in all ten witnesses namely, Dr. Prakash Ramesh Gavit P.W.1 at Exh.14, the Medical Officer who performed autopsy on the deceased Yadibai, Ramdas Kisan Pawara P.W.2 at Exh.16 the complainant, Sanjay Shankar Savale P.W. 3 at Exh.18 the panch witness to the seizure panchanama Exh.20, Sanju Raju Pawara P.W.4 at Exh. 27 who had lastly seen the accused in the company of the deceased Yadibai, Ravindra Zunzarsing Pawara P.W.5 at Exh.28 the husband of sister of Sanju, Khatik Sohil Altaf P.W.6 at Exh.29 son of landlord of the accused, Yusuf Usman Khatik P.W.7 at Exh.30 uncle of P.W.6 Sohil, Mangalsing Ramsing Deshmukh P.W.8 at Exh.31, Naik Police Constable Asaram Sonu Vadile P.W.9 at Exh.32, API Daga Deoman Khairnar P.W.10 at Exh.33 the Investigating Officer.5. The learned trial Judge, after recording the evidence and hearing the learned Counsel for respective parties, convicted the appellant / accused as stated in the foregoing paragraph.

Reasoning:
11. On careful perusal of the first charge, it is clear that the entire story of the prosecution has been tested by the trial Judge on the basis that Yadibai was wife of the appellant. (Emphasis supplied). However, it is not the case of the complainant or any other prosecution witness that Yadibai was wife of the appellant / accused. P.W. 2 Ramdas, who is complainant and brother of the deceased Yadibai, has stated in his evidence that the appellant / accused and Yadibai had left house of her husband and thereafter whereabouts were not known to the complainant and others who tried to search them. However, they were not found and ultimately, search of Yadibai and accused / appellant was stopped. On careful scrutiny of the entire evidence, it is seen that it has not come on record that deceased Yadibai was wife of the accused. Therefore, the relationship of the appellant / accused with deceased Yadibai as mentioned in first charge by the trial Court itself was without any basis. The evidence of P.W.2 Ramdas, complainant was recorded on 20th February, 2008. In his evidence, he has stated that Yadibai was his real sister. All his sisters including Yadibai are married and they are residing at their husbands houses. It is further stated that Yadibais married with Madhu Pawara took place prior to 17 years. She is having one son and one daughter. They are also residing at Wadi, which is place of residence of this witness. This witness has stated that he knows accused. He is brother of his maternal aunts husband. Istrya Sutarya Pawara is husband of his maternal aunt. He was also residing at Wadi. Lalsing was residing at the house of Istrya. However, Lalsing was not doing any work and therefore, Istrya ousted him. Therefore, Lalsing was residing with Yadibai. He resided there for 7 to 8 months and thereafter, Lalsing took away Yadibai. He took search but, they were not found. Six months prior to incident, husband of his sister Yadibai died. Dharsing son of Madhu went to Indore for residence. It has come in the evidence of this witness that on 20th June, 2007, at evening time, Ravindra came to him. Ravindra told him that Sanju stated him that he had seen Yadibai and Lalsing at Thalner S.T. Stand prior to 3 days. Ravindra has also stated to him that Sanju had stated to him that thereafter he had gone to the field of his work and there he saw Lalsing alone. On the next day they had gone to the field where Lalsing was doing labour work. Bhima Ganshya Pawara, Sumarsing Istrya Pawara, had gone ahead by a cycle. This witness and others had gone by walking. They made inquiry with Lalsing about Yadibai. Lalsing stated to them that he along with Yadibai had gone to market, thereafter Yadibai alone went to unknown place and he does not know the whereabouts of Yadibai. Son of the landowner assured them to call his father as Lalsing was not disclosing the address of Yadibai. After arrival of landowner, Lalsing disclosed that he had killed Yadibai and threw her dead body at the corner of nalah. Thereafter they went to police station, Thalner and lodged report there. Initially, they along with police had gone to the spot of incident. They found the dead body of deceased and the witness identified the same and lodged the complaint to the police station. In hisit is stated by this witness that Yadibai was residing with the accused however, he has not met Yadibai thereafter. It is specifically admitted by this witness that in their community women as well as gents consume liquor. (Emphasis supplied). It has been further stated that though it was stated to the police that Lalsing had disclosed to them that prior to 2 to 3 days he along with Yadibai had gone to the market and that the witness does not know why it is not mentioned by the police in the complaint. Police did not read over the contents of the complaint to him.12. On careful perusal of the evidence of this witness, certain things are necessary to be taken note of. This witness has never met Yadibai, after she started residing with the appellant. In his community, women as well as gents used to consume liquor. On 20th June, 2007, one Ravindra P.W.5 came to the complainant and on next day the complainant along with other persons went to Lalsing. Lalsing did not disclose whereabouts of Yadibai and, therefore,son