Criminal Appeal No. 153 of 2014

15th March 2019

Petitioner Counsel: Mr. UDAY WARUNJIKAR NIKHILESH POTE
Respondent Counsel: Mr. ARFAN SAIT
Act Name: Indian Penal Code, 1860

Section :
Section 300 Indian Penal Code, 1860 Section 376 Indian Penal Code, 1860

Cases Cited :
Para 6: Suresh Kamble Vs. State of Maharashtra, 2004 ALL MR (Cri) 2731

JUDGEMENT

PRAKASH D. NAIK, J.

The appellant has preferred this appeal under Section 374(2) of Code of Criminal Procedure (hereinafter referred to as “Cr.P.C.” for short) challenging the judgment and order dated 09.09.2011 passed by the District Judge-12 and Additional Sessions Judge, Pune in Sessions case No. 141 of 2010, convicting the appellant for the offence punishable under Section 302 of Indian Penal Code (hereinafter referred to as “IPC” for short) and sentencing him to suffer rigorous imprisonment for life and to pay fine of Rs.3,000/- and also convicting the appellant for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code thereby he was sentenced to suffer rigorous imprisonment for three years and six months and to pay fine of Rs.3,000/-.

2. The prosecution case is as follows :
(a) The victim was a young girl of 15 years of age. She was ravished by the accused and since he did not succeed in his attempt of committing rape on her, he committed murder of the victim Chhoti @ Sujata @ Sulochana. The accused was aged about 62 years.
(b) It is alleged that the deceased girl was missing on 13.10.2011. It was a date of election and therefore there was no school. Deceased and her younger brother were at home and their parents went for work. When the parents returned home, they found that deceased was not at home. They took search of their daughter with the help of villagers but she was not found on that day. On the next day morning again they took search. During search body of victim was found in the field of one Shinde. There were ligature marks on her neck, her clothes were not properly on her person, blood was oozing from her mouth and nose.
(c) The complaint was lodged against unknown person. On the basis of complaint Criminal C.R. No. 229 of 2009 was registered with Shikrapur Police Station for the offence punishable under Section 302 and 376 of IPC. The accused was arrested. Investigation commenced. The body was sent for postmortem.
(d) Spot panchnama was recorded in the presence of panch witnesses. Samples of mud mixed with blood and mud was collected. Inquest panchnama was conducted. Advance cause of death certificate was received. Seizure panchnama of clothes of deceased was recorded. On completing investigating chargesheet was filed.

3. The case was committed to the Court of Sessions. Charge was framed by the Trial Court by order dated 13.07.2010 under Section 376 and 302 of IPC.

4. The prosecution examined 13 witnesses. The defence of the accused is of denial. Several documents were exhibited during the trial. On completing recording of evidence the statement of the accused was recorded under Section 313 of Cr.P.C. The accused had stated that he do not know anything about the incident and he has been falsely implicated in this crime by villagers.

5. Learned Advocate for the appellant and Learned APP pointed evidence on record in the form of deposition of witnesses and documents exhibited in evidence. Learned Advocate for the appellant submitted that the prosecution has not been able to establish the charges against the appellant beyond reasonable doubt. There is no eye witness to the incident. The evidence of witnesses suffered from serious infirmities. There is delay in recording statement of P.W. No.4. The case is based on circumstantial evidence. The evidence adduced by the prosecution was weak. There are discrepancies in recovery of paijama. The appellant cannot be convicted only on the basis of suspicion. There was no sexual assault on the victim. The Medical Officer had ruled out theory of rape. However, the Trial Court had convicted the appellant by invoking Section 511 of IPC for attempting to commit rape. P.W. No.2 is the child witness and he had not seen his sister searching goats near Bori which was at 100 feet distance from his house. Although the said witness has deposed that cloths of accused was torn. Exhibit-39 shows that cloths were not torn. The evidence of P.W.No.2 and P.W.No.3 was contradictory. The evidence of P.W.No.8 indicates that there was no seizure panchnama of clothes of accused. One of the witness have said that the paijama was on the stone and the other witness has stated that it was below the stone. Recovery of paijama was suspicious. The Medical Officer has not given opinion about the injuries on person of the accused. In the absence of cogent evidence the appellant was entitled for benefit of doubt.

