Bombay High Court
Savita Namdev Dethe vs The State Of Maharashtra on 25 June, 2014
Author: A.S. Gadkari
Bench: V.K. Tahilramani, A.S. Gadkari
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APEAL.714-2007.sxw
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 714 OF 2007
SAVITA NAMDEV DETHE
Age 22 years, Residing at
Dhondewadi, Tal. Pandharpur
District- Solapur. ..Appellant
(Origi.Accused No.1)
Vs.
THE STATE OF MAHARASHTRA ..Respondent
ig WITH
CRIMINAL APPEAL NO. 673 OF 2007
NAMDEV SADASHIV DETHE
Age 25 years, Residing at
Dhondewadi, Tal. Pandharpur
District- Solapur. ..Appellant
(Origi.Accused No.2)
Vs.
THE STATE OF MAHARASHTRA ..Respondent
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Mr. Vijay Hiremath, Advocate for Appellant in Cri. Appeal
No.714/2007.
Mr. Ganesh Gole, Advocate for Appellant in Cri. Appeal
No.673/2007.
Smt. V.R. Bhonsale, A.P.P. for the Respondent-State.
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CORAM: SMT. V.K. TAHILRAMANI &
A.S. GADKARI, JJ.
Judgment Reserved : On 10 June 2014
Judgment Pronounced On: 25 June 2014
JUDGMENT (Per A.S. GADKARI, J.):
1 The appellants are the original accused nos.1 and 2 respectively. The learned Sessions Judge, Pandharpur by its impugned judgment and order dated 19th May 2007 in Sessions Case No.101 of 2006 convicted the appellants under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life and to pay fine of Rs.1000/-
each, in default of the same to suffer RI for one month. The appellants have been further convicted under Section 201 read with Section 34 of the Indian Penal Code and are sentenced to undergo RI for 3 years and to pay fine of Rs.500/-, in default of the same to suffer RI for one month. The learned Trial Court has directed that both sentences to run concurrently. The appellants have questioned the correctness of their conviction by the present appeal.
::: Downloaded on - 26/06/2014 23:51:18 ::: 3APEAL.714-2007.sxw 2 The appellants were original accused nos.1 and 2 before the leaned Trial Court and therefore they are described hereinafter as accused nos.1 and 2 respectively for the sake brevity and clarity in the matter.
3 The facts which can be enumerated from the record, may briefly be stated thus:
(i) The accused no.2 was married to Vijaya, seven to eight years prior to the incident. As Vijaya did not conceive, accused no.2 stealthy married with the accused no.1, and out of the said wedlock of accused nos.1 and 2 two children i.e. one son and one daughter have begotten. It further appears from the record that subsequent to the birth of the children from accused nos.1 and 2, Vijaya i.e. the first wife of accused no.2 conceived. However, as the accused nos.1 and 2 were against the conceivement of Vijaya as her progeny would claim interest/share in the property of the accused no.2.
(ii) PW-9 Bapu Laxman Bhosale is the brother of the deceased Vijaya. PW-9 Bapu Laxman Bhosale was at Shende Chinch on 1.7.2006 when Dattu Sadashiv Dethe, the brother of accused no.2 ::: Downloaded on - 26/06/2014 23:51:18 ::: 4 APEAL.714-2007.sxw came there and he informed PW-9 Bapu that Vijaya had left the house of accused no.2 early in the morning. Thereafter, PW-9 Bapu tried to search Vijaya at Dhondewadi, but she could not be traced and therefore he went to the police station and lodged missing report. The said missing report is at Exhibit 36. The record further discloses that contemporaneously the accused no.2 had also filed a written application with the police thereby stating that Vijaya was missing prior to one day and was not traceable. The said application was scribed by PW-4 Mohan Tukaram Dongare a friend of accused no.2 and is at Exhibit 27 as per the record.
(iii) PW-10 Somnath Krishna Hegadkar was then attached to Pandharpur Taluka Police station. On 1.7.2006, PW-9 Bapu came to the police station and gave a missing report of his sister Vijaya Namdev Dethe. PW-10 Somnath recorded the said report as per the narration of PW-9 Bapu Bhosale. A missing complaint no.21 of 2006 was registered. The said missing complaint no.21 of 2006 is at Exhibit 36. In pursuance of the missing complaint, PW-10 Somnath Hegadkar conducted enquiry and recorded statements of the accused no.1 Savita and others on 2.7.2006. He subsequently gave charge of ::: Downloaded on - 26/06/2014 23:51:18 ::: 5 APEAL.714-2007.sxw the said enquiry to Police Head Constable Shri Haridas Yashwant Wagaj.
