Sanjay S/O Atmaram Kulsange vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 7658 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH, NAGPUR

                        CRIMINAL APPEAL NO. 131 OF 2016


            Sanjay s/o Atmaram Kulsange,
            aged : 37 years, Occupation : Labour,
            R/o. Sawarkhed, Tah. Ralegaon,
            District : Chandrapur                                 ...... APPELLANT

                                 ...VERSUS...

            The State of Maharashtra, through
            P.S.O.  Bhadrawati Police Station,
            Chandrapur                    ............                      RESPONDENT

 -------------------------------------------------------------------------------------------
 Shri R.D.Hajare, Advocate for appellant
 Shri B.M.Lonare, A.P.P. for Respondent State
 -------------------------------------------------------------------------------------------
           CORAM: R. K. DESHPANDE, AND
                       MANISH PITALE, JJ.

th RESERVED ON : 18 SEPTEMBER, 2017 .

                                            th
           PRONOUNCED ON :  28     SEPTEMBER, 2017 .

 JUDGMENT  (Per R.K.Deshpande, J).


            1]             The   appellant/accused   was   charged   that   on

14.08.2014 at about 00.15 hours at Shirna river, Majri, he put

the head of Bena @ Rani Sanjay Kulsange into the water

and pressed till her death and thereby intentionally or

knowingly caused the death of Bena and has thereby

committed offence punishable under Section 302 of Indian

Penal Code. In Sessions Case No. 16 of 2015, the learned

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Additional Sessions Judge, Warora, has held that this charge

is proved and accordingly, by his judgment, convicted the

accused and sentenced him to suffer imprisonment for life

with fine of Rs.2,000/-, in default of which to suffer simple

imprisonment for a period of 6 months. This decision of the

Sessions Court delivered on 17.02.2016 is the subject matter

of challenge in this appeal by the accused.

2] At the outset, we must point out that after going

through the entire record, we find that no event or incident

happened as alleged, on 14.08.2014 at 00.15 hrs., as is

found in the Charge and the findings recorded by the

Sessions Court. In fact, on 27.08.2014, it was an accidental

death of deceased recorded vide Merg No. 14/2014, a

panchnama at Exh.9. However, subsequently on the basis

of report dated 03.12.2014 at Exh.32 by PW-10 Gajanan,

I.O., an offence punishable under Section 302 of I.P.C was

registered vide F.I.R. No. 54 of 2014 against the appellant for

committing murder of his wife Bena @ Rani on 27.08.2014.

3] Be that as it may, the conviction by the Sessions

Court is based on circumstantial evidence and after

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accepting the theory of extra judicial confession vouched by

PW-4 Puja, the daughter of the accused and PW-5 Atmaram,

the father of the accused, along with the theory of last seen

together vouched by PW-6 Shrikant Datarkar.

4] The story of the prosecution as is narrated by

PW-3 - Manoj Raghunath Nale, Investigating Officer, is that

on the bank of Shirna river in Majri colliery, a dead body of

30-35 years old woman was lying on 27.08.2014. He,

therefore, called the panch witnesses by issuing summons

under Section 175 of Criminal Procedure Code. Inquest

Panchnama at Exh.8 and Spot Panchnama at Exh.9 was

conducted between 16.45 to 18.15 Hrs. The body was sent

for post mortem. On the basis of it, Merg No. 14 of 2014 was

registered at Police Station, Majri.

5] On 06.09.2014, PW-10 Gajanan Tamte, A.P.I,

received the post mortem report in which the cause of death

was given as asphyxia due to drowning into the water. On

further investigation, he found that the deepness of water

was only 2 feet and the dead body was found at a distance of

20 feet from the flow of river. After recording statements of

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witnesses, he found that on the day of incident, quarrel was

going on in the river between the deceased woman and her

husband, who were residing at the Railway Station. The

accused committed the murder of his wife. Hence, a report

was accordingly lodged at Exh.32, registering the offence of

murder punishable under Section 302 of I.P.C vide F.I.R. No.

54 of 2014 on 03.12.2014 at 16.00 hours. This witness

further states that the investigation thereafter was done by

P.S.I. Salim Chauhan.