6. Learned Advocate for the appellant further submitted that there are different missing links. The chain of circumstances is not continuous. There is serious doubt as to whether the appellant was present at the spot. The appellant is having the field across the bridge. The appellant is required to use the same route every day. He is required to cross the house of the deceased, bridge for approaching his field and the presence of the appellant is natural. P.W.No.2 has stated that the appellant was wearing bundi and red colour half pant whereas the panchnama shows that it is kapri, underpant and paijama. The photographer in his evidence had admitted that he was called by the police at the spot. Thus, the police was aware about the spot where the panchnama was to be conducted. C.A. report does not support the case of the prosecution as no blood stains or semen were found on the clothes. The appellant is a senior citizen aged about 72 years. Reliance is placed on the decision of this court in the case of Suresh Kamble V/s. State of Maharashtra, 2004 ALL MR (Cri) 2731. In the absence of evidence which would inspire confidence the appellant ought not to have been convicted by the trial court.

7. Learned APP submitted that the prosecution has established its case against the appellant by adducing oral and documentary evidence. There are strong circumstances which establishes commission of crime by the appellant. P.W.No. 3 and P.W. No.4 are natural witnesses. Their evidence has not been demolished by the defence. The C.A. report with regard to the soil found on the clothes of the deceased and the accused matches. P.W. No.4 has seen the appellant coming out from the field where the body of the deceased was found. The deceased was young girl aged about 15 years and the accused has tried to sexually abuse her and while he failed to do so, he killed the victim. The evidence of the Medical Officers corroborates the prosecution case. Injuries were found on the person of the appellant. He has not explained the injuries. He is silent in the statement recorded under Section 313 of the Cr.P.C. In answer to Question No.107 recorded under Section 313 of the Cr.P.C. he has admitted seizure panchanama. There is no reason to doubt the evidence of P.W.No.3 and P.W.No.4. The evidence in the nature of opinion of Medical Officer, seizure panchnama of clothes of accused, medical certificate of examination of accused, opinion as to cause of death, postmortem report and various other circumstances putforth by the prosecution establishes the charge for which the appellant has been convicted. Minor contradiction or omissions would not be sufficient to discard the evidence. It is thus submitted that the conviction of the appellant be confirmed.

8. We have scrutinized the evidence on record. P.W. No.1 Dyaneshwar Palande is the complainant. He noticed the dead body of deceased in agricultural land of Shinde. According to him the body of the deceased was lying under the tree does not trace. Her kurta was lifted above the chest and salwar and under garment were upto her knees. There were marks on the neck and blood was oozing from her mouth. On the basis of his statement FIR was registered on 14.10.2009 vide Cr. No. 229 of 2009 under Section 302, 376 of IPC. P.W.No.2 Dhananjay Palande is a child witness aged about 8 years. He is the brother of the victim. He has stated that his mother went to village and father also went for work. He was at home alongwith Chhoti (victim). He went to temple of Ganpati and victim went to house of Chimi to see television. Thereafter, he went to the village to meet his mother and Chhoti was at home. When he returned home, there was nobody in the house. He saw accused going towards bridge. Thereafter, the accused again came back towards his house and at that time he was wearing bandi and half pant. His clothes were torn.

9. In the cross-examination he has stated that the village of accused is across the bridge and he has to go from the road which is in front of his house. He also stated that people used to come to his house to purchase fruits and Chhoti used to give fruits in the absence of his father and mother. Due to election there was more traffic in the village. P.W. No.3 Sunil Naikade has stated that he is working in the Irrigation Department and his duty is to give water from the dam through canal. On 13.10.2009 he was at the gate of the dam at about 3:00 to 3:30 p.m. he was sitting on the bridge. He was accompanied by one person. They were waiting for somebody to pull motorpump from the well. At that time accused came there and asked him for tobacco. Thereafter, he went towards Mukhai and the witness continued to be on the bridge till 6:30 p.m. In the cross examination he has stated that he knows where accused resides. He did not ask the accused to help him for lifting the motor. After the bridge there is field of Shinde and there are houses of Palande families. The road goes from Mukhai to Shikrapur and then to Pabal. He could not see where accused went whether Mukhai or Shikrapur. He did not say that he saw the accused returning back.

