Criminal Appeal No.682 of 2012

24th July, 2014

Petitioner Counsel: Mr. ANIKET VAGAL
Respondent Counsel: Mrs. A.S. PAI

JUDGMENT

A. S. GADKARI, J. :- The appellant, original accused, has preferred the present appeal challenging the impugned judgment and order dated 11th May 2012 passed by the Additional Sessions Judge, Pune, in Sessions Case No.672 of 2010, thereby convicting the appellant under Section 302 of the Indian Penal Code and sentenced her to imprisonment for life and to pay fine of Rs.1,000/-, in default of payment of fine to undergo further R.I. For three months. The appellant has questioned the correctness of the said impugned judgment and order dated 11th May 2012.

2. The facts which can be enumerated from the record, may briefly be stated thus:-

(i)PW-17 Mr. Santosh G. Doke, Police Sub Inspector was attached to Rajgad police station since 15.7.2009. On 7.7.2010, at about 9 a.m., he was on patrolling duty. At that time he received information from Nasrapur police station that one person was murdered at Kondhanpur. He immediately rushed to Kondhanpur along with his staff and reached the spot which was a house, wherein one person was lying dead. The said person was having injuries on his backside of head. He noticed pieces of bangles were lying around the dead body. The dead body was lying on the mat and head was on cushion.

(ii)The complainant (PW-1) Shri Shankar Sahadu Chavan, the cousin brother of deceased Sitaram, some of his relatives, the appellant herein and some villagers were present near the spot. PW-17 Mr. Santosh Doke thereafter recorded the complaint of the complainant on the spot which is at Exhibit 24. On the basis of the said complaint, C.R. No.109 of 2010 came to be recorded on 7.7.2010 under Section 302 of the Indian Penal Code. PW-17 i.e. Police sub Inspector Mr. Santosh Doke started investigation of the said crime. During the course of investigation, PW-17 called a photographer and also carried out the scene of offence panchanama. The scene of offence panchanama dated 7.7.2010 i.e. the spot panchanama is at Exhibit 49. He also seized from the spot the articles namely quilt, mat, pieces of saree, underwear of kid, blouse and pieces of bangles which are Article Nos.1 to 6 respectively on record. It was revealed to PW-17 that the name of deceased was Sitaram Chavan, the cousin brother of PW-1. PW-17 prepared inquest panchanam of the dead body. The inquest panchanama is at Exhibit 35.

(iii)PW-17 sent the dead body of Sitaram to Sassoon Hospital for conducting the postmortem examination. He arrested the appellant on the same day after effecting the arrest panchanama which is at Exhibit 32. On 8.7.2010, the Investigating Officer recorded the statement of witnesses and also seized the clothes of deceased after effecting the panchanama. The said panchanama of seizure of clothes of deceased is at Exhibit 58.

(iv)On 10.7.2010, when the appellant was in police custody, expressed her willingness to show the flat grinding stone (Pata), which was kept by her in her house. Accordingly, her memorandum statement came to be recorded which is at Exhibit 41. In pursuance of the said memorandum statement, the appellant led the police party to her house wherein she and deceased Sitaram were staying together and after entering into the house, she pointed out one flat stone (Pata), which was kept behind the door. The said stone flat was having blood-stains. The said stone was seized under seizure panchanama. The said seizure panchanama is at Exhibit 42.

(v)During the course of investigation, it was revealed to PW17 i.e. the Investigating Officer that deceased Sitaram was causing ill-treatment to the appellant under the influence of liquor and there used to be frequent quarrel between them. It was further revealed to him that the deceased was suspecting that the appellant was having an affair with PW-16 Ganesh Bhosle. The Investigating Officer, during the course of investigation, collected the report of Chemical Analyzer and other necessary documents, and after completion of the investigation submitted final report against the appellant in the Court of Judicial Magistrate First Class, Bhor.

(vi)The Judicial Magistrate First Class, Bhor committed the case, to the Court of Sessions as contemplated under Section 209 of the Cr. P.C., as the offence punishable under Section 302 was exclusively triable by Trial Court. After committal of the said case, the learned Trial Court framed charge below Exhibit-3. The said charge was read over and explained in vernacular language to the appellant, to which she pleaded not guilty and claimed to be tried. The defence of the appellant was that, the deceased Sitaram met with an accident under the influence of liquor and had sustained injuries. The prosecution, with a view to prove charges against the appellant, examined in all 17 witnesses.

