Anita Nagesh Koli vs The State Of Maharashtra
2022 Latest Caselaw 162 Bom

                                                                                  apeal-684-2017.doc

                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION

                                            CRIMINAL APPEAL NO.684 OF 2017
                                                         WITH
                                          CRIMINAL APPLICATION NO.932 OF 2021

                   Anita Nagesh Koli                                         ...Appellant
                              vs.
                   The State of Maharashtra                                  ...Respondent

                   Ms. Payoshi Roy i/b. Dr. Yug Chaudhary, for the Appellant.
                   Mr. V.B. Konde-Deshmukh, APP for the Respondent-State.
VISHAL
SUBHASH                                                    CORAM :     S.S. SHINDE &
PAREKAR                                                                N.J. JAMADAR, JJ.

Digitally signed by VISHAL SUBHASH JUDGMENT RESERVED ON : 14th DECEMBER, 2021 PAREKAR Date: 2022.01.05 JUDGMENT PRONOUNCED ON: 5th JANUARY, 2022 19:16:36 +0530

---------------

JUDGMENT : (Per N.J.Jamadar, J.)

1. The challenge in this appeal is to the judgment and order in

Sessions Case No. 230 of 2013 dated 11 th March, 2016 passed by the

learned Additional Sessions Judge, Sangli whereby and whereunder

the appellant/accused came to be convicted for the offences

punishable under sections 302 and 380 of the Indian Penal Code,

1860 (the Penal Code) and sentenced to suffer imprisonment for life

and pay fine of Rs. 2,000/-, on the first count, and rigorous

imprisonment for two years and fine of Rs. 1,000/-, on the second

count, with default stipulation.

2. The background fats leading to this appeal can be stated in

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brief, as under:-

Ashok Patil, the then Assistant Police Inspector, Miraj City

police station received information on telephone on 31st July, 2013

that a lady namely Saraswati Chougule, who was residing in a rented

room in the house of Abbas Pathan at Magdum Mala, Miraj-

Pandharpur Road, Miraj, has died. Aashok Patil visited the scene of

occurrence. Saraswati (the deceased) was found dead. It appeared

that she was strangulated by means of a white scarf. In the presence

of public witnesses, scene of occurrence panchanama was drawn.

Articles found at the scene of occurrence, including five broken

bangle pieces, were seized. Inquest was held. The dead body was sent

for postmortem examination. Autopsy surgeon opined that death

was due to ligature strangulation. Ashok Patil thus lodged report

against an unknown person for having committed murder of the

deceased. Crime was registered at C.R.No.144 of 2013 for the

offences punishable under sections 302 and 380 of the Penal Code.

3. Investigation commenced. During the course of investigation,

Ashok Patil, interrogated the witnesses and recorded their

statements. It transpired that the appellant/accused Anita, the

estranged wife of Nagesh Koli, had visited the house of the deceased

on the night intervening 30 th and 31st July, 2013. A scuffle had

ensued between them, resulting in the death of the deceased. The

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accused came to be arrested. Accused made discovery leading to

recovery of the articles of the deceased namely a black mobile phone

handset of Max company, a black umbrella and a pair of ladies

chappal (sandles). The accused also produced saree and the blouse

which she wore at the time of occurrence. One of the buttons of the

blouse was missing and the said button had been seized under the

scene of occurrence panchanama. Investigation further revealed

that the deceased had extra-marital relations with Nagesh Koli, the

estranged husband of the accused, and, thus, the accused had a

grudge against the deceased and, therefore, caused the death of the

deceased. Thus, the charge-sheet was lodged against the accused for

the offences punishable under sections 302 and 380 of the Penal

Code.

4. Post committal of the case, the learned Additional Sessions

Judge framed charge against the accused for the offences punishable

under sections 302 and 380 of the Penal Code. The accused abjured

her guilt and claimed for trial.

