B. H. MARLAPALLE, J. - (1.)THIS appeal filed under Section 374 of Cr.P.C. is directed against the order of conviction and sentence passed by the learned Additional Sessions Judge at Islampur, District - Sangli in Sessions Case No.23 of 2005, wherein the appellants came to be convicted for the offence punishable under Section 302 read with Section 34 of IPC and all of them have been sentenced to suffer life imprisonment and to pay a fine of Rs. 1,000/- each, in default to suffer RI for three months.
(2.)AS per the prosecution, accused no.1 Arvind is the husband of the deceased - Kusum and accused no. 2 is the son of accused no. 1 and the deceased. Whereas accused no.3 is the younger brother of accused no.1. The accused are the residents of village Waghwadi and the houses of accused nos.1 and 3 are located next to each other, in the vasti away from the village and attached to their agricultural land. In addition to accused no.2, the accused no.1 begotten three daughters from the deceased, namely, Shubhangi, Gauri and Minakshi Shubhangi was married and staying at her matrimonial home at village Nagthane and Gauri and Minakshi were unmarried. Around 13/3/2005, there was an yearly fete at village Peth and, therefore, Shubhangi had come to her parental home at village Waghwadi and all the three sisters had attended the said fete and returned to village Waghwadi on 14/3/2005. On the same day, Shubhangi went to her matrimonial home and Gauri also accompanied her, thus, leaving behind Minakshi and accused no.2 as the two children staying with the deceased. Accused no.1 was in the neighbouring village - Borgaon for the last about two months. On 15/ 3/2005, Minakshi - PW 3, got up at about 6 a.m. and came out of the room, where her mother and she were sleeping. While she was removing the ash from the cooking place, all the accused entered the house, accused no.1 shouted and abused at the deceased whereby she woke up. All the accused entered the room, where the deceased was sleeping and accused no.1 sat on her chest, accused no.2 held her hands and accused no.3 held her legs. Accused no.1 strangulated her despite the protest of Minakshi and she was threatened to keep quiet. Within few minutes, all the accused fled away from the rear side door and Minakshi went near her mother and tried to move her, but she was motionless and, therefore, she realized that her mother was dead. Police came at the scene at about 9.30 a.m., drew inquest panchanama (Exh.30) and spot panchanama (Exh.29) and Minakshi's complaint was recorded and registered as C.R. No.50 of 2005 (Exh.41). PW 4 - Subhash Shinde was the Police Officer, who recorded Minakshis complaint and got the C.R. registered at about 9.55 a.m. The accused came to be arrested around 4 p.m. on the same day from a place between Waghwadi and Islampur. The dead body of Kusum was sent for post mortem and PW 2 - Dr. Sandeep Patil conducted autopsy on 15/3/2005 between 1 to 2 p.m. and signed the post-mortem report at Exh.38. The cause of death shown in the post mortem report was "asphyxia due to throttling". On completion of investigation, the charge-sheet came to be filed and the case being exclusively triable by the Sessions Court, it was committed. Charge was framed on 30/8/2005 (Exh.2).
The prosecution examined in all five witnesses and its case is entirely based on the evidence of PW 3 - Minakshi, who was claimed to be 14 years of age at the time of incident and she claimed to be an eye-witness to the incident. PW 1 - Sukhadev Wagh was the Police Patil of village Waghwadi and PW 5 - Sadashiv Jagtap was the PSO on duty at Islampur Police Station. He had registered C.R. No.50 of 2005 at about 9.55 a.m. on 15/3/2005 on the basis of the complaint (Exh.41) of PW 3. The accused in their statement recorded under Section 313 of Cr.P.C. claimed that they were innocent, came to be arrested from the place of the offence and they were framed because Anna Ramoshi with the help of PW 3 Minakshi wanted to grab their property. As per the evidence of PW 2 Dr. Patil, Kusum died a homicidal death and on account of asphyxia due to throttling. The trial court, on the basis of the evidence of PW 1, PW 3 and PW 4, was satisfied that the prosecution proved its case beyond doubt against the accused and they were the killers of Kusum. The trial court noticed that PW 3 - Minakshi was 14 years of age at the time of the incident and her evidence was well corroborated by the medical evidence. It further held that there was a pre-meeting of minds between the accused, they came together and murdered Kusum and fled away from the scene of offence in the wee hours of 15/3/2005.

