Criminal Appeal No.376 of 1997

31st March, 2011

Petitioner Counsel: Mr. R. P. JOSHI
Respondent Counsel: Mr. R. S. NAYAK

JUDGMENT

A. H. JOSHI, J.:- Appellant herein was tried for commission of offence punishable under Sections 376, 302 and 201 of Indian Penal Code, and Section 3(2)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, for :-

[a] Committing rape on Sau. Meera wife of Ganesh Gujram on 6th February, 1993 between 12-00 noon and 2-00 p.m., at Gawarkheda Forest Shiwar;

[b] Intentionally or knowingly causing her death;

[c] Hiding her dead body in shrubs on Saldhara Kaccha road with a view to cause disappearance of evidence; and,

[d] Committing above offence on the victim, who was a member of Scheduled Tribe.

2. Prosecution has examined following witnesses :-

1.	PW 4	-	Ganesh Champatrao Gujaram	:	Husband of deceased Meera, who has filed FIR.
2.	PW 1	-	Mandabai Ambadas Khedkar	:	Eye-witnesses proving the circumstance of ‘last seen the accused in company of deceased’ from where corpse of deceased was recovered.
3.	PW 7	-	Shamibai Bhimrao Gujaram	:
4.	PW 9	-	Fulabai Champatrao Gujaram	:	Mother-in-law of deceased Meera to prove that she along with deceased left the house to collect firewood and gum.
5.	PW 5	-	Dr. Shaila Tukaram Maidamwar.	:	Medical witness who has conducted post-mortem examination of deceased Meera.
6.	PW 6	-	Dr. Avinash S. Lawhale.	:	Medical witness who has examined the accused as to injuries on his person.
7.	PW 8	-	Deorao Ramaji Burghate.	:	Panch witness.
8.	PW 12	-	Ganesh Laxmanrao Tayade.	:	Investigating Officer.
9	PW 10	-	Ajab Suryabhan Dhabekar.	:	Witness to prove the fact of storing of tools by the accused.
.10.	PW 11	-	Akhajya Kashinath Dabekar.	:	Witness who met PW 1- Manda and PW 2 - Shamibai on way to forest from home, and as told by these witnesses, found dead body.

3. Panchanamas, Inquest and Spot, are proved by PW 3 - Sheshrao Kisanrao Bhoyar, and PW 8 - Deorao Ramaji Burghate.

4. PW 10 - Ajab Dhabekar PW 11 - Akhajya Kashinath Dabekar do not throw any light, whatsoever, on the incident.

5. The injuries on the person of accused are proved by PW 6 - Dr. Avinash Lawhale.

6. Status and description of dead body, and details of Post-mortem Examination are proved by PW 5 - Dr. Shaila Maidamwar.

7. Entire case rests on testimonies of PW 2 - Mandabai, PW 4 - Ganesh Gujaram, husband of deceased Meerabai, and PW 7 - Shamibai Gujaram.

8. Considering the evidence on record, the learned Sessions Judge arrived at a conclusion that :-

[a] The evidence of PW 1 - Mandabai Khedkar and PW 7 - Shamibai proves the fact that they saw the accused person at the time of death of Meera and placing her corpse by the side of the road.

[b] Though defence has made an attempt to suggest that a further investigation during pendency of charge-sheet against present accused was conducted by Police Sub-Inspector - Shri. B. J. Hanpude, and he had traced one Suresh Motiram Meshram as accused, said investigation was abandoned by filing summary, however, those documents are not legal evidence.

[c] Sum effect of the evidence on record has led to proof of the involvement of accused as the circumstances do unerringly point towards the guilt of the accused.

9. The accused was, therefore, held guilty by the Sessions Judge for offence punishable under Section 302 of Indian Penal Code, and sentenced for imprisonment of life and fine etc..

10. Heard learned Adv. Mr. R. P. Joshi for the appellant in support of appeal, and learned APP Mr. R. S. Nayak for the respondent-State in support of the judgment impugned.

11. In support of appeal, learned Adv., Mr. R. P. Joshi for the appellant urged following points :-

[a] The entire prosecution story is based on guess work, and its fishing expedition did not end even till conclusion of trial, and is rather left halfway.

[b] The prosecution has failed to lay hands on positive evidence of whatever worth to isolate and identify the appellant alone to be guilty of offence charged.

