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2014 DIGILAW 1427 (BOM)

ANANTA TUKARAM CHAUDHARY v. STATE OF MAHARASHTRA

2014-07-04

A.S.GADKARI, V.K.TAHILRAMANI

body2014
JUDGMENT (Per A.S. GADKARI, J.): 1. The appellant, original accused, has questioned the correctness of his conviction and sentence by the present appeal challenging the judgment and order dated 27th April 2011 passed by the learned District Judge1 and Additional Sessions Judge, Palghar in Sessions Case No. 72 of 2009 thereby convicting the appellant for an offence punishable under Section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and also to pay fine of Rs.5,000/, in default of payment of fine to suffer simple imprisonment for 6 months. The appellant has also been convicted for an offence punishable under Section 376 of the Indian Penal Code and sentenced to suffer imprisonment for 10 years and also to pay fine of Rs.5,000/, in default of payment of fine to suffer simple imprisonment for 6 months. The appellant has further been convicted for an offence punishable under Section 201 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for 2 years and to pay fine of Rs.500/, in default of payment of fine to suffer simple imprisonment for one month. The learned District Judge1 and Additional Sessions Judge, Palghar has ordered that all the substantive sentences shall run concurrently. 2. The facts which can be enumerated from the record, may briefly be stated thus: (i) PW9 Sanjay Dhumal, was working as Assistant Police Inspector at Saphale Police station, DistrictThane from 2007 to 2010. That on 20.9.2009 Smt. Gajara Mukund Chaudhary (PW1) lodged a complaint in police station about the death of her daughter namely Sanjana, aged about 4 years. The said complaint dated 20.9.2009 is at Exhibit 9. On the basis of the said complaint, PW-9 A.P.I. Shri Sanjay Dhumal registered A.D.R. No.33 of 2009. On 20.9.2009 PW-9 A.P.I. Shri Sanjay Dhumal prepared a inquest panchanama. The said inquest panchanama is at Exhibit 15. The dead body of Sanjana was sent for postmortem examination. After receipt of advance postmortem report, PW-9 A.P.I. Shri Sanjay Dhumal lodged first information report on behalf of the State. The said FIR is at Exhibit 26. On the basis of the said FIR which is at Exhibit 26, a crime bearing CR No.I45/ 2009 under Sections 302, 376 and 201 of the Indian Penal Code was registered at Saphale Police station, DistrictThane on 20.9.2009. The said FIR is at Exhibit 26. On the basis of the said FIR which is at Exhibit 26, a crime bearing CR No.I45/ 2009 under Sections 302, 376 and 201 of the Indian Penal Code was registered at Saphale Police station, DistrictThane on 20.9.2009. (ii) During the course of investigation, PW9 A.P.I. Shri Sanjay Dhumal effected the sport panchanama and subsequently arrested the appellant on 21.9.2009. The appellant when was in custody made a statement in the presence of panch witnesses thereby showing his willingness to show the spot where he had concealed his clothes which were worn by him at the time of commission of offence. Accordingly, memorandum panchanama was prapred which is at Exhibit 21. The appellant thereafter took police and panchwitnesses at his house and at the instance of appellant a black pant and one shirt of red colour were recovered. The said clothes were seized under panchanama which is at Exhibit 21A. During the course of investigation, statements of various witnesses were recovered. Report of Chemical Analyzer received in due course and after completion of investigation, API Shri Sanjay Dhumal submitted chargesheet before the Judicial Magistrate First Class, Palghar. (iii) Judicial Magistrate First Class, Palghar has committed the said case to the Court of Sessions as contemplated under Section 209 of Cr. P.C. as the offences lodged were exclusively triable by the Court of Sessions. (iv) After committal of case to Court of Sessions, the Trial Court framed charge below Exhibit 4 against the appellant. The said charge was read over to the appellant and explained in vernacular language to which appellant denied and claimed to be tried. The defence of the appellant is of total denial. (v) The learned Trial Court after recording the evidence and after hearing parties to the said case has convicted the appellant and sentenced him to suffer imprisonment for life as stated herein above. 3. In order to effectively deal with the submissions advanced before us by Mr. Swapnil Ovalekar, the learned Counsel appointed for the appellant by the Legal Aid Committee and Smt. V.R. Bhonsale, the learned APP for the State, it would be useful to refer to the evidence in brief of the prosecution witnesses. 