(iv) PW-11 Shri Haridas Wagaj was then attached to Pandharpur Taluka Police Station. As PW-10 went for training, the enquiry of missing complaint no.21 of 2006 was entrusted to PW-11.
PW-11 perused the missing report and statements of witnesses. On 10.7.2006, he again made enquiry with the appellants and on the basis of the eniqury made with the appellants he lodged the first information report on 10.7.2006, which is at Exhibit 43. On the basis of the said first information report, CR No.141 of 2006 under Section 302 and 201 read with Section 34 of the Indian Penal Code came to be registered. Further investigation was handed over to A.P.I. Shri Karam.
(v) The record further discloses that during the course of investigation of CR no.141 of 2006 registered at Pandharpur Talukar Police Station, the accused no.1 pointed out the water tank where the dead body of Vijaya was thrown by the appellants i.e. accused persons. The accused no.2 Namdev pointed out the place wherein he had concealed a battery torch. The said battery-torch was recovered ::: Downloaded on - 26/06/2014 23:51:18 ::: 6 APEAL.714-2007.sxw at the instance of accused no.2. After receipt of the necessary documents from various agencies, investigating agency completed the investigation and submitted a chargesheet before the Judicial Magistrate First Class, Pandharpur, which was registered as RCC No.278 of 2006.
(vi) As the offence under Section 302 of the Indian Penal Code was exclusively triable by the Court of Sessions, learned Judicial Magistrate First Class, Pandharpur committed the said case to the Court of Sessions at Pandharpur for trial as per the provisions of law.
After committal of the said case, it was registered as Sessions Case No.101 of 2006. The charge was framed below Exhibit-4 under Sections 302 and 201 read with Section 34 of the Indian Penal Code against both the appellants. The said charge was read over to the appellants to which they pleaded not guilty and claimed to be tried.
The prosecution in support of its case examined in all 14 witnesses.
The Trial Court after recording the evidence and after hearing the parties thereto, convicted the appellants by its judgment and order dated 19.5.2007 as stated hereinabove.
4 Heard Shri Vijay Hiremath, the learned Counsel appearing ::: Downloaded on - 26/06/2014 23:51:18 ::: 7 APEAL.714-2007.sxw for the accused no.1 Savita, Shri Ganesh Gole, the learned Counsel appearing for accused no.2 Namdev and Smt. Bhonsale, the learned APP.
5 The learned Counsel appearing for the appellants submitted that there is no legally admissible evidence at all against the appellants which has been put forth by the prosecution and the evidence adduced by the prosecution is not sufficient to sustain the conviction of the appellants under the Sections for which they are charged. The learned Counsel for the appellants submitted that in view of the absence of legal evidence, the conviction of the appellants may be quashed and set aside. Per contra, the learned APP supported the impugned judgment and order passed by the Trial Court and prayed that the present appeal may be dismissed thereby upholding the conviction and sentence of the appellants.
6 With a view to deal with the submissions advanced before us by Shri Hiremath and Shri Gole the learned Counsels for the respective appellants and Smt. Bhonsale, the learned APP, it would be useful to evaluate in brief the evidence of the prosecution witnesses.
::: Downloaded on - 26/06/2014 23:51:18 ::: 8APEAL.714-2007.sxw 7 PW-1 Hemant Tatya Chavan is a panch-witness and had acted as a panch to the inquest panchanama of the dead body of Vijaya. He has stated in his testimony that the deay body was taken out from the well and panchanama of the inquest was drawn by the police after Shri Bapu Laxman Bhosale, PW-9 identified the said dead body as that of his sister's This witness has stated that Bapu Bhosale identified the dead body from the ornaments on the person of the dead body. This witness has proved the inquest panchanama which is at Exhibit 19.
The appellants have cross-examined this witness at length.
However, no omission and or any other material which is useful to the appellants/accused persons is elicited at his instance.
