State of Maharashtra v. Mukesh Khushaldas Mepani — 1990 DIGILAW 83 (BOM)

JUDGMENT M.L. Pendse, J. - The facts of this case would unfold the tragic end of Chetna, the wife of the accused on March 28,1985 in flat No. 16, 3rd floor, Premnagar building No. 1, 'A' Wing, Borivli, Bombay. The deceased was married to the accused on May 15, 1983 and initially the couple was residing at Tardeo in Central Bombay with the parents of the accused. The accused was carrying on business as broker in diamond transactions. There are three diamond market in Bombay, one situate at Malad, the other at Pancharatna building, Opera House in South Bombay, and the third at Zaveri Bazaar, South Bombay. As a broker, the accused was required to visit these markets from time to time. While the accused and the deceased were residing at Tardeo, the deceased conceived but had a miscarriage in November 1983 during seven months of pregnancy. It appears that the young couple could not poll on with the elderly persons and thereupon the accused took a loan from his brother-in-law Dilip Parmani (P.W. 7) and purchased a flat in Premnagar Bldg. The accused and the deceased shifted to the flat at Borivli in August 1984. The mother of the deceased Shardaben Parmani (P.W. 8), Dilip and Paresh (P.W. 7 and P.W. 5), the brothers of the deceased and Indu (P.W. 6), the wife of Dilip, are also residing at Borivli within a short distance from where the flat of the accused is situate. 2. On January 7, 1985, the deceased underwent an appendix operation in the hospital of Dr. Rekha Shah (P.W. 16) and after discharge was advised bed rest for about 15 days. The, deceased went to the residence of her mother after discharge from the hospital, but before 15, days were over returned to the house of her husband. Between March 7, 1985 and March 14, 1985, the deceased was residing in the house of her mother. Prior to March 14, 1985 the accused had visited the house of Shardaben and informed that he was going on a pilgrimage to Mahadi near Ahmedabad. The accused returned by about March 14 and requested his wife to come back to the matrimonial flat. The wife went back to the flat and prior to the date of the incident i.e. March 28, 1985 the couple had visited the flat of the deceased's mother on two or three occasions. The accused returned by about March 14 and requested his wife to come back to the matrimonial flat. The wife went back to the flat and prior to the date of the incident i.e. March 28, 1985 the couple had visited the flat of the deceased's mother on two or three occasions. It is not in dispute that the relations of the deceased also used to visit the flat of the accused from time to time. 3. On the date of the incident i.e. on March 28, 1985 the accused left the flat at about 10 O' clock in the morning to visit a temple situated nearby. The accused went to the temple on his scooter but came back on his foot. At about 11.30 in the morning, the maid-servant Laxmibai Pawar (P.W. 12) came to clean the floor and wash the clothes. At that time, both the accused and the deceased were in the flat. Laxmibai returned to the flat between 12 and 12.30 in the afternoon for washing utensils after the couple had taken their lunch. When Laxmibai visited the flat on the second occasion, the accused had already left the flat and the deceased was all alone. Laxmibai finished the work in about five to ten minutes and left the flat. The accused had visited the diamond markets at Malad and also at Pancharatna Building, Opera House, on the date of the incident. The accused returned to his flat at 9.30 p.m. The flat has two doors at the entrance. The inner door has a Godrej automatic latch and opens inside the flat. The outer door opens in the passage and has a grill at the top. The two doors are fixed to the flat with a view that an outsider should not enter the flat on opening of the inner door and take the inmates by surprise. When the accused reached the flat, the outer door was found open. The accused opened the inner door with a latch key on entering the flat found the flat in darkness. The accused switched on the lights and noticed that his wife was lying on a divan in the living room. The flat consists of bed-room, a sitting hall, kitchen and a toilet block. The accused opened the inner door with a latch key on entering the flat found the flat in darkness. The accused switched on the lights and noticed that his wife was lying on a divan in the living room. The flat consists of bed-room, a sitting hall, kitchen and a toilet block. The area of the living room is 9 feet x 16 feet and on the date of the incident, there were two divans, a teapoy, a show-case and a cupboard in the hall. The accused noticed that the deceased was lying with chest downwards on divan while her legs were on the floor. The accused noticed that there was a pool of blood on the chaddar spread on the divan. The accused tried to move the deceased, but the deceased did not respond. Thereupon the accused came out of the flat and approached the neighbour Panna Pandya (P.W. 9) who was residing in the adjoining flat. The accused informed Parma that Chetna had committed blood. On hearing the cries of the accused, both Parma and Shobhana Desai who are residing in the adjoining flats rushed to the flat of the accused. Noticing the condition of the deceased and the manner in which she was lying, Parma suggested to the accused that Doctor should be fetched at once. The accused thereupon climbed down the stair case and went to the first floor where Shantilal Bhimani (P.W. 2) is residing. The accused informed Bhimani that his wife was lying in a pool of blood and he desires to give telephone message. Bhimani permitted him to do so and then the accused gave telephone message at the place-of Shardaben and also gave a call to his brother. The accused then requested Bhimani to contact his family Doctor and requested him to come to the flat at once. Accordingly, Bhimani telephoned to Dr. Dandekar who had a dispensary nearby. Dr. Dandekar informed that he was busy with his patients in the clinic and would come after 10 to 15 minutes and in the mean while some person should be sent to his dispensary to bring him to the flat. 4. The telephone message given by the accused was received by Indu (P.W. 6), the sister-in-law of the deceased. At that moment Shardaben had gone on a visit to her brother's place. 