(vii)The learned Trial Court, after recording the evidence and after hearing the parties to the said Case, has convicted the appellant by the impugned judgment and order dated 11th May 2012, as stated herein above.

3. Heard Mr. Aniket Vagal, learned Counsel for the appellant and Mrs. A.S. Pai, learned APP for the respondent-State. We have carefully scrutinized the record and also the impugned judgment and order passed by the Trial Court. The learned Counsel for the appellant has submitted before us that, from the evidence on record it is clear that in the intervening night of 6th July 2010 and 7th July 2010, the appellant was not at her residence and the said fact is clear from the testimony of PW-12 Kusum Ubhedal. Learned Counsel for the appellant has further submitted that there was no evidence at all to show that the appellant was at any point of time last seen together in the company of the deceased Sitram from 6.7.2010 to 7.7.2010 till she noticed the dead body of Sitaram. He also submitted that the prosecution has clearly failed to establish the motive behind the present crime. He has further submitted that, though the police carried out spot panchanama on 7.7.2010, police did not find the said flat grinding stone in the said small house. However on 11.7.2010, the police recovered the said stone at the instance of Appellant, which was just behind the main door of the said house. He therefore submitted that the said discovery at the instance of the appellant is of no consequence and the said piece of evidence cannot be relied upon. He therefore urged before us that, taking into consideration the absolutely weak legal evidence which has been adduced by the prosecution, the present appeal may be allowed and the conviction and sentence of the appellant may be quashed and set aside.

The learned APP for the respondent-State on the other hand supported the impugned judgment and order and submitted that there is a motive for the appellant to commit the present crime, as the deceased Sitaram was causing ill-treatment to the appellant under the influence of liquor and there used to be frequent quarrel between them. She further submitted that the evidence of PW-16 also demonstrates that there was an affair between the appellant and PW-16 Ganesh Bhosle and deceased Sitaram was suspecting about the fidelity of the appellant and this was also motive for the appellant to commit the crime. She further submitted that there is sufficient evidence on record which connects the appellant as perpetrator of the present crime. Learned APP therefore submitted that the learned Trial Court has passed the impugned judgment and order, correctly and prayed that the present appeal may be dismissed.

4. In order to effectively deal with the submissions advanced by the learned Counsel appointed for the appellant and the learned APP for the respondent-State, it is necessary to refer to the evidence on record, in brief, of the prosecution witnesses.

5. PW-1 Shankar Sahadu Chavan, in his testimony has stated that deceased Sitaram Mahadu Chavan was his cousin brother. The appellant was the wife of deceased Sitaram. Deceased Sitaram was serving as Tractor driver. That Sitaram was residing at Sopan Baug, near Kondhanpur. That the appellant, deceased Sitaram and their two children were residing together. That on 5.7.2010 at about 8 a.m., deceased Sitaram met PW-1 near Desai company at Khed Shivapur. PW-1 has stated that Sitaram was under the influence of liquor. That on 6.7.2010 at about 7 p.m., the appellant and one lady came to his house. The said lady wanted to ask him about their Òfo"; "future". PW-1 asked the appellant where Sitaram was, to which she replied that Sitaram had gone to village Shirval. That on the next day i.e. on 7.7.2010 at about 7.30 a.m., he came to know that Sitaram died and hence he rushed to the house of Sitaram. That the dead body of Sitaram was lying in the house. Sitaram had suffered injures on his head. PW-1 also saw broken pieces of bangles and blood-stains in the house. The broken pieces of bangles were lying in the house as well in the courtyard. PW-1 intimated the death of Sitaram to the police. Police came to the house of Sitaram and prepared the spot panchanama. That PW-1 lodged complaint with the police which is at Exhibit 24. PW-1 has further stated that when he reached to the house of Sitaram, the appellant and her children were present in the house. He has stated that the appellant was serving in a diamond company at Kondhanpur. PW-1 has further stated that the appellant was having illicit relation with one Ganesh Bhosle who was working with her in diamond company.

