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IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.582 OF 2003
Smt.Durgavati Ramparvesh Sharma ]
Age - 28 years, Occ.Household, ]
R/o. Tamgaon, Taluka Karveer, ]
Dist. Kolhapur. Presently lodged in ]
District Prison, Kalamba, Kolhapur. ]...Appellant.
[Orig. Accused No.3]
Vs.
State of Maharashtra ]
through P.I. Karveer ]
Police Stateion, Kolhapur, ]
Dist. Kolhapur in CR No.82/2002 ]
U/S. 302, 201, 34 of I.P.C.. ]..Respondent.
.........
Mr.Shekhar Ingawale, Advocate for the Appellant.
Mrs.A.S. Pai, A.P.P. for the Respondent - State.
.........
WITH
CRIMINAL APPEAL NO.905 OF 2003
State of Maharashtra. ]..Appellant.
Vs.
1. Ravishankar Ramparvesh Thakur, ]
Age 32 yrs. ]
2. Ashokkumar Kusheshwar Thakur, ]
Age 22 yrs. ]
3. Smt.Durgavati Ramparvesh Sharma, ]
Age 28 yrs. ]
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All R/o Tamgaon, Tal.Karveer, ]
Dist.Kolhapur. ] ..Respondents.
[Orig.Accused Nos.1 to 3]
....
Mrs.A.S. Pai, A.P.P. for the Appellant-State.
Mr.Shekhar Ingawale, Advocate for Respondent No.1 & 3.
Mr.P.V. Dhopatkar, Advocate(appointed) for respondent No.2-Absent.
....
CORAM : D.D.SINHA & A.R.JOSHI, JJ.
DATE OF RESERVING ) : 27.8.2010
THE JUDGMENT )
DATE OF PRONOUNCING ) : 08.9.2010
THE JUDGMENT )
JUDGMENT (PER A.R.JOSHI,J.).
1. By the present judgment both these appeals are being disposed of as they
are arising out of the same judgment and order dated 7th April, 2003.
2. Sessions Case No.146/2002 was heard and decided by the Adhoc
Additional Sessions Judge, Kolhapur vide judgment and order dated 7th April,
2003. By the said order and judgment, original accused Nos.1 & 2 were
acquitted of the charges framed against them for the offences punishable under
Sections 302, 201 read with Section 34 of Indian Penal Code. Being aggrieved
by such acquittal of accused Nos.1 & 2, present Criminal Appeal No.905/2003
was preferred by the State.
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3. By the same judgment and order dated 7th April, 2003, original accused
No.3, a woman by name Smt.Durgavati Sharma, was convicted of the offence
punishable under Section 302 of Indian Penal Code and was sentenced to suffer
rigorous imprisonment for life. However, she was acquitted for the offence
punishable under Section 201 of Indian Penal Code. Being aggrieved by such
conviction, accused No.3 preferred Criminal Appeal No.582/2003. As such, both
the present appeals are being disposed of by this common judgment.
4.
Prior to appreciating rival arguments advanced by the learned APP
Mrs.Pai for the State and learned Advocate Mr.Ingawale for original accused
Nos.1 & 3, certain factual position and the evidence as recorded by the Sessions
Court can be narrated as under. Again at this stage, it may be mentioned that
original accused No.2, who is respondent No.2 in Criminal Appeal No.905/2003,
is reportedly absconding however is represented by Advocate appointed under
Legal Aid Scheme of the State Government. However, today we have no
opportunity to hear him in the present appeals due to his absence.
On 30th March, 2002 dead body of one unknown person was found in the
stone quarry area within the precincts of Tamgaon village, near Gautam Society,
Taluka – Karveer, District – Kolhapur. Information was received by the concerned
police station Karveer, regarding accidental death. As such, A.D.R. was
registered and investigation was started. Inquest panchanama was drawn. Dead
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body, which was beheaded, was in mutilated condition and infact putrefaction
was at the advanced stage showing that the death must have occurred 3-4 days
prior to finding of the dead body. Noticing the mutilated condition of the dead
body, detailed postmortem was not conducted, however, viscera and parts of the
body were sent for scientific examination by orthopedician of Miraj Medical
College. Opinion was obtained from the medical expert that the death must have
occurred due to beheading and also due to injury by some weapon. In view of
these observations, API Sutar (PW-19) lodged FIR on behalf of the State being
C.R. No.82/2002 for the offences punishable under Section 302 read with
Section 201 of Indian Penal Code. Said FIR was registered on the night of 3rd
April, 2002.
