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Judgment
Anil L. Pansare, J
Heard Mr. Rai, learned Counsel for the Appellant and Mr. Thakre, learned APP for the Respondent – State.
Feeling aggrieved by the Judgment and order dated 23/2/2018 passed by the Additional Sessions Judge, Gadchiroli in Sessions Case No. 60/2017, the Appellant/Original Accused has preferred the instant Appeal under Section 374(2) of the Code of Criminal Procedure, 1973. The learned Additional Sessions Judge has convicted the Appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter be referred to as ‘IPC’) and sentenced him to suffer Life Imprisonment with fine of Rs.1000/-, in default of payment of fine, to suffer Rigorous Imprisonment for one year.
The facts necessary to decide the Appeal are as under :
The Appellant got married to Ashwini in the year 2008. The couple had two daughters. Two years prior to the incident they shifted to Gadchiroli. The Appellant used to suspect her character and used to beat her. He used to illtreat her under the influence of liquor.
The incident occurred on 10/5/2017 when the wife of Appellant had gone to the lake to wash clothes. He followed her, quarreled with her and then drowned her in the water. The mother of the victim Shantabai Meshram came to know about the incident through neighbours. She went towards the lake and found that some people have caught hold of her son-in-law (present Appellant). Someone informed her that quarrel has occurred between the Appellant and his wife and thereafter Appellant drowned his wife deep inside the water by pulling her hairs. She enquired with the Appellant, to which, the Appellant confessed of committing crime and showed the spot where he drowned his wife. The people gathered, pulled victim out but she had expired by that time. Mother of the victim approached the Police Station, Gadchiroli and lodged FIR and accordingly law was set in motion.
The Investigating Officer has conducted investigation. He has recorded statement of witnesses. Necessary panchanamas were drawn. The Appellant was arrested. The investigation, then culminated into filing chargesheet. The trial resulted into conviction of the Appellant.
The main contention of the Appellant is that the conviction is based on the sole testimony of PW-1 Mirabai Chaple, though in the FIR itself it was reported that the people gathered had caught hold of the Appellant. No one else, present at the spot, has been examined. Another contention is that, the victim has suffered accidental death and not homicidal death.
The most important question, therefore, is whether the testimony of sole witness PW-1 Mirabai is of the requisite degree of confidence, to bring home the guilt of the Appellant.
In context with above, we have heard the learned APP as well. We have gone through the entire evidence with the assistance of the learned Counsel for both the sides. We will refer to the evidence, documents and the arguments to the extent necessary to decide the following points, that arise for our consideration. We have recorded our findings thereon for the reasons to follow:
POINTS FINDINGS
(i) Does the prosecution prove that Ashwini suffered homicidal death ? … Yes
(ii) If yes, does the prosecution prove that the Appellant has committed murder of his wife Ashwini ? Yes
(iii) Whether interference is called for in the impugned Judgment ? No
(iv) What order ? As per final order
REASONS
AS TO POINT NOS.1 TO 3 :
The Points being interlinked are decided by common reasoning. According to the Appellant, his wife has suffered accidental death. The learned APP has, however, pointed out from the Judgment that this point was not at all argued before the trial court.
The learned Additional Sessions Judge, while answering this point, has mentioned that the accused did not dispute that Ashwini died due to drowning. The learned trial Judge has then referred to the witnesses, including informant Shanta Meshram (PW-4) and the eye-witness Mirabai (PW-1), coupled with the Postmortem Report (Exh.40) submitted by Dr. Meghraj Puram (PW-10), showing cause of death as “Asphyxia due to wet drowning”, and since the cause has not been disputed, he held that the case is of homicidal death.
Mr. Rai, learned Counsel for the Appellant has argued that merely because the Appellant has not disputed that his wife died of drowning, it does not necessarily mean that Ashwini suffered homicidal death. According to him, the defence is of accidental death, viz – Ashwini slipped in the water and drowned.
According to us, this argument will have to be dealt with after evaluating the evidence of star witness Mirabai (PW-1). We have minutely gone through her evidence. On the point of incident she deposed that she had been to lake to wash clothes. Soon another lady came there to wash clothes. Thereafter one man came there. The lady was washing clothes. The said man went up to her and drowned her in the water. She (witness) got scared and started shouting. The man, after hearing shouts, came out of the water and fled away. She (witness) threw the saree, which she was washing, into the water to rescue that lady but she had already sunk deep. Therefore, she pulled back the saree and returned home. Thereafter PW-1 deposed about the Identification Parade, as to how she has identified the Appellant in Chandrapur Jail, which may not be relevant at this stage.
In the cross-examination she deposed that there are stones and the bund and also algae. She showed ignorance on the point whether earlier some ladies had slipped due to algae and drowned in the water. She denied the suggestion that she heard noise of something falling into water. She denied further suggestion that she got scared and returned to home. She has also denied that the deceased fell into the water after slipping of the algae. She has, however, admitted that except for her and the victim nobody was present there.