8 PW-2 Kalyan Rajaram Bhosale is the panch to the seizure of the articles produced by the brother of accused no.2. The brother of accused no.2 had produced certain documents such as 7/12 extracts, two bank pass-books, photo of marriage etc. and police seized these documents by effecting a panchanama which is at Exhibit 22 and the said articles came to be seized in the presence of pancha. The evidence of this witness is formal in nature.
::: Downloaded on - 26/06/2014 23:51:18 ::: 9APEAL.714-2007.sxw 9 PW-3 Balu Agatrao Dethe is the panch-witness for recovery of the battery-torch at the instance of the accused no.2. This witness has stated that on 13.7.2006 this witness was called by the police from Pandharpur Taluka Police station when the accused no.2 was in the police station. The accused no.2 made statement that he will produce battery torch which was used in the incident, hidden by him in the shrub in his field near the percolation tank. Accordingly memorandum statement came to be recorded which is at Exhibit 24.
Thereafter, the accused no.2 led the police to the spot and at the instance of accused no.2 the battery-torch was seized by the police from the said place. The panchanama of seizure of the battery-torch which is at Exhibit 25 has also been proved by this witness. This witness has also identified the battery-torch i.e. article no.10 as per record.
The appellants have cross-examined this witness at length and in his cross-examination this witness has admitted that he was not read over the contents of the memorandum statement and panchanama by the police before he signed on the same. He has further admitted that he did not know about the contents of the ::: Downloaded on - 26/06/2014 23:51:18 ::: 10 APEAL.714-2007.sxw same. He has further admitted in his cross-examination that he is resident of Dhondewadi and there are many motor-pumps which are fixed near the percolation tank. He has further admitted that women came at the percolation tank for washing the clothes. He has further admitted that there is rush of persons for watering cattles. He has also admitted that there are houses of Sadashiv Waghandare, Mahadev Waghandare, Parubai Kadam and Vishnu Dethe near the percolation tank.
10 PW-4 Mohan Tukaram Dongare is the neighbour of the accused no.2 who scribed the application at Exhibit 2, which is a missing report as per the say of the accused no.2. In the said application, it was written that Vijaya was missing for more than one day from the house prior to filing of the said application. This witness has further stated in his testimony that the application was written at the instance of accused no.2 and the accused no.2 has signed on the said application.
This witness was cross-examined by the appellants at length. However, no material which is useful to the appellants have been elicited from his cross-examination.
::: Downloaded on - 26/06/2014 23:51:19 ::: 11APEAL.714-2007.sxw 11 PW-5 Mahesh Dhondiba Karande is a jeweller by profession and was running his business as a jeweller for more than 8 to 9 years by name "Sangmeshwar Jewellers, Bhalavani. He has stated in his testimony that the wife of Sadashiv Dethe i.e. the mother of accused no.2 used to come to his shop. He has further stated that 2 to 4 years ago the wife of Sadashiv Dethe i.e. the mother of accused no.2 purchased ear-tops from his shop. This witness has further stated that there is marking 'N' or 'P' on the ornaments sold through his shop. This witness has identified the ear-
tops shown to him, marked as article no.2 which were found on the dead body of Vijaya.
In the cross-examination, this witness has admitted that the ear-tops article no.2 produced before the Court are available in the market. He has further admitted that there is no marking as of 'N or P' on the said ear-tops.
12 PW-6 Tukaram Nagane is the panch-witness to the seizure of the clothes of the deceased Vijaya. It appears from the record that the evidence of this witness is formal in nature.