[c] The prosecution may be entitled to argue that their effort to further investigate the matter and booking Suresh Meshram as an accused, and even abandoning the investigation does not tend to prove that present appellant is not guilty, yet it only proves that prosecution too was not sure in spite of filing a charge-sheet against present appellant that he alone is guilty, and hence continued the investigation for a considerable time.

[d] The fact that some material had surfaced during investigation of some other crime, that real accused in Meera's murder case was some other person, and the prosecution was satisfied that further investigation was necessary, and PW 1 - Mandabai and PW 7 - Shamibai have identified Suresh Meshram as real accused, would go to prove that the charge-sheet filed against the appellant was based on inadequate investigation and on guess work.

[e] If an effort is made to match testimonies of PW 1 - Mandabai and PW 7 - Shamibai, even one angle of their shape does not match, much less those being congruent, rather they are divergent to its optimal.

[f] The testimony of PW 4 - Ganesh, husband of deceased Meera, also tends to create a grave suspicion about worthiness thereof.

[g] Medical evidence of PW 5-Dr. Shaila Maidamwar [Exh.34] and the Post-mortem Examination Report, accompanied by observations in Modi's Medical Jurisprudence & Toxicology [Twenty-second Edition] at pages 234 and 235 leads to a conclusion that the description of the genital organs, anus and coloration of skin and other tissues suggest that the time of death was between 48 to 72 hours from the time of Post-mortem Examination. This indicates that the prosecution story is not just based on guess work, but is false, and a lame effort is made to involve the present appellant by attempting to prove that the death of Meerabai had occurred only in the noon of 6th February, 1993.

12. To substantiate his argument, learned Adv. Mr. R. P. Joshi relies upon the following precedents :-

[a] Ramjee Rai & others Vs. State of Bihar [2006(4) Crimes 225],

[b] Gilbert Pereira Vs. State of Karnataka [2004 ALL MR (Cri) 3150 (S.C.)],

[c] Smt. Varsha wife of Baba Itankar Vs. State of Maharashtra [2008 ALL MR (Cri) 3190], and

[d] The State of Maharashtra Vs. Shivaji Anandrao Chede [2002 ALL MR (Cri) 1908].

13. Perused the Notes of Evidence, record of the case and the judgments cited at bar.

14. Version of the complainant - PW 4 - Ganesh [Exh.31] proves solitary fact that :-

[a] He saw the corpse of Meera at a place near the road.

[b] Meera had gone with PW 9 - Fulabai, his mother, to the forest for collecting fuel-wood and gum.

[c] He gave a report to the police.

15. Testimony of PW 9 - Fulabai discloses that she left the house together with Meera, the deceased, but they parted one another's company half way, and nothing more.

16. Version of PW 1 - Mandabai should better be referred by quotation and by making sub-paras for convenience, which reads as follows :-

"The incident took place before 3 to 3-½ years.

Meerabai (since deceased) was residing in my village. I knew her.

I also know Shamibai sister-in-law of Meera.

On the date of incident in the morning I, Shamibai and one old woman went to collect gum in the forest.

At about 11.00 a.m., we heard scream for help, "Dhawa-re-bapa". We were on height.

I and Shamibai came down and came near canal. There is a bridge on canal. We saw from the bridge the accused was in the land of Sitaram Dole. Meera was also there.

The accused was lying on the person of Meera.

We were afraid, we came to shrub and laid by it.

The accused pushed Meera face down. He lifted her leg by hand putting his one foot on her waist and broke. He brought her to the road and sat her on the road in sitting position. He had placed her legs in the front and her head on her legs.

Then he ran way.

I and Shami went to streem-let to drink water. We took water in a small pot to give it to Meera. We gave her a call, but she did not speak.

2 bullock-carts of Marwadi came thereby. We told them that the woman was killed and kept on the road, we tried to talk with her but she did not, we asked them to give call. They told us to inform in the village and went away.

Then we came to our house. We returned at about 12.00 noon. We were frightened.

My husband had gone to Rohana. He enquired with me, what had happened. I and Shami were crying. We told him about the acts of accused. My husband asked us whether we identified him and we told that we had. He said that we should inform if we had identified the accused and not otherwise.

Sitaram Dole came to our house and asked us to tell the truth. We told him the incident."

[Quoted from page nos.55 and 56 of the appeal paper-book. Sub-paragraphing is done for convenience of reading and for segregation of points, and underlining is done for emphasis].

17. In the cross-examination of PW 1 - Mandabai, inter alia, what she narrates is as follows :-

"4. About 5-6 months of the incident I and Shami were called at Jail at Wardha. I was told to identify the accused. There was one another accused viz Suresh Masram. So also 10 more other persons. They were asked to stand in a row. I was asked to identify the person who was brought in our village, he was Suresh Masram. So I identified him. .....