5. At the trial, to substantiate the indictment against the

accused, the prosecution examined in all 10 witnesses being Abbas

Pathan (PW.4), the landlord of the deceased; Fatima Hudali (PW.5),

the neighbour of the deceased; Nagesh Koli (PW.6), the estranged

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husband of the accused; Sachin Salunkhe (PW.7), the public witness

to the scene of occurrence panchanama; Kamlakar Kamble (PW.3),

the public witness to the inquest; Malan Waghmare (PW.2), the

public witness to the panchanama evidencing the arrest of the

accused and Sumit Khandekar (PW.1), the public witness to the

discovery allegedly made on 2nd August, 2013; Vijay Shinde (PW.9),

public witness to the discovery allegedly made on 5 th August, 2013;

Aniket Shinde (PW.8), autopsy surgeon and Ashok Patil (PW.10), the

investigating officer, who furnished the details of investigation.

6. Post the conclusion of prosecution evidence, statement of the

accused under section 313 of Code of Criminal Procedure, 1973 was

recorded. The accused did not lead any evidence in her defence,

which consisted of denial and false implication.

7. After apprisal of the evidence and material placed on record,

the learned Additional Sessions Judge was persuaded to return the

finding of guilt against the accused for the offences punishable under

sections 302 and 380 of the Penal Code. The learned Additional

Sessions Judge was of the view that the prosecution succeeded in

establishing a complete chain of circumstances against the accused.

It was held that the fact that the accused was seen leaving the house

of the deceased, at the dead of the night, coupled with recovery of

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broken bangle pieces, which matched with the bangles found on the

person of the accused, and a button of the blouse, which matched

with the rest of the buttons of the blouse of the accused, firmly

established the presence of the accused at the time and place of

occurrence. Moreover, the accused could not offer any explanation

regarding articles of the deceased namely mobile phone, umbrella

and pair of ladies sandles, which were found in the house of the

accused pursuant to the discovery made by her. Thus, the learned

Additional Sessions Judge convicted the accused for the offences

punishable under sections 302 and 380 of the Penal Code and

sentenced her, as indicated above.

8. Being aggrieved by and dissatisfied with impugned judgment of

conviction and order of sentence, the accused is in appeal.

9. We have heard Ms. Payoshi Roy, the learned counsel for the

appellant/accused and Mr. Konde-Deshmukh, learned APP for the

State at length. With the assistance of the learned counsels for the

parties, we have carefully perused the material on record including

the depositions of the witnesses and the documents proved in

evidence by the prosecution.

10. Ms. Roy, the learned counsel for the appellant, mounted a

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multi-pronged challenge to the impugned judgment. Ms. Roy would

urge that, first and foremost, the learned Additional Sessions Judge

committed grave error in law in basing the finding of guilt on

surmises and conjectures. Secondly, the circumstances arrayed

against the appellant were not fully and conclusively established.

The testimony of Fatima Hudali (PW.5), which was primarily relied

upon by the learned Additional Sessions Judge to support the

finding that the accused was seen leaving the house of the deceased

on the night of occurrence, could not have been relied upon for being

extremely unnatural and untrustworthy. Thirdly, the learned

Additional Sessions Judge lost sight of the fact that the chain of

circumstances was snapped, as from the own showing of the

prosecution, a door of the room was open. In such circumstances, by

no stretch of imagination, it could be inferred that it was the accused

and no one else, who committed the offences. Fourthly, the

discoveries sought to be pressed into service by the prosecution

were infirm and could not have been relied upon to sustain an

inference of exclusive knowledge to the accused. Lastly, even if the

evidence of the prosecution is construed rather generously, at best,

it would point a needle of suspicion against the appellant. Suspicion,

however strong, cannot take the place of legal proof, submitted Ms.

Roy.

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                                                            apeal-684-2017.doc

11. In opposition to this, Mr. Konde-Deshmukh, learned APP

supported the impugned judgment. Banking upon the testimony of

Fatima(PW.5) to the effect that the said witness had seen the

accused leaving the house of the deceased, the learned APP would

urge that there was credible evidence before the learned Sessions

Judge to draw an inference that the accused and the deceased were

last seen in the house of the deceased. To add to this, the

circumstance of broken pieces of bangles and the button of blouse

found at the house of the deceased matched with the bangles on the

person of the accused and rest of the buttons of her blouse, squarely

incriminated the accused. The recovery of the articles belonging to

the deceased, pursuant to the discovery made by the accused, seals

the complicity of the accused, beyond reasonable doubt, submitted

the learned APP. Lastly, the evidence of Nagesh Koli (PW.6), the

estranged husband of the accused establishes that the accused had a

strong motive to eliminate the deceased, who the accused suspected

to have illicit relations with her husband Nagesh (PW.6). In the

circumstances, the learned Additional Sessions Judge was wholly

justified in returning the finding of guilt against the accused, urged

Mr. Konde-Deshmukh.