13 PW-7 Dattu Sadashiv Dethe is the brother of the accused.
::: Downloaded on - 26/06/2014 23:51:19 ::: 12APEAL.714-2007.sxw In his examination-in-chief, he has stated that the accused no.2 performed marriage with deceased Vijaya 8 to 9 years back. He has further stated that Vijaya did not have any issue. He has stated that Vijaya was pregnant at the time of death. He has further stated that the accused no.2 had informed him that he had performed marriage with accused no.1-Savita. He has further stated that out of the wedlock of the accused nos.1 and 2, two children i.e. one boy and one girl were begotten. He has further admitted that the accused no.2 resides in his neigbourhood. He has stated that accused no.1 and Vijaya used to quarrel amongst themselves. He has further stated that, the alleged incident took place 7 to 8 months back. He further stated that, on that particular day when he was sleeping at his house, accused no.1 awaken him on dawn and informed him that Vijaya was missing and asked him to search. At that time he took search of Vijaya. However, he could not found her. That he thereafter went to Shende Chinch the village where the parents and brother of Vijaya were residing. He has further stated that, he informed PW-9 Bapu Bhosale about missing of Vijaya. That Bapu Bhosale informed this fact to the police station. He has further stated that after lodging of ::: Downloaded on - 26/06/2014 23:51:19 ::: 13 APEAL.714-2007.sxw the complaint by PW-9 Bapu Bhosale, Police had called him to the police station. At that time accused no.1 was at police station. He has stated that accused no.1 told to the police that the dead body of was in the well. This witness has also stated that his filed and the field of accused no.2 are near the water tank and there is well for irrigation of their fields. He has stated that the dead body was taken out by the police. He has further stated that the dead body of Vijaya was found after a period of 10 to 12 days from the day of her missing.
This witness was subsequently declared hostile as he did not support the prosecution case and was thereafter cross-examined by the A.P.P. However, no material was elicited from his cross-
examination. This witness has admitted in the cross-examination that the dead body of Vijaya was in such condition that it could not be identified.
14 PW-8 Madhukar Madhav Bhosale is the tailor by profession. This witness has stated that he does his work of tailoring at Shede Chinch. This witness has stated in his testimony that Laxman i.e. the father of Vijaya is his brother. That Vijaya married with accused no.2- Namdev about 7 to 8 years back and Vijaya was ::: Downloaded on - 26/06/2014 23:51:19 ::: 14 APEAL.714-2007.sxw issuless. He has further stated that accuse no.2 therefore married with accused no.1 Savita 4 years ago. That Vijaya was staying with accused no.2. This witness has stated that Vijaya used to get stitched her clothes namely her blouse from him. He has further stated that for about 10 days Vijaya was not found and after 10 th day PW-9 Bapu Bhosle had been to police station. He has stated that Bapu Bhosale told that accused persons had admitted that they killed Vijaya. He has further stated that after funeral he went to the police station and police asked him about blouse of deceased Vijaya. This witness has stated that he identified the blouse of deceased Vijaya which was stitched by him. He identified the blouse with white buttons. He has further stated that deceased Vijaya was pregnant at the time of incident and it was a second occasion. He has further stated that the accused persons were insisting Vijaya for abortion.
In the cross-examination, this witness has admitted that 40 ladies got their blouse stitched from him. He has further admitted that there was no other marks to identify the said blouse, that he had only stitched it.
Thus it is clear from the record that this witness has been ::: Downloaded on - 26/06/2014 23:51:19 ::: 15 APEAL.714-2007.sxw examined by the prosecution with a view to establish the identity of the deceased Vijaya from the clothes i.e. blouse which was on her person when her dead body was taken out from water tank at the instance of accused no.1-Savita Dethe.
15 PW-9 Bapu Laxman Bhosale is the real brother of deceased Vijaya. This witness in his testimony has stated that Vijay was married with accused no.2- Namdev Dethe 7 to 8 years back at Dhondewadi. He has stated that Vijaya went to the house of accused no.2 for cohabitation. This witness has further stated that deceased Vijaya was simpleton. That Vijaya did not conceive a child from accused no.2. He has further stated that accused no.2 thereafter performed marriage with accused no.1-Savita about 4 years back.
That the said marriage was concealed marriage. He has further stated that accused no.1 had one son and one daughter from and out of the said wedlock. He has stated that Vijaya was conceived thereafter. He has further stated that the accused persons used to give Vijaya pills for abortion. That deceased Vijaya used to tell about the harassment and attempt of accused persons to abort her child.
That deceased Vijaya was suffering from headache and at that time ::: Downloaded on - 26/06/2014 23:51:19 ::: 16 APEAL.714-2007.sxw accused gave her pills to abort. That there was abortion. He has stated that there was also conceivement on the second occasion and the appellants were harassing Vijaya for abortion. This witness has further stated that on 1.7.2006 Dattu Dethe, brother of accused no.2- Namdev, came to him and told that deceased Vijaya left the house early in the morning. That he thereafter searched deceased Vijaya at Dhondewadi, but she was not found. He then went to the police station and lodged missing report. The said missing report is at Exhibit 36. He has further stated that he suspected that accused persons might have killed the deceased Vijaya. He has further stated that he inquired with the accused persons about the deceased Vijaya when they informed him that Vijaya might have fled away with some other person. That for 8 to 9 days he searched Vijaya. He has further stated that on 10th day he came to know regarding accused persons have been taken to Pandharpur police station by the police.