I did not state the incident to Ganesh Bangal, Bhayya Dole and Tukaram Wadekar. I did state before police that we narrated the incident to Ganesh Bangal, Bhayya Dole and Tukaram Wadekar, but did not state the name of accused. ...

It is true to say that on the next day morning I told the incident to Sarpanch Laxmanrao Jambholkar. I told the incident to my husband immediately after coming to the house. Witness volunteers that the name of accused was not stated to him. I told him the name of accused in the night. ....

I did not see how Meera was committed to death. .........

The accused was not residing in our village. I used to see him frequently while going to work. ........"

[Quoted from page nos.56, 57 and 58 of the appeal paper-book. Sub-paragraphing is done for convenience of reading and for segregation of points, and underlining is done for emphasis].

18. PW 7 Shamibai has narrated in her testimony certain things, which should better be referred by quotation as follows :-

"The incident took place before 4 years.

I and Manda went to collect Gum in the morning.

We heard shouts for help, "Dhawa-Re-Bappa", twice. It was voice of Meera.

I and Manda came to bridge over the canal, and saw accused before the court. He was in the land of Sitaram Dole. He was sitting on the knees of Meera.

The accused then lifted Meera and sat her on the road and then ran way.

We were frightened.

We went to stream-let to drink water.

We came back with water to Meera. We gave her two calls but she did not give us response.

So we went to home.

The accused was wearing Banian and red underwear.

We told the incident to Tukaram, Bhayya, Ganesh. They went to the spot. Others also followed them.

I do not understand time."

[Quoted from page no.90 of the appeal paper-book. Sub-paragraphing is done for convenience of reading and for segregation of points, and underlining is done for emphasis].

19. In the cross-examination, PW 7 Shamibai, inter alia, states as follows :-

"2. .............................................It is true that we saw two bullock-carts of Marwadi. After the incident one truck passed on the road.

I know mother-in-law of Meera viz. Fulabai. We did not see Fula near the place of incident. I did not meet her thereafter at any time.

We could not gather whether Meera was alive or not because there was saree over her face. It was noon time. .....

After 6 months of incident I was brought to Wardha Jail. Tahsildar was present. 12 persons were standing in the row. Accused was standing in the row. I do not know whether there was a person viz. Suresh Masram in the row. The P.S.O., told us to identify another accused was brought so we identified him. The said accused was also brought to our village....."

[Quoted from page no.91 of the appeal paper-book. Sub-paragraphing is done for convenience of reading and for segregation of points, and underlining is done for emphasis].

20. It is seen from the Post-mortem examination that the description of organs of dead body reads as follows :-

Surface wounds & injuries :

1) Mark of contusion with bluish discloured seen over (Rt.) malar prominance size ½" x ½" subcutaneous zone shows e/o blackish red blood.

2) Small abrasion over the tip of nose of size ½ cm x ¼ cm surrounding zone shows blackening the skin of face with e/o decomposition with peeled off cuticle of face at places.

3) Small abrasion over the (Lt) eye brow of size ½ cm x ¼ cm., skin around it is easily peeled off s/o decomposition.

4) Semicircular band of contusion with bluish like ligature mark around upper neck in between larunx and chin. Band is flat regularly outlined extending from the point 1½ below (Rt) mastoid upto the point 1½ below (lt) mastoid of size 10 in length. Mark is flat in centre approximately 1 in breadth with ends are tapering. Mark is completely deficiat beyond the extent. Skin over mark shows e/o cuticular necrosis with peeled of cuticle at places. Subcutaneous zone does not show e/o inspicited blood.

No e/o fracture (#) cornu of hyoid or thyroid cartilage. Both the caro-tid are intact.

5) Multiple cuticular blebs over the neck, face chest abdomen and supra pubic zone with reddish stained fluid in it with exfoliation at places.

6) Vagina and perineal zone is swollen, blackish reddish coloured with e/o foul smelling blackish red discharge. Cervix is protruded oedematous reddish brownish in colour.

Vagina is patulous, inside wall was swollen, with laceration over the labia minora on both sides each 1 cm x ½ cm with ½ cm ragged irregular with blackish reddish foul smelling discharged. Subcutaneous zone shows inspicited black blood.

7) Anus dilated with rectum swollen and protruded partially with surrounding soiling.