4. The telephone message given by the accused was received by Indu (P.W. 6), the sister-in-law of the deceased. At that moment Shardaben had gone on a visit to her brother's place. Indu sent a messenger to the place where Shardaben had gone and immediately left' the flat to reach the place of the accused. When Indu came out of her flat, she met her husband Dilip and all of them proceeded to the flat of the accused. These three witnesses reached the flat within a couple of minutes and as the Doctor had not reached the place by that time, Paresh proceeded to the dispensary of Dr. Dandekar to fetch him to the flat. After receiving the message sent by Indu, Shardaben along with her sister Ranjanben proceeded to the flat of the accused in a taxi and reached within a couple of minutes. In the meanwhile, some of the neighbours residing in the adjoining flats in the building had also come to the flat of the accused. Dr. Dandekar (P.W. 3) came along with Paresh. Dr. Dandekar is the family Doctor of Shantilal Bhimani (P.W. 2) and Arun Lavingia (P.W. 4) who are residing in the building where the accused's flat is situate. Dr. Dandekar reached the flat of the accused along with Arun Lavingia and Paresh. After the Doctor arrived, the accused requested the Doctor to do something immediately to save the life of his wife. Dr. Dandekar examined Chetna and noticed that she was already dead. Dr. Dandekar disclosed that fact and also suggested that intimation should be immediately given to die police station that Chetna had died an unnatural death. 5. Dr. Dandekar himself went to the Borivli Police Station after closing his dispensary and lodged F.I.R. (Ext. 14) setting out the fact of unnatural death of Chetna. On recording the First Information Report, P.S.I. Kakade (P.W. 24) proceeded to the flat. Panchanama of the scene of offence (Ext. 29) was drawn and the clothes on the person of Chetna were attached. Chetna was wearing a petticoat, sari, blouse and some ornaments on her person. P.S.I. Kakade called photographer Deepak Jumani (P.W. 22) and photographs of the dead body (Exts. 13 and 51) were taken. On the next day, P.I. Jog (P.W. 27) of the Borivli Police Station took over the investigation and recorded some statements. Chetna was wearing a petticoat, sari, blouse and some ornaments on her person. P.S.I. Kakade called photographer Deepak Jumani (P.W. 22) and photographs of the dead body (Exts. 13 and 51) were taken. On the next day, P.I. Jog (P.W. 27) of the Borivli Police Station took over the investigation and recorded some statements. The clothes of the accused were attached on March 29, 1985. The accused was not put under arrest but was interrogated from time to time arid, ultimately, arrested on April 13, 1985. The dead-body was sent for post-mortem and Dr. Gore (P.W. 20) carried out post-mortem on March 29 and the post-mortem notes are produced at Ext. 45. The Investigating Officer also took out vagina swab and semen found in the vagina and forwarded it to the Chemical Analyser. The semen found in the vagina of the deceased was of group 'B' which is the group of the accused. The Blood-group of the deceased was 'O'. After the post-mortem, the dead body was handed over to Dilip for carrying out the last rites and the accused had no objection to handing over the body to his brother-in-law. 6. Police Inspector Jog (P.W. 27) who was incharge of the investigation lodged a discharge application before the Metropolitan Magistrate, Borivli, on February 20, 1986 seeking discharge of the accused on the ground that the murder had remained undetected. The Metropolitan Magistrate in pursuance of the application, discharged the accused. Thereupon Shardaben filed Writ Petition No. 1249 of 1986 in this Court complaining that the investigation carried out by Police Inspector Jog was entirely defective and unsatisfactory and direction should be given to C.I.D. for carrying out a fresh investigation and filing charge-sheet against the accused. At the hearing of the petition, on behalf of the State of Maharashtra, assurance was given that fresh investigation will be carried out by C.I.D. and if found necessary, charge-sheet would be med. In pursuance of the assurance, Police Inspector Lembhe (P.W. 34) attached to C.I.D. took over the investigation on February 2, 1987. Police Inspector Lembhe recorded statements of various witnesses and also further statements of some of the witnesses and, thereafter, set up a charge-sheet against the accused for having committed murder of his wife Chetna between 12 noon and 9 p.m. on March 28, 1985. Police Inspector Lembhe recorded statements of various witnesses and also further statements of some of the witnesses and, thereafter, set up a charge-sheet against the accused for having committed murder of his wife Chetna between 12 noon and 9 p.m. on March 28, 1985. The charge-sheet alleges that Chetna met her death in view of multiple injuries caused on her neck and face by a sharp instrument, the principal injury being opening of left side jugular vein. The Metropolitan Magistrate committed the accused to stand mal before the Sessions Court and, accordingly, the accused was tried by the Addl. Sessions Judge, Greater Bombay, in Sessions Case No. 720 of 1987. 7. Before the Trial Court, the prosecution led evidence of as many as 34 witnesses and produced several documents. The prosecution evidence can be broadly divided into four categories. The first category is of witnesses who are residing or working in the building where the flat of the accused is situated. The second category consists of witnesses who are related to the deceased and who deposed about relations between the accused and the deceased prior to the date of the incident and what transpired after these relations reached the flat of the accused. The third category of witnesses are those who are working in the diamond markets at Malad and at Pancharatna Building, Opera House, and these witnesses deposed about the presence of the accused at these two markets on the date of the occurrence. The last category of witnesses are in respect of medical evidence and investigation of the case. The prosecution claimed before the trial Judge that the accused left the flat at about 12 noon leaving behind Chetna all alone in the flat. The prosecution claimed that at about 3 p.m. the accused returned to the flat, had sexual intercourse with his wife and, thereafter, caused injuries on her neck and face by sharp instrument resulting into her death. The prosecution alleged that the motive for commission of the crime was that the accused was of hot temper and had bickering with his wife prior to the date of the incident. The prosecution claimed that after committing the murder, the accused again left the flat and returned only late at night and, thereafter, tried to create an impression that his wife received injuries during his absence. The prosecution claimed that after committing the murder, the accused again left the flat and returned only late at night and, thereafter, tried to create an impression that his wife received injuries during his absence. The prosecution was unable to produce the weapon with which the injuries were caused. The prosecution led evidence to establish that at about 3 p.m. the accused was in the vicinity on the flat and had access to the flat. The prosecution also claimed that there were no signs of violence or robbery in the flat and the medical evidence indicated that the seman in the vagina of the deceased was of 