Therefore he also went to the police station. He has further stated that police were interrogating the accused persons and at that time he was sitting on the bench in the police station. He has further stated that police arrested accused persons and therefore he ::: Downloaded on - 26/06/2014 23:51:19 ::: 17 APEAL.714-2007.sxw telephoned at Shende Chinch informing the persons there that accused had killed Vijaya. He has stated that he thereafter called relatives at Dhondewadi. That he followed the police at Dhondewadi. He has stated that in his presence the accused told that the dead body of Vijaya was thrown in the well and accused persons pointed out the said well. That police with the help of wire and rope took out the dead body from the well. That said dead body was in the plastic bag, and hands and legs were tied with rope and one stone was in the plastic bag. He has further stated that after opening the plastic bag, dead body was taken out. That he identified the dead body as of Vijaya. That he had identified the dead body of Vijaya on the basis of blouse of blue colour, peticoat of chocolate colour, toe-
rings, mangalsutra and ear-rings. He has further stated that the dead body was decomposed.
This witness was cross-examined at length by the appellants and various omissions have been elicited from the said cross-examination. He has further admitted that there was no permanent mark on the body of deceased Vijaya. He has further admitted that he himself, his parents nor the deceased Vijaya ever ::: Downloaded on - 26/06/2014 23:51:19 ::: 18 APEAL.714-2007.sxw lodged any complaint for the alleged second marriage of accused no.2 with accused no.1. As this witness has admitted in the cross-
examination that deceased Vijaya was simpleton person, a suggestion was put to him that as the deceased was lunatic person and she was taking medical treatment for the same.
16 PW-10 Somnath Krishna Hegadkar, Head Constable, was then attached to Pandharpur Taluka police station. He has stated in his testimony that on 1.7.2006 he was police station officer from 8 p.m. to 8 a.m. on next day. That PW-9 Bapu Bhosale came to the police station and gave report of missing of Vijaya Nmdev Dethe. The said report was taken as per his narration and as per the said report, missing complaint no.21 of 2006 was registered. The said missing complaint is at Exhibit 36. The same has been identified by this witness. He has further stated that he had conducted enquiry in the said missing complaint and recorded statements of accused no.1 Savita and others on 2.7.2006. He has further stated that as he was required to go for training, the charge of the said missing complaint was given to Police Head Constable Shri Wagaj.
The appellants have not cross-examined this witness.
::: Downloaded on - 26/06/2014 23:51:19 ::: 19APEAL.714-2007.sxw 17 PW-11 Shri Haridas Yashwant Wagaj is the Police Head Constable attached to Pandharpur Taluka Police station. This witness has stated in his testimony that he had enquired into the missing complaint no.21 of 2006 after the same was transferred to him. He has stated that he perused the said missing report and the statements of witnesses. That on 10.7.2006, he again enquired with accused nos.1 and 2 and on the basis of the enquiry made with accused persons he lodged the report on 10.7.2006. The said report is the first information report which is at Exhibit 43. He has further stated that the said report was recorded by A.P.I. Shri Kadam. That on the basis of the said report, C.R. no.141 of 2006 under Section 302 and 201 read with Section 34 of the Indian Penal Code came to be registered by A.P.I. Shri Kadam.
In the cross-examination, this witness has admitted that he took the statements of accused persons in the enqiry. He has further admitted that he recorded statements of accused nos.1 and 2 in the enquiry on 10.7.2006 and the said statements are at Exhibit 44 and
45. 18 It may be noted here that Exhibit 44 is the statement dated ::: Downloaded on - 26/06/2014 23:51:19 ::: 20 APEAL.714-2007.sxw 10.7.2006 of accused no.1 Savita and Exhibit-45 is the statement dated 10.7.2006 of accused no.2-Namdev. In their statements, these two accused persons have admitted about their guilt, that is to say they have stated that with a view to eliminate Vijaya they committed her murder and threw her body in the well in the percolation tank and subsequently with a view to destroy the evidence, after body of Vijaya came up on the surface of well, they put it in the gunny bag and by tying stone to it they threw it in the well. It is however to be noted that on the basis of this confession of accused persons which was made to the police officer in the police station, the first information report at Exhibit 43 came to be recorded at the instance of PW-11 Shri Haridas Wagaj. Mr. Gole, learned Counsel for the appellant no.2 has therefore assailed the contents of the first information report on the ground that the F.I.R., at Exhibit 43, suffers from the vice of Section 25 of the Evidence Act as the said F.I.R.