4. PW1 Smt. Gajara Mukund Chaudhary in her testimony has stated that Sanjana is her daughter and was born from the husband of her sister. 4. PW1 Smt. Gajara Mukund Chaudhary in her testimony has stated that Sanjana is her daughter and was born from the husband of her sister. She has further stated that Sanjana was aged about 4 years. That PW1 and her daughter were residing in one room adjoining to her father's house. She has further stated that Sanjana was attending the nursery school. That on 19.9.2009, PW1 went to attend her work and returned her house at 1.30 p.m. That she gave meal and snacks to Sanjana and went for her work at 2.30 p.m. PW1 has stated that at that time, she saw the appellant talking with Sanjana at the back side of the house of the appellant. PW1 Smt. Gajara returned to her house at about 6 p.m. and found that Sanjana was not at the house. PW1 Smt. Gajara therefore made enquiry with the neighbour and took search of Sanjana. PW1 Smt. Gajara has stated that appellant also took part in search of Sanjana. PW1 Smt. Gajara has further deposed that while taking the search of Sanjana, the appellant told that Sanjana might be in the bush. PW1 Smt. Gajara thereafter saw Sanjana lying in the bush at 'Karvandi'. PW1 Smt. Gajara found, Sanjana, as dead and there were blood stains on her frock. PW1 thereafter lodged complaint with the police station and signed the same. The said complaint is at Exhibit 9. 5. PW1 Smt. Gajara was cross-examined at length by the appellant and an omission to the effect that, in the statement of PW1 Smt. Gajara had stated that she saw the appellant taking away Sanjana, has been proved by the appellant. The said omission stands completely proved through the Investigating Officer. We may note here that the said omission which is an improvement which has been proved by the appellant from PW1 Smt. Gajara and the Investigating Officer i.e. PW9, in our opinion is a minor omission and does not assume much importance from the point of the entire evidence adduced by PW1 Smt. Gajara. As far as rest of the cross-examination of this witness is concerned, no fruitful material which would help the appellant, was elicited from this witness. We further find that this witness i.e. PW1 Smt. Gajara has stuck to her version which she had given in her examination-in-chief. 6. PW2 Bharat Bhopa Bharwad is the husband of PW-1 Smt. Gajara. As far as rest of the cross-examination of this witness is concerned, no fruitful material which would help the appellant, was elicited from this witness. We further find that this witness i.e. PW1 Smt. Gajara has stuck to her version which she had given in her examination-in-chief. 6. PW2 Bharat Bhopa Bharwad is the husband of PW-1 Smt. Gajara. In his testimony, this witness has stated that he had married with PW-1 Smt. Gajara. That before his marriage with PW1 Smt. Gajara, she had a 4 yearsold daughter namely Sanjana. That Sanjana was attending nursery. He has stated that Smt. Gajara was residing at Raipada. PW2 Bharat has further deposed that on 19.9.2009 at about 1.30 p.m. he went to the house of Smt. Gajara and gave snacks to Sanjana. PW-2 has further stated that the appellant came at the varhanda/ota of PW-1 Smt. Gajara and appellant demanded Rs.10/from PW-2 Bharat. PW-2 Bharat gave the said amount to the appellant. At that time PW-1 Smt. Gajara was at her house. That at about 6 p.m., PW2 Bharat came to know that Sanjana is missing and therefore he went to the house of Smt. Gajara. PW-2 Bharat took search of Sanjana. The appellant was with them while taking the search of Sanjana. PW-2 Bharat has further stated that the appellant told them to see Sanjana in the bush of 'Karvandi'. PW-2 Bharat saw Sanjana lying dead in the Karvandi bush. That there was blood stains on her frock. PW-2 Bharat has stated that PW-1 Smt. Gajara informed the police accordingly. This witness was cross-examined at length by the appellant. However, we find that no material which would come to the aid of the appellant has been elicited from the cross-examination, as the evidence led by this witness in his examination-in-chief has gone practically unchallenged. 7. PW3 is Mahesh Pandurang Majanekar, panchwitness to the spot of the incident. The spot panchanama which is at Exhibit 13 has been proved by this witness. The evidence of this witness is formal in nature. 8. PW4 is Smt. Krupali Kishor Gawad, a panchwitness to the inquest panchanama of the dead body of Sanjana. PW4 in her testimony has stated that she saw the dead body of Sanjana on 20.9.2009 while performing the inquest panchanama. That she noticed blood on the private part of Sanjana. The evidence of this witness is formal in nature. 