'B' group which is also the group of the deceased. The prosecution claimed with reference to the medical evidence that there were no signs of violence or forcible intercourse on the body of the deceased. The prosecution suggested that the accused was over-indulging in sex and did not care for the health of the deceased who had recently undergone an operation and was also on asthma patient and had a history of blood pressure. The accused denied commission of the offence and claimed that he never returned to the flat till late at night. The accused denied that there were bickerings between the couple. The accused claimed that he was in the diamond market at Malad till about 3 or 4 in the afternoon and, thereafter, proceeded to Opera House by train and remained at Pancharatna Building till 7 p.m. The accused- claimed that he returned to Borivli by train and, thereafter, went to visit one of his customers first at his factory and then at residence and returned to the flat only at 9.30 at night. The trial Judge accepted the prosecution evidence and concluded that it was the accused and accused alone who had committed the murder of the deceased in the afternoon on March. 28, 1985. The trial Judge held that the motive of murder his wife was that there were quarrels between them and the accused was overindulging in sex and it was not approved by his wife. The trial Judge felt that the wife did not desire to have a child while the accused was insisting. The trial Judge also held that the accused had made extra-judicial confession to Shardaben after reaching the flat in accordance with the telephone message. The trial Judge felt that the wife did not desire to have a child while the accused was insisting. The trial Judge also held that the accused had made extra-judicial confession to Shardaben after reaching the flat in accordance with the telephone message. The trial Judge further held that the evidence of the watchman Narbahadur Thapa (P.W. 13) that he had seen the accused leaving the compound of the society at 3 p.m. is acceptable and that evidence establishes the presence of the accused in the flat at about 3 p.m. The trial Judge on the strength of this finding concluded that the accused is guilty of the offence punishable under Section 302 of the Indian Penal Code. According to the trial Judge, the case is one of rarest of rare and, therefore, deserves capital punishment. Accordingly, by judgment dated Dec. 14, 1989 the accused was sentenced to suffer death subject to confirmation by the High Court. The proceedings were forwarded to this Court for confirmation. The accused had also filed an appeal challenging the conviction and sentence and both the confirmation proceedings and the appeal are placed before us for disposal. 8. Before we examine the evidence led by the prosecution to ascertain whether the charge against the accused is brought home, it is necessary to refer to certain undisputed facts. The accused was residing in flat No. 16, Premnagar Building No. 1, 'A' Wing, Borivli, from August 1984 onwards. The flat was purchased by the accused after obtaining a loan from his brother-in-law Dilip and the loan was returned long prior to the incident. In the year 1985, the deceased had conceived and was carrying at the time of the incident. It is not in dispute that Chetna met her end in the flat sometime after 12 noon on March 28, 1985. The deceased had suffered about 21 injuries on her neck and face by a sharp instrument and Dr. Gore (P. W. 20) opined that on external examination 21 injuries were noticed and some of them were incised wounds while the remaining were abrasion. Some of the incised wounds were mainly superficial while others were bone deep. The principal external injuries noticed were two oblique incised wounds, 5 cm. and another 4 cm.: 2 cm, width x 5 cm. deep at the left neck on outer side. Muscle and superficial vessels were cut. Dr. Some of the incised wounds were mainly superficial while others were bone deep. The principal external injuries noticed were two oblique incised wounds, 5 cm. and another 4 cm.: 2 cm, width x 5 cm. deep at the left neck on outer side. Muscle and superficial vessels were cut. Dr. Gore further opined that on internal examination, it was noticed that the external jugular vein on left side was cut. External carotid on left side was partially cut. Sternomastoid and muscles on left side partly cut and platysma was cut. Dr. Gore further stated that jugular vein and carotid artery are important blood vessels and that the death would have caused within 1 and 11/2 hours from the time of cut. The Doctor further stated that the cause of the death was shock and haemorrhage due to multiple incised wounds with injuries to the important blood vessels of the neck. Dr. Gore stated that death must have occurred within 3 to 4 hours after taking food. The evidence of Dr. Gore was not challenged and rightly so. Dr. Shirish Shah (P.W. 14) deposed about the miscarriage of the deceased in the month of November 1983 and produced discharge Card (Ext. 33). Dr. Rekha Shah (P.W. 16) deposed about the appendicitis operation undergone by the deceased on January 7, 1985 and produced the indoor record (Ext. 36). This evidence was not challenged and again very rightly. 9. Before examining the evidence of the neighbours and relatives who reached the flat after 9.30 p.m. on the date of the incident, it is necessary to refer to the evidence of two witnesses Laxmibai Pawar (P.W.12) and the Watchman Narbahadur Thapa (P.W. 13). Laxmibai Pawar was working as maid-servant with the deceased on the date of the incident. She was also working with Panna Pandya (P.W. 9) residing in the adjoining flat. Laxmibai deposed that on the date of the incident, she had gone to the house of the deceased for domestic work at 11.30 a.m. and at that time, both the accused and the deceased were present in the house. Laxmibai stated that she washed the clothes, swept the floor and left the house by about 11.45 a.m. Laxmibai came back to the flat around 12 noon for washing utensils and at that time she found Chetna alone in the flat. The accused had taken his lunch and left the flat. Laxmibai stated that she washed the clothes, swept the floor and left the house by about 11.45 a.m. Laxmibai came back to the flat around 12 noon for washing utensils and at that time she found Chetna alone in the flat. The accused had taken his lunch and left the flat. Laxmibai deposed that she finished the work and left within about 15 minutes. Laxmibai stated that as usual she went back to the flat of the accused at about 8.30 p.m. for washing utensils. Laxmibai rang the hell on the outer door on three or four occasions, but the door was not opened and thereupon she went away. The evidence of Laxmibai establishes that the accused and the deceased were in the flat at 11.30 a.m., but the accused had left the flat after taking his lunch by about 12 O' clock. There cannot be any dispute