10. P.W. No.4 Aruna Yevale is a villager. She has stated that there was election on the date of incident. She went to collect firewood near the bridge adjacent to field of Shinde and at about 4:00 p.m. she heard the sound of crying of girl. She saw that the accused came from the field of Shinde and went towards the bridge. She knows the accused. She was frightened and returned home. In the cross examination she has stated that she cannot say the name of the girl who made noise. She did not know the place of the incident. She did not go to the field. She did not disclose it to any person. She did not feel that she should take any person to that spot. She had disclosed the said fact for the first time to the police. Her statement was recorded on 18.12.2009. The defence has brought the improvement in her deposition to the extent of words “wachava wachava” and the word “from field”. She deposed that in statement before police she had stated that she saw the accused coming from the field of Shinde. The improvement was to the extent words “from field”. She also admitted that police used to come to her before she went to her maternal house and after she came back from maternal house. Police did not enquire with her about the incident nor she disclosed anything to police. P.W. No. 5 Kavita Mohan Dhumal is working as police-patil of village Mukhai. There was election on 13.10.2009. She was informed that Chhoti was missing. On the next day she was informed that the girl was found in the field of Shinde and she was dead. Thereafter, she called the police and informed them about the incident. Her statement was recorded on 06.01.2010. P.W. No.6 Prakash Mahadeo Chavan is the photographer. He also conducts video recording. He was called by the police and taken to Mukhai. He recorded video shooting. The accused showed the spot. CD was produced in the court. P.W. No.7 Chhaya Ramrao Palande is the mother of victim. She stated that the accused is their neighbour. There was election on the date of incident. She had gone to the field for agricultural work. She found that Chhoti was not in the house. With the help of villagers they tried to search the victim. She was found on the next day. In the cross examination she admitted that due to election there was crowd in her area on the date of incident. On the date of incident, she did not inform the incident to police patil and she informed the same on the next day. The orange field is near her house. It is about 100 to 200 feet from her house. P.W. No. 8 Sunil Palande is working as Primary teacher in Zilla Parishad school. He produced the extract of general register and birth certificate of the victim. The date of the birth of the victim is 27.1.1995. In the cross he admitted that the date of issuance of birth certificate is not mentioned in the said certificate. Name of father is different.

11. P.W. No. 9 Dr.Deepak Dhavale is the Medical Officer. He conducted postmortem of deceased. He noticed external injuries on the person of deceased. According to him final cause of death was “Cardio vascular arrest due to asphyxia due to strangulation”. According to him three injuries on the neck of the deceased which are mentioned in column No.17 of the postmortem report are sufficient for death of a person due to strangulation. The ligature marks are possible if the pressure is given on the neck with cloth. Abrasion marks and other injuries mentioned in postmortem on all over the body suggests the struggle of the deceased. He has replied the queries raised by the police. He examined the accused and found injuries on his person. The accused was examined on 17.10.2009. He was cross examined. He has stated that injuries were not mentioned on the person of accused in his opinion at Exhibit -72. On 20.10.2009 again he was sent for clinical examination and he gave his opinion at Exhibit -73. He did not mention the age of cause of injuries on the person of accused in his opinion (Exhibit 73). P.W. No.10 Yuvraj Palande is the panch witness in respect to the statement of the accused to show the place of incident. The accused and others went to the spot of incident by police vehicle. The accused took them to canal bridge. He showed the place of incident. P.W. No.11 Sanjay Koli is Police Naik. He was attached to Shikrapur police station. He handed over Muddemal to C.A. P.W. No.12 Pratap Palande is the Panch witness for seizure of clothes of accused. According to him the accused handed over his kopari which was having blood stains and under garment which was seized by the police. Seizure panchnama was recorded. The accused then took them to the place of the incident. He produced paijama which was concealed under the stone near the bandh. In the cross examination he stated that there was no reason from him to get down from the bus at Shikrapur on that day. His native place is Mukhai. He went to the police station when he saw villagers going towards the police station. He stated that the accused produced the clothes which were on his person. It is not mentioned in panchnama that there were blood stains on the kopari. P.W. No.13 Satish Nikam is Assistant Police Inspector attached to Shikrapur Police station. He conducted investigation. He stated that accused was arrested on 17.10.2009. In his cross examination he has stated that kopri is torn 3 cm at the back side and under garment is also torn on seat only. He did not record the statement of owner of the field at the spot of incident. Omissions brought through the cross examination of the witnesses were proved through him.