6] PW-12 Salim Chauhan states in his evidence

that he arrested the accused and the arrest memo at Exh.39

shows the date of arrest as 05.12.2014 at 20.15 hrs., from

the area of Police Station Majri, District Chandrapur. He

thereafter went on the spot along with the accused on

08.12.2014 and prepared a spot panchnama at Exh.11.

Thereafter on 12.12.2014, he recorded the statements of

Atmaram Kulsange and Puja Kulsange, the father and the

daughter of the accused. Then he gave letter to the Judicial

Magistrate, Bhandrawati for recording the statement of

witnesses as per Section 161 of Cr.P.C. at Exh. 40. He then

gave letter to the Judicial Magistrate, Bhandrawati, for

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obtaining permission for identification parade of the accused,

which is at Exh. 41 and thereafter gave letter to the Tahsildar

for holding identification parade Exh.42. He gave letter to the

Medical Officer for obtaining report of query at Exh. 36 and

the query report was submitted at Exh.37. The Tahsildar,

Bhadrawati, prepared the sketch of spot at Exh. 44.

7] The learned Judge of the Sessions Court

considers post mortem report at Exh. 35 submitted by the

Medical Officer, Dr. Vishal, PW-11, in which the probable

cause of death of the deceased was shown as asphyxia due

to drowning and further opinion is expressed that it can be

most probably a homicidal death.

8] The Sessions Court thereafter considers the oral

evidence of PW-7, Sudhakar Vaidya, who was a tractor

driver, who used to take the tractor on the brick kiln of one

Shamsundar Pole and according to him, the accused and his

wife were working on the said brick kiln. The Court also

considers the oral evidence of another witness PW-8,

Sudhakar Atram, who stated that the Police had shown photo

of one woman to him and that woman was working with the

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accused on the brick kiln of Shamsundar Pole and both were

residing at Railway Station. The Court accepts the

statements of these two witnesses as credible to hold that

the accused and the deceased were husband and wife, who

were working on the brick kiln of Shamsundar Pole and were

residing at Railway Station of Majri.

9] The Sessions Court also considers the oral

evidence of one Shrikant Datarkar, PW-6, on the theory of

last seen together. This witness states that he knows the

accused and saw the accused fighting with one woman in

Shirna river and then he proceeded for his work. He states

that between 3 to 4 p.m., he saw the crowd on the spot

where the accused and woman were fighting and when he

went there, he saw that the woman who was fighting with the

accused was lying dead. He identified the accused in the

identification parade at Exh.25. The Court, therefore, relies

upon the evidence of this witness to hold that soon before the

death, the deceased was last seen with the accused fighting

with her.

          10]              The   Sessions   Court   thereafter   considers   the



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theory of extra judicial confession by the accused before PW-

4 Puja, his daughter and Atmaram, PW-5, his father. On the

basis of oral evidence of these two witnesses, the Court

holds that the accused killed the deceased by drowning her

in the Shirna river at Majri.

11] Ultimately, the Sessions Court in para 23 of the

judgment records the circumstances mentioned below;

"i) The accused and the deceased were residing as husband and wife at Railway Station, Majri and having 7 years old daughter.

ii) Both of them working together at brick kiln of Shamsundar Pole.

iii) On 27.8.14 the accused last seen with deceased and found fighting with her in Shirna river.

iv) On the same day at about 3 to 4 p.m., the dead body of deceased was found at the place where the accused was fighting with her in Shirna river.

v) The dead body of the deceased was at a distance of 20 feet from the flow of water.

vi) The death of the deceased was homicidal and cause of death is asphyxia due to drowning.

vii) The accused made extra judicial confession before his father and daughter that he caused the death of deceased by drowning her in river at Majri.

viii) After death of deceased, accused not come forward to lodge report of missing and absconded."

The Court holds that the chain of circumstances is complete

and leads to the conclusion that it is the accused and he

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alone who committed the murder of deceased by drowning

her in the water of Shirna river. Accordingly, the conviction is

recorded and the accused is punished.

12] The probable cause of death shown in the post

mortem report at Exh.35 is "due to asphyxia due to

drowning". PW-11 Dr. Vishal states in his evidence that the

body was found wet with water, her peritoneum thorax and

lungs were full of water. Post mortem report Exh. 35 does not

show any injuries on the body of the deceased. He further

states that probably victim died because of aspiration of

water causing asphyxia due to drowning. However, he adds

to it that it can be probably mostly a homicidal case. In cross

examination, this witness states that if any person falls due to

giddiness in water, then his death is likely to cause by

asphyxia due to drowning. In our view, on the basis of the

testimony of this witness and the post mortem report at

Exh.35, it is not possible for us to confirm the finding of the

Sessions Court that it is a case of homicidal death.