about the statement made by Laxmibai and indeed the accused did not challenge it. The prosecution examined the Watchman Narbahadur Thapa (P.W. 13) to prove that the accused returned to his premises round about 3 p.m. The accused denied this fact and this evidence is crucial to ascertain whether the accused did not come back and attacked his wife. Narbahadur Thapa deposed that he is working as watchman in Premnagar Building and his duty hours are 7 a.m. to 7 p.m. Thapa claimed that he was washing the scooter of the accused. The witness claimed that he noticed the accused leaving the premises on scooter at about 10 a.m. on the date of the incident. The witness further claimed that the accused returned on the his foot at about 11 a.m. The witness further claimed that he noticed the accused on the third occasion on the date of the incident and that was at about p.m. Thapa claimed that there is a water-tank on the terrace of 'C'; Wing of Premnagar Building and it was the duty of the witness to find out the level of water in the water-tank. The witness claimed that at about 3 p.m. he had climbed on the water-tank on the terrace of the building and while looking down noticed that the accused was running away from the compound. The witness claimed that at about 3 p.m. he had climbed on the water-tank on the terrace of the building and while looking down noticed that the accused was running away from the compound. The evidence of this witness was seriously attacked and the cross-examination reveals that it is impossible to place reliance upon the claim that the witness noticed the accused running away from the premises at 3. p.m. In cross-examination, Thapa admitted that his statement was recorded at the Borivli Police Station on April 2, 1985 i.e. within four or five days from the date of occurrence. The witness stated that on the date when his statement was recorded, he was not remembering the facts and events which took place on the date of the incident. After the investigation was taken over by Police Inspector Lembhe attached to C.I.D., further statement of Thapa was recorded on April 4, 1987. In cross-examination, the witness deposed that two years after the date of the incident he had completely forgotten about the facts and events which took place on the date of incident. In spite of his extremely weak memory, for the first time the witness claims, that he had seen the accused running away from the premises at 3 p.m. Apart from the improvement made by the witness which is obvious, the witness was confronted with his first statement at the Borivli Police Station where the witness stated that he had noticed the accused coming back on foot at about 12.15 p.m. There is hardly any doubt that the witness has tried to improve his case by claiming that he had seen the accused running away at 3 p.m. It is difficult to accept that Thapa who is about 56 years old could have noticed any person leaving the premises while he has standing on the water-tank which is situated on the terrace of a four-storeyed building. The witness did not depose as to for what period he noticed the accused and had no explanation why this crucial fact was not disclosed to the police at the earliest. We are not prepared to believe the testimony of this witness, as in our judgment, the witness has improved his case only to suit the prosecution that the accused returned to his flat prior to 9.30 at night. We are not prepared to believe the testimony of this witness, as in our judgment, the witness has improved his case only to suit the prosecution that the accused returned to his flat prior to 9.30 at night. We are not prepared to accept his claim that he was in a position to notice the accused from the water-tank on which he was standing. In our judgment, the trial Judge was clearly in error in relying upon the testimony of Thapa to conclude that the accused did return to his flat by about 3 p.m. The trial Judge failed to notice serious omissions and discrepancies in the testimony of Thapa by explaining that though the witness might have stated to the Investigating Officer at the Borivli Police Station that he had seen the accused at 3 p.m., his statement was erroneously recorded that he had seen him at 12.15 in the afternoon. We are unable to appreciate how such conclusion can be reached in face of the fact that the witness himself claims that his memory is so weak that he does not remember the facts and events even after four or five days from the date of the incident. It was not proper for the trial Judge to assume that the timings mentioned in the police statement were incorrect and what Thapa deposed in the witness-box after passage of m6re than six years is correct. We are not prepared, therefore, to place any reliance on the testimony of Thapa to hold that the accused come back to his flat in the afternoon. Once the evidence of Thapa is rejected, then there is no evidence led by the prosecution to establish that the accused did come back to the flat before 9.30 p.m. 10. We will now examine the evidence as to what transpired after the accused reached his flat by about 9.30 p.m. on the date of the occurrence. The testimony of Panna Pandya (P.W. 9) and Shobhana Desai (P.W. 10) establishes that they occupy the adjoining flats. Both of them are working as school teachers in a school at Kandivli and leave their residence early in the morning and return by about 1 O' clock. Laxmibai (P.W. 12), the maid-servant working in the house of the accused was also working with Panna. Both of them are working as school teachers in a school at Kandivli and leave their residence early in the morning and return by about 1 O' clock. Laxmibai (P.W. 12), the maid-servant working in the house of the accused was also working with Panna. Both the witnesses deposed that they were in their respective flats right from 1 or 1.30 p.m. Panna claims that at about 9.30 p.m. the accused came to her door and informed her that his wife Chetna had vomited blood. Shobhana also heard the accused stating this fact to Panna. There are four flats situated on the 3rd floor, two are occupied by Panna and Shobhana, the third by the accused and the fourth flat is occupied by Rajendrakumar (P.W. 26). Both Panna and 'Shobhana rushed to the flat of the accused and noticed that the deceased war lying on chest on divan in kneeling position and while the upper portion of the body was on the divan, the legs were spread on the ground. Photograph (Ext. 13) clearly indicates the position of the dead body lying on the divan. The body was lying in the sitting hall which admeasures 9 feet x 16 feet. On instruction of Panna to send for the Doctor, the accused climbed down the stair case and went to the premises of Shantilal Bhimani (P.W. 2) as Bhimani had a telephone at his residence. Bhimani deposed that the accused sent two telephone messages, one to the relations of the deceased and the other to his brother. The accused