12. To begin with, the nature of death which the deceased met. Dr.

Aniket Shinde (PW.8), the autopsy surgeon, informed the Court that

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he had conducted the postmortem examination on the body of the

deceased on 31st July, 2013 in between 4.15 pm to 6 pm. On external

examination, he claimed to have noticed, inter alia, ligature mark

around neck at the level of thyroid cartilage having length 20 cm,

max breadth 6.5 cm at left angle of mandible, horizontally placed. It

was dry, hard and brown. On dissection, haematoma of size 2 x 2 cm,

dark red was found in the strap muscle in mid-line. Thyroid cartilage

was found fractured. There was extravasation of blood in the

surrounding tissue. There were six other external injuries on the

person of the deceased. In the opinion of Dr. Shinde (PW.8), the

cause of death was due to ligature strangulation. Dr. Shinde further

affirmed that the strangulation was possible by scarf (Article 6).

Rest of the external injury Nos. 2 to 7 were possible in a scuffle.

13. In the opinion of Dr. Shinde (PW.8), the death of the deceased

was homicidal. Dr. Shinde did not cave in to the suggestion that the

deceased met death on account of chronic disease nor subscribed to

the version sought to be pressed into service on behalf of the

accused that the death like the one met by the deceased could be

possible on account of twisting and contorting around the neck by

snake.

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                                                            apeal-684-2017.doc

14. In the backdrop of the nature of the ligature mark found on the

person of the deceased, especially, the fracture of the thyroid

cartilage, an inference of the deceased having met homicidal death

becomes justifiable. Nothing material could be elicited in the cross

examination of Dr. Shinde, apart from the aforesaid gratuitous

suggestions, which were not at all borne out by the attendant

circumstances. Thus, the learned Additional Sessions Judge was

fully justified in recording a finding that the deceased met homicidal

death.

15. This leads us to the pivotal question of the authorship of the

death. Was the accused perpetrator of the offences ?

16. From the nature of the evidence led by the prosecution, it

becomes clear that, the prosecution case rests on circumstantial

evidence. Though Fatima (PW.5) claimed to have heard the

commotion emanating from the house of the deceased, on the night

of occurrence, yet her evidence falls short to constitute an ocular

account. It is trite that conviction can be based solely on

circumstantial evidence provided it passes the well recognized test

of credibility and reliability.

17. By a catena of decisions the principles which govern

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evaluation of circumstantial evidence have been settled. In the case

of Sharad Birdhichand Sarda v. State of Maharashtra 1 they were

expounded as under :

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

18. On the aforesaid touchstone reverting to the facts of the case,

at the outset, it may be apposite to have a brief resume of the

evidence led by the prosecution; to cull out therefrom the

circumstances which were pressed into service against the appellant

and found favour with the learned Additional Sessions Judge and,

thereafter, consider as to whether those circumstances sustain the

guilt of the accused beyond reasonable doubt.

1   AIR 1984 SC 1622

Vishal Parekar, P.A.                                                          10/25
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19. Abbas Pathan (PW.4), the landlord of the deceased informed

the Court that he owns a house consisting of five rooms located at

Magdum Mala, Miraj. The deceased Saraswati had taken room No. 2

on rent. The deceased was residing alone as her husband had

deserted her. She worked at Sai Dhaba located at Pandharpur road,

Tasgaon Phata, Miraj. He claimed to have seen a person, who the

deceased identified as Nagesh Koli, visiting her house. Abbas Pathan

(PW.4) affirmed that on 31st July, 2013 at about 8 am, Salman, a 14

year old boy, came to his chicken center and told him that the

deceased died. Thereupon, he claimed to have visited the scene of

occurrence along with Shivaji Durve, local councillor. Abbas (PW.4)

claimed to have called police at the scene of occurrence.