This witness was cross-examined by the appellant at length. In his cross-examination, this witness has admitted that he had signed one paper between 8 and 9 a.m. on the day of incident. He has further admitted that police had recorded his statement 8 days after the incident. That Sitaram was addicted to liquor. PW1 has admitted that, he knew the persons by name Suresh Gavhane and Balasaheb Ghorge. He has admitted that on the day of incident, Suresh and Balu Ghorge had been to the house of Sitaram. That the said two persons were in the house of Sitaram for about 15 minutes. That both of them came to the house of Sitaram at about 7.30 a.m. and were lingering outside the house for long time. That both of them went away at about 2 p.m. He has admitted that police had obtained his signatures on three papers, however, he cannot describe the nature of the papers.

6. PW-2 is Ramnath Bapurao Shinde and was a photographer by profession. This witness at the request of police had taken out photographs of the dead body and scene of offence. The ten photographs which are on record are the Articles 1 to 10, which have been identified by this witness. In the lengthy cross-examination of this witness, the appellant did not succeed to bring on record any material which would discredit his testimony.

7. PW-3 is Harish Bhaskar Dhote, the employer of the appellant herein. PW-3 in his testimony has stated that he is having a factory at Kondhanpur in the name and style as "Harish Agro Packaging", which was previously known as "Diamond Company". He has stated that the appellant, Ganesh Bhosle (PW-16) and Dnyaneshwar Khobre were working in his company. The appellant was working as helper, Ganesh as driver and Dnyaneshwar as operator. That Ganesh Bhosle was driving his pick-up van bearing No.MH-12-DT-6452. That his Operator informed him that the husband of Rekha (Appellant) was killed and therefore Rekha stopped attending the job.

In the cross-examination of this witness, no fruit-ful material has been elicited by the appellant. It appears to us that, with a view to exhibit the circumstance that the appellant and PW-16 Ganesh were working together and were knowing each other, this witness has been examined by the prosecution.

8. PW-4 is Ankush Dattu Gavhane. PW-4 in his testimony has stated that he is having agricultural land at Jagtap Vasti and he resides at Kondhanpur. He used to visit his land every day. He has further stated that the house of deceased Sitaram was situated at a distance of about 200-300 feet from his land. That Sitaram was staying along with his wife and two children. That on 5.7.2010 at about 6.30 p.m. when he was returning to his house, he heard quarrel between the appellant and Sitaram. He went to the door of the house of Sitaram and told him not to quarrel. That he did not know the cause of quarrel. On 6.7.2010, he went to his field and returned home, but he found that the house of the appellant was closed. That on 7.7.2010 at about 7.30 to 8 a.m., he saw a mob in front of the house of Sitaram and he came to know that Sitaram was lying dead in the house. This witness has further stated that when he advised Sitaram about not to quarrel, Sitaram told him that the appellant used to return at home late, daily, along with one person and the appellant was not disclosing the name of that person and hence Sitaram was quarreling with the appellant.

In the cross-examination, this witness has admitted that Sitaram was heavy drunkard. That Sitaram used to fall on road under the influence of liquor. That he did not meet the appellant on 5th, 6th or 7th July 2010. He has further admitted that there are five to six houses near the house of Sitaram.

9. PW-5 is Raju B. Kusale, a quarry owner at Kondhanpur, Taluka-Haveli. PW-5 in his testimony has stated that the tractor of Sandip Ghogre (PW-10) was transporting the sand from his place. That one Sitaram Mahadu Chavan was driver on the said tractor. This witness has further stated that, he had agreed to purchase the land of Sitaram Mahadu Chavan (deceased) situated at Shirval for Rs.10,50,000/- with the mediation of Sandip (PW-10). The said discussion had taken place in his office in the presence of Sandip and Sitaram. That on 23.6.2010, he gave cheque of Rs.15,000/- to Sitaram as token money. That on 24.6.2010, Sitaram had came to his quarry. On the same day, the appellant had also came to his quarry and told him that she was out of house on the earlier night and she expressed her apprehension that her husband would assault her. The appellant requested PW-5 to leave her to her house. That he dropped the appellant to her house. When he reached the house of the appellant, her brother and husband were in the house. That on seeing the appellant, her husband i.e. Sitaram started abusing her in filthy language and also took stick to assault the appellant. That PW5 asked the brother of the appellant to look into the matter and he left therefrom. This witness has further stated that on 7.7.2010, at about 7.30 p.m., the appellant gave a call on his cell phone, but he did not attend as he was busy in his work. He then gave a call to Sandip (PW-10) who told him that Sitaram passed away. He was also informed that Sitaram was lying dead in his house and had bleeding injuries on his head.

