Rama Gopal Pawar vs The State Of Maharashtra
2004 Latest Caselaw 271 Bom

JUDGMENT

Palshikar, J.

1. Being aggrieved by the judgment and order of conviction recorded in Sessions Case No. 283/99 the appellant has preferred this appeal on the grounds mentioned in the memo of appeal.

2. With the assistance of the learned counsel for the defence and the prosecution we have scrutinized the record and reappreciated the evidence.

3. The prosecution story stated briefly is that the complainant Laxmibai Gopal Pawar is the mother of accused-appellant. She was residing in outhouse of Polson Bungalow at Raiwood, Lonavala and doing the work of gardening. On 12.10.1998 when she got up in the morning as usual at 7.30 a.m. she found dead body of her daughter-in-law Jijabai with stab injuries on her face and head lying in front of her house. She also found underpant of her son Rama i.e. accused-appellant lying nearby and got suspicion that her son might have committed murder of her daughter-in-law. She lodged FIR against her son at Lonavala police station.

4. The prosecution examined as many as 16 witnesses in support of its case that the accused was the person who committed murder of the victim. Relying on this evidence learned trial Judge convicted the accused as aforesaid. Hence this appeal.

5. The complainant Laxmibai Powar who unfortunately was the mother of the accused complained about accused of committing murder of his wife Jijabai. There is on record a dying declaration of this Jijabai. Learned counsel appearing on behalf of the appellant contended that i) the dying declaration is not duly proved, ii) the evidence of eye witness is inconsistent, iii) there are improvements material in nature. He therefore prayed that the order of conviction is unsustainable. The order of conviction was supported by the learned additional Public Prosecutor stating that the ocular testimony was enough corroboration for the dying declaration of the accused as duly recorded. P.W.1-Laxmibai Pawar is the mother of the accused who lodged the complaint on suspicion that the victim her daughter-in-law is murdered by the accused. The only reason for her inference of this crime was that underpant of the accused was found near the dead body. She has deposed that she and her son were staying separately, that she got up early in the morning as usual and went to work as usual, while so going she found that her daughter-in-law Jijabai was lying in front of her house under mango tree. Presuming that she is sleeping there the witness went to work but after working for half an hour she came back to notice the deceased lying in the same position. She therefore called 2/3 neighbours and when tried to awaken the victim. She released that she was dead. She found underpant of the accused around and therefore complained that it is the accused who killed her. She has deposed that after lodging the complaint she did not see the accused for next 2/3 days. The accused according to her was found after six days of the incident. It will thus be seen that she has lodged the First Information Report merely on suspicion. In the statement she has said that according to her the accused Rama Pawar has killed his wife somewhere, put her down near the mango tree. In the report (FIR) she has also said that after realising that the wife is dead she went in search for the accused in his house and did not find him there.

6. P.W.2-Laxman Pawar is the brother of the accused. He was told by the police that wife of the accused is dead and mother suspects the son. He then speaks of going to search for his brother at the house of the accused, called the accused, since there was no response police was also called and the door of the house was opened forcibly. Inside the house they found the accused Rama lying in unconscious condition. Police took him to the hospital. This witness has no where stated as to on what date. He went to the house of the accused around 3.00/4.00 p.m., located him in unconscious condition. P.W.1 has further stated that according to her murder took place in the night of 11th/12th October, 1998. It is on record that the accused was discovered in unconscious condition on 15th. P.W.3 is witness to the seizure of the under pant of the accused. The seizure is only inconsequential as it was made in the padvi of the house of P.W.1. Padvi was open and accessible to anybody. From the testimony of P.W.4 it is obvious that the body of victim Jijabai was discovered on 12.10.1998 around 9.30 a.m. This witness has deposed in very clear terms that the distance between the house of the accused an the house of P.W.1-mother is about 4 kms. P.W.1 has categorically averred in her statement that the accused has killed his wife somewhere and dumped the dead body in her padvi. P.W.5-Dr.A.N. Gaikwad examined the accused and stated that he examined the accused who was admitted in Sasoon hospital on 15.10.1998 and looking to the condition of the accused a ding declaration was recorded by Executive Magistrate on 15.10.1998 itself. He has then deposed that he had examined the accused and found that he was in conscious condition and able to make statement. Such endorsement is made on the statement. He proves the endorsement as Ex.20 and his certificate Ex.21. Ex.20 clearly discloses that the statement of the accused was recorded on 15.10.1998. He has stated that he had swallon insecticide around 8.00 pm. on 14.10.1998 and he has given reason for consuming poison that he has killed his wife.