requested Bhimani to send for his family Doctor as his wife was not well. Accordingly, Bhimani contacted his family Doctor Dandekar (P. W. 3). In pursuance of the telephone message, the relations and Dr. Dandekar did come to the flat within a short time. Panna and Shobhana thereafter did not visit the flat of the accused but returned to their respective flats. The evidence of Panna and Shobhana establishes that the accused had informed them of the condition of his wife on reaching the flat and the evidence of Bhimani establishes the fact that the accused sent telephone message to his relations and also called Dr. Dandekar to the flat. Dr. Dandekar after reaching the flat noticed that Chetna was dead and advised that intimation of unnatural death should be given to the Police Station. Dandekar to the flat. Dr. Dandekar after reaching the flat noticed that Chetna was dead and advised that intimation of unnatural death should be given to the Police Station. The trial Judge made much capital of the fact that when Dr. Dandekar suggested that intimation should by given to the Police Station, the accused did not reply nor went to the Police Station. We are unable to appreciate how this fact can be considered to be the circumstance leading to the finding that the accused was guilty of the commission of the crime. It cannot be overlooked that Dr. Dandekar did not know the accused personally but had come to the flat at the behest of Bhimani who was his patient. When Dr. Dandekar declared that Chetna had died and it was an unnatural death the intimation should be given to the police, it was in the presence of several persons. It is not in dispute that before Dr. Dandekar reached the flat, Indu Parmani (P.W. 6), Dilip Parmani (P.W. 7) and Shardaben (P.W. 8) had already reached the flat. Paresh (P.W. 5) had gone to the dispensary of Dr. Dandekar to fetch him to the flat and he was also present when Dr. Dandekar declared Chetna as dead. Apart from these relations of the deceased, Rajendrakumar (P.W. 26) residing in the adjoining flat was also present when the Doctor reached the flat. The Doctor informed that Chetna was dead and the unnatural death should be reported to the police in the presence of all these witnesses. None of the witnesses replied to the statement made by the Doctor and it is difficult to find any fault with the accused for not replying to the Doctor that he will report to the police. One can very well imagine the mental state of the witnesses as well as the accused when suddenly they were confronted with the fact' that a young girl of 22 years had died a homicidal death. It hardly required to be stated that the body of Chetna could not have been cremated without a medical certificate and medical certificate could not have been obtained as it was a homicidal death and intervention of the police was absolutely necessary. Indeed, Dr. Dandekar very rightly went to the Police Station and lodged First Information Repot in respect of the unnatural death of Chetna. Indeed, Dr. Dandekar very rightly went to the Police Station and lodged First Information Repot in respect of the unnatural death of Chetna. We were unable to agree with the learned Trial Judge that the fact that the accused did not respond to Dr. Dandekar and did not assure or went to the Police Station to give intimation is a circumstance, which points to his commission of the offence. We cannot overlook that the accused immediately contacted Panna and proceeded to send telephone message to the relations of the deceased and also sent for the Doctor. We are not prepared to accept as observed by the Trial Judge that these actions on the part of the accused was merely theatrical and the accused was merely pretending to claim that he was not aware of the commission of the crime. In our judgment, the conduct of the accused on reaching the flat is rational and logical and the trial Judge was in error in concluding that the accused had committed the crime and was merely pretending that he was taken by surprise at what he saw in the flat. 11. While examining the evidence of Panna, Shobhana and the third neighbour Rajendrakumar, one fact is extremely clear that none of these three witnesses has deposed that they heard any shout or noise from the flat of the accused in the afternoon or in the evening. Panna and Shobhana are residing in the adjoining flats and when Chetna received as many as 21 injuries on her neck and face, it is extremely unlikely that she would not raise hue and cry and Panna and Shobhana would not he alerted. There is one more circumstance which is clear from the testimony of Dr. Gore and which has been overlooked by the Trial Judge. Dr. Gore deposed that the principal injury suffered by the deceased was a cut on left jugular vein and that Chetna met her end because of severe bleeding from this injury. Dr. Gore deposed that death must have occurred after 1 or 11/2 hours from the time of cut of to jugular vein. Although Dr. Gore was not asked as to whether the deceased could have moved in the house after receiving these injuries, from the testimony of this Doctor it seems possible that the deceased could have reached the door and alerted the neighbours. Although Dr. Gore was not asked as to whether the deceased could have moved in the house after receiving these injuries, from the testimony of this Doctor it seems possible that the deceased could have reached the door and alerted the neighbours. In this connection, one factor is required to be noted and that is that in the entire house not a drop of blood was found. The panchanama of the scene of offence is at Ext. 29 and the panchanama does not refer to any blood marks on the floor or on any other object in the house. The blood was found only on the chaddar of divan on which Chetna was lying. Panchanama of the scene of offence also indicates that in the bath-room a half-filled bucket was noticed and a napkin was also found in the bucket. The water in the bucket was of read colour and the Investigating Officer took a sample and forwarded it to the Chemical Analyser. The report of the Chemical Analyser indicates that the water contained human blood. The prosecution did not lead any evidence to indicate as to how blood was found in the water in the bucket. The weapon was also not traced and the prosecution has left the Court in suspense as to how Chetna met with her end. It is also surprising that there is not a single injury suffered by Chetna below her neck. 12. As discussed hereinabove, neither the evidence of the maid-servant Laxmibai nor watchman Thapa nor the neighbours who came on the scene subsequent to the discovery of the body of the deceased assists the prosecution in bringing home the charge that it was the accused who committed the murder. The prosecution places strong reliance upon the testimony of Indu Parmani and Shardaben (P.W. 6 and P.W. 8 respectively) who are sister-in-law and mother of the deceased, respectively. It