12. On completing the recording evidence of the witnesses the statement of the accused was recorded under Section 313 of the Cr.P.C. Both sides were heard by the Trial Court. The Trial Court observed that from the evidence of P.W. Nos. 1, 2, 3, 4 and 5 it is proved that the deceased was found murdered. Her clothes were lifted. Photographs and CD proved that the motive of accused was to commit rape on the deceased. There were abrasions on the body of the victim. There were injuries on the person of the accused. According to P.W. No. 9 the injuries suggests the defence struggle. Thus the prosecution has proved that there was attempt to commit rape. There was no reason for villagers to falsely implicate the appellant. The prosecution has proved the offence beyond all reasonable doubt by completing the chain of circumstances. The trial court, therefore, opined that the offence punishable under Sections 302 and 376 read with Section 511 of IPC were proved by the prosecution.

13. We have scrutinized the evidence. The prosecution has adduced as oral and documentary evidence. The case of the prosecution is that the victim girl was missing. The body of the victim was found on the next day. The FIR was lodged against unknown person.

14. P.W. No.2 had seen the accused going towards the bridge. P.W. No.3 has also stated that he met the accused on the bridge at about 3:00 to 3:30 p.m. P.W. No.4 had heard the cries of girl and then she saw the accused coming out from the filed of Shinde and going towards the bridge. The body was found in the field of Shinde. P.W. No.9 Dr. Deepak Dhavale has conducted postmortem. He has noticed the following external injuries on the person of victim:
(i) left upper eye lid cynosed with odema with sub- conjunctival haemorrhage;
(ii) blood through nostrils with foam;
(iii) CLW over lip right corner ½ cm long x 1 ½ cm breadth x ½ cm. deep;
(iv) no injury over labia majora and labia minora;
(v) hymen old torn with heeled margin with no bleeding;
(vi) lower abdomen below umbilicus to pubic region multiple abrasions;
(vii) ligature mark over upper thyroid region 14 cm long x deep 5 cm x 2 cm breadth;
(viii) knot mark on right side back of neck 4 cm long x 2 cm breadth;
(ix) abrasion mark on base of neck on left interior 1 cm long x 0.1 cm breadth with upper curve and on right side interiorly 2 cm long x 0.2 cm breadth;
(x) on left mamalary region on supra medial quadrant ½ cm x 3 cm abrasion;
(xi) on right hand arm and fore arm on medial side multiple abrasions due to friction on hard surface;
(xii) on left side antero medial arm to cubital region 19 cm long x 3 cm breadth abrasion;
(xiii) on left leg abrasion over left lateral side of the thigh and leg on whole lengh;
(xiv) on back multiple abrasions over right scapulat region and lower back and buttock due to friction on hard surface;
(xv) nails cynosed of hand, half open mouth, vagina no injury, intact, anus closed, urinal intact, no injury, hands contracted.
(xvi) Larynx trachea and bronchi congested, right and left lungs congested, heart with weight- full and cynosed blood, tongue inside the mouth, stomach empty.

15. He stated that the cause of death was Cardio vascular arrest due to asphyxia due to strangulation. He also deposed that the injuries on the neck of the victim were sufficient to cause death of a person due to strangulation. He has also deposed that he examined the accused and on examination he noticed the following injuries :
(i) abrasion on left hand dorso-medially 1 cm x 1 cm on proximal phalenx;
(ii) 0.5 cm crash inujry on litter finger dorsomedially on destal and middle phalenx joint on left hand,
(iii) 1 cm. scratch on dorso-medial of thumb on destal phalenx of left hand;
(iv) 0.5 cm abrasion on right little finger on middle phaleenx medially.

16. It is admitted by him that the accused was sent for examination for the first time on 17.10.2009. In the information furnished by him vide Exhibit-72 the injuries were not mentioned on the person of accused. He was again examined on 20.10.2009 and information was given vide Exhibit-73. As per Exhibit 68 he was asked about age and cause of injuries on the persons of the accused however he had not mentioned the age and cause of injuries on the person of the accused in his information Exhibit-73. He also admitted that the Exhibit-73 is the only information in respect of the injuries on the persons of the accused. It is pertinent to note that the incident had occurred between 13.10.2009 to 14.10.2009. The information with regard to his injury was given vide Exhibit 73 and as stated above, no such injuries were refereed in Exhibit-72. In the circumstances, no adverse inference can be drawn against the accused on the basis of the opinion expressed in Exhibit-73. The prosecution has established through the evidence the death of the victim was due to strangulation / asphyxia. The question which arises for consideration is whether the appellant is the person who has caused the death of the victim by strangulation/asphyxia.