20. Fatima Hudali (PW.5) informed the Court that she resides at

Magdum Mala, Miraj in the house, adjacent to the house of Abbas

Pathan (PW.4). The deceased came to reside in one of the rooms of

Abbas Pathan(PW.4), a month prior to the occurrence. The deceased

claimed that Nagesh Koli was her husband. Later was also working

near the hotel, where the deceased was working.

21. Fatima Hudali (PW.5) wants the Court to believe that on 31 st

July, 2013 at 12.00 midnight to 00.30 am, she heard shouts of

quarrel. She woke up. She tried to rouse her husband but he did not

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wake up. Fatima Hudali (PW.5) claimed to have noticed one woman

wearing green saree having one bag and umbrella coming out of the

room of the deceased. She claimed to have seen her face and gave

her 2-3 calls but the later did not stop. The said lady went towards

road in a frightened state. She went to the house of the deceased.

The door was shut. On the next morning, her grandson pipped into

the house of the deceased, from the window, and found her sleeping.

She claimed to have narrated the incident to police who arrived at

the scene of occurrence. Fatima (PW.5) further wants the Court to

believe that police were accompanied by the accused, who was then

wearing a green saree. She thus identified accused as the same lady.

22. Nagesh Koli (PW.6) the husband of the accused affirmed that

he had known the deceased. She used to talk to him. At her request,

he had provided a mobile handset to her. When he and the accused

were cohabiting together, the accused used to suspect his character.

The accused had lodged a report against him. He was arrested and

detained. After release, he started to reside separately from the

accused.

23. Nagesh Koli (PW.6) further affirmed that on 30th July, 2013

at about 11.30 pm, he returned to his room. The accused came

thereat. She raked up quarrel with him over the visit of the deceased

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to his room. Sanjay Sapkal, his friend, pacified them. On 31 st July,

2013 at about 6 am Nagesh claimed to have first visited the Dhaba

where the deceased worked and not finding her thereat, visited her

room. He broke open the door and found the deceased lying.

24. Since Nagesh (PW.6) did not support the prosecution

earnestly, learned APP cross examined him. During the course of

cross examination by learned APP, it was brought out that he had

inquired with the accused as to whether she had visited the house of

the deceased, on the night of occurrence, and had brought the

mobile phone of the deceased and the later had replied in the

affirmative. It would be contextually relevant to note that in the

cross examination on behalf of the accused, Nagesh (PW.6) affirmed

that mobile phone handset (Article 12) was not of the deceased

Saraswati.

25. This constitutes the core of the evidence, led by the

prosecution, on the aspects of the motive for the accused to commit

the crime and the deceased having been last seen with the accused

on the night intervening 30 th and 31st July, 2013. In addition, the

prosecution has banked upon the discoveries allegedly made by the

accused leading to the recovery of the articles and the nexus

between the articles found at the scene of occurrence and the

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articles found on the person of the accused.

26. The prosecution thus pressed into service the following

circumstances which, according to the prosecution, squarely

incriminated the accused.

(i) Motive,

(ii) The accused was last seen leaving the house of the deceased on

the night of occurrence,

(iii) Broken bangle pieces and button of blouse, found at the scene of

occurrence, matched with the bangles which the accused wore at the

time of her arrest and the button had the same characteristic as the

rest of the buttons on the blouse of the accused,

(iv) The accused made disclosure leading to the recovery of mobile

phone handset, umbrella and pair of ladies sandles belonging to the

deceased.

MOTIVE :-

27. On the aspect of the proof of motive for the crime, it is well

recognized that in a case based solely on circumstantial evidence,

motive plays a significant role. It is trite that it is not an immutable

rule of law that in every case rested solely on the circumstantial

evidence, the prosecution must establish motive for the crime. If the

rest of the circumstances are fully and conclusively established and

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they satisfy the test of evaluation of circumstantial evidence, mere

failure of the prosecution to lead evidence in respect of motive for

the crime is not a ground to discard the prosecution case. Motive is

rests in the mind of the perpetrator of the offence. However, where

the prosecution succeeds in establishing the existence of a strong

motive to eliminate the deceased, it lends credence to the rest of the

circumstances to complete the chain of circumstances.