is necessary to deal with the deposition of these two witnesses in greater detail. Induben was married to Dilip (P.W. 7) about 13 years before the date of the incident and was residing with her mother-in-law Shardaben and two brothers-in-law Paresh and Shailesh in premises which are not at a far distance from the flat of the accused. Indu deposed that on March 7, 1985 the deceased came to the house of Indu and stayed with her for three or four days. Indu deposed that on March 7, 1985 the deceased came to the house of Indu and stayed with her for three or four days. Indu claims that at that time she noticed that Chetna was in a stunned mood and was not talking to anyone and was looking unhappy and was not consuming the necessary food. Indu deposed that she made enquiries with Chetna and Chetna told her that the accused had hot temper and was not behaving properly with her and frequently quarrelling. Indu claims that she advised Chetna to keep calm whenever the accused get angry as that would automatically calm down the accused. Indu further deposed that after three or four days from March 7, 1985 the accused come to her house and informed her that he was proceeding on a pilgrimage to Mahadi and Sankheshwar near Ahmedabad city. The accused returned after a couple of days right from the station and after having breakfast at the place of Indu went to his flat. The accused told Chetna to follow him. Indu claims that Chetna went to the flat of the accused after sometime but returned after a couple of hours. Indu claims that Chetna told her that the accused had driven her out of the house because the accused disapproved Chetna residing overnight with her aunt at Bhuleshwar instead of residing with her in-laws at Tardeo. Indu claims that while the accused had gone on a pilgrimage, she along with her sister-in-law Shilpa and the deceased had gone for shopping to South Bombay and after shopping was over Chetna felt tired and breathless and, therefore, decided to stay overnight with her aunt at Bhuleshwar while Indu and Shilpa returned to Borivli. Indu deposed in the witness box that Chetna informed her that the accused was annoyed with Chetna upon staying at Bhuleshwar instead of at Tardeo with her in-laws and as a result of the quarrel drove her out of the house. Indu further deposed that on the next day Dilip and Indu decided to take Chetna back to the house of the accused and when they came down from their flat, in the compound of the building they noticed the accused riding away on a scooter. The accused had come to meet one of his relations staying in the building. Indu further deposed that on the next day Dilip and Indu decided to take Chetna back to the house of the accused and when they came down from their flat, in the compound of the building they noticed the accused riding away on a scooter. The accused had come to meet one of his relations staying in the building. When Dilip accosted the accused, the accused stated that Dilip should come to his house to discuss some matter. Thereupon Dilip along with his wife Indu and Chetna went to the house of the accused. Indu claims that both the accused and the deceased had some complaints against each other and Dilip advised them to amicably settle them and lead a happy married life. The advice was accepted and Dilip and Indu returned to the residence late at night. Indu further deposed that thereafter the accused and the deceased were residing together and indeed had visited the place of Indu on two or three occasions before the date of the incident. Indu was cross-examined at length and had to concede that she never felt that the alleged quarrels and differences between the accused and the deceased were of a serious nature. Indeed, the disputes were of a potty nature and neither Indu nor her husband took it with any seriousness. Indu had to concede that her claim that Chetna had told her between March 7 and March 14, 1985 about the quarrels she had with the accused and the temper of the accused was not stated by her when her statement was recorded by Police Inspector Lembhe on March 20, 1987. Indu also conceded that her claim that Chetna had told her on March 14, 1985 that she was driven out by the accused disapproving overnight stay of Chetna at her aunt's place at Bhuleshwar was also not stated by her in her police statement. Now, in our judgment, the omission of Indu to state these two vital factors in her police statement which was recorded long after the date of the incident speaks volumes. The prosecution relies upon the testimony of Indu to indicate that the accused bad quarrel with his wife and that may be a motive for the accused to kill her. Now, in our judgment, the omission of Indu to state these two vital factors in her police statement which was recorded long after the date of the incident speaks volumes. The prosecution relies upon the testimony of Indu to indicate that the accused bad quarrel with his wife and that may be a motive for the accused to kill her. It is not possible to place any reliance upon the testimony of Indu about the alleged quarrel and about the alleged driving out of the deceased as these two important facts were not stated in the police statement. Even otherwise we are not prepared to accept the claims of the prosecution that the accused had quarreled with his wife and had driven her out of the house. In the first instance, Indu had deposed that she never felt that the quarrels were of any serious nature and the differences were such which are found with every couple. The claim that the deceased was driven, out of the house cannot be accepted because even after March 14, 1985, according to the testimony of Indu and Dilip, the difference were sorted out and the accused readily accepted the explanation given by Chetna that she stayed overnight at Bhuleshwar because of her ailment. The accused and the deceased thereafter stayed together and had visited the house of Indu on more than one occasion and certainly on March 24 and March 26 i.e. within a couple of days prior to the incident. Indu did not not claim that she noticed that Chetna was unhappy when she visited her house on March 24 and March 26. In our judgment, the testimony of Indu does not carry the prosecution case any further and certainly the testimony of Indu is not enough to establish any motive, which prompted the accused to commit such a heinous offence. In this connection, it is also necessary to refer to the testimony of Dilip (P.W. 7), the husband of Indu. This witness is also carrying on brokerage business in diamond market along with the accused and seems to be very friendly with the accused. Dilip had advanced a loan to the accused for purchase of the flat. Dilip deposed that when Chetna was residing in his house he noticed that she was uneasy but felt that it was so because she was keeping in different health. Dilip had advanced a loan to the accused for purchase of the flat. Dilip