17. There is no eye witness to the incident. The case of the prosecution is based on the circumstantial evidence. P.W. No. 2 is the brother of victim, he saw accused going towards the bridge. According to him accused again returned to his house. It is also apparent through the evidence that for any person going towards the bridge he has to go from the road in front of his house. The field of the accused was across the bridge and he was required to go from the road in front of his house. Thus the presence of the appellant/accused even it is proved on the bridge or on the road in front of the house of the victim was natural and no adverse inference could be drawn against him. Although P.W. No.3 had stated that he was at the bridge from 3:00 p.m. to 6:30 p.m. and that the accused met him on the bridge at about 3:30 p.m. and asked for tobacco which was a natural conduct, he did not say that the accused had returned back. Thus the circumstances putforth by P.W.No.2 and P.W. No. 3 are not sufficient to establish the involvement of the appellant in commission of murder of deceased or attempt to commit rape. The evidence of P.W.No.4 was vital to the prosecution case she is the only witness who has deposed that she saw the accused coming from the field of Shinde and went towards the bridge. According to her she went to collect the firewood near the bridge at 4:00 p.m. she heard the cries of girl. However, she did not shout, she did not question the accused, she did not inform the incident to anybody. Although police were making enquiries, she did not disclose the said fact to the police. Although search was conducted by the relatives of the victims and the villagers she did not deem fit and proper to disclose the aforesaid facts to them. For the first time she had informed the same to the police when the police recorded her statement on 18.12.2009 i.e. almost after the period of 2 months. The defence has also brought certain omissions to the extent of the words “wachawa wachawa” heard by witness through the cries of unknown girl and the words “from field” which were made with reference to the accused coming out from the field. Thus the evidence of the said witness does not inspire confidence. There were discrepancies with regard to the place of the incident, the road which leads to the place of incident. There were discrepancies with regard to the clothes worn by the accused at the time of incident. There are infirmities with regard to recovery of paijama at the instance of accused from the field. Thus, there is no strong evidence to establish that the appellant is the person who has committed murder of the deceased and had attempted to commit rape. The chain of circumstances must be proved beyond doubt. There are missing links. The chain is not continuous. There is serious doubt as to whether the appellant was present at the spot. It is pertinent to note that the appellant hails from the village which is across the bridge. He is having field which is across the bridge. He is required to use the same route. He has to cross the house of victim, bridge and thereafter he could go to his field. P.W.No. 2 has stated that he saw accused going towards the bridge and then returning. P.W.No. 3 has, however, stated that he was present at the bridge till 6:30 pm and he saw the accused crossing the bridge but did not state about his return. P.W.No. 4 had seen the accused coming out of the field at about 4 p.m. These circumstances create doubt about the veracity of evidence of the witness. Hence, the accused is entitled for benefit of doubt. As per C.A. report no blood stains found on the clothes and no semen on the clothes of the accused. The prosecution was trying to draw an inference against the accused on the basis of the C.A. report regarding soil on the clothes of the accused and the deceased which matches. However, no adverse inference could be drawn only on the basis of such report as it is natural and normal as the appellant is a farmer and existence of soil on his clothes. There is every likelihood of soil matching in the adjacent field. In the light of nature of evidence, it will have to be held that the prosecution has not been able to prove beyond all reasonable doubts that accused has committed offences, and, hence, he is entitled for acquittal.

18. Hence, we pass the following order:

:: ORDER ::

(1) The judgment and order dated 09.09.2011 delivered by the District Judge-12 & Additional Sessions Judge, Pune in Sessions Case No.141 of 2010 is quashed and set aside.
(2) The appellant is acquitted of the offences with which he is charged. He be released forthwith if his custody is not required by the State Government in any mother matter.
(3) Muddemal property be dealt with as directed by the trial court after expiry of appeal period.

Decision : Ordered accordingly.