In the cross-examination, this witness has admitted that he was called by the police at Rajgad Police station and Nasrapur Police obtained his signature on one paper. That he was called by the police about 8 to 10 days after the incident. He has further admitted that except when he went to the house of the appellant, he had no occasion to see the quarrel between the appellant and Sitaram. That he did not remember the date of his visit to the house of the appellant has further admitted that his statement was not read over to him by the police.

10. PW-6 Shankar Mahadeo Pawar is a panch-witness to the seizure of the clothes panchanama of the appellant and also arrest of the appellant. The seizure panchanama is at Exhibit 32. The record discloses that the Exhibit 32 is a comprehensive panchanama of the seizure of clothes of appellant and her arrest dated 7.7.2010. PW-6 has deposed that on 7.7.2010 he was called at Rajgad Police Station, Nasrapur. The police told him that they wanted to seize the clothes of a lady who was present in the police station. The other lady panch-witness asked the appellant to change her saree. There were blood-stains on the saree of the appellant. The appellant lady was having green bangles having design. The appellant was having cell phone of Nokia make. The appellant had worn blouse of black colour. The saree, blouse, mobile and bangles of the appellant were seized and sealed by the appellant in his presence. The police prepared seizure panchanama which is at Exhibit 32. This witness identified the Articles namely bangles, saree, blouse and mobile which are Article Nos.7,8,9 and 12 respectively. No useful material has been elicited in the cross-examination of this witness at the hands of the appellant.

11. PW-7 is Suresh Dattu Gavhane, a panch-witness to the spot of the incident. This witness did not support the prosecution case and was declared hostile. The learned APP for the respondent-State, after seeking leave from the Court, cross-examined this witness. In his cross-examination, he has stated that he did not remember whether the contents of the spot panchanama were written in his presence or not. In the cross-examination at the instance of the appellant, this witness has admitted that he put the other signatures on the panchanama two days after the panchnama. He has further admitted that the contents of the panchanama were not read over to him.

12. PW-8 is Kailas Arjun Zarande, a panch-witness to the inquest panchanama of the deceased. This witness has proved the inquest panchanama dated 7.7.2010 of the dead body of Sitaram which is at Exhibit 35.

In the cross-examination, an admission has been extracted from this witness that the contents of the panchanama were not read over to him by the police. He has further admitted that police asked him to sign the panchanama, hence, he signed it.

13. PW-9 is a Doctor Amol Balwant Shinde. PW-9 in his testimony has stated that since July 2009 he was attached in the Forensic Medicine Department of B.J. Medical College. That on 7.7.2010 the dead body of Sitaram was brought by Police Sub Inspector Shri Doke of Rajgad Police station for postmortem examination. That on 8.7.2010, he along with Dr. Chandekar performed postmortem examination on the dead body between 10.30 to 11.30 a.m. That he noticed riger mortes well marked in lower limbs. He noticed early signs of decomposition as reddish blackish greenish discolouration present over trunk and face at places. That marbling blisters and peeling of skin present at places. That the abdomen slightly distended and features were swollen.

That on external examination of the dead body, the PW9 noticed the following injuries:

"Laceration present over left occipital following injury: 2.5 x 0.5 cms x bone deep. Irregular blood oozing, reddish, extra vasation of blood in to soft tissues present."

That on internal examination, PW-9 found the following injuries in correspondence with external injury:

1. Underscalp haematoma presentover occipital, left parietal region over an area 7 x 5 cm, irregular darkened.

2. Depressed fracture present over left occipitoparietal region 10 x 1 cm x cavity deep, convex anteriorly, margins irregular, blood oozing, extending up to base of skull, obliquely towards right fronto region.

3. Meninges intact.

4. Subdural haemorrhage present about 30 ml over occipital and left parietal region over base of skull

5. Thin layer of sub-archniod haemorrhage present over both cerebral hemispheres.

6. Brain-intact, congested oedematous.

This witness proved panchanama which is at Exhibit 37. PW-9 had opined that the death of deceased was caused due to head injury. That the head injury sustained to the deceased was sufficient to cause death in ordinary course of nature. That all injuries were ante-mortem and age of injuries was within 12 hours preceding the time of postmortem examination. He therefore opined that injuries sustained to the deceased could be possible by hard and blunt object like stone.