28. In the case at hand, the material on record indicates that the

deceased was residing alone in a rented premises at the house of

Abbas Pathan (PW.4), situated at Magdum Mala. There is evidence

to show that she was estranged from her husband. Conversely, there

is material to show that the marital relationship between the

accused and Nagesh Koli was also strained. On account of marital

discord, the accused and Nagesh were residing separately. Nagesh

Koli (PW.6) can be believed to the extent that the accused suspected

that, he had extra marital relationship with the deceased. The

evidence, however, stops at that. There is no further material to

show that, in the past, there was any quarrel between the accused

and the deceased over the alleged extra marital relationship and the

accused had threatened to eliminate the deceased.

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                                                           apeal-684-2017.doc

LAST SEEN TOGETHER :-

29. Fatima Hudali (PW.5) wants the Court to believe that on the

night intervening 30th and 31st July, 2013 she had heard the shouts

of quarrel and noticed one woman wearing green saree leaving the

room of the deceased. Ms. Roy, learned counsel for the appellant

mounted a strong criticism against the credibility of the version of

Fatima (PW.5). Emphasis was laid on the fact that the statement of

Fatima (PW.5) was recorded belatedly. The incident occurred on the

night intervening 30th and 31st July, 2013. Indisputably, the police

visited the scene of occurrence on 31st July, 2013 and drew scene of

occurrence panchanama. Yet, the statement of Fatima (PW.5) was

recorded by the investigating officer on 2nd August, 2013, though

Fatima (PW.5) affirmed that on 31st July, 2013 at about 10 am itself

she had related the incident to the police.

30. The aforesaid submission, on behalf of the appellant, appears

to carry substance. As indicated above, Fatima (PW.5) is the next

door neighbour of the deceased. There is evidence to indicate that

her grandson had visited the shop of Abbas Pathan (PW.4) and

apprised him about the death of the deceased. Fatima (PW.5), in

turn, informed the Court that it was her grandson who had first seen

the deceased lying in her house on the morning on 31 st July, 2013,

from a window. Fatima (PW.5) categorically asserted that when the

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police arrived at about 10 am, she had narrated the incident to

police.

31. In the aforesaid circumstance, when the police had

indisputably visited the scene of occurrence on 31st July, 2013 and

Fatima (PW.5), the material witness, claimed to have met the police,

the delay in recording her statement cannot be said to be

inconsequential or immaterial. We are mindful of the proposition

that mere delay in recording the statement of the prosecution

witness, by itself, is not fatal. What impairs the prosecution is an

unexplained and inordinate delay. If there are concomitant

circumstances, which indicate that the investigating officer was

marking his time with a view to introduce the witnesses and give

shape to the prosecution case, then the aspect of delay in recording

the statement of witness assumes critical significance.

32. In the case at hand, Fatima (PW.5) is the most important

witness for the prosecution. When the witness claimed to have

apprised the police about the incident which occurred on previous

night whilst the police first visited the scene of occurrence, the delay

in recording her statement impairs the prosecution.

33. Moreover, the testimony of Fatima (PW.5) bristles with

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omissions and improvements. An omission was elicited in the cross

examination of Fatima (PW.5) that her statement before police does

not find mention of the fact that on the night of occurrence she woke

up after hearing shouts. A contradiction was brought out to the

effect that she had stated before police that she had seen the face of

the lady who left the house of the deceased, but she had not known

her from before. The omission and contradiction were duly proved in

the cross examination of Ashok Patil (PW.10), the investigating

officer.

34. The aforesaid contradiction bears upon the identity of the

accused as the lady who allegedly left the house of the deceased on

the night of occurrence. It is not the claim of Fatima Hudali (PW.5)

that she had known the accused from before the occurrence. Fatima

(PW.5) had no more than a fleeting glimpse of the lady, even if we

take her evidence at par. No test identification parade was

conducted to establish the identity of the accused as the same lady.

