Bombay High Court
Shri Sunil Shripal Sarde vs The State Of Maharashtra on 17 December, 2012
Bench: V.K. Tahilramani, A. R. Joshi
PPD
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APEALS.1378-04 & 1320-12JUDGMENT.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1378 OF 2004
[THROUGH JAIL]
Shri Sunil Shripal Sarde,
Convict No.C-2537,
Kolhapur Central Prison,
Kalamba. ...Appellant
[Orig.Accused No.1]
Versus
The State of Maharashtra ] ..Respondent
ig _________________
WITH
CRIMINAL APPEAL NO.1320 OF 2012
Smt. Baby Dipak Pawar,
Age : 50 years, Occ. Service,
R/o. Behind Nikam Hospital,
Kupwad, Taluka - Miraj,
Dist. Sangli.
(confined as Female Convict
No.C-Yerawada Central Prison
(Female), Yerawada, Pune -
411 006. ..Appellant
[Orig.Accused No.2]
Versus
The State of Maharashtra. ..Respondent
....
Mrs. B.P. Jakhade, Advocate (appointed) for the appellant in
Cri.Appeal No.1378 /2004.
Mr. D.P. Adsule, APP for the Respondent - State in both Appeals.
Mr. Arfan Sait, Advocate for the appellant in Cri.Appeal No.1320
of 2012.
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....
CORAM : SMT. V. K. TAHILRAMANI, &
A. R. JOSHI, JJ.
DATE OF RESERVING THE
JUDGMENT : 04TH DECEMBER, 2012
DATE OF PRONOUNCING
OF JUDGMENT : 17TH DECEMBER, 2012
JUDGMENT: [PER A. R. JOSHI, J.]
1.
Heard rival submissions on both the appeals which are
respectively preferred by original accused No.1 and original
accused No.2 challenging the judgment and order of conviction
dated 27th February, 2004 passed by III Adhoc Additional
Sessions Judge, Sangli in Sessions Case No.87 of 2003. Both the
accused were convicted of the offence punishable under Section
302 read with Section 34 of IPC and they were sentenced to
suffer imprisonment for life and to pay fine of Rs.1000/ &
Rs.500/ respectively, in default to undergo further sentence for
six months each.
2. Initially Criminal Appeal No.1378 of 2004 was
preferred by orig.accused No.1. When the said appeal was taken
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up for final hearing before this Bench and when it was partly
heard, it was revealed that original accused No.2 who is in jail
custody has also preferred separate appeal challenging the same
judgment and order. She preferred appeal along with
application for condonation of delay as her appeal was belatedly
preferred in the year 2012. By separate order, said application
for condonation of delay was heard and allowed by us and said
Criminal Appeal No.1320 of 2012 was also heard along with part
heard Criminal Appeal No.1378 of 2004 and both the appeals
are being disposed of by this common judgment and order.
3. The case of the prosecution, in nutshell, is as under :-
Initially the victim Dipak Pawar, his wife Baby Pawar
(Appellant/accused No.2) and his children - including PW-3
Manisha and PW-5 Dipali were residing together at Koregaon
Bhima, District - Pune. That time, Dipak Pawar was working as a
compounder and was also selling medicines from his house. That
time, marriage of PW-5 Dipali was performed and she started
residing at her matrimonial home. Thereafter victim Dipak had
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fallen ill and could not recover from the illness and, therefore, all
the family members changed the place of residence and came to
Kupwad, District - Sangli, where the sister and other relatives of
victim were residing. The family started residing in one rented
room belonging to PW-6 landlord one Mahadev.
4. According to the case of prosecution when victim and
his wife (accused No.2) and their children were residing at
Kupwad, victim continued to have ill health and as such was not
doing any job. Due to this, appellant/accused No.2 (his wife
Baby) started working as maid-servant in one hotel Barbi
Garden. At this place of work, she got acquainted with present
appellant/accused No.1 Sunil Sarde. He was working in the said
hotel as a watchman. Both had developed some illicit relations
and appellant/accused No.1 started visiting the house of victim
on many occasions. At occasions, he and accused No.2 used to
take the victim for treatment in the hospital. The illicit relations
between both the accused were revealed to the victim and also to
their children including PW-3 & PW-5. Such illicit relations were
also known to other relatives of the family. However, both the
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accused were not giving any heed to the advice given by relatives
and continued to have illicit relations with each other. Even on
this count, both daughters of victim i.e. PW-3 & PW-5 had
reprimanded their mother i.e. accused No.2, but in vain.