In the cross-examination, this witness denied the suggestion that the injuries like injuries sustained to the deceased, were possible, if person falls on stone under the influence of liquor. He has further admitted that he did not observe abnormal smell in the contents of stomach. He has stated that if a person falls from a moving vehicle, injuries like injuries sustained to the deceased could be possible.

14. PW-10 is Sandip Maruti Ghogre, the employer of deceased Sitaram. This witness in his examination-in-chief has stated that the tractor is owned by his father. That deceased Sitaram was driver on the said tractor. That the appellant is wife of deceased Sitaram. That the appellant was serving in a Diamond Company. He has further stated that about 23 days prior to the death of Sitaram, Sitaram had come to his house in the morning for taking tractor. On the last working day, Sitaram had transported fodder and bricks from the tractor and went home in the afternoon. Sitaram had taken around Rs.50/- with him. That on the next day, the appellant told him on phone that Sitaram would not come to work as he has personal work. Thereafter on the next day, the appellant gave call to him in the morning and informed him that Sitaram had sustained some injuries. He went to the house of the appellant and found that Sitaram had sustained head injuries and was dead. That he had been to the house of the appellant at around 7 to 8 a.m. on the said day.

In the cross-examination, this witness has admitted that Sitaram was working as a driver on his tractor for about 3 to 4 months. That Sitaram was drinking liquor after work. That on 23 occasions he had left Sitaram at his house when Sitaram was under the influence of liquor. He has further admitted that the appellant never gave him a call.

15. PW-11 is Navnath Shankar Shinde, a panch witness to the discovery of the flat stone/grinding stone at the instance of the appellant. PW-11 in his testimony has stated that on 11.7.2010, he was called by Rajgad Police station. When he reached the police station, one lady and panch were present. The said lady, the appellant, stated before the police in his presence that she had kept the stone in her house and showed her willingness to produce the same. Police accordingly recorded her memorandum statement which is at Exhibit 41. That subsequently the appellant led the police to her house and then she produced the stone/grinding stone which was stained with blood. The recovery panchanama was effected by police which is at Exhibit 42. This witness identified the said stone/grinding stone which is Article No.10.

In his cross-examination, this witness has admitted that he was in the police station for about 15 to 20 minutes and police did not type anything in his presence. That police obtained his two signatures at the police station. That they were on the scene of offence. That he cannot say in which material the said house was built up. That he cannot give description of the door of the house.

16. PW-12 is Kusum Viram Ubhedal is a neighbour of the appellant and deceased Sitaram, and is an important witness. PW-12 in her testimony has stated that she along with her husband were residing in the Farm House of Jagtap at Kaondhanpur. They resided there for about 10 years. That she knew the appellant before the Court. The appellant was residing at a distance about a mile from her house at Kondhanpur. That appellant was residing along with her husband and two children. The appellant was working with one company. That appellant used to proceed in front of her house every day. The husband of the appellant was addicted to liquor and used to abuse and assault the appellant. The appellant used to leave the house at about 6 a.m. and used to return home at about 5.30 p.m. That on one day she saw the appellant standing along with her friend below the almond tree. PW-12 called the appellant, but appellant went home along with her friend. On the next day at about 5.30 p.m. the appellant was proceeding to her house along with her two children. PW-12 and the appellant had decided to visit the house of fortuneteller. That the appellant told PW-12 that, she would leave her children in the house of PW-12 and she would come with her. Thereafter, the appellant came to the house of PW-12 along with her children. The children of the appellant stayed in the house of PW-12, and PW-12 and appellant went to Kondhanpur in the house of her brother-in-law (PW-1). That brother-in-law of the appellant told them that he had difficulty and hence he cannot forecast future. Hence they came back. That they had a dinner in the house of PW-12. The appellant and her children stayed in her house in the said night. In the said night (i.e. 6.7.2010) PW-12 had stomachache and hence she could not sleep well. She used to awake for some time. That during the night, the appellant went out of her house. That in the morning she saw children of the appellant were sleeping in her house and appellant was not there. That on the next day morning, she found gate of her house was locked. That on the next day morning, she heard commotion from the house of the appellant. She along with her husband went to the house of the appellant. Appellant was present at the place. The husband of the appellant was lying on the mat in supine condition and had injuries and blood was lying on the floor. Some people had gathered in front of the house of the appellant.