In contrast, an effort was made on behalf of the prosecution to fix

the identity of the accused by banking upon the claim of Fatima

(PW.5) that when the police came to the house of the deceased along

with the accused, she had seen the accused wearing a green saree

and thereupon identified her.

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35. There is an apparent incongruity in the prosecution case on

this score. It seems that Fatima (PW.5) attempted to make

improvements to suit the prosecution case. It is not the case of the

prosecution that when the accused was arrested, she was wearing

the green saree. On the contrary, an endevour was made by the

prosecution to draw home the point that on 2 nd August, 2013 the

accused, on her own, produced a green saree and blouse from her

house, after the recovery of the articles namely mobile, umbrella,

pair of sandles were effected pursuant to the disclosure statement

made by the accused. Saree and blouse were seized under seizure

panchanama (Exhibit 23). This belies the version of Fatima (PW.5)

that, when the accused accompanied the police to the house of the

deceased, she was wearing a green saree.

36. In the aforesaid view of the matter, it would be rather

hazardous to place implicit reliance on the testimony of Fatima

(PW.5) to sustain a finding that Fatima (PW.5) had seen the accused

leaving the house of the deceased on the night of occurrence. In the

absence of any other evidence to corroborate the version of Fatima

(PW.5), in our view, the aforesaid omission, contradiction and

improvement render it extremely unsafe to draw an inference of last

seen on the basis of the testimony of Fatima (PW.5).

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37. The attendant circumstances also render the version of Fatima

(PW.5) unworthy of credence. In the backdrop of the incident which

Fatima (PW.5) claimed to have witnessed, on the night intervening

30th and 31st July, 2013, in the normal circumstances, Fatima (PW.5)

was expected to ascertain the position on the next morning. In

contrast, Fatima (PW.5) claimed that her grandson informed her

that the deceased was still asleep. To add to this, Nagesh Koli(PW.6)

claimed to have visited the house of the deceased on early morning

of 31st July, 2013 and broke open the door. An element of

uncertainty thus surrounds around the circumstance as to who first

noticed the deceased lying in motionless state. In the backdrop of

the aforesaid circumstances, the delay in recording the statement of

Fatima (PW.5) further dents the prosecution.

RECOVERY OF ARTICLES :-

38. On the point of recovery of broken pieces of bangles and button

at the scene of occurrence and recovery of mobile phone handset,

umbrella and pair of sandles, the learned Additional Sessions Judge

was impressed by the fact that the C.A report (Exhibit 35) revealed

that five pieces of glass bangles seized from the scene of occurrence

tallied with 15 glass bangles found on the person of the accused in

respect of hue, design, physical and spectrochemical

characteristics. Likewise, the button seized form the scene of

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occurrence under panchanama (Exhibit 32) tallied with rest of the

buttons on the blouse of the accused, seized under panchanama

(Exh.23) in respect of its hue, physical and thermal characterestics.

Since the accused did not offer any explanation, much less

satisfactory one, this circumstance and the recovery of the mobile

phone handset, umbrella and pair of ladies sandles cumulatively

incriminated the accused, observed learned Sessions Judge.

39. Two discoveries were sought to be pressed into service against

the accused. First, the disclosure statement allegedly made by the

accused on 2nd August, 2013 leading to the recovery of the mobile

phone, umbrella, ladies sandles under seizure panchanama (Exhibit

23). Second, the disclosure statement made by the accused on 5 th

August, 2013 to point out the scene of occurrence.

40. Evidently, the second discovery allegedly made by the accused

on 5th August, 2013, sought to be proved by examining Vijay Shinde

(PW.9), the public witness, is bereft of any evidentiary value. Police

had already known the scene of occurrence, on 31 st July, 2013 itself.

Thus, nothing can be said it to have been discovered pursuant to the

statement made by the accused on 5th August, 2013.

41. First discovery is also not free from infirmities. As indicated

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above, Nagesh Koli (PW.6) categorically affirmed that mobile phone

seized pursuant to the discovery made by the accused (Exhibit 12)

did not belong to the deceased. Sumit Khandekar (PW.1), the panch

witness to the discovery, conceded in the cross examination that

rest of the articles i.e. umbrella and sandles were easily available in

the market. Nor there is evidence to show that those articles bore

distinctive earmarks to firmly establish that they belonged to

deceased. In this view of the matter, even if the evidence of

discovery is taken at par, it does not seem to have the definite

tendency to incriminate the accused.