The learned Counsel for the Appellant submits that aforesaid evidence raises couple of issues – Firstly, the witness says that the person, who has drowned victim in the water has fled away. The statement, according to the learned Counsel for the Appellant, is a dent to the prosecution version that few people had caught hold of the Appellant near the lake; and secondly, the witness admits that except for her and the victim no one else was present. This part of evidence also indicates that the prosecution case on the point of apprehension of Appellant at the spot is doubtful.
As against, the learned APP has argued that these discrepancies do not go to the root of the case. The mental status of the witness, who has seen the heinous crime must be kept in mind while evaluating evidence.
Thus, it is to be seen whether the discrepancies pointed out by the Appellant would destroy the case of the prosecution.
Her evidence will show that she has seen the Appellant pulling a lady (his wife) in the water and drowning her down. The witness, seeing the incident started shouting. The Appellant fled away. Her evidence that the Appellant fled away is to the effect that he fled away from the lake. Her evidence clearly indicates that once the Appellant fled away, she was focused on fetching the victim out of the water, and therefore, there is every likelihood that she has not seen whether the Appellant was caught by some people while attempting to flee away. The witness made an attempt to save the victim, but could not, and therefore, she left the spot immediately. In the circumstances, merely because the witness has not seen people catching hold of the Appellant would not render her evidence unbelievable. The presence of people at the spot after the incident, in our view, has been, in a way, brought on record by the Appellant himself.
On this point, viz – on the point of people gathering at the spot and catching hold of the Appellant, Shankar Kudawale (PW-9) the Investigating Officer has deposed that after receiving information of the incident, he rushed to the spot and found that people had already gathered there and had caught hold of the Appellant. Firstly, this part of evidence is not challenged by the Appellant in cross-examination. Secondly, what is brought on record in the cross-examination is that, generally people go by the road situated near the spot of incident and that there was crowd on the road on that day. Thus, the defence has brought on record that there is a road nearby and that it was crowded on that day, making it possible to infer that the people who were travelling on the road had heard the shouts of PW-1 and have caught hold of the Appellant when he came out of the lake and was all set to flee away. In that sense, presence of the people at the spot after the incident is proved, particularly in absence of challenge to the deposition of PW-9 that people gathered had caught hold of Appellant.
The contention of the learned Counsel for the Appellant that PW-1 has admitted that except for her and the victim no one else was present, will have to be understood to be a fact relating to the status of occurrence of incident, and not to what followed immediately after the incident. The Evidence of PW-1 coupled with the evidence of Shankar Kudawale (PW-9) would show that when the Appellant, after drowning his wife, was all set to escape from the spot, people from the road gathered at the spot and caught hold of the Appellant. Therefore, the contentions of the Appellant that the evidence of PW-1 on this point is a dent to the prosecution story, is without any substance and stands rejected accordingly.
The presence of PW-1 at the spot was otherwise found by the trial court to be natural. The finding is supported by the fact brought on record by the defence while cross-examining her, when it is brought on record that she regularly goes to the lake to wash clothes. Thus, her presence was natural, as it was her routine activity to go to the lake and wash clothes. There is nothing in the cross-examination to doubt her testimony.
Thus, the evidence of PW-1 is not only trustworthy, but is sufficient to show complicity of the Appellant with the crime. Nonetheless, before rendering the firm finding on this point, we would like to examine other part of evidence of PW-1 so also the other witnesses.
On the point of identification of the Appellant, PW-1 has deposed that after about fifteen days of the incident, police took her to Chandrapur Jail and asked her to identify the culprit. There were eight persons standing in front of her. She identified the Appellant as the culprit. There is no effective cross-examination to doubt her testimony, rather the Test Identification Parade has been fortified by the defence while cross-examining Gunwant Bhandekar (PW-5), the panch witness to the Test Identification Parade panchanama (Exh.17). What is elicited from PW-5 is that Shri Kirme (Naib Tahsildar, who conducted the Test Identification Parade) and witness Chintala (the other panch witness) decided that the accused should stand at serial No.3. He (PW-5) has then deposed that accused was earlier asked to stand at a number of his choice, but he did not give his choice, and therefore, the witness and other two have decided to ask accused to stand at serial No.3, by avoiding the first and the last number. PW-5 has also deposed in detail as to how the Test Identification parade was conducted.
The evidence of PW-1 and PW-5 will dispel the doubt, if any, that the Test Identification Parade was not conducted in accordance with law or that the identification of Appellant was doubtful. Rather in the Appeal Memo, under Ground (A) the Appellant has pleaded that Mirabai (PW-1) is resident of the same locality and is well known to the Accused, and therefore, she has identified the accused after fifteen days at Central Jail, Chandrapur.