came to be reported by PW-11 Shri Wagaj who after extracting the confession from accused persons in the police station has reported the said F.I.R. with the same police station. Therefore the said FIR is hit by the provisions of the Evidence Act. At this stage we opine that ::: Downloaded on - 26/06/2014 23:51:19 ::: 21 APEAL.714-2007.sxw there is substance in the contention of Shri Gole and portion wherein there is a reference of admission of guilt of accused persons has been reflected in the F.I.R., the said portion cannot be read into evidence or FIR itself as it is hit by Section 25 of the Evidence Act.
19 PW-12 Mahiboob Husen Nadar is the panch-witness to the memorandum panchanama at the instance of accused no.1 Savita wherein accused no.1 pointed out the well in which the dead body of deceased Vijaya was thrown by the accused persons with a view to destroy the evidence. This witness has p roved the exhibit 47 which is memorandum statement of accused no.1 Savita and Exhibit 48 the panchanama dated 10.7.2006. Thus this witness has been examined by the prosecution with a view to establish the fact that accused no.1 Savita pointed out the well wherein the dead body of Vijaya was thrown by accused persons with a view to destroy the evidence.
20 PW-13 Audumbar Deshpande is the Police Constable attached to the Pandharpur Taluka Police station. This witness took the dead body of Vijaya for conducting postmortem to the Medical Officer and he is also the carrier of viscera of the deceased to the Chemical Analyzer at Pune. The evidence of this witness is formal in ::: Downloaded on - 26/06/2014 23:51:19 ::: 22 APEAL.714-2007.sxw nature.
21 PW-14 is Dr. Jivan Waydande, in his testimony he has stated that he was attached to Pandharpur Cottage Hospital as a Medical Officer since January 2005. He has further stated that he conducted autopsy on 11.7.2006 on the dead body of Vijaya Namdev Dethe. On external examination, he noticed that:
1) Body was swollen and decompose.
2) Eyes were protruded, tongue swollen and portended.
She had C.L.W. on punctured wound over right frontal partial 3 x3 c.m by 2 c.m. bone skin were both mastoids eaten by water creatures.
3) Both calves were eaten by water creatures.
4) Both lower links were tied together below the cast
region with binding wire with stone approximate 20 kg.
On internal examination, he noticed that:
1) Crack fracture right frontal bone brain washed liquefied. Both lung swollen flebby due to decomposition Heart were flashy.
2) Uterus approximately 20 weeks size with foetus of approximately 20 weeks.::: Downloaded on - 26/06/2014 23:51:19 ::: 23
APEAL.714-2007.sxw After conducting the postmortem examination, Dr. Waydande came to the conclusion that probable cause of death was due to drowning. He further opined that the dead body of victim Vijaya was immersed in the water 10 days before the date of examination. He further opined that injury no.1 was ante-mortem and the said injury was possible when the person comes into contact with the surface of wall.
In the cross-examination, a suggestion was put to this witness that the death of Vijaya might have taken before 10 days of postmortem, which was turned down by this witness. It appears to us that no fruitful material has been elicited at the instance of this witness by the appellants in the cross-examination.
22 Thus after taking into consideration the evidence adduced by the prosecution, it appears to us that the prosecution has put forth in all four circumstances for proving the guilt of the appellants/accused persons, which are as under:
(I) The accused nos.1 and 2 gave confessional statements below exhibit 44 and exhibit 45 to PW-11 Police Head Constable Shri Wagaj in the enqiry of missing report no.21 of 2006 lodged by PW-9 Bapu ::: Downloaded on - 26/06/2014 23:51:19 ::: 24 APEAL.714-2007.sxw Bhosale, wherein the accused persons confessed that they committed murder of Vijaya and threw her dead body in the well at the percolation tank.