42. The circumstances of finding broken button of blouse at the

scene of occurrence, heavily relied upon by the prosecution, now

warrants consideration. It is imperative to note that the recovery of

the saree and blouse deposed to both by Sumit Khandekar (PW.1)

and investigating officer Ashok Patil (PW.10) is not preceded by any

disclosure statement made by the accused. The memorandum of

disclosure statement (Exhibit 22) is restricted to point out the place

where the nylon bag,mobile handset, umbrella and ladies sandles

were kept. The witnesses want the Court to believe that the accused,

out of her own volition, produced the saree and blouse which she

wore at the time of occurrence. In the absence of preceding

disclosure statement, the direct seizure of the said clothes is

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evidently fraught with infirmities. It would, therefore, be difficult to

place reliance on the the testimony of witnesses that blouse which

was so recovered had five buttons and the button which was

recovered from the scene of occurrence was the missing one.

43. The upshot of aforesaid consideration is that the testimony of

Fatima (PW.5), which constitutes the linchpin of the prosecution

case, does not allure confidence. The circumstance of last seen, thus,

cannot be said to have been established beyond reasonable doubt.

Once this finding is recorded, the chain of circumstances gets

irretrievably snapped. What remains is the evidence of discovery

and seizure of articles from the scene of occurrence. The

discoveries, in turn, are also not free from infirmities.

44. This propels us to the submission of Ms. Roy that, even if the

prosecution case is taken at par, it would not sustain an inference

that only the accused was the perpetrator of the offence. Inviting the

attention of the Court to the scene of occurrence panchanama and

the site map (Exhibit 61) Ms. Roy submitted that, the door on the

southern side of the room was found open when the police party

visited the scene of occurrence. This submission appears to be

factually impeccable. In the scene of occurrence panchanama

(Exhibit 32) it is recorded that door in the southern wall towards

Vishal Parekar, P.A. 23/25 apeal-684-2017.doc

eastern corner of the said room, was open. This fact is further borne

out by the site map (Exhibit 61). The situation which thus obtains is

that the main door of the house was shut. Another door towards

southern side was open all along. To further confound the matter,

Nagesh Koli (PW.6) claimed to have visited the house of the deceased

and broke open the door on the early morning of 31 st July, 2013,

even before the matter was reported to police. In the aforesaid view

of the matter, the possibility of a person other than the accused

having had a role to play in the alleged occurrence cannot be ruled

out. The circumstances pressed into service against the accused,

therefore, do not lead to the only hypothesis of the guilt of the

accused.

45. For the foregoing reasons, in our view, the learned Additional

Sessions Judge was not justified in recording the finding that the

prosecution succeeded in establishing the chain of circumstances

and convicting the accused for the offences punishable under

sections 302 and 380 of the Penal Code.

46. We are thus persuaded to interfere with the impugned

judgment of conviction and order of sentence. Resultantly, the

appeal deserves to be allowed.

Hence, the following order.

Vishal Parekar, P.A.                                                 24/25
                                                                apeal-684-2017.doc


                                    ORDER

1]       The Appeal stands allowed.

2]       The impugned judgment of conviction and order of sentence

dated 11th March, 2016 passed by the learned Additional Sessions

Judge, Sangli stands quashed and set aside.

3] The appellant/accused Anita Nagesh Koli stands acquitted of

the offences punishable under sections 302 and 380 of the Penal

Code.

4] The appellant/accused is in custody. She be set at liberty

forthwith, if not required to be detained in any other case.

However, in compliance with the provisions contained in

section 437A of the Code, the appellant shall furnish a P.R. bond in

the sum of Rs. 15,000/- and a surety in the like amount, before the

Court of Session. Four weeks time is granted to the appellant to

furnish the surety, after release from prison.

5] In view of disposal of appeal, Criminal Application No. 932 of

2021 also stands disposed of.

                   (N.J. JAMADAR, J.)              (S.S. SHINDE, J.)




Vishal Parekar, P.A.                                                     25/25