5. According to the case of prosecution, sometime on the
day of Anant Chaturdashi in the year 2000, victim Dipak, who
was ill, was taken in an autorikshaw for admitting in the
hospital. He was taken by both the accused. PW-3 Manisha also
took ride in the autorikshaw on her way to school. She was
dropped at her school and the autorikshaw went ahead. At that
time itself PW-3 Manisha went to workplace of her sister Dipali
(PW-5) and informed her regarding taking of their father to the
hospital by both the accused. On that night at about 10:30 p.m.
or so both the accused returned and told that victim Dipak Pawar
was admitted in the hospital. Even for four-five days, no steps
were taken for taking said victim back to the house though PW-3
Manisha asked her mother regarding whereabouts of her father
(the victim). On this, appellant/accused No.2 told her that her
father had been to the place of his sister at Shirole Kolhapur.
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Thereafter also, for 10-12 days there was no news regarding
victim Dipak and thereafter appellant/accused No.2 told her
children that their father was missing and his whereabouts are
not known. According to the case of prosecution, then for about
two years, nothing happened in the matter, much less, filing of
any missing complaint by accused No.2 or her daughters PW-3 &
PW-5. Subsequently, some time in December, 2002
appellant/accused No.2 made proposal to her daughter PW-3
Manisha that Manisha should get marry to appellant/accused
No.1. During all these years, after missing of Dipak,
appellant/accused No.1 was residing in the house of accused
No.2. PW-3 Manisha negatived the proposal of marrying with
appellant/accused No.1 who was then twice in age. However,
appellant/accused No.2 gave threats of dire consequences to her
young daughter and was compelling her to marry with
appellant/accused No.1. This fact was informed by PW-3 to her
sister PW-5 and thereafter both the sisters approached Mahila
Nyay Andolan Samiti, Sangli and gave written submission that
their mother is coercing PW-3 to get marry with
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appellant/accused No.1 - a rather aged person. On this
submission, requests were made to Superintendent of Police,
Sangli through the said Mahila Nyay Andolan Samiti, Sangli and
during which both the appellants/accused were brought to MIDC
Kupwad police station and they were interrogated. In the roving
enquiry made with both the appellants/accused it was revealed
that they were giving evasive answers and during that time the
factum of missing of Dipak since the year 2000 was revealed and
then further enquiries were made with both the accused. During
interrogation it was revealed through both the accused that
they had killed victim Dipak Pawar after taking him from the
house in the year 2000 on the pretext of taking him to the
hospital for treatment. On revealing this disclosure, PW-4 Police
Nayak Vitthal Koli lodged the First Information Report (Exh.23)
with MIDC Kupwad Police Station.
6. Accordingly offence was registered against both the
appellants/accused for the offence punishable under Section 302
read with Section 34 of IPC. Investigation was handed over to
API Bhapkar. Both the appellants/accused were arrested. API
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Bhapkar (PW-8) took over the investigation and recorded the
statements of both the daughters of victim i.e. PW-3 Manisha and
PW-5 Dipali. According to police appellant/accused No.1 made a
voluntary statement to show the place where the dead body of
Dipak Pawar was concealed. Said place was shown by both the
appellants/accused and detailed panchnama was conducted.
During investigation, API Bhapkar and other police staff visited
the MIDC Shirole police station within which jurisdiction the
incident of murder took place. From that police station, it was
revealed that one accidental death No.40 of 2000 was registered
with MIDC Shiroli police station on 13.9.2000. On finding dead
body of one unknown person and after obtaining photographs of
dead body and taking charge of cloths from the dead body, body
was disposed of after inquest panchnama and postmortem and
the matter remained pending as undetected. All those case
papers were taken charge of by the MIDC Kupwad police on
14.1.2003 along with Muddemal Articles. The clothes and the
photographs of the victim were shown to PW-3 & PW-5. These
witnesses identified them as of their father Dipak Pawar. After
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completion of investigation charge-sheet was filed against both
the appellants/accused and the matter was committed to the
Court of Sessions. Both the accused were tried and convicted, as
mentioned above.