8. PW4 is Smt. Krupali Kishor Gawad, a panchwitness to the inquest panchanama of the dead body of Sanjana. PW4 in her testimony has stated that she saw the dead body of Sanjana on 20.9.2009 while performing the inquest panchanama. That she noticed blood on the private part of Sanjana. PW-4 has further stated that there was abrasion on the body of Sanjana. The inquest panchanama which is at Exhibit 15 has been proved by this witness. This witness was cross-examined by the appellant. However, the appellant was unsuccessful in extracting any fruitful material useful for him from this witness. 9. PW-5 Udaybhan Vishweshwar Prasad is a panchwitness to the seizure of clothes of the deceased Sanjana. The clothes of the deceased Sanjana were seized by the Investigating agency after effecting a panchanama which is at Exhibit 17. The said panchanama which is at Exhibit 17 has been proved by this witness. 10. PW-6 Smt. Meenakshi Arvind Thakur in her testimony has stated that she was a member of Kardal Grampanchayat. PW-6 Smt. Thakur has stated that on 19.9.2009, at about 2.30 p.m. to 2.45 p.m she was going towards Samadhan Society alongwith one Nalu Tumbada. She has further stated that at that time she saw the appellant going along with Sanjana towards Ambewadi. That she came to know about the incident subsequently. PW6 Smt. Thakur has stated that the appellant was in the habit to keep illicit relation with a lady. This witness was cross-examined at length by the appellant. However, it is pertinent to note that there is no cross-examination at all on the testimony wherein categorical accusation has been made against the appellant on the point of last seen together with Sanjana at about 2.45 p.m. on the day of the incident i.e. on 19.9.2009. It appears from the tenor of the cross-examination that general suggestions have been put to this witness and the evidence led by PW-6 in her examination-in-chief has remained unshaken. 11. PW7 is Ramesh Vasant Patil who is a pancha to the seizure of the clothes of the appellant and also to the panchanama wherein the appellant had shown the spot where the dead body of the deceased Sanjana was found. PW-7 Ramesh in his testimony has stated that on 24.9.2009, he was called by the police at police station. 11. PW7 is Ramesh Vasant Patil who is a pancha to the seizure of the clothes of the appellant and also to the panchanama wherein the appellant had shown the spot where the dead body of the deceased Sanjana was found. PW-7 Ramesh in his testimony has stated that on 24.9.2009, he was called by the police at police station. That the appellant Ananta was taken out from the lockup. That the appellant made a statement in his presence that the appellant will recover his clothes and slipper. The police thereafter prepared memorandum which is at Exhibit 21. The said memorandum was signed by this witness. That thereafter the appellant took the police and pancha towards petrol pump of Kardal and then to Samadhan Society. The appellant showed a bush wherein a slipper was found. The police seized the said slipper. That the appellant thereafter took the panchwitness and the police at the back side of one house. There was shed of coconut leaves. The appellant took out one shirt and one half pant from the shed. Police seized the said clothes under panchanama. The said panchanama is at Exhibit 21. This witness has proved the memorandum which is at Exhibit 21 and the seizure panchanama which is at Exhibit 21A. PW7 Ramesh identified the article no.3 i.e. half pant and article no.4 i.e. shirt which were seized below Exhibit 21A i.e. seizure panchanama dated 24.9.2009. In the cross-examination, this witness has denied the suggestion put to him, stating that, though it was agricultural season, there was no rain on that day i.e. 24.9.2009 or few days earlier to it. This witness has further denied the suggestion that the appellant was under handcuff at the time of effecting the said panchanama. This witness has further denied the suggestion that he had seen blood stains on the clothes of the appellant. 