8) Multiple tiny 4-5 abrasion in line. (portion torn) the medial aspect of the upper thigh on (Lt) side at below crease of grain each ½ cm x ½ cm minute blackish reddish blood spots seen.

As body is decomposed, it is difficult to comment upon age and cause of injuries.

[Quoted from Page Nos.75 to 79 of the appeal paper-book. Underlining is done to show important and relevant portions].

21. The First Information Report is lodged on 6th February, 1993 at 11-00 p.m., and the Post-mortem examination has been conducted on 8th February, 1993 at 11-00 a.m.. The time of discovery of dead body by PW 1 - Mandabai and PW 7 - Shamibai seems to be somewhere between 11-00 a.m. and 1400 hours on 6th February, 1993.

22. Description of the body as seen in Column Nos.12 and 17 of Autopsy Report concurs with the observations made by learned Author in Modi's Medical Jurisprudence and Toxicology [Twenty-second Edition], which read as follows :-

[1] From eighteen to thirty-six or forty-eight hours after death, the gases collect in the tissues, cavities and hollow viscera under considerable pressure with the result that the features become bloated and distorted, the eyes are forced out of their sockets, the tongue is protruded between the teeth, and the lips become swollen and everted. A frothy, reddish fluid or mucus is forced from the mouth and nostrils.

[2] These gases from blisters under the skin containing a reddish coloured fluid, on the various part of the body. When these burst, the cuticle being softened peels of easily.

[3] Wounds also become so altered in appearance that it may be difficult to form an opinion as to whether they were caused before or after death, unless the presence of the clotted blood can be distinctly made out.

[4] From forty-eight to seventy-two hours, the rectum and uterus protrude.

[Excerpts from page nos.234 and 235 of Modi's Medical Jurisprudence & Toxicology (Twenty-second Edition)].

23. Thus, as per the condition of the body as described in the Post-mortem Report, the death must have occurred somewhere forty-eight to seventy-two hours prior, meaning thereby that death had occurred not on 6th February, as indicated, but either on 4th or 5th February, 1993.

24. Conduct of PW 1 - Mandabai and PW 7 - Shamibai does not appear to be natural. From their testimonies, it seems that they have met at least five persons after the incident, namely [1] husbands of respective witnesses, [2] Sitaram Dole, the owner of land adjoining the place of incident, [3] Ganesh Bangal, [4] Bhaiya Dole, [5] Tukaram Wadekar, [6] Sarpanch Laxman Jambhulkar, and [7] even the police.

25. The witnesses - PW 1 Mandabai and PW 7 - Shamibai admit that after 5-6 months of the incident, both of them were called to Wardha jail where they had identified Suresh Meshram as accused. All this had occurred after the charge-sheet was filed against present appellant.

26. In the background of the peculiar characteristics of evidence of these two eye-witnesses, it would better be described in a single word "mess" rather than "testimony of any worth, whatsoever".

27. In the aforesaid premises and quality of evidence, the learned Sessions Judge found evidence of these witnesses to be worthy of trust. The learned Sessions Judge further observed that the investigation papers pertaining to further investigation carried out by Investigating Officer Shri. Hanpued, Police Sub-Inspector, is not legal evidence, yet the admission by eye-witnesses that :-

[a] They knew the accused who is being tried, as they had seen him, since he used to come for the work nearby; and,

[b] By visiting jail, they had identified Suresh Meshram as the accused person who had committed offence, cannot simply go unnoticed, and when it is left unnoticed, it would amount to basing a judgment by conniving at crucial piece of evidence in the form of admission of eye-witnesses.

28. In the result, we unhesitatingly hold that the eye-witnesses do not prove :-

[a] A fact of the accused committing murder of deceased Meera.

[b] The accused being 'last seen in association with the corpse of the deceased', or 'last seen in company of deceased'.

29. Moreover, the admitted fact that these witnesses had identified Suresh Meshram by visiting jail is not just a trash in contrast with admitted investigation papers, "unproved" as observed by learned Sessions Judge.

30. In the result, we hold that the accused has been convicted on suspicion than on evidence.

31. In the background that on facts, we have held that the appellant is not liable to be held guilty, we do not discuss the judgments cited at bar by learned Adv. Mr. Joshi for the appellant.

32. In the result appeal succeeds.

33. The judgment and order of conviction and sentence under appeal is set aside. Fine amount be refunded. Appellant be set at liberty forthwith, unless required in any other offence. His bail bonds stand cancelled.

Appeal allowed.