(II) Accused No.1 Savita pointed out the percolation tank/well where the dead body of Vijaya was thrown by the appellants and the recovery of the dead body from the tank/well at the instance of accused no.1 Savita.
(III) At the instance of accused no.2 Namdev a battery-torch was recovered after effecting the panchanama below exhibit 24.
(IV) Motive for committing a murder of Vijaya.
Thus, it is clear that the prosecution case is based only on the circumstantial evidence.
23 It is the settled position of law that in a case of circumstantial evidence the circumstances on which the prosecution relies must be consistent with the sole hypothesis of the guilt of the accused. In case of resting on circumstantial evidence, it is incumbent for the prosecution to prove each and every circumstance on which it proposes to rely. The circumstances so proved should be of conclusive nature i.e. they should have a definite tendency of ::: Downloaded on - 26/06/2014 23:51:19 ::: 25 APEAL.714-2007.sxw implicating the accused. The circumstances so established should form a complete chain which should exclude every hypothesis of the innocence of the accused and unquestionably point towards the guilt of the accused. In other words the circumstances should be conclusive i.e. accused and the accused alone has committed the crime.
24 After taking into consideration all the evidence of the prosecution witnesses, the cumulative effect of the circumstances which are put forth by the prosecution for establishing the guilt of the appellants should not be beyond the shadow of doubt. That the test requires the exclusion of other alternative hypothesis that the appellants only are responsible for the commission of the said crime, cannot be said from the evidence on record, that it complies with the test of proof beyond reasonable doubt.
25 As stated herein above, the present case is based on circumstantial evidence and the prosecution has relied on four circumstances which have been formulated above as circumstance nos.1 to 4. We hereinafter propose to analyze the evidential value of the circumstances put forth by the prosecution for basing conviction ::: Downloaded on - 26/06/2014 23:51:19 ::: 26 APEAL.714-2007.sxw of the appellants for charges levelled against them.
26 Mr. Gole, learned Counsel for accused no.2-Namdev Dethe has submitted that the circumstance-1 above is clearly hit by Section 25 of the Indian Evidence Act. Exhibit 44 at page 107 is the statement of accused no.1 Savita and Exhibit 45 at page 111 is the statement of accused no.1 Namdev, which are recorded by PW-11 Shri Wagaj in the police station during the course of enquiry of missing complaint no.21 of 2006, wherein a confession has been given by the appellants to PW-11 Shri Wagaj about commission of their offence and destruction of evidence. On the basis of these two statements which are Exhibits 44 and 45, PW-11 Shri Wagaj lodged FIR on 10.7.2006 with the same police station. Even in the said first information report, the confession given by the appellants have been narrated in detailed. After reading Exhibits 44,45 and 43 respectively we are of the considered opinion that the said statements are undoubtedly hit by Section 25 of the Indian Evidence Act and the same cannot be read into evidence at all and conviction of the appellants cannot at all be based on the same.
::: Downloaded on - 26/06/2014 23:51:19 ::: 27APEAL.714-2007.sxw 27 The Circumstance-2 as stated above which has been put forth by the prosecution i.e. pointing out the percolation tank/well by the accused no.1 Savita where the dead body of deceased Vijaya was thrown with a view to destruct the evidence which was recovered from the said well at the instance of Savita is concerned, it was submitted by Shri Hiremath, learned Counsel for accused no.1 Savita that police were already aware of the said fact that the dead body of Vijaya was in the said tank/well. At this stage, we may note here that even before the first information report which is at exhibit 43 is lodged by PW-11 Shri Wagaj, PW-11 had jotted down exhibits 44 and 45 i.e. confessional statements of accused Savita and Namdev the accused nos.1 and 2 respectively about their involvement in commission of offence and the place where the dead body of Vijaya was thrown, therefore the subsequent recovery at the instance of accused no.1 Savita is of no consequence. It is to be noted here that in the enquiry of missing complaint no.21 of 2006, PW-11 had first recorded confessional statements of the appellants which are Exhibits 44 and 45 on 10.7.2006 and thereafter he lodged the first information report on the same day at about 1 p.m. The said first ::: Downloaded on - 26/06/2014 23:51:19 ::: 28 APEAL.714-2007.sxw