7. Admittedly entire case of prosecution is based on
circumstantial evidence. The circumstances are :
[I]
on the day of Ganesh Visharjan in the year 2000
both the accused took victim Dipak Pawar in an
autorikshaw and thereafter said victim was
missing.
[II] both the accused had illicit relations with each
other and appellant/accused No.1 was frequently
visiting the house of victim even prior to and after
missing of victim.
[III] the spot of offence where allegedly victim Dipak
Pawar was done away was shown by both the
appellants to the police
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8. So far as the first circumstance is concerned, it is
curious to note that though according to case of prosecution PW-
3 & PW-5 mentioned as to both appellants/accused taking the
victim in an autorikshaw during Anant Chaturdashi of the year
2000, there was no any complaint lodged with any police station
regarding missing of Dipak Pawar. In our considered view, the
time gap between the last seen together circumstance and
revealing of the offence of murder in December, 2002, is
required to be construed as a mitigating circumstance to the
case of prosecution. In other words there is much remote relation
between the circumstance of last seen together and alleged
knowledge of MIDC Kupwad police regarding commission of
offence of murder by both the appellants through their alleged
memorandum statement and alleged confession before the police
officer.
9. So far as the illicit relations between both the
appellants/accused inter se, the silence on the part of PW-3 &
PW-5 is of much significance inasmuch as there is no any
complaint or any accusation made by said witnesses against their
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own mother. Apart from their testimonies, there is nothing on
record to show that both the appellants/accused had illicit
relations between them. If for the sake of argument, this
circumstance is accepted as truthful still it will be far fetched to
link them to the offence of murder, mainly due to long lapse of
time of about two years from the missing of victim and revealing
of the commission of offence from the accused persons
themselves.
10. Regarding the third circumstance, in our considered
view, showing of a place by both the accused as to allegedly at
that place the victim was done away, is not such a circumstance
pointing towards the accused so far as their involvement in the
offence of murder and concealing the dead body. Again it must
be said that the silence on the part of PW-3 & PW-5 till insistence
of appellant/accused No.2 for PW-3 to get marry with
appellant/accused No.1, is speaking volumes. Considering the
circumstances and unearthing of the mystery of missing of victim
only because of insistence of accused No.2 insisting her daughter
PW-3 to marry with appellant/accused No.1, though there is a
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grave doubt against both the accused as to having done away
with victim, there is no any cognate circumstance to link both
the appellants/accused with the offence of murder, beyond
reasonable doubt and in that view benefit of doubt is required to
be given in favour of the appellants/accused. Consequently, the
impugned judgment and order is required to be set aside and
both the present appeals are required to be allowed. Hence, the
following order : -
:: O R D E R ::
I. Criminal Appeal Nos.1378 of 2004 & 1320 of
2012 are allowed.
II. The impugned judgment and order of
conviction dated 27th February, 2004 passed by III
Adhoc Additional Sessions Judge, Sangli in Sessions
Case No.87 of 2003 is set aside. Appellants/accused
are acquitted of the offence punishable under
Sections 302 read with Section 34 of IPC
III. The appellants/accused be set at liberty, if
not required in any other matter.
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IV. If fine amount is already paid, it shall be
refunded back to appellants/accused.
V. Writ of order is expedited.
VI. Present judgment and order be
communicated to the appellants through concerned
jail authorities where the appellants/accused are
presently lodged.
VII. At this stage, we wish to place on record our
appreciation for the way in which Mr. Arfan Sait,
learned appointed Advocate appearing for the
appellant has conducted the matter. He was
thoroughly prepared with the matter and he has very
ably argued the matter. We quantify his fees to be
paid by the High Court Legal Services Committee,
Bombay at Rs.2500/-(Rupees Two Thousand Five
Hundred Only). The same to be paid to the learned
Advocate Mr. Arfan Sait within two months from
today.
(A. R. JOSHI, J.) (SMT. V.K. TAHILRAMANI, J.)
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