5. During the investigation, role of three persons was ascertained i.e.
accused Nos.1 & 2 being Ravishankar Thakur and Ashok Kumar and accused
No.3 Smt.Durgavati Sharma. All the three accused were arrested in the evening
of 4th April, 2002. According to the case of the prosecution, accused Nos.2 & 3
had illicit relations and allegedly it was the motive in the killing of the husband
of accused No.3. Incidentally during investigation, the head of the dead body
was recovered allegedly at the instance of accused No.1 and it was identified by
various witnesses as that of one Rampravesh Sharma, husband of accused No.3.
6. It is the case of the prosecution that deceased had knowledge regarding
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illicit relations between his wife and accused No.2 and as such he had
reprimanded accused No.2 on that count. Also, according to the prosecution all
the three accused infurtherance of their common intention decided to do away
with the deceased and as such on the night between 29th and 30th March, 2002
the deceased was assaulted by means of a kitchen-knife and after killing him his
head was severed from the body and was thrown in the stone-quarry filled with
water, away from the house of the deceased. Also according to the prosecution,
the beheaded dead body was taken from the house of the deceased and was
thrown in the area near the stone-quarry and attempt was made to burn the said
body by using petrol.
7. During investigation, statements of various witnesses were recorded. So
also, various panchanamas were drawn. During recording of the evidence, total
22 witnesses were examined. The case of the prosecution is based on
circumstantial evidence and the circumstances against the accused are narrated at
the appropriate place here under.
8. Motive, according to the prosecution, is illicit relationship between
accused Nos.2 & 3, and also strained relations between the deceased and his wife
(accused No.3). At this juncture, it must be mentioned that so far as the alleged
illicit relations, there is no material whatsoever available on record. So far as the
strained relations of deceased and his wife (accused No.3), there is evidence of
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two witnesses (1) PW-4 Rajani Patil and (2) PW-11 Shivaji Gondhalekar. Their
substantive evidence disclose that deceased used to consume liquor and used to
assault his wife on many occasions and due to which their relations were strained
and infact allegedly there was a reason for wife (accused No.3) to get rid of her
husband.
9. Admittedly the entire case of the prosecution is based on circumstantial
evidence, as such the circumstances alleged against all the three accused are
narrated and it is to be ascertained whether or not such circumstances clinchingly
incriminate the accused persons for the offence of murder. As against all the
three accused, there is a circumstance as to seizure of their clothes at the time of
their arrest. Four days after the incident of murder, all the three accused were
arrested on 4th April, 2002. The clothes on their person were seized under the
panchnama. PW-1 Panch Balasaheb is examined to prove said panchnama.
According to prosecution, clothes of all the accused persons were having some
blood stains. Subsequently, clothes were sent for chemical analysis along with
other articles. In C.A. report though it is mentioned as to finding of blood of
human origin on such clothes, the blood group could not be determined as the
results were inconclusive. As such, admitted position remains that this
circumstance of finding blood stains on the clothes of the accused cannot be
considered as a clinching evidence to rule out any other hypothesis consistent
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with innocence of the accused. During the arguments, learned A.P.P. for the State
had fairly conceded to this position.
10. As against accused No.3 there is another circumstance brought to the
notice of this Court on behalf of the prosecution and this is regarding recovery of
blood stains from her house and recovery of one rope having blood stains. It is
not at all case of the prosecution that the death of the victim was caused by use
of any rope to strangulate. In view of this position, it is innocuous as to finding
of a rope with blood stains in the house of accused No.3. Recovery of blood
stains and rope with blood stains was substantiated by evidence of PW-3 Dipak
Nalawade (a panch witness). Said panchnama was drawn on 5th April, 2002. It
must be said that this circumstance also cannot lead this Court to hold that
accused No.3, and none else, had committed murder of the victim. At the cost of
repetition it must be mentioned that the result of the chemical analyzer as to
non-determination of the blood-group of the blood found in the house of accused
No.3 and the blood on the rope, is an aspect which is required to be accepted
against the case of the prosecution. Needless to mention that when the case is
based on circumstantial evidence, the circumstances must be of such a nature
and of such an evidential value so as to lead the Court to the only hypothesis as
to the guilt of the accused. In any event, the circumstances as available against
accused No.3 are not of such a nature to point out towards the guilt of accused
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No.3 for the offence of murder.