of the landowner where deceased Yadibai and appellant were staying, assured the complainant that he will call his father and after arrival of landlord, Lalsing disclosed that he had killed Yadibai and thrown her dead body in Nallah and thereafter, this witness along with other persons went to the Police Station to lodge report and pursuant to confession, the dead body was found and was identified by the complainant.On careful perusal of the evidence of this witness, it is not in dispute that this witness along with other persons including some prosecution witnesses went to Lalsing to ask the whereabouts of Yadibai. It also emerges from the evidence of this witness that disclosure statement made by the accused is before the complainant, landlord and other persons and at the relevant time, the appellant / accused was not in the custody of the police. According to the complainant, after disclosure by the appellant about the whereabouts of Yadibai, they went to the Police Station to lodge report and thereafter, the dead body was recovered. This witness has admitted in histhat in his community, gents and women consume liquor.After taking into account the entire evidence brought on record by the prosecution, it emerges that the prosecution theory entirely depends upon three broad circumstances. It is not in dispute that whole prosecution story is based upon circumstantial evidence. There is no eye witness to the incident.Therefore, keeping in mind the aforesaid principles laid down by the Apex Court while dealing with the circumstantial evidence, we proceed to examine the case in hand. The prosecution has claimed that P.W.4 Sanju had seen the deceased Yadibai in the company of the accused Lalsing on 17th June, 2007 at S.T. Stand, Thalner. It is an admitted position that at the relevant time i.e. on the date of the incident, this witness was of 11 years age and when he deposed before the Court, his age was 12 years. On careful scrutiny of the evidence brought on record, we find that there is no corroboration to the evidence of this witness. Though the learned A.P.P. has tried to submit that the statement of P.W.4 Sanju that he had last seen the deceased Yadibai in the company of accused is corroborated by the evidence of P.Ws.2 and 5, in our opinion, these witnesses have deposed before the Court only on the basis of the narration of P.W.4 Sanju i.e. hearsay evidence. There is no any other witness who has stated that he had also seen the deceased Yadibai in the company of the accused Lalsing. The Honourable Supreme Court, time and again, has laid down that the evidence of the child witness should be carefully evaluated and should find corroboration before being relied upon. The Supreme Court has taken this view in case of State of U.P. Vs. Ashok Dixit and another, reported in (2000)3 SCC 70  . Yet in another reported judgment in the case of State of State of Rajasthan Vs. Om Prakash, reported in (2002) 5 SCC 745  , the Apex Court held that the testimony of the child witness needs to be carefully evaluated and must find adequate corroboration before it is relied upon. In case of Acharaparambath Pradeepan and another Vs State of Kerala, reported in (2006) 13 SCC 643  , the Apex Court held that the evidence of child witness needs corroboration. The corroboration is more a rule of practical wisdom than of law. Therefore, what follows from the authoritative pronouncements of the Honourable Supreme Court, while evaluating the evidence of child witness,great care has to be taken and corroboration to his evidence is rule of prudence than of law. On careful scrutiny of the evidence brought on record by the prosecution, in the instant case, it appears to us that there is no corroboration to the evidence of P.W.4 Sanju. Even if it is considered that the evidence of P.W.4 Sanju is reliable, still question remains about the time gap between last seen together and the registration of offence. It is an admitted position that the P.W.4 Sanju had seen the deceased Yadibai in the company of accused on 17th June, 2007 at S.T. Stand, Thalner and offence was registered on 21st June, 2007. Therefore, there is considerable time gap of four days in registering the F.I.R. On careful scrutiny of the prosecution evidence, it appears to us that the prosecution has not brought on record anything to show that during the interregnum period i.e. from 17th June, 2007 to 21st June, 2007 there was no other possibility by which Yadibai died. In other words, the prosecution has not placed anying on record to rule out the possibility of death of Yadibai by some other reason from 17th to 21st June, 2007 i.e. from the date on which P.W.4 Sanju saw the deceased last in the company of the accused till offence wascareful scrutiny of the evidence brought on record by the prosecution, we do not find that such evidence is brought on record by the prosecution to rule out the possibility of any other person meeting or approaching the deceased at the place of the incident or before commission of the crime, in the intervening period. The prosecution has also not demonstrated that the accused was in exclusive possession of the place where the incident occurred or where he was last seen together with the deceased and there was no