12. PW-8 is Smt. Maya Pandurang Sonawane, the Medical Officer attached to Satpati Primary Health Center. PW-8 Smt. Sonawane in her testimony has stated that she was working as Medical Officer, Primary Health Center Satpati since April 2009. That she was called by Primary Health Center Saphala for conducting a postmortem of a female child as there was no lady officer at Saphala. That she went to Saphala. PW-8 has further stated that the other Medical Officer was Dr. Randive. PW-8 has stated that she herself and Dr. That she was called by Primary Health Center Saphala for conducting a postmortem of a female child as there was no lady officer at Saphala. That she went to Saphala. PW-8 has further stated that the other Medical Officer was Dr. Randive. PW-8 has stated that she herself and Dr. Randive conducted the postmortem on Sanjana between 10.30 a.m. to 11.30 a.m. She has further stated that, on examination she found the external injuries on genitals of Sanjana. “CLW on right side of labia vaginal tear right sided labia minora at 7 o'clock size 4 x ½ cm. Hymen is ruptured.” PW8 also noticed external injuries which are mentioned in Col. No.17 of the postmortem report and the said injuries are as follows: “1. Abrasion on right arm at lower and on lateral aspect. Size 1 x ½ cm. Red in colour. 2. Abrasion on left arm on lateral aspect of size ½ x ½ cm. Red in colour. 3. CLW on right side of labia minora (vaginal tear) at right sided labia minora at 7 o'clock position. Size 4 x ½ cm. Hymen is ruptured. 4. The face was swollen and cyanosed, face congested, mouth was half opened, tongue and lips cyanossed.” PW-8 has therefore opined that all the injuries were antemortem. PW-8 has opined that cause of death was due to cardio respiratory failure due to asphyxia due to strangulation. This witness was cross-examined by the appellant wherein she has admitted that, there was no internal injuries which were noticed by her. The postmortem report which is at Exhibit 24 has been proved by this witness. According to us the cross-examination of this witness proceeds by putting her general questions and suggestions. However, no useful material has been elicited from this witness during the course of cross-examination. 13. PW10 is Dr. Milind Chintaman Randive. PW-10 Dr. Randive in his testimony has stated that he was head of the Primary Health Center Saphala. That on 20.9.2009, he conducted postmortem of Sanjana Santosh Pared alongwith lady Medical Officer Smt. Sonawane (PW-8) who was from Satpati Primary Health Center between 10.30 a.m. to 11.30 a.m. That on examination of the deceased Sanjana, he found the injuries as have been mentioned in the evidence of PW8 in para 12 above. PW-10 Dr. That on 20.9.2009, he conducted postmortem of Sanjana Santosh Pared alongwith lady Medical Officer Smt. Sonawane (PW-8) who was from Satpati Primary Health Center between 10.30 a.m. to 11.30 a.m. That on examination of the deceased Sanjana, he found the injuries as have been mentioned in the evidence of PW8 in para 12 above. PW-10 Dr. Randive therefore opined that all the injuries were ante-mortem and the cause of death was due to cardio respiratory failure due to asphyxia due to strangulation. This witness was cross-examined by the appellant. However, in his cross-examination no useful material could have been elicited by the appellant. 14. PW9 is Sanjay Narayan Dhumal, the Investigating Officer of the present case. PW-9 in his testimony has stated that from 2007 to 2010 he was working as Assistant Police Inspector at Saphala Police station. That on 20.9.2009 Smt. Gajara (PW-1) lodged the complaint in the police station and on the basis of the said complaint, ADR No.33 of 2009 was registered. That on 20.9.2009, he prepared an inquest panchanama which is at Exhibit 15. He sent the dead body of Sanjana for postmortem examination. He collected advance postmortem report and on the basis of the said document, he lodged a complaint on behalf of the State which is at Exhibit 26. He thereafter visited the spot of the incident and prepared spot panchanama which is at Exhibit 13. He arrested the appellant on 21.9.2009 after effecting the panchanama which is at Exhibit 27. He has further stated that on 24.9.2009, the appellant made statement in the presence of panchwitnesses which was recorded as memorandum panchanama and the same is at Exhibit 21. In pursuance of memorandum panchanama, the appellant led the police and panch to the sport of offence which was a bush where he found some human heir, blood stains on leaves and a blue colour slipper. The appellant thereafter took the police to his house and from there at the instance of appellant the police recovered black pant and one shirt of red colour. The said clothes were seized in the presence of panchwitness by effecting a panchanama, which is at Exhibit 21A. PW9 has further stated that on 27.9.2009 the medical examination of the appellant was carried out. The documents pertaining to the medical examination of the appellant are at Exhibit 28. The said clothes were seized in the presence of panchwitness by effecting a panchanama, which is at Exhibit 21A. PW9 has further