11. It must be mentioned that vide impugned judgment and order only
accused No.3 was convicted for the offence punishable under Section 302 of
Indian Penal Code and accused Nos.1 & 2 were acquitted for all the charges. As
such, there is no application of Section 34 of Indian Penal Code, the common
intention of the accused. Considering this position, it must be said that there was
more burden on the prosecution to establish the guilt of accused No.3 for the
offence punishable under Section 302 of Indian Penal Code simplicitor. While
appreciating the arguments advanced on behalf of accused No.3 in the matter of
Criminal Appeal No.582/2003, the admitted factual position is of much
significance. According to the case of the prosecution assault on the victim
occurred in his house, whereas his beheaded dead body was found much away
near the stone quarry. Considering this factual position, the evidence on record
do not show as to in what manner accused No.3 could arrange for taking the dead
body of her husband from the house to a distant place and that also to behead it
in order to conceal the identity and throw away head in the stagnant water of
stone quarry. For want of such evidence, it must be said that the Additional
Sessions Judge had fallen in an error while holding accused No.3 guilty of the
offence of murder. It is significant to note that by the impugned judgment and
order, accused No.3 was acquitted of the offence punishable under Section 201
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of Indian Penal Code. Hence, in view of the above discussion we hold that the
circumstances as alleged against accused No.3 are not at all sufficient to bring
home guilt of accused No.3 for the offence punishable under Section 302 of
Indian Penal Code. In the result, Criminal Appeal No.582 of 2003 shall succeed.
12. So far as Criminal Appeal No.905/2003 is concerned, it is filed by the
State against the acquittal of accused Nos.1 & 2. According to the prosecution, as
argued by learned A.P.P. Mrs.Pai for the State, there are six circumstances
against accused No.1 and there are three circumstances against accused No.2.
The circumstances alleged against the respective accused are narrated in nutshell
here under so also the reasoning for not accepting those circumstances as
clinching evidence is given against each circumstance. The six circumstances as
against accused No.1 are as under:
[i] Evidence of PW-12 Mohammed Ali regarding purchase of knife :
So far as the first circumstance of purchase of knife is concerned,
according to PW-12 he had identified accused No.1 when brought to his shop by
the police subsequently after the incident of murder. According to said PW-12
(shopkeeper) though he admitted during the cross-examination as to selling
similar such articles to number of persons on usual working hours, still
according to him he could identify accused No.1 as the person who has
purchased the same knife which was shown to him by the police. It is significant
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to note that during the cross-examination it has come on record that the knives
similar to the Article 27, are available in the market. Moreover the said knife did
not have any blood stains much less the blood stains of same group as that of the
deceased.
[ii] Evidence of PW-14 Parshuram Kamble regarding purchase of petrol on
30th March, 2002 :
This circumstance is not of much significance in as much as there is
nothing on record that the dead body was burnt or at least the clothes of the dead
body were tried to be destroyed by burning. At this juncture, it must be
mentioned that the clothes of the deceased were recovered under Section 27 of
the Indian Evidence Act, allegedly on the statement of accused No.2, and PW-9
Sunder Kamble acted as a panch. Nowhere in the panchnama, it is mentioned
that the said clothes were burnt or half-burnt as such it is of no relevance for
implicating accused No.1 and for that matter accused No.2 with the offence of
murder.
[iii] Evidence of PW-13 Mahesh Pimple as to accused No.1 taking his bicycle
for the entire night of 30th March, 2002 and returning it back on the next day :
This circumstance is innocuous in as much as the panchnama regarding
recovery of cycle is admitted by the accused and there is no evidence that said
bicycle was used in the offence for carrying the dead body or the head of the
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deceased from the place of offence to the place where it was thrown.