PW-12 was cross-examined at length by the appellant. In her cross-examination, she has admitted that she is illiterate and she did not visit Rajgad police station in connection with the case of the appellant. She has admitted that the husband of the appellant used to drink liquor and used to abuse and assault her and her children. She has further admitted the husband of the appellant used to lie on the street under the influence of liquor, and the appellant and her relatives used to bring him at the house. She has further admitted that she does not know the person who was talking with the appellant below the almond tree. She has admitted that the appellant might have left her house in the early morning. She has admitted that on that day she got up between 6 - 8 a.m.

17. PW-13 is Balasaheb Kisan Ghorge, the another panchwitness to the spot and seizure of articles from the spot. The said panchanama is at Exhibit 49. This witness has stated that inside house there was mat, bed-sheet and pieces of bangles. That the mat was stained with blood. Similarly, blood-stains were also found on the floor. That Police prepared panchanama of the spot and also seized mat, quilt, and pieces of bangles. That saree was also lying at the spot and same was seized. The said panchnama is at Exhibit 49. That he identified the Articles i.e. quilt, mat, saree, nicker, blouse and pieces of bangles which are Articles 1 to 6 respectively.

In his cross-examination, he has admitted that he did not put any signatures on any envelope or label. That he cannot say who scribed the panchanama. That he knew many police officers of rural police station. He has further admitted that police obtained his signature on many panchanamas.

18. PW-14 is Dr. Arun Digambar Burande who had examined the appellant after her arrest. This witness in his testimony has stated that he was attached to Sub District Hospital, Bhor as a Medical Officer. That on 8.7.2010, the appellant was brought to his hospital along with a letter from the Police Sub Inspector of Rajgad Police station for her examination. The said letter is at Exhibit 51. That he examined the appellant at about 2 p.m. on 8.7.2010. the appellant gave history of assault by her husband on 5.7.2010 between 6.30 to 8.30 p.m. On examination, PW-14 found following injuries on the person of the appellant:-

"1. two abrasions on left forearm having size of 5 mm and other was 12 mm.

2. Contusion on right knee, medial aspect, having size of 10 x 5 cm.

3. Contusion on right calf muscle having size 12 x 5 cm."

After examination of the appellant, PW-14 opined that injury was within 72 hours and the said injuries could have been possible by hard and blunt object. The said injuries were simple in nature. That as per the request, he collected 5 ml blood sample of the appellant in plain tube and handed over to police who brought her. In the cross-examination, no material could come to the help of the appellant has been elicited.

19. PW-15 is Liladhar Ghanashyamdas Waswani, the owner of "Ghanashyam Lodge" at Swargate, Pune. PW-15 in his testimony has stated that he was running the said lodged since 1984. That he himself and his Manager were looking after the said lodge. That when the customer comes to his lodge, he asked the customer to enter his name, age, occupation and address and purpose of visit in the register, and also used to obtain signature of the customer on the same. That on 10.7.2010, the police had come to his lodge along with appellant. That the police made enquiry with him about the stay of the appellant in his lodge. That he replied in affirmative. He disclosed to the police that the appellant had come to his lodge on 23.5.2010 at about 10 p.m. The appellant made entry in his register and signed it. That appellant stayed in room no.B-1 as Rekha Kishan Bhosle. The appellant was accompanied by Ganesh Kishan Bhosle. That the appellant left the lodge at about 7 a.m. on 24.5.2010. That he gave xerox copy of the register to the police police. The entry in the said register which is at Exhibit 54 has been proved by this witness.

The cross-examination of this witness proceeds on general suggestions and no material has been extracted from the said cross-examination which would tend to discredit his testimony.

20. PW-16 is Ganesh Kishan Bhosle. He has stated in his testimony that about two years back he was driving a pick-up van and was earning salary of Rs.4000/-. That on 1.4.2010, he had been to Diamond Company at Kondhanpur for bringing papers. He used to visit Diamond Company 4 to 5 times in a month. When he used to visit the said company, he came into contact with the appellant and one Samir from Latur. That appellant took his cell phone number. That the appellant used to call him on his cell phone and used to send him messages. That on one day in the year 2010 he and the appellant had been to the temple of goddess Ekvira. That they came late to Pune and therefore they stayed in the lodge at Swargate. They reached the lodge at about 10 p.m. That he made an entry in the register of the lodge. He wrote his name and name of the appellant as Rekha Bhosle and signed it. That at about 7 a.m. on the next day, he left the lodge. He identified the certified copy of entry in register which is Exhibit 54 to be in his hand writing. That on 5.7.2010, he and Samir were proceeding to Diamond Company. As there was rain, he stopped below the banyan tree. The appellant was also with him. That they stopped below the banyan tree for 15 minutes. The appellant asked him to accompany her to her house, hence he went there. That when he went to the house of the appellant, her two children were in the house. He had tea. In the meantime, the husband of appellant came there. That there was quarrel between the appellant and her husband. Hence, he went away.