As such, the Test Identification Parade loses its significance, firstly because there was ample time for PW-1 to see the Appellant committing crime; and secondly, both being resident of same village, PW-1 could recognize the Appellant in the Court, which she even otherwise did. Thus, there is no doubt on the point of identification of the culprit.
Anil Bhoyar (PW-2) is a distant relative of victim. He is a panch witness to the seizure panchanama of clothes and vessel of the victim. His evidence is not of much relevance.
Kiran Bhoyar (PW-3) is a panch witness to the inquest panchanama (Exh.10). There is nothing in cross-examination to disbelieve that inquest panchanama was drawn on that day.
Shanta Meshram (PW-4) is mother of the victim. The Appellant, in that sense, is her son-in-law. We do not find any reason as to why would PW-1 or PW-4 falsely implicate the Appellant in this crime. The evidence of PW-4 on the point of incident is hearsay. Nonetheless, the evidence on other facts is relevant. She has deposed that the accused used to consume liquor and quarrel and beat Ashwini. Her neighbours informed her of incident, and therefore, she rushed to the lake. The body of her daughter was taken out of the lake and kept there. Police were also present. She lodged report with the Gadchiroli Police Station. The FIR (Exh.13) came to be exhibited in her evidence.
In the cross-examination she has deposed that she has not mentioned in the report that police were present when she reached. This omission, according to us, is irrelevant, unless the impact of omission is shown to adversely affect the prosecution version, as it is settled principle of law that FIR is not an encyclopedia. The witness has then stated in the cross-examination that the couple was living happily till the date of incident, however, the witness then volunteered that accused used to misbehave with her whenever he consumed liquor. There is nothing, except for above, in the cross-examination. Thus, the evidence of PW-4 would support the prosecution version to the extent that the body of victim was taken out from the lake and was kept at the spot and that she promptly lodged FIR.
The evidence of Gunwant Bhandekar (PW-5) has already been discussed to the extent necessary.
Chandrakant Kirme (PW-6) is Naib Tahsildar, who has conducted the Test Identification Parade. His evidence is in tune with the evidence of PW-5 and there is nothing in the cross-examination to disbelieve his version.
Vijay Puranik (PW-7) is second Investigating Officer, who has carried forward the investigation done by PSI Satyawan Bhuyarkar (PW-8) and ASI Shankar Kudawale (PW-9). He has seized clothes of the accused before the panchas and has drawn clothes seizure panchanama(Exh.24). He has sent the clothes to Forensic Laboratory, Nagpur. He has written letter to the Taluka Magistrate to conduct Test Identification Parade. He received the memorandum panchanama after the Test Identification Parade. He has filed chargesheet against the Appellant.
The evidence of PW-8 and PW-9, the earlier Investigating Officers is to the effect that they have recorded statement of witnesses, arrested the accused, drawn relevant panchanamas and sent body of victim for postmortem etc. The cross-examination of PW-9 to the extent necessary has already been discussed which would only support the case of the prosecution on the point of presence of other persons, immediately after the incident who caught hold of Appellant.
PW-10 is Dr. Meghraj Puram, who has conducted postmortem and prepared Postmortem Report (Exh.40). According to him, probable cause of death is “Asphyxia due to wet drowning”. In the cross-examination he has stated that there was no external or internal injury to Ashwini. The water as was found in the lungs, stomach and intestines of Ashwini could be found in case of person who jumps into the water or himself gets drowned.
We do not find from the cross-examination of PW-10 that the inference of accidental death could be drawn. Rather the absence of external or internal injuries would indicate that possibility of the victim slipping due to algae and felling down in the water is ruled out. Such accident may attract external or internal injury. Thus, the evidence of PW-10, read with the evidence of PW-1 and other witnesses, would only show that Ashwini was drowned in the water by the Appellant, and therefore, the water was found in her lungs, stomach and intestines and not as suggested in the cross examination.
Considering the aforesaid evidence, we have no hesitation to hold that the conviction of Appellant on the sole testimony of PW-1 is sustainable. The learned Judge of the trial court has considered all relevant aspects while evaluating the evidence and has not only found the evidence of PW-1 to be trustworthy, but has also rendered a finding that her presence was natural. He has also considered that she did not know Ashwini or the Appellant, and therefore, there is no question of her having any animus to depose against the Appellant. Thus, the conviction is based on the admissible evidence and is supported by sound reasons. The Appellant failed to show any error or illegality in the Judgment. There is no iota of doubt that the Appellant is responsible for the death of his wife.
Accordingly, we answer Point Nos.1 and 2 in the affirmative and Point No.3 in the negative.
AS TO POINT NO.4 :
Having answered the Point Nos.1 to 3 in the manner herein above, the Appellant failed to make out a case. The Appeal, therefore, is liable to be dismissed and stands dismissed accordingly.