According to us, the Sessions Court has committed an error.

          13]              PW-6 Shrikant claims that he was knowing the



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accused. The entire examination-in-chief of this witness,

being short, is reproduced below.

" I am having tractor for transport of goods. I transport sand, bricks and cement by said tractor. I know the accused. Firstly I saw him in Shirna river with one woman. The accused was fighting with that woman. Then I went for work. Then at about 3.00 to 4.00 p.m. I saw crowd of people at spot where the accused and woman were fighting. I went there and saw the woman who was fighting with the accused was lying dead. The accused was not present there. Then I went away. At the time of incident accused was having beard. Police had come for inquiry to me. Then police asked me whether I can identify the person to whom I saw fighting with deceased woman in Shirna river. I replied in affirmative. Then I went to jail at Chandrapur. Then 7-8 persons standing in row were shown to me. I identified the accused out of those persons. He was standing from the right side at Sr.No.2 and I identified him by touching hand. Then my signature was obtained. Now memorandum part-I shown to me bears my signature. Its contents are correct. It is at Exh.25".

The examination-in-chief of this witness does not show the

date when he saw the accused in Shirna river with one

woman. He does not state the reason for him to go to Shirna

river and witness the fight between the accused and the

woman. It is not his say that he went to the bed of the river

to collect the sand. He does not state that the accused and

the said woman were the husband and wife. The witness is

deposing as if he had gone there only to witness the incident

of fight between the two and the dead body at about 3.00 to

4.00 p.m. In spite of this, neither he informed the Police, nor

Police records his statement on 27.08.2014 when spot and

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inquest panchamas were drawn. The witness does not state

that Police recorded his statement at any point of time. At

the most, the evidence of this witness can be accepted to

identify the accused. The evidence of this witness is totally

vague and does not inspire confidence to accept the theory

of last seen together, in the absence of corroboration. This

witness appears to be a got up witness.

14] PW-4 Puja, the daughter of the accused, states

that the accused was not residing at home at Sawarkhed, but

was residing at Majri. She states that the accused came

prior to the incident at the time of Diwali and told that he is

residing at Majri. She states that the accused had brought

one lady and a girl to Sawarkhed and on enquiry with him by

her grand-father, the accused told that the lady is his wife.

The accused resided there for two days. She further states

that before Diwali, the accused came alone and when her

grand-father asked about the lady, the accused told that he

has caused death of the lady in the river of Majri. PW-4 Puja

states that she is residing with her grand parents at

Sawarkhed and due to the ill-treatment of the accused, her

mother Surekha went away. In the cross-examination, she

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states that the accused was having household quarrel with

her mother for long period of time, due to which the accused

was having strained relations with her grand-father and there

was a dispute. She further states that she does not know the

date and time as to when the accused came alone to

Sawarkhed.

15] PW-5 Atmaram is the father of the accused. He

states that the accused firstly came with one Telgu lady to

Sawarkhed and on enquiry, he told that she is his wife. The

accused stayed for two days and went away. Then before

Diwali, the accused came alone to Sawarkhed and when

enquired about the lady with him, the accused told that he

killed that lady by drowning in the river of Majri. PW-5 states

that the accused was drenched with water. In cross

examination, he states that I am unable to tell the date and

time when the accused came for the first time with Telgu lady

at Sawarkhed. He further states that I am unable to tell the

date and time when the accused came for the second time

alone before Diwali. He states that I had not given intimation

to Police that the accused killed lady by drowning her in the

river. He states that I was not in good terms with the

12 apeal131.16.odt

accused.

16] PW-4 Puja and PW-5 Atmaram both are the

witnesses who deposed about the extra judicial confession

by the accused about killing his wife by drowning her in the

Shirna river at Majri. Both these witnesses have not deposed

about the name of the lady, though accused stayed with

them along with the lady for two days. The evidence of both

these witnesses is totally vague. They are unable to tell the

date and time when the accused initially visited them with the

lady and the girl child and subsequently alone. Even they

are unable to tell the period during which the accused visited

their place of residence. In spite of the accused telling them

that he caused the death of the lady with him, no complaint

was lodged in the Police Station. Their depositions are

somewhat inconsistent and tainted with enmity and the

strained relations with the accused. The evidence of both

these witnesses is untrustworthy and fails to inspire

confidence to base the conviction of the accused.