This witness has been cross-examined by the appellant, however, no omissions have been elicited at the instance of this witness.

21. PW-17 is Santosh Gundopant Doke, Police SubInspector attached to Rajgad Police station. The facts narrated by this witness in his examination-in-chief have already been stated in para 2 (i) to (iv) above. This witness was cross-examined at length by the appellant. In his cross-examination, this witness has admitted that there was pungent smell from the dead body. That there are houses around the house of the appellant. This witness has admitted that the said houses are at some distance. He has admitted that a public road is nearby from the house of the appellant. It is true that the articles like pieces of bangles, saree, blouse, mat, quilt and flat stone are available in almost every house. He has further admitted that there is no mention in the arrest panchanama that the appellant had sustained injuries on the person of deceased.

22. From the evidence adduced by the prosecution in the present case, the following four circumstances have emerged on record, on the basis on which the appellant has been convicted by the Trial Court-

(i)Motive,

(ii)Dead body of Sitaram was found in the house of the appellant and deceased,

(iii)Discovery of stone/grinding stone at the instance of the appellant on 11.7.2010,

(iv)Finding of bloodstains on the clothes of the appellant.

23. As far as the first circumstance mentioned herein above i.e. the motive is concerned, PW-1 Shankar and PW-4 Ankush in their testimony have stated that the appellant was having relations with PW-16 Ganesh Bhosle and there used to be quarrel amongst the appellant and deceased Sitaram on account of doubt which deceased used to take about the character of the appellant. This witness also says about the addiction of deceased Sitaram to liquor and harassment mated by him to the appellant. The prosecution has adduced evidence of PW-15 Liladhar Waswani, the lodger owner, and PW-16 Ganesh Bhosle with whom it is alleged that the appellant was having illicit relations, in order to establish the fact that the appellant was indeed having extra marital relationship with PW16 Ganesh Bhosle. It is the settled position of law that the motive, however, strong it may be, it in itself, is not sufficient to sustain the conviction, particularly in the absence of any other corroborative evidence which would connect the accused with the commission of the said crime. PW-4 Ankush in his cross-examination has admitted that he did not meet the appellant on 5th, 6th or 7th July 2010. Thus it is clear that PW-4 did not see the appellant either prior to the date of the incident or on the day of the incident in the company of deceased Sitaram.

24. The next circumstance which has been alleged against the appellant is that the dead body of Sitaram was found in the house belonging to the appellant and deceased Sitaram. PW-1 Shankar in his cross-examination, has admitted that when he reached to the house of the deceased, the door of the said house was open and there were other persons already gathered. He has particularly given the names of two person who were at the spot before he reached there. There is no evidence on record to show that the house of Sitaram was either closed from inside or from outside at the time when the witnesses went to the spot and found the house either in locked condition or somebody opening the said house. It appears to us from the evidence that the door of the said house was open and in view of the admission given by P-17 that the said house was easily accessible by a public road, therefore, in our opinion merely because the dead body of Sitaram was found in the house which was belonged to the appellant and deceased, will not attract Section 106 of the Indian Evidence Act, particularly in view of the fact that there is no evidence on record which would indicate that the appellant was last seen in the company of deceased Sitaram either entering into the said house or was in the house, within the proximity of time of noticing the dead body by any witness. The evidence on record is silent about the presence of the appellant in the house either in the night of 6.7.2010 or in the early morning of 7.7.2010. PW-17 i.e. Investigating Officer in his cross-examination has admitted that the house of the appellant was situated at a place where there were other houses around the house of the appellant. The evidence on record is absolutely silent about any of the neighbouring person saw the appellant either in the night of 6.7.2010 or in the early morning of 7.7.2010 entering or leaving the said house. The prosecution has utterly failed to adduce such substantive piece of the evidence in support of its case. On the contrary, PW-12 Smt. Kusum Ubhedal in her testimony has stated that on 6.7.2010 the appellant along with her children stayed at her house in the said night. In the crossexamination of the said witness PW-12 Kusum an admission has come on record wherein the said witness has admitted that on that day i.e. on 7.7.2010 she got up between 6 to 7 a.m. and the appellant left the house in the morning. Thus, it is clear that safe inference can be drawn that the appellant was at the house of PW12 Smt. Kusum in the intervening night of 6.7.2010 till the early morning of 7.7.2010, and therefore the circumstance no.2, in our opinion, does not connect the appellant with the commission of the present crime.