information report is at Exhibit 43. The memorandum panchanama at the instance of accused no.1 Savita which is at Exhibit 47 is effected in the presence of PW-12 Mahiboob Nadar which was started at 2 p.m. and completed at 2.30 p.m. Thereafter, in pursuance of discovery panchanama which is at Exhibit 48 accused no.1 Savita alleged to have pointed out the place i.e. tank/well from where the dead body of Vijaya was traced out. Dead body of Vijaya was put in gunny bag and was tied to a stone with a view to make it drown at the bottom of the said tank. The said discovery panchanama which is at Exhibit 48 shows that the process of pointing out the place at the instance of Savita as per Exhibit 48 starts at 2.37 p.m and came to an end at 4.00 p.m. It is worth to note here that as stated herein above, police were already aware about the place where the dead body of Vijaya was concealed and hence this circumstance loses its legal sanctity for basing conviction of the appellants. It is pertinent to note here that PW-9 Bapu Bhosale i.e. brother of deceased Vijaya in his examination-in-chief has stated that he was aware that Vijaya was killed by the accused persons when he had been to the police station on 10.7.2006. Therefore, the evidence ::: Downloaded on - 26/06/2014 23:51:19 ::: 29 APEAL.714-2007.sxw led by the prosecution creates strong suspicion in our mind about the trustworthiness of this circumstance and as stated earlier this circumstance loses its legal sanctity as the spot i.e. tank/well where the dead body of Vijaya was dumped by accused persons was already known to the police even before discovery panchanama exhibit 48 could have been drawn.
28 As far as the circumstance-3 is concerned, it pertains to recovery of a battery-torch at the instance of accused no.2 Namdev after effecting recovery panchanama which is at Exhibit 24. The prosecution has utterly failed to prove the significance of the battery-
torch in the commission of the present crime and this circumstance which leads to the discovery of the battery-torch is of no use to the prosecution. This circumstance itself is not sufficient to lead to any conclusion that the said battery-torch was ever used by the appellants in the commission of the present crime.
29 As far circumstance-4 i.e. motive as put forth by the prosecution is concerned, it is the settled position of law that the motive, however, strong it may be cannot be the sole basis of conviction. In the present case it has been stated by PW-9 Bapu ::: Downloaded on - 26/06/2014 23:51:19 ::: 30 APEAL.714-2007.sxw Bhosale that as the deceased Vijaya did not conceive even after about 7 years after the marriage with accused no.2, accused no.2 performed marriage with accused no.1 Savita and from and out of the said wedlock two children have been begotten. That thereafter Vijaya conceived from accused no.2 and it was the apprehension of the accused persons that the progeny of Vijaya may claim share in the property of accused no.2 and therefore the appellants/accused persons killed Vijaya. PW-9 Bapu Bhosale in his evidence has only raised suspicion against the appellants by stating that this might be the motive for killing Vijaya by accused persons. It is the settled position of law that suspicion, however, strong it may be in itself is not sufficient to base the conviction. It is also the settled position of law that mere motive, however strong it may be, is insufficient to base the conviction of the accused persons and particularly in the absence of any other corroborative evidence to support the same.
30 Thus, in our considered opinion, the evidence led by the prosecution is fully shrouded with legal infirmities and the same cannot be relied upon for sustaining the conviction of the appellants.
The chain of circumstance put forth by the prosecution, in our ::: Downloaded on - 26/06/2014 23:51:19 ::: 31 APEAL.714-2007.sxw opinion, is not only incomplete but would not lead us to draw irresistible inference that the appellants only had committed the present crime. We therefore extend the benefit of doubt in favour of the appellants.
31 Hence, the following Order:
(i) The Criminal Appeals are allowed and the impugned judgment and order dated 19.5.2007 passed by the Sessions Judge, Pandharpur in SC No. 101 of 2006 is hereby quashed and set aside.
The conviction and sentence of the appellants is quashed and set aside and the appellants are acquitted of the offence with which they were charged and convicted.
(ii) Fine, if any paid, by the appellants be refunded to them immediately.
(iii) Since the appellants are in jail, they be released forthwith, if not required in any other case.
(A.S. GADKARI, J.) (SMT. V.K. TAHILRAMANI, J.) ::: Downloaded on - 26/06/2014 23:51:19 :::