          17]              The   evidence   of   PW-7   Sudhakar   Vaidya   and

          PW-8     Sudhakar   Atram   has   been   relied   upon   by   the



                                               13              apeal131.16.odt

Sessions Court to record the finding that the accused and the

deceased were the husband and wife. PW-7 claims to be the

driver on the tractor of one Datarkar and used to take the

tractor to the brick kiln of Shamsundar Pole. PW-8 also

claims to be working on the brick kiln of Shamsundar Pole.

PW-7 Sudhakar Vaidya deposed that the accused and the

deceased were the husband and wife and working together

on the brick kiln of Shamsundar Pole. PW-7 Sudhakar

Vaidya states that he had gone to see the dead body of the

deceased found in Shirna river at Majri and he says that it

was of the wife of the accused. In cross examination, he

states that he had not given any information to the Police and

he does not remember the date on which he saw the dead

body. PW-8 states that he was working on the brick kiln of

Shamsundar Pole. The Police had shown photo of one

woman to him. The accused was working on the said brick

kiln along with that woman for 15 days and thereafter went

away. He states that he came to know that the woman

whose photo was shown, was found dead near Shirna river.

18] The prosecution has not examined Shamsundar

Pole with whom PW-7 Sudhakar Vaidya and PW-8 Sudhakar

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Atram claimed that they were working. There is no

corroboration to this claim of the witnesses. PW-7 does not

remember the date on which he saw the dead body and it is

not known as to why he went there and upon whose

information. He does not report the matter to the Police,

though he saw the dead body. There is nothing on record to

show whose photograph was shown by the Police to PW-7

Sudhakar Vaidya. The photographs at Art.1 to Art.4 were not

confronted to this witness that the lady seen by him with the

accused was the same. Similarly, there is no identification by

PW-7 that the deceased was the same lady whose body was

found in the Shirna river at Majri. Both these witnesses seem

to be the got up witnesses and their evidence fail to inspire

the confidence to record the finding that the accused and

deceased were the husband and wife.

19] What has come on record is that one Shankar

Ramchandra Mandre reported the death of unidentified lady

lying on the bank of Shirna river in Majri colliery at about 3.30

p.m., on 27.08.2014, which is at Exh. 21. PW-3 Manoj is the

first investigating officer who states that he called panch

witness by giving summon under Section 175 of Cr.P.C. at

15 apeal131.16.odt

Exh. 15 to conduct inquest panchnama. He drew inquest

panchnama of the dead body in presence of panch PW-1

Chandrabhan, which is at Exh. 8. Spot panchnama was

drawn at Exh.9 and PW-1 Chandrabhan is the panch

witness examined. Accordingly Merg No. 14/2014 was

registered about the accidental death of unidentified lady.

20] PW-3 Manoj, the investigating officer, sent the

dead body for post mortem with Police Constable Rakesh

and since the body was unidentified, instructions at Exh. 19

were given to the Medical Officer to keep the body in

mortuary so as to find out whether the body can be identified

by any one. On 28.08.2014, a letter was given to the Chief

Officer, Municipal Council, Warora, at Exh. 20 for disposal of

the dead body and Exh.17 is the letter dated 30.08.2014

written by PC-2600 Rakesh Dodke stating that the said

unidentified body of the lady is cremated.

21] PW-10 Gajanan is the second investigating

officer who received the post mortem report on 06.09.2014.

During the investigation, he found that the deceased

unidentified lady was staying on the railway station with one

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person having beard and slim physique before the incident.

Both of them were working as labourers on the brick kiln.