stated that on 27.9.2009 the medical examination of the appellant was carried out. The documents pertaining to the medical examination of the appellant are at Exhibit 28. PW-9 thereafter sent the seized clothes to the Chemical Analyzer for examination. Thereafter the witnesses were sent to Judicial Magistrate First Class for recording their statements under Section 164 of the Cr. P.C. The reports received from the Chemical Analyzer are proved by this witness which at Exhibits 30 and 31. This witness was cross-examined at length by the appellant. However, according to us no fruitful material at all has been elicited from this witness, which would help the appellant in creating doubt about the truthfulness of this witness. In our opinion, except proving the omission which was put to PW-1 in her cross as stated in forgoing paragraph, at the hands of this witness that, the appellant took away Sanjana, nothing else has been extracted in the cross-examination of this witness. The rest of the evidence of this witness remains unshaken. 15. The learned Counsel for the appellant has submitted that in the cross-examination of PW-1 i.e. the mother of deceased Sanjana, omissions have been extracted which creates doubt about the testimony of the said witness. As stated above in the forgoing para no.5, except an omission to the effect that, in the statement of PW-1 Smt. Gajara she had stated that she saw the appellant taking away Sanjana, has been proved by the appellant as an omission and the said omission stands completely proved through the Investigating Officer in his cross-examination. According to us, the testimony 0f PW-1 Smt. Gajara is trustworthy and reliable. Except an omission which according to us is of inconsequential in nature no material has been elicited which will discredit the testimony of this witness i.e. PW-1 Smt. Gajara. 16. The learned Counsel for the appellant has further submitted that there is variance in the description of colour of frock which was worn by the deceased Sanjana at the time of incident. He has submitted that the description given by PW-4 i.e. panch to inquest panchanama, in her testimony differs from the seizure of clothes panchanama and the description given by the other witness. He has submitted that the description given by PW-4 i.e. panch to inquest panchanama, in her testimony differs from the seizure of clothes panchanama and the description given by the other witness. It is pertinent to note that the discrepancy in the colour of dress of the deceased Sanjana i.e. frock is very minor in nature. The identity of the victim in the present case is not dependent on the clothes which she was wearing at the time of her death. The victim Sanjana was specifically identified by PW-1 Smt. Gajara i.e. the mother of victim and PW-2 Bharat who is the husband of PW-1. As the identity of victim Sanjana is undisputed, the minor discrepancy in the description of the colour of clothes which victim had worn at the time of the incident assumes least importance and therefore this submission made by the learned Counsel for the appellant is dehors of any substance. The learned Counsel for the appellant has further submitted that PW-5 i.e. a panchwitness to the seizure of clothes of the deceased Sanjana in his examination-in-chief has not stated that the clothes of the deceased were sealed at the time of effecting the seizure panchanama which is at Exhibit 17. We have carefully perused the seizure panchanama which is Exhibit 17 and at page 62 of the paperbook and we have found that at the time of seizure of the clothes of deceased, the same were sealed in the presence of panchwitness and therefore according to us the said submission does not have any substance in it. 17. learned Counsel for the appellant relied on a decision of the Supreme Court in the case of Jaharlal Das Vs. State of Orissa, reported in AIR 1991 SC 1388 wherein the Supreme Court has led down the guidelines while appreciating the circumstantial evidence. 17. learned Counsel for the appellant relied on a decision of the Supreme Court in the case of Jaharlal Das Vs. State of Orissa, reported in AIR 1991 SC 1388 wherein the Supreme Court has led down the guidelines while appreciating the circumstantial evidence. The Supreme Court has held that: “The circumstantial evidence in order to sustain the conviction must satisfy three conditions: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency nerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.” There cannot be any dispute about the aforesaid guidelines given by the Supreme Court. 