deposed that when Chetna was residing in his house he noticed that she was uneasy but felt that it was so because she was keeping in different health. Dilip was frank to admit that he did not enquire with Chetna as to what was wrong with her, but his wife Indu informed him that she was unhappy and was driven out by the accused. Dilip further deposed that he went to the house of the accused along with Indu and Chetna and the differences were sorted out. Dilip also deposed that he never considered that the differences between the accused and the deceased were of any serious nature. Dilip was cross-examined and was confronted with his statement made to the police on March 28, 1985 and March 29, 1985. Dilip had told the police in the first statement that Chetna had no trouble from the accused and both were happy and leading a happy married life. Dilip claimed that his statement was recorded in Marathi and he is not familiar with that language and did not understand what was written. It is a tall claims and cannot be accepted for more than one reason. In the first instance, most of the residents of Bombay are quite familiar with both Gujarati and Marathi and more so those who are in business and working in the diamond market. Secondly, it is not only the statement made to the police about the happy married life of the accused and the deceased but Dilip also stated that he had no suspicion about the accused in respect of the death of his sister Chetna. Dilip requested the Investigating Officer to return the body of Chetna for cremation and all along nobody suspected that there was a foul play for which the accused was responsible. Dilip requested the Investigating Officer to return the body of Chetna for cremation and all along nobody suspected that there was a foul play for which the accused was responsible. The claim that Chetna was unhappy and the accused used to quarrel with her and had on one occasion driven her out of the house is clearly an afterthought and finds place in the police statement which was recorded in the year 1987 after the investigation was taken over by Police Inspector Lembhe attached to C.I.D. The record unmistakably indicates that it was only after the accused was discharged by the Magistrate on February 20, 1986 that the relation of the deceased felt upset and moved this Court for undertaking fresh investigation. In spite of the recording of the statements by Police Inspector Lembhe in the year 1987, neither Indu no Dilip has stated anything about the quarrels between the accused and the deceased and the accused driving out the deceased on one occasion. The alleged motive suggested by the prosecution through these two witnesses is clearly an afterthought and it is not possible to place any reliance upon the same. We cannot overlook the fact that the deceased was pregnant at the time of her demise and from the testimony of these two witnesses it is clear that differences, if any, between the couple were indeed inconsequential and which are present in every marriage. 13. Turning to the evidence of Shardaben (P.W. 8), the mother of the deceased, it was claimed by the learned Government Public Prosecutor that the testimony of Shardaben clearly indicates motive for the accused to commit crime. Shardaben deposed that when the accused come to reside at Borivli with the deceased their relations were not cordial as the accused was not treating the deceased properly. Shardaben claimed that the accused was indulging in over sex and Chetna was not keeping good health but the accused was causing mental torture. Shardaben further claimed that she found Chetna gloomy when she visited the house of Shardaben on March 7, 1985 and on enquiry learnt that the accused was not treating her well and forcing her to have sex against her wishes. Shardaben then deposed that the accused had driven out Chetna from the matrimonial home on one occasion. Shardaben further claimed that she found Chetna gloomy when she visited the house of Shardaben on March 7, 1985 and on enquiry learnt that the accused was not treating her well and forcing her to have sex against her wishes. Shardaben then deposed that the accused had driven out Chetna from the matrimonial home on one occasion. The statements of Shardaben was recorded by the Investigating Officer of Borivli Police Station on March 31 and April 10, 1985 and in both these statements there is no reference to the accused ill-treating his wife or driving her out of the house. There is also no reference to the accused indulging in excessive sex and causing torture to Chetna who was suffering from ill health. It is obvious that Shardaben along with her son Dilip and his daughter-in-law Indu are coming out for the first time in the witness-box claiming that the accused and the deceased were not on cordial terms and the accused was causing hardship to the deceased. We are not prepared to believe their statements and, in our judgment, the trial Judge was in error in accepting this evidence at its face value and concluding that the accused had sufficient motive to murder his wife as his previous conduct shows ill-treatment. The trial Judge overlooked the deposition of the witnesses stating that the differences were of ordinary nature and those were sorted out and the couple was staying happily together. The prosecution has obviously made efforts to improve the case after the investigation was taken over by C.I.D. and invented the alleged motive for commission of the crime. We are not prepared to accept the claim of the prosecution that the accused had a motive to commit the crime as he was ill-treating his wife. We are also not prepared to accept the claim of Shardaben that the accused was indulging in excessive sex and Chetna had complained to her about the same. It is also interesting to note in this connection that Shardaben stated that she did not convey what Chetna had told her to other relations like Dilip, Indu, etc. In these circumstances, the testimony of these witnesses about the alleged motive for commission of the crime cannot be accepted. 14. It is also interesting to note in this connection that Shardaben stated that she did not convey what Chetna had told her to other relations like Dilip, Indu, etc. In these circumstances, the testimony of these witnesses about the alleged motive for commission of the crime cannot be accepted. 