Criminal Appeal No.59 of 2011

20th March, 2014

Petitioner Counsel: Mr. M.K. KOCHREKAR
Respondent Counsel: Dr. F.R. SHAIKH

JUDGMENT

P. V. HARDAS, J. :- The Appellant who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.2,000/- in default of which to undergo further rigorous imprisonment for six months, by the Additional Sessions Judge, Malegaon, by judgment dated 22 December 2010, in Sessions Case No.38 of 2005, by this Appeal questions the correctness of his conviction and sentence.

2. Facts in brief as are necessary for the decision of this Appeal may be stated thus :

P.W.6 - P.I. Jainarayan Ghule who at the time of the incident was attached to the Malegaon Taluka Police Station, was entrusted with the investigation of Crime No.17 of 2005 under Section 302 of the Indian Penal Code, which had been registered by A.S.I. Sonawane on the basis of the report of P.W.1 - Vatsalabai at Exhibit 20. On being entrusted with the investigation, P.W.6 P.I. Ghule proceeded to the scene of incident and in the presence of panchas drew the scene of the incident panchanama at Exhibit 31. He recorded the statement of witnesses. The Appellant was arrested under arrest panchanama at Exhibit 33. He was referred to the hospital for examination. Dead body of deceased Kamal was referred for postmortem examination. On receipt of the postmortem report, Section 376 of the Indian Penal Code was added. During custodial interrogation, the Appellant expressed his willingness to point out the place where his clothes were concealed. Accordingly a memorandum of the Appellant was recorded in the presence of panchas at Exhibit 35. The Appellant led the police and the panchas to his house at village Chondhi and produced his clothes which were seized under seizure memo at Exhibit 36. The clothes of the deceased were also seized and the seized articles were then referred to the Chemical Analyser under requisition at Exhibit 38. The blood samples were also referred to the Chemical Analyser. The reports of the Chemical Analyser are at Exhibits 39 to 41. The school leaving certificate of deceased Kamal was also obtained at Exhibit 42. The sketch of the scene of incident is at Exhibit 43. The vaginal swab was referred to the Chemical Analyser. Further to the completion of investigation, a charge-sheet against the Appellant was submitted.

3. Postmortem on the dead body of deceased Kamal was performed by P.W.7 - Dr. Mohammed Turabali. P.W.7 - Dr. Turabali noticed the following injuries :

"1. Left angle of eye intra orbital contusion reddish in colour 5 x 3 cm in size.

2. Left angle of mandible contusion of 3 x 2 cm.

3. Frontal region contusion on left side of 5 x 3 cm.

4. Right fronto temporal abrasion of 2 x 1 cm.

5. Right intra orbital abrasion i.e. angle of eye, 2 x ½ cm.

6. Sub-mental region abrasion of 1 x ½ cm and 1 x 1 cm.

7. Right leg upper 1/3rd anterior aspect abrasion of size 2 x ½ cm, 2 x 1 cm. and 1 x ½ cm just below knee.

8. Left arm posterior lower 1/3rd abrasion of size 5 x ½ cm.

All above injuries are ante-mortem in nature, caused by hard and blunt object, of fresh duration.

9. Lower limb beaten by aquatics is postmortem injury."

4. On examination of the private parts of the deceased, he noticed the following injuries :

"1. Labia minora and majora was swollen having sticky while fluid seen over it. Labia minora was congested and there was clotted blood present.

2. On examination of hymen, hymen was congested which is recently ruptured, blood clot was present.

3. Vagina admits index finger easily. On per vaginal examination, sticky while fluid with clotted blood seen and vaginal mucosa was congested.

4. On per specular examination, oss was closed. cervix congested having white sticky fluid."

5. He accordingly collected the vaginal swab from three sides i.e. interior, posterior and lateral. The vaginal swabs were referred for medical examination along with underwear of deceased Kamal.

6. On internal examination, he noticed the following internal injuries :

"1. Brain coverings are congested, and thorax cavity 1 found blood stained froth was present in trachea.

2. Both lungs were congested frothy, and edimatus, show sights of acute pulmonary oderna.

3. In abdomen cavity 1 found, straw coloured fluid, one liter in volume present in stomach. All other abdominal viscera were congested.

4. Urinary bladder was empty. Uterus of normal size and congested. The postmortem interval was 3 to 5 hours after last breath."