7. P.W.6-T.G. Gaikwad is the witness who says that he saw the husband and wife quarrelling in the evening of 11.10.1998. He then claims that thereafter in the night he saw the accused sitting on the chest of the victim and was assaulting her. When the witness tried to save and separate them the accused rushed at him and he therefor ran away. This witness therefore claims to be eye witness of the assault which took place in the night of 11.10.1998, yet he did not inform about the assault to any of the relatives of the accused, he did not inform of the assault to people of the village, he did not for that matter informed anybody that he witnessed such an assault. He admits in cross examination that he never told anything till police enquired of him. In our opinion, the behaviour of this witness is extremely unnatural. No human being would react in such a way after being a witness to an assaulting resulting into death, particularly when he claims to know the victim and the assailant. It is impossible that a person would keep quiet on witnessing such an assault. We see no reason why the testimony of this witness should be believed.

8. Then there is evidence of seizure of koyta at the instance of the accused. Chemical examination of that koyta is inconclusive. P.w.9-V.K. Bandinandan states on oath that he located the accused on 15.10.1998. What accused was doing from 12 to 15th is not stated. Where the assault took place is not stated. P.W.6 who claims to be eye witness deposes that he saw the assault while he was returning to house on the Rai road. What is the place is not known. How he comes there is because he was on his way home. In any case that was the place which was away from the house of the accused as also away from the house of P.W.1 where the body was found. Even if testimony of this witness is accepted as truth and it is further inferred that the victim died because of the assault it took place at that place, there is no explanation whatsoever coming forward from the prosecution as who how and why the accused took the body from that spot to the house of his mother. When was this done is not known. If the assault was seen around 8 o'clock in the night the body must have been taken to the spot where it was found within reasonable time thereafter i.e. by 10 o'clock in the night. It was not so late in the night that there was not even a single soul on the entire road. It is for this reason also that the evidence of P.W.6 who claims to be eye witness is unacceptable to us. The Chemical Analyser's report on blood stains is also inconclusive. In such circumstances the only piece of evidence on the basis of which learned trial Judge has convicted the accused is the dying declaration. It is true that the dying declaration has been properly recorded. The recording of dying declaration confirms to the form of it but the contents are not reliable. They do not inspire confidence. There is no reason why the accused would commit murder of his wife, carry her body for two kilometers, wait for two days and then try and commit suicide. The theory of accused committing murder and taking away body to a different place and thereafter committing suicide is therefore incompatible to the circumstances proved by the prosecution.

9. We also are of the view that had the accused factually repented of killing his wife on 12.10.1998 he would not have waited till 14.10.1998 to consume poison and commit suicide. He would have done so immediately on committing murder and become remorseful. In such circumstances where the conduct of the mother P.W.1 is unnatural, she knows that the daughter-in-law was staying apart and away at five kilometers that she is lying under a mango three near the house, it is unnatural on the part of a relation not to enquire in such circumstances as to why are you sleeping outside the house and why did you not come into the house. There is no evidence that P.W.1 and her daughter-in-law were on inimical terms. The conduct of P.W.1 who is mother of the accused is also grossly unnatural when she says that on realising that the victim was dead she went in search of the accused to his house and finding the house closed came back, no attempt was made by this witness to see whether the accused is inside the house. Equally unnatural is the conduct of P.W.6 who witnessed the assault, knows the person assaulting a person, walked away without complaining about it to any body. All these circumstances create a reasonable doubt in the mind of prudent man as to the veracity of the story as put forward by the prosecution. When such doubt aries and it is obviously reasonable then the only conclusion is that the benefit must got to the accused. We are therefore unable to uphold the order of conviction in the above circumstances. In the result therefor appeal succeeds and is allowed. Appellant-accused be released forthwith if not require in any other case. Office is directed to dispatch the writ within one week from today.