14. It is now necessary to examine the testimony of Indu and Shardaben as to what transpired after they reached the flat of the accused on receipt of the information that Chetna had omitted blood. The trial Judge unnecessarily tried to make capital of the fact that the accused gave message on telephone that Chetna had vomited blood. The trial Judge felt that the accused had tried to move the deceased and must have noticed' several injuries on her neck and face and could not have missed the fact that Chetna was no longer. The trial Judge felt that giving the message that Chetna had vomited blood shows the guilty mind of the accused. It is impossible to accept any such reasoning. In the first instance, it is difficult to assume that the accused knew that Chetna was no longer. The accused had seen blood coming out of the mouth of the deceased and spreading on the divan and immediately informed Panna and Shobhana who were the residents of adjoining flats and sent a telephone message to the mother of the deceased. It is not in dispute that Indu along with her husband Dilip and her brother-in-law Paresh came to the flat within a short period and, thereafter, Paresh proceeded to the dispensary of Dr. Dandekar to fetch him to the flat. Indu and Dilip were in that hall where the body was lying. After sometime but before Dr. Dandekar arrived, Shardaben came to the flat along with her sister Ranjanben. Indo claims in her deposition that the accused was standing near the show-case when she came to the flat and she did not notice any tears in the eyes of the accused nor felt that the accused was feeling sorry or concerned or was grief-striken. This is obviously in in1pression of the witness and it is difficult to appreciate how the trial Judge came to the conclusion that this impression of Indu is indicative of the guilty mind of the accused. This is obviously in in1pression of the witness and it is difficult to appreciate how the trial Judge came to the conclusion that this impression of Indu is indicative of the guilty mind of the accused. It was overlooked that the accused was not expected to loudly- cry even when it was not known that Chetna was dead. It is not unusual that people do not cry even in adverse circumstances. Indeed, the evidence discloses that after the Doctor declared Chetna as dead, the accused started weeping and that fact has been deposed by Arun Lavingia (P.W. 4) who is an occupier of a flat in the building. Now, let us examine what Shardaben had to say about what transpired after she reached the flat of the accused Shardaben claims that she went to the flat along with her sister Ranjanben and at that time Indu and Dilip were already present in the flat. Shardaben claims that on seeing the condition of the deceased, she started weeping. She also informed Indu to lift the legs of the deceased and make her properly sleep on the divan. Shardaben claims that Indu did nothing as directed but the accused told Shardaben that somebody had murdered Chetna and, therefore, she should not be touched. Shardaben then claims that suddenly the accused caught hold of her shoulder and told her that he had murdered Chetna. The exact words as the English deposition of the witness indicates are: "Mai Maree, Main Maree, Ba mai mari mai mari." We enquired from both the learned Counsels as to whether the exact words spoken by the witness are recorded anywhere and both the counsels stated that the exact Gujarati words spoken by the witness are not available. It is not in dispute that Shardaben speaks Gujarati language and we are not sure whether the words attributed by her to the accused who also speaks Gujarati are correctly reproduced. But we will proceed on the assumption that these words as recorded by the trial Judge were deposed to by Shardaben and these words suggest that the accused had murdered his wife. The prosecution relies upon this extra-judicial confession to bring home the charge against the accused. The trial Judge accepted the extra-judicial confession but, in our judgment, very erroneously. We are not prepared to accept this alleged confession for several reasons. The prosecution relies upon this extra-judicial confession to bring home the charge against the accused. The trial Judge accepted the extra-judicial confession but, in our judgment, very erroneously. We are not prepared to accept this alleged confession for several reasons. In the first instance, the alleged confession was made even before Dr. Dandekar reached the flat and declared Chetna dead. The conduct of the accused just prior to the time of the alleged confession indicates that he had sent telephone messages to the relations of both the deceased and the accused informing about the condition of Chetna. The accused had also sent for the Doctor by visiting the place of his neighbour. The Doctor had yet to arrive and examine Chetna. It is difficult to appreciate how suddenly and without any reason or rhyme the accused should inform his mother-in-law that he had murdered Chetna. The entire claim of Shardaben appears to be wholly unnatural and unbelievable. Secondly, according to the prosecution, there were at least five persons present in the room admeasuring 9' x 16' when the alleged confession was made by the accused. Shardaben, her son Dilip and her daughter-in-Jaw Indu were admittedly in the room. In addition, Rajendrakumar (P.W. 26) who is a neighbour was also present, in the room admeasuring 9' x 16' . There were two divans, a show-case and a cupboard in the room. The body was partially lying on the divan and the remaining portion on the floor. One can very well visualize that the five persons along with the accused were occupying the remaining portion apart from the furniture and they must have been extremely close to each other. In case the accused suddenly felt repentant, as felt by the trial Judge, and informed Shardaben that he had committed the murder, it is impossible to conceive that other persons present in the room would not hear of the same. Neither Dilip and Indu nor Rajendrakumar Samathaya refers to any such alleged confession. Thirdly, in case the accused had made such confession, then Dilip on the next day would not have stated to the police that he had no suspicion in respect of the death of Chetna and he had no grievance against the accused. Neither Dilip and Indu nor Rajendrakumar Samathaya refers to any such alleged confession. Thirdly, in case the accused had made such confession, then Dilip on the next day would not have stated to the police that he had no suspicion in respect of the death of Chetna and he had no grievance against the accused. It is not the claim of Shardaben that the confession was heard only by her and she kept it a secret till she referred to it in her statement to the police on March 31, 1985. The testimony of Indu and Dilip was recorded before the evidence of Shardaben was recorded by the trial Judge and again there is not a whisper of the alleged confession made by the accused in the testimony of Dilip, Indu or Paresh. The alleged confession is referred to only by Shardaben and we not prepared to accept her word when none of the other witnesses admittedly present in the room supports her claim. We also cannot overlook the fact that Shardaben claims that as soon as the Doctor declared Chetna dead, she became unconscious and regained consciousness only on the next day. In our judgment, this claim is made out for the first time in the witness-box only with a view to overcome the difficulty that