7. On the basis of the examination, he came to the conclusion that cause of death was due to asphyxial death due to drowning. The postmortem report is at Exhibit 48. He also opined that forcible sexual intercourse had been committed with deceased Kamal. The report of the Chemical Analyser at Exhibit 47 discloses the presence of semen on the underwear of deceased Kamal.

8. He had also examined the Appellant on 29 January 2005 at about 9.50 p.m. On examination he had noticed :

"1. Glance sebum was present. He is habitual to sexual intercourse."

Sample of semen, blood and pubic hair for chemical analysis was taken. On examination, he had found the following injuries :

"At bilateral knee on pressure point, laceration was present of size 3 x 2 cm on left side and 2 x 1 cm on right side, at the level of tibial tubrocity which is caused by hard and blunt object having simple nature caused within 24 hours of examination."

9. The injury certificate is at Exhibit 48.

10. On committal of the case to the Court of sessions, the Trial Court vide Exhibit 12 framed charge against the Appellant for offences punishable under Section 354, 376, 302 of the Indian Penal Code. The Appellant denied his guilt and claimed to be tried. Prosecution in support of its case examined ten witnesses. The Appellant in his defence examined one defence witness. The Trial Court upon appreciation of the evidence, convicted and sentenced the Appellant as afore-stated.

11. In order to effectively deal with the submissions advanced before us by Mr. Kochrekar, learned counsel for the Appellant and the learned Additional Public Prosecutor, it would be useful to refer to the evidence of the prosecution witnesses.

12. Prosecution has examined P.W.1 Vatsalabai, mother of deceased Kamal. P.W.1 Vatsalabai deposes that she was residing along with Kamal at village Chondhi. According to her, her husband had deserted her. On the day of the incident, since the school was closed, Vatsalabai accompanied by Kamal had gone in search of firewood and had returned at about 3.00 p.m. Thereafter Kamal remained in the house and Vatsalabai went beyond the well in search of firewood. According to Vatsalabai she noticed the Appellant and deceased Kamal. Kamal came running towards the place where Vatsalabai was standing and informed Vatsalabai that the Appellant had proposed marriage to her. Kamal also requested Vatsalabai to slap the Appellant. Vatsalabai accordingly removed her footwear and slapped the Appellant. The Appellant being angered at Vatsalabai slapping him with a footwear, told Vatsalabai as to what would she do if he pushed Kamal in the well. The Appellant accordingly pushed Kamal in the well. After pushing Kamal in the well, the Appellant fled from the scene of incident. Meanwhile Vatsalabai raised cries, but despite her cries the persons who were working nearby did not come to assist her. Vatsalabai further deposed that at about 6.00 p.m. her brother arrived at the scene of incident and dived in the well and after searching for nearly two hours, found the dead body of Kamal. Vatsalabai also deposes that meanwhile the police had arrived on the basis of a report lodged by P.W.3 Namdeo, a Police Patil.

13. In the cross examination, omissions have been elicited that Vatsalabai had not stated in her report that the Appellant had told her as to what she would do if the Appellant pushed Kamal in the well. In the cross examination Vatsalabai had admitted that she had narrated the incident to P.W.3 Namdeo, Police Patil. She had further admitted in cross examination that the report at Exhibit 20 was lodged by her on the next day after the funeral had been performed. She had also admitted that the contents of the report were dictated by her brother P.W.2 - Sudam and thereafter she had signed it. Vatsalabai had also admitted that she had informed P.W.2 Sudam about the Appellant pushing deceased Kamal in the well.

14. Prosecution has examined P.W.2 Sudam, brother of P.W.1 - Vatsalabai, who deposes that he had come to the house of Vatsalabai and on be apprised of the incident, he dived in the well. After searching for nearly two hours, the dead body of deceased Kamal was noticed and was then taken out of the well. He has admitted that the police had arrived at the scene of incident and had also drawn the inquest panchanama. In fact, the timing of the inquest panchanama is from 10.00 p.m. to 10.30 p.m. In cross-examination P.W.2 - Sudam has admitted that Vatsalabai informed him about the incident. He has admitted that his statement was recorded by the police after three days of the incident.

15. Prosecution has examined P.W.3 - Namdeo, Police Patil who had lodged his report at Exhibit 26. P.W.3 - Namdeo deposes that he had learnt from some school children that Kamal, daughter of P.W.1 - Vatsalabi had fallen in the well. He had accordingly gone to the scene of incident and had verified. He deposes that thereafter he had lodged his report at the police station which is a at Exhibit 26. In the cross examination, he has admitted that when he had gone to the well, he had not met P.W.1 - Vatsalabai. He has admitted that he had gone to the residence of P.W.1 Vatsalabai, but Vatsalabai had not disclosed anything to him.