possibility of any intrusion to that place by any third party. Therefore, in our opinion, it will be unsafe to rely on the evidence brought on record by the prosecution on the point of deceased being last seen in the company of the accused.23. The accused Lalsing in his statement recorded under Section 313 of Cr.P.C., has stated that Yadibai used to consume liquor and used to stay out of house for 8 to 10 days. P.W.6 Khatik, whose evidence is at Exh.29, in hishas stated that Yadibai used to stay outside house for 4 to 8 days. P.W.2 Ramdas complainant in his deposition before the Court has specifically stated that in their community, women folk are in habit of consuming liquor. Therefore, the statement of the accused in reply to question No.37 of his statement u/s 313 of Cr.P.C., finds corroboration from the evidence of P.W.2 Ramdas complainant on the point of consumption of liquor and further on the point of habit of Yadibai to stay outside the house for days together from the evidence of P.W.6. Even, according to the prosecution story, Yadibai was married with one Madhu Pawara 17 years prior to recording of the evidence of P.W.2 Ramdas before the Court. The appellant /accused was not husband of the deceased Yadibai. Therefore, the accused had no control over the activities of the deceased. It is also relevant to mention at this juncture that the medical officer in his evidence has stated that the body of the deceased was totally decomposed and scalp was missing. The doctor, in his evidence, has no where indicated that the death of the deceased had taken place prior to any particular days. In view of the discussion herein above, it cannot be said that the whereabout of the deceased Yadibai before her death was within the special knowledge of the appellant / accused.24. The second circumstance which is relied upon by the prosecution is the extra judicial confession given by the appellant / accused before P.W.2 Ramdas, P.W.5 Ravindra, P.W.6 Khatik, P.W.7 Yusuf and other persons. The main piece of evidence on which the prosecution has relied is the alleged extra judicial confession of the appellant / accused before these witnesses. At this juncture, it would be worthwhile to refer few judgments of the Apex Court on this point. In the case of State of Rajasthan vs. Kashi Ram, reported in (2006) 12 SCC 254  , wherein the Apex Court held that the extra judicial confessions is weak piece of evidence and must be proved like any other fact. Yet, in another judgment in case of Baldev Singh Vs. State of Punjab, reported in (2009) 6 SCC 564  , the Apex Court held that there should be corroboration to the evidence of extra judicial confession. In case of State of Andhra Pradesh Vs. Swarnalatha and others, reported in (2009) 8 SCC 383  , the Apex Court held that extra judicial confession, as is well known, is a weak piece of evidence. Yet, in another judgment in case of State of Andhra Pradesh Vs. E. Satyanarayana, reported in (2009) 14 SCC 400  , placing reliance on its earlier judgment in the case of Rao Shiv Bahadur Singh v. State of Vindhya Pradesh (AIR 1954 SC 322  ) and Maghar Singh v. State of Punjab (AIR 1975 SC 1320  ), the Apex Court held that if the Court believes the witness before whom confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. The Apex Court in the case of Madan Gopal Kakkad v. Naval Dubey ((1992) 3 scc 204  ) held that extra judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration.25. In the light of the afore mentioned authoritative pronouncements of the Honourable Apex Court, we proceed to examine the fact that extra judicial confession allegedly given by the accused before the complainant and other prosecution witnesses was voluntary or as a result of coercion. It has come in the evidence of P.W.5 Ravindra that the appellant / accused was reluctant to tell whereabouts of Yadibai (deceased). P.W.5 Ravindra went to P.W.2 Ramdas and told him about the fact that P.W.4 Sanju told him that the Yadibai deceased was last seen in the company of the appellant / accused on 17th June, 2007 at S.T. Bus stand, Thalner. Thereafter, P.Ws.2, 5 and other persons from Pawara community, who were 5 to 6 in number, went to the accused / appellant. According to these witnesses, initially the accused / appellant was reluctant to tell the whereabouts of Yadibai, therefore, they called the son of the land owner. It has also come in the evidence of prosecution witnesses i.e. in the evidence of P.W.6 Khatik that he sent his brother to his agricultural field and he informed P.W.6 that 6 to 7 persons were quarreling with accused (emphasis supplied). Therefore, P.W.6 went to his field. He saw that 6 to 7 persons were asking the accused to tell whereabouts of Yadibai and he was not disclosing about the same. Therefore, they called P.W.7 Yusuf uncle of P.W.6 to the field by giving message through mobile phone. According to P.W.6, his uncle P.W.7 arrived in the field by Maruti van. Therefore, it has come in the evidence of P.W.6 that his brother told him that 6 to 7 persons were quarreling with the accused. It appears that the brother of this witness has not been examined by the prosecution. Therefore, what is stated by P.W.6 in his evidence that he came to know from his brother that 