They quarreled in the bed of Shirna river, which was actually

witnessed by one Shrikant Anandrao Datarkar, PW-6 and

thereafter the said person (accused) was seen by one Ajay

Tipanna Dandu in the clothes drenched with water while

fleeing from the spot. PW-10 Gajanan made enquiry with

PW-6 Shrikant, PW-7 Sudhakar Vaidya, PW-8 Sudhakar

Atram, Ajay Tipanna, PW-4 Puja and PW-5 Atmaram and

submitted his report dated 03.12.2014 at Exh.32 on the basis

of which offence punishable under Section 302 of I.P.C.

came to be registered vide F.I.R. No. 54 of 2014 on

03.12.2014. On 05.12.2014, the accused was arrested at

12.15 hours and on 08.12.2014 the accused was taken to

spot of incident and accordingly, spot panchnama was

prepared at Exh.11. P.W-12 Salim Chauhan is the another

I.O., who states that he got the statements of PW-4 Puja and

PW-5 Atmaram recorded under Section 164 of Cr.P.C.,

through the Magistrate on 12.12.2014.

22] What we find from the oral evidence of all the

three Investigating Officers namely PW-3 Manoj, PW-10

17 apeal131.16.odt

Gajanan and PW-12 Salim is that initially on 27.08.2014, it

was an accidental death of an unidentified lady which was

registered. The deceased lady was cremated as unidentified

lady on 30.08.2014. Till her cremation, there was no

identification of the deceased lady as the wife of the accused.

The accused has denied in his statement under Section 313

of Cr.P.C. that the deceased lady was his wife or that he was

living with her on the railway station. There is nothing in the

evidence of all the Investigating Officers, viz. PW-3 Manoj,

PW-10 Gajanan and PW-12 Salim, to indicate that the

photographs of the deceased lady at Art. A1 to A4 were

shown to PW-4 Puja, PW-5 Atmaram, PW-7 Sudhakar

Vaidya and PW-8 Sudhakar Atram to identify that the

deceased lady was the wife of the accused. There is nothing

in the evidence of PW-4 Puja and PW-5 Atmaram to show

that the deceased lady was the same who came to

Sawargaon and stayed with them along with the accused for

two days. The identification of the deceased lady either as

the wife of the accused or living with him at the railway

station has not been established.

          23]              PW-10 Gajanan, the Investigating Officer, states



                                              18              apeal131.16.odt

that after receipt of the post mortem report on 06.09.2014, he

recorded the statements of witnesses. PW-6 Shrikant, a

witness on the theory of last seen together does not state

that his statement was recorded by the Police. However,

from the record, we find that his statement was recorded on

17.09.2014. One Ajay Tipanna Dandu claimed to have seen

the accused while fleeing from the spot. Though his

statement was recorded by the Police on 01.10.2014, he is

not examined as witness. The theory of last seen together

deposed by PW-6 is not corroborated by any witness and in

the absence of it, the accused cannot be convicted. In the

absence of examination of Shamsundar Pole as witness, the

theory propounded by PW-7 Sudhakar Vaidya and PW-8

Sudhakar Atram regarding their working on the brick kiln of

Shamsundar Pole along with the accused and the deceased

cannot be believed.

24] From the record, we find that statement of PW-4

Puja was recorded by the Police on 25.11.2014 and

12.12.2014, whereas the Magistrate recorded her statement

under Section 164 of Cr.P.C. on 20.12.2014. The Police

recorded the statement of PW-5 Atmaram on 12.12.2014 and

19 apeal131.16.odt

25.12.2014, whereas, under Section 164 of Cr.P.C., his

statement was recorded on 22.12.2014. The statement of

PW-7 Sudhakar Vaidya and PW-8 Sudhakar Atram were

recorded by the Police on 20.09.2014 and 22.09.2014

respectively. There was a delay of 67 days in registering the

offence.

25] All the aforesaid events create a serious doubt

about the credibility of the witnesses and truthfulness of the

story of the prosecution. The Sessions Court has committed

an error in holding that the chain of circumstantial evidence is

complete and that it leads to the conclusion that it is only the

accused and the accused alone who committed the murder

of the deceased by drowning her in the water of Shirna river

at Majri.

26] In view of above, we allow this appeal and

the judgment and order dated 17.02.2016 passed by

the learned Sessions Court in Sessions Case No. 16 of

2015 is hereby quashed and set aside. The accused Sanjay

s/o Atmaram Kulsange is acquitted of the charge of

committing murder of his own wife punishable under

20 apeal131.16.odt

Section 302 of I.P.C. The accused be released forthwith

if not required in any other offence.

We appreciate the efforts taken by Shri Hajare,

the appointed counsel and we quantify fees payable to him at

Rs.5000/-.

                                JUDGE                         JUDGE


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