[iv] Recovery of blood stained clothes of accused No.1 and which is
established by evidence of PW-1 panch Balasaheb.
This circumstance is innocuous for the same reason as mentioned earlier
while discussing the seizure of clothes of accused No.3. At the cost of repetition,
it must be mentioned that the C.A. report do not show any blood grouping and
the recovery of the clothes is after four days of the incident of murder and
allegedly accused was wearing the same clothes on his person till seizure on 4th
April, 2002.
[v] Relation of accused No.1 with accused No.3 as brother and sister :
This circumstance in itself will not have any bearing on the present matter,
more so when it is held by us that accused No.3 has been wrongly convicted by
the Sessions Court. In other words, mere relation as brother and sister between
accused Nos.1 & 3 cannot lead this Court to hold accused No.1 guilty of the
offence of murder.
[vi] Discovery of head without body, at the instance of accused No.1 as per
the panchnama dated 4th April, 2002 i.e. memorandum statement and
subsequent discovery under Section 27 of Evidence Act :
This last circumstance is the main circumstance according to the
prosecution against accused No.1 as to his statement for showing the place where
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the head of the deceased was thrown. On this recovery much is argued by the
learned APP and further submitted that the Sessions Court had not appreciated
the said evidence of discovery. After going through the reasoning given by the
learned Sessions Judge and considering the circumstances under which said head
of the deceased was recovered from the stagnant water accumulated in the stone
quarry, we are of the view that there is no error committed by the Sessions Court
in not accepting the said circumstance against accused No.1.
13.
During the arguments, learned APP for the State brought to the notice of
this Court mainly three circumstances as against accused No.2 as under.
[i] Finding of blood stained clothes of accused No.2 on the day of his arrest
i.e. on 4.4.2002:
Again for the reasons mentioned hereinabove the said circumstance is
innocuous in view of finding in the CA report as blood grouping could not be
determined and improbability as to accused persons using the same clothes from
the date of the incident till their arrest i.e. since 29.3.2010 or 30.3.2010 till
4.4.2010.
[ii] Discovery of the clothes of the deceased at his instance as per his
memorandum statement dated 6.4.2002.
PW-9 panch Sunder Kamble is examined by the prosecution on this
aspect. On this aspect, reasoning given by the learned Sessions Judge not
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accepting this circumstance as incriminating against accused No.2 is acceptable.
More so when the recovery is from the open public place accessible to the public
at large. Otherwise also even acceptance of such discovery at the instance of
accused No.2 will not be a clinching evidence so far as offence under Section
302 of Indian Penal Code is concerned.
[iii] Conversation heard by PW-17 STD booth operator :
According to this witness, he had overheard the conversation between the
deceased when the deceased was talking to the brother of accused No.2. Few
days prior to the incident of murder, there was a telephone call at the STD booth
of PW-17 received from the brother of accused No.2. During such conversation,
PW-17 overheard the deceased reprimanding the brother of accused No.2 and
asking said brother to instruct accused No.2 to stop illicit relations accused No.2
had with accused No.3 (the wife of the deceased). Apart from the evidence of
PW-17, there is no evidence in order to substantiate the said talk. At the cost of
repetition, it must be said that there is absolutely no evidence to establish the
alleged illicit relations between accused No.2 & accused No.3 and hence this
circumstance of alleged talk is of no help to further the case of the prosecution.
14. In the final analysis, we hold that there is nothing to entertain the
Criminal Appeal No.905 of 2003 preferred by the State against acquittal of
accused Nos.1 & 2. In the result, both the appeals are disposed of with following
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order :-
:: O R D E R::
[i] Criminal Appeal No.582 of 2003 is allowed. The impugned
judgment and order dated 7.4.2003 passed by the learned Adhoc
Additional Sessions Judge, Kolhapur in Sessions Case No.146/2002 is
quashed and set-aside. The appellant (original accused No.3)
Smt.Durgavati Ramparvesh Sharma shall be released from the jail
custody forthwith, if not required in any other case. The fine amount, if
already paid, shall be refunded back to her.
[ii] Criminal Appeal No.905 of 2003 stands dismissed.
(D.D.SINHA,J.)
(A.R.JOSHI,J.)
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