25. The circumstance no.3 i.e. Discovery of stone/grinding stone at the instance of the appellant on 11.7.2010 from the house where the incident had taken place is concerned, it is to be noted here that on 7.7.2010, the dead body of Sitaram was noticed by the witnesses early in the morning. The spot panchanama which is at Exhibit 49 on record (Page-93) has also annexure of the sketch of the house. It appears from the sketch that the said house consists of one room and a kitchen. It also has courtyard (varhanda). What is surprising here is that the police effected the spot panchanama which is at Exhibit 49 immediately on the day of incident i.e. on 7.7.2010. However, they did not notice the said object/weapon of crime (flat stone) which is of a substantive size in the said house. What is pertinent to note here that the spot panchanama is a very detailed document effected by the Investigating Officer. It is further pertinent to note that after the arrest of the appellant, discovery panchanama which is at Exhibit 41 (Page 83) came to be effected. The details of the said panchanama shows that at the instance of the appellant a flat stone/grinding stone (pata) was recovered from behind the main door of the house. What surprises us is that the said flat stone/grinding stone was lost sight of a prudent police officer/Investigating Officer while conducting the spot panchanama immediately after the crime was registered. The description of the said flat stone which has been given in Exhibit 83 is of 15 inches in length and 10 inches in width. In our opinion, it is improbable that a police officer of ordinary prudence misses such an object while conducting the spot panchanama during the course of investigation. For the said reason, we refrain ourself from relying on the said discovery of the flat stone/grinding stone at the instance of the appellant which was discovered in pursuance of the discovery panchanama dated 11.7.2010 which is at Exhibit 49 herein. The police officer did not find the said stone at the first instance i.e. on 7.7.2010 within the house which creates strong suspicion about subsequent discovery on 11.7.2010 and its trustworthiness in the mind of this Court.

26. The next circumstance which prosecution has put forth against the appellant is that there were blood-stains on the clothes which were on the person of the appellant at the time of arrest. PW-6 Shankar Pawar is the panch-witness to the arrest and seizure of clothes of appellant. It appears from the record that Exhibit 32 is a comprehensive panchanama effected by the Investigating Agency of seizure of clothes of the appellant and her arrest. It appears from reading of the said panchanama that the clothes which were seized by the police at the time of her arrest though stained with blood, the same were not sealed after its seizure. The said panchanama which is at Exhibit 32 is absolutely silent about the sealing of the said clothes. It further appears from the testimony of PW-6 who is panch-witness to the said seizure and arrest panchanama that the prosecution has made an effort to come out of the said lacuna at the instance of this witness who in his testimony has stated that the clothes after their seizure were sealed in his presence. Thus, the testimony of PW-6 to that effect is clear improvement. There is no evidence on record that the clothes which were seized from the appellant in the presence of PW-6 were prevented or protected from tampering till they reached the hands of the Chemical Analyzer. In other words, in the absence of sealing of clothes after their seizure there was every probability of they being tampered and hence the circumstance that the blood-stains of deceased which were found on the clothes of the appellant i.e. saree of the appellant at the time of her arrest and seizure of the same, is of no consequence.

27. After taking into consideration the evidence of all the witnesses on record and the circumstances put forth by the prosecution in support of its case, what we notice is that, except proving the motive at the behest of the appellant, the prosecution has utterly failed to lead any substantive legal evidence which is sufficient to sustain the conviction of the appellant in the present crime.

28. In view of the aforesaid discussion, we are of the opinion that the appellant is entitled for benefit of doubt. Hence, we acquit the appellant from the charges framed against her in Sessions Case No.672 of 2010. The impugned judgment and order dated 11th May 2012 passed by the Additional Sessions Judge, Pune in Sessions Case No.672 of 2010 is hereby quashed and set aside, and the appellant is acquitted from the charges framed against her. The appellant be released from jail forthwith, if not required in any other case.

Appeal allowed.