JYOTI BABAN KALE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) SINCE both these appeals arise from the judgment of the Trial Court, both these appeals are being decided by this common judgment. The appellants herein stand convicted for an offence punishable under section 302 and 201 read with section 34 of the Indian Penal Code and stand sentenced to imprisonment for life and to each pay fine of Rs.1,000/- with a default stipulation of undergoing further S.I. for one month and R.I. for three years and to pay fine of Rs.500/- each, in default to suffer S.I. for fifteen days with a direction that the substantive sentences shall run concurrently, by the Additional Sessions Judge, Parbhani, by judgment dated 4.7.2008, in Sessions Trial No.139 of 2007, by these appeals question the correctness of their conviction and sentence.

(2.) SUCH of the facts as are necessary for the decision of these appeals may briefly be stated thus:- P.W.4 P.S.I. Premchandra Poul was attached to Purna Police Station. On 9.5.2007 accused no.2 Jyoti had come to the police station, Purna and had made certain confessional statement. On the basis of the said confessional statement, the P.I. Shri Patil had directed P.W.4 P.S.I. Poul to visit the scene of the offence. P.W.4 accordingly took accused no.2 in a police jeep to a spot at a distance of 2-1/2 kms. from the police station, by the side of railway track. The spot was pointed out by accused no.2 Jyoti. He noticed that the ditch was filled with mud and red coloured cloth was found in the ditch. He accordingly returned to the police station and informed P.I. Patil. Two Police Constables were deputed to guard the spot. Accordingly P.W.7 A.S.I. Raosaheb Pawar recorded the complaint of accused no.2 Jyoti and obtained her thumb impression. The aforesaid complaint at Exh.51 was treated as the first information report and an offence punishable under sections 302, 201 and 506 of the Indian Penal Code came to be registered against original accused no.1 Ananda vide Crime No.51 of 2007. Investigation accordingly came to be entrusted to P.W.5 P.S.I. Amjad Sayyad. P.W.5 Amjad Sayyad who was entrusted with the investigation went to the scene of the offence along with Constable Pote and Dukare and directed them to guard the spot and issued a letter to the Tahsildar at Exh.33 and also a letter to the Medical Officer for performing the post mortem. The Tahsildar and the Medical Officer arrived on the next day i.e. on 10.5.2007. P.W.3 Tukaram Ghansawankar, a Naib Tahsildar who was in-charge of Purna Taluka, upon receipt of the communication at Exh.33 attended the Purna police station along with the two panchas, namely Kabir Ahmed and Vidyakumar Lahane. Original accused no.1 Ananda Kale was brought before him and accordingly accused no.1 Ananda expressed his willingness to point out the place where the dead body of an infant boy was buried. Accused no.1 Ananda then took the police and the panch along with him to the railway track and pointed out the place where a male child had been buried. At that spot certain thorns had been spread and accordingly a labour by name Thuraji Gavali removed those thorns and excavated the spot. From the spot a piece of sari of yellow and red colour one plastic chappal of right foot was unearthed. The dead body, however, was not found. A search of the nearby place was undertaken and a white coloured shirt with black dots was found. The aforesaid articles came to be seized under panchnama at Exh.35. Accused no.2 Jyoti and P.W.1 Baban were referred for medical examination to the Civil Hospital at Parbhani and the accused no.2 came to be arrested on 9.5.2007 at 11.00 p.m. Accused no.1 was also referred for medical examination. The sniffer dog was summoned and smell of the seized shirt was given to the dog. The dog went upto the canal and thereafter stopped. A search for the dead body was taken but the dead body of the child was not found. On 11.5.2007 the medical examination report of Jyoti was collected, which indicated that accused no.2 Jyoti had given a birth to a child about a month prior to the incident. On 13.5.2007 the police party proceeded to Pune along with accused No.2 Jyoti to the house where she was previously residing at Vagoli. Statement of the land lady came to be recorded. Thereafter accused no.2 Jyoti came to be arrested. During custodial interrogation accused no.1 Ananda expressed his willingness on 21.5.2007 to point out the place where the remaining clothes of the child of accused no.2 Jyoti were kept. He accordingly led the police and the panch to a place near the Irrigation Department Guest House and from near a lime tree produced a piece of sari, an underwear of the child, a yellow coloured shirt and a green coloured shirt. The aforesaid articles came to be seized under panchnama at Exh.40. The seized articles came to be referred to the Chemical Analyser. The report of the Chemical Analyser at Exh.41 indicates that on the sari piece, small shirt and underwear and another shirt, no blood was detected. As per the C.A. report at Exh.44, blood was detected on a shirt and sari piece, which were seized on 10.5.2007. The aforesaid articles were found stained with blood of "A" group. The blood group of P.W.1 Baban was determined as "AB" group, while the blood group of accused Jyoti was determined as "A" group. Further to the completion of investigation a charge-sheet against the accused came to be filed.

(3.) P.W.2 Deelip, Police Patil, deposes on similar lines except that he states that on 6.5.2007 statement of Jyoti had been recorded by the Kurunda police station and thereafter P.W.1 Baban had declined to accept the custody of Jyoti and Jyoti was kept in the house of one Ramesh Kale. He then states about accompanying Baban and Jyoti to the house of her sister in search of the mother of Jyoti and ultimately mother of Jyoti also declining to accept the custody of Jyoti. He then states about accompanying Baban to the Kurunda police station on the next day and thereafter the police informing to approach the Purna Police Station. In cross-examination omission has been proved that he had not stated in his previous statement that on 8.5.2007 in the morning P.W.1 Baban had disclosed to him about the disclosure made by Jyoti.