18. In view of the principles laid down by the Supreme Court in the aforesaid decision, let us now scrutinize the evidence which has been put forth by the prosecution against the appellant in the present case. The first circumstance against the appellant is of last seen together with the deceased Sanjana on the fateful day i.e. on 19.9.2009. PW-2 Bharat and PW-6 Smt. Meenakshi had seen the appellant in the company of deceased Sanjana at 10.30 p.m. and between 2.30 p.m. to 2.45 p.m. respectively and thereafter Sanjana was not seen by anybody. The second circumstance is that, when PW1 Smt. Gajara i.e. the mother of deceased Sanjana and PW-2 Bharat were taking search of Sanjana after 6 p.m. on the said day, the appellant while taking part in search of Sanjana, had asked PW-1 and PW-2 to take search of Sanjana in the bush of Karvandi and informed them that Sanjana may be there. As a matter of fact, when PW-1 and PW-2 were searching in the bushes of Karvandi, Sanjana was found lying there dead with injuries on her body. The third incriminating circumstance against the appellant is that in the presence of PW-7, the police recovered the bloodstained pant and a shirt which were used by the appellant at the time of commission of offence. The third incriminating circumstance against the appellant is that in the presence of PW-7, the police recovered the bloodstained pant and a shirt which were used by the appellant at the time of commission of offence. At the time of recovery of the said clothes, pant of the appellant was stained with blood. The said clothes were recovered after effecting the panchanama under Section 27 which is at Exhibit 21A dated 24.9.2009. The report of Chemical Analyzer which is at Exhibit 31 shows that the article 9 i.e. half pant of the appellant wherein bloodstains were found, after analysis showed that blood was of humanbeing and was of “A” group. The report of Chemical Analyzer further discloses that the blood group of deceased Sanjana was also of “A” group. The other incriminating circumstance against the appellant is that, when he was examined by the Medical Officer, it was found that there was a tear to his spermatic cord. The said medical certificate of the appellant is at Exhibit28. It appears from the record that the injury on the penis of the appellant was a fresh injury which suggests probability of receiving the same while committing the present crime. It is to be observed here that the appellant has not given any explanation about the said injury in his defence. It is further to be noted here that the appellant has not offered any explanation about the finding of bloodstains on his clothes as per the panchanama which is at Exhibit 21A and it is to be noted that the defence of the appellant is of total denial and false implication. 19. The circumstances so proved by the prosecution are of conclusive nature i.e. they have definite tendency of implicating the appellant. The circumstances so established are forming the complete chain which excludes every hypothesis of the innocence of the appellant and unquestionably point the finger of guilt towards the appellant. In our opinion, the circumstances which are emerging from the record are capable of drawing only one inference i.e. the appellant and the appellant alone has committed the present crime. The circumstances adverted by us above, completes the chain of circumstances and the circumstances exclude every hypothesis of the innocence of the appellant and unquestionably point the finger of guilt towards the appellant. 20. The circumstances adverted by us above, completes the chain of circumstances and the circumstances exclude every hypothesis of the innocence of the appellant and unquestionably point the finger of guilt towards the appellant. 20. In the circumstances mentioned herein above, according to us, the prosecution has proved the offence against the appellant beyond reasonable doubt. In our earnest consideration, the Trial Court has rightly convicted and sentenced the appellant as aforestated and hence no interference in the present Appeal is required. 21. Consequently, this Appeal fails and is dismissed, by confirming the judgment and order dated 27th April 2011 passed by the District Judge1 and Additional Sessions Judge, Palghar in Sessions Case No.72 of 2009. 22. Before parting with this judgment, we must record our appreciation for Advocate Mr. Swapnil Ovalekar who was appointed by the Legal Services Committee to represent the appellant in this appeal. We find that he had meticulously prepared the matter and had strenuously argued the appeal. We quantify total legal fees to be paid to him in this appeal by the High Court Legal Services Committee at Rs.5000/.