6 to 7 persons were quarreling with the accused has remained intact. The P.W.5 Ravindra in his evidence has claimed that P.W.7 Yusuf did not come to the field on the call of P.W.6. According to this witness, in presence of P.W.5 and prosecution witnesses i.e. P.W.2, P.W.6, P.W.7 and others present along with P.W.5 in the agricultural land of respondent No.7, accused appellant on telephone informed to his landlord that he has killed Yadibai by inflicting blow with wooden log on stomach and head and threw her body in Hatkoi Nallah. This version of P.W.5 that accused informed P.W.7 on telephone and P.W.7 had not come to the agricultural field has been contradicted by other witnesses. The other prosecution witnesses have claimed that P.W.7 had come to the agricultural field on a call of P.W.6 and in his presence, the appellant had given extra judicial confession that he had killed Yadibai and threw her body at Hatkoi Nallah. Therefore, there are contradictions in the evidence of prosecution witnesses. The fact remains that 6 to 7 persons were quarreling with the accused. After perusal of the evidence of the prosecution witnesses and other evidence brought on record in the nature of medical evidence and the chemical analyzers report, it appears to us that the alleged extra judicial confession by accused before the P.Ws.2, 5, 6, 7 and other persons was a result of coercion or it was obtained by exerting pressure on the accused / appellant and, therefore, not reliable.26. If the prosecution story is taken as it is, that the deceased Yadibai was last seen in the company of the accused / appellant on 17th June, 2007, the medical evidence brought on record by the prosecution shows that the body was completely decomposed and scalp was missing. The medical officer has not opined about the probable period of death of the deceased.If the evidence of the Investigating Officer is taken into account, it clearly emerges that 6 to 7 persons including the complainant and other witnesses along with the accused went to Thalner Police Station and told the police personnel that the appellant / accused had confessed about the crime. On perusal of the evidence of the prosecution witnesses, it appears that two police constables, the appellant / accused and other 6 to 7 persons went to Hatkoi Nallah and they found the dead body as confessed by the appellant. It has come in the evidence of the Investigating Officer that after returning back from the Hatkoi Nallah i.e. after the dead body was found, complaint was lodged by P.W.2 Ramdas and the same was taken down by the I.O. Therefore, even as per the prosecution story, the first extra judicial confession statement was made before P.W.2 Ramdas and others and thereafter, these 6 to 7 persons went to the police station and other two police constables from the said police station accompanied them, they went to the Nallah, dead body was recovered, thereafter, the complainant came to the police station and complaint was lodged.The evidence of the Investigating Officer further discloses that the memorandum statement of the appellant / accused was recorded and in pursuant to his statement, one wooden log was recovered and also his clothes kept in iron box were handed over by the accused to the I.O. The evidence of I.O. that the clothes were kept in iron box and the appellant had taken out those clothes and handed over to the I.O., is falsified by P.W.3 i.e. panch witness to the said panchanama, who has not stated in the evidence that clothes were kept in iron box. The prosecution further claims that the wooden log was recovered at the instance of the appellant and he had confessed that by said wooden log he had assaulted Yadibai deceased on head. According to the prosecution, due to assault by the appellant / accused, Yadibai died. The evidence of Medical Officer shows that the injuries are ante mortem. During the course of examination in chief of the Medical Officer before the Court, wooden log was shown to him. The Medical Officer P.W.1 in his evidence stated, Injuries mentioned in Column No. 17 of P.M. Notes cannot be possible by the seized wooden log now shown to me. (Emphasis supplied).27. Therefore, the entire prosecution story which is really based upon extra judicial confession of the accused cannot be relied upon. As discussed herein above, the extra judicial confession of the appellant / accused before P.Ws.2, 5, 6, 7 and other twothree persons was a result of coercion and pressure and insistence by 6 to 7 persons to confess the guilt. Such extra judicial confession, which is obtained by coercion and quarrel, cannot form the basis of the conviction. The statement of P.W.1 Medical Officer before the Court that the injuries sustained by the deceased Yadibai were not possible by said wooden log recovered from the accused further falsifies the prosecution case. Therefore taking into consideration the entire evidence on record, it appears that the same suffers from infirmities and no reliance can be placed on such evidence. We also find contradiction in the statement of the witnesses. Therefore, taking overall view of the matter, in the facts and circumstances of this case, we are of the opinion that the benefit of doubt should go to the appellant / accused.