16. Mr. Kochrekar, learned counsel for the Appellant has urged before us that the evidence of P.W.1 - Vatsalabai, P.W.2 - Sudam and P.W.3 - Namdeo does not corroborate each other and the prosecution thus has failed to establish the offence against the Appellant beyond reasonable doubt. Learned counsel for the Appellant has further urged before us that the prosecution is unable to explain the presence of semen on the clothes of deceased Kamal and the positive finding of the Medical Officer that she had recently undergone sexual intercourse. The learned Additional Public Prosecutor had supported the findings arrived at by the Trial Court.

17. P.W.1 - Vatsalabai claims that the Appellant had come to the well and had brazenly asked Vatsalabai as to what she would do if the Appellant pushed Kamal in the well. According to Vatsalabai the Appellant had pushed Kamal in the well and thereafter had fled. According to Vatsalabai, no one assisted her in taking Kamal out of the well and it was only at about 10 p.m. or thereabout that the dead body of deceased Kamal was found by P.W. 2 - Sudam. Vatsalabai in no uncertain terms claims that she had disclosed the entire incident to P.W.2 - Sudam as well as to P.W.3 - Namdeo before Namdeo had gone to the police station for lodging a report. Vatsalabai has also admitted that before the dead body of Kamal could be removed from the well, the police had arrived at the scene of incident.

18. If indeed P.W.1 - Vatsalabai had disclosed the incident to P.W.3 Namdeo, we find it inexplicable that there is no reference at all of the Appellant pushing Kamal in the well in the report at Exhibit 26. In fact, P.W.3 - Namdeo has clearly stated that Vatsalabai had not informed him about the incident. The evidence of P.W.1 - Vatsalabai to that extent not only stands falsified but also affects her credibility. No efforts were made either by P.W.2 - Sudam or P.W.1 - Vatsalabai in informing the police about the Appellant pushing Kamal in the well. A stoic silence was maintained by P.W.1 - Vatsalabai and P.W.2 - Sudam in respect of the Appellant pushing deceased Kamal in the well. It is only on the next day after 4.00 p.m. particularly when the police had gone to the village of P.W.2 - Sudam that a report came to be lodged by Vatsalabai after due consultation with the relatives. Though several opportunities were available to Vatsalabai, yet no disclosure was made by Vatsalabai to either the police or to P.W.3 - Namdeo. We therefore find that the credibility of Vatsalabai stands shattered in respect of the incident deposed to her.

19. P.W.1 - Vatsalabai is the sole eyewitness to the incident and the evidence of P.W.1 Vatsalabai is not of such a sterling quality which would inspire the confidence of the Court for its implicit acceptance. It is true that a conviction of an accused can be based on the testimony of a solitary witness. The testimony of the witness, however, should be of such quality as to inspire the confidence of the Court. The testimony should be free from any blemish and the conduct of the witness should be impeccable so that the Court can accept the testimony implicitly. In the present case, we find that the testimony of P.W.1 - Vatsalabai is such that it does not inspire the confidence of the Court for its implicit acceptance. Though opportunities were available to P.W.1 - Vatsalabai, yet no disclosure was made by her. The conduct of P.W.1 - Vatsalabai also in not disclosing the incident to P.W.3 - Namdeo at the scene of incident is a factor which goes against P.W.1 - Vatsalabai. The delay in lodging of the report certainly leads the Court to infer that P.W.1 - Vatsalabai was not an eyewitness to the incident. The prosecution has also not been able to establish the presence of semen on the clothes of deceased Kamal. As per the evidence of Medical Officer, Kamal was habituated to sexual intercourse and had recently performed sexual intercourse. In that background, therefore, according to us, implicit reliance cannot be placed on the testimony of P.W.1 - Vatsalabai.

20. Apart from the evidence of the witnesses adverted to above, there is no other evidence which would conclusively prove the offence against the Appellant. The Appellant, therefore in our opinion, is entitled to be given the benefit of doubt.

21. Accordingly Criminal Appeal 59 of 2011 is allowed and the conviction and sentence of the Appellant is hereby quashed and set aside and the Appellant is acquitted of the offence with which he was charged and convicted. Fine, if any, paid by the Appellant be refunded to him. Since the Appellant is in jail, he be released forthwith, if not required in any other case.

Appeal allowed.