Mr. Pradhan, the learned counsel for the accused, submitted that PW 3 - Minakshi, a minor witness could be called "partly reliable and partly unreliable" and, therefore, if the prosecution case is based on such a solitary witness, the evidence of such a witness must be corroborated by other evidence available on record and it would be unsafe to support the order of conviction on the basis of the sole testimony of such a witness. Mr. Pradhan also pointed out various circumstances which have been contradicted between PW 1 and PW 3 or between PW 1 and PW 4 and, therefore, these contradictory depositions make the prosecution case vulnerable. As per Mr. Pradhan, the prosecution failed to prove its case beyond doubt that all the accused came together and killed Kusum in the early hours of 15/3/2005 and they were implicated at the behest of someone else or by way of a design hatched between the 10 and Anna Ramoshi. Mr. Pradhan referred to the FIR (Exh.41) as well as the examination-in-chief of PW 3 so as to point out that as per the prosecution case, the motive behind the crime was the alleged illicit relationship between the deceased and Anna Ramoshi, who was the resident of neighbour- by village Peth. Mr. Pradhan referred to the final report/charge-sheet submitted by PW 4 and more particularly the last endorsement thereon, which reads as under :- JUDGEMENT_1424_ALLMR(CRI)_2011Image1.jpg It was submitted by the learned counsel that Anna Ramoshi was not examined as a witness of the prosecution nor was he added as an accused and, therefore, the prosecution failed to prove its theory of motive behind the crime and so as to implicate the accused. The learned counsel also referred to the evidence of PW 2 Dr. Patil and port mortem report at Exh.38 and submitted that even as per the medical evidence, it was doubtful whether Kusum died because of throttling. Number of other circumstances were also referred to by the learned counsel to point out holes/gaps in the prosecution case. He submitted that PW 3 claimed that the accused committed the crime and fled away, whereas PW 1 claimed that when he came to the scene of the offence, all the accused were present at about 8 a.m. The learned counsel also submitted that PW 3 - Minakshi had a strong grudge against accused no.2, her brother, as he was the person who had complained to his parents about her involvement with some boy from Orissa and both Minakshi as well as Gauri had eloped with these two boys from Orissa and were missing for about a week and but for the complaint of accused no.2, they would not have returned. As per Mr. Pradhan, Anna Ramoshi was the main link behind the crime as per the case of the prosecution itself and the failure to examine him as witness of the prosecution or to implicate him as an additional accused has vitiated the prosecution case that accused killed Kusum because she was involved with the said Anna Ramoshi in sexual relationship. He also submitted that if the incident occurred at about 6 a.m. and police came to the site at about 9.30 a.m., it was unbelievable and unnatural for PW 3 to keep mum and not to inform either to her grandparents, who were staying next door or to any other person in the village that her mother was killed and she is lying dead in the house. It was, therefore, urged that for all these reasons the order of conviction and sentence is unsustainable and it deserves to be quashed by acquitting all the accused. Mr. Pradhan, in support of his submissions, has placed reliance on the following decisions :- (a) Vemireddy Vs. State of Hyderabad [AIR 1956 SC 379]. (b) Vadivelu Thevar Vs. State of Madras [AIR 1957 SC 614]. (c) Suresh Chaudhary Vs. State of Bihar [(2003)1 SCC 465]. (d) Lallu Manjhi Vs. State of Jharkhand [(2003)2 SCC 401] :[2003 ALL Mr (Cri) 590 (S.C.)] (e) Joseph Vs. State of Kerala [(2003)1 SCC 465].

(3.)MR. Shinde, the learned APP, on the other hand, has supported the impugned order of conviction and sentence and submitted that PW 3 was a natural witness and there was no material brought on record to suspect her testimony when she was deposing against her own father, brother and uncle. As per MR. Shinde, the failure to examine Anna Ramoshi as an additional witness has not vitiated the prosecution case and it is for the prosecution to decide who should be its witnesses. In any case, Anna Ramoshi was not a material or relevant witness and he was a resident of village Peth. MR. Shinde referred to the depositions of PW 3 - Minakshi and pointed out that the said Anna Ramoshi was a close family friend and was helping the family in the hours of need. MR. Shinde also submitted that the deceased had no injuries on any other part of her body, except around her neck and this itself went to show that the assailants were more than one and they could be only the accused, who were seen by PW 3 while committing the crime and PW 3 was not allowed to alert anyone under the threats that she would also be dealt with in the same manner, by accused no.1. We are, therefore, required to examine whether the prosecution case could be accepted on the basis of the evidence of PW 3 - Minakshi, the sole minor eye-witness.
Pw 2 Dr. Sandip Patil stated before the trial court that in the month of March, 2005 he was the Medical Officer at the Primary Health Center, Peth and village Waghwadi was under the said Primary Health Center. On 15/3/ 2005 the Islampur Police Station had brought the dead body of Kusum for post-mortem and he conducted the same between 2 to 3.30 p.m. on the same day. He signed the post mortem report at Exh.38 and issued the provisional certificate regarding the cause of death of Kusum (Exh.39). The doctor noticed the following external injuries on the dead body of Kusum :- 1. A linear impression mark of 5 cm on anterior part of neck extending from thyroid cartilage to side of neck in upward and outward direction. Dark in colour on left side. 2. Subcutaneous and platysmal harmarrhage seen on right side echymosis. 3. A faint impression mark seen in upper part of neck on left side 3 cm in length. 4. 2 cm. abrasion mark on right clavide one in number. 5. 1 x 2 cm contusions, 4 in number seen over left claricle. 6. One nail mark on left cheek. 7. Abrasion on right pinna. 8. Nail marks on neck, 4 in number above thyroid cartilage. He stated that injury nos. 1 to 4 could be due to pressing of neck by fingers and injury nos. 5 to 8 could be possible due to struggle of the victim when the victim's neck was being pressed. The doctor stated that Kusum died due to asphyxia due to throttling. However, in his cross-examination, the doctor admitted that (i) no oozing was found through nosetrils, mouth and ears, (ii) the tongue had not protruded out, (iii) no fracture of thyroid bone was seen. He concluded that these were possibilities in case of throttling, but they were not noticed. From the injuries, he opined that the victim might have struggled. He also admitted that the injuries on the neck could be caused by victim herself while resisting. He also stated that he had examined the wrist and ankles of the dead body and there was possibility of some kind of struggle mark if the victim was caught hold of by someone to her wrist and both ankles, but there were no injuries found on her wrists as well as ankles. He also stated that the victim was a lady wearing bangles and if her hands were caught hold of by somebody, there were chances of injury marks by breaking of bangles and the deceased was wearing bangles in her hands when he examined her. Considering injury no.1, there was no possibility of the victim strangulating herself or that she was strangulated by any other object. He admitted that he had not mentioned the time of last meal before the death occurred. We do not find any reason to disbelieve the findings of the trial court that Kusum died a homicidal death. However, it is necessary for us to find out whether the prosecution proved that the accused or any one of them caused the death of Kusum by throttling her or by pressing her neck in the wee hours of 15/3/2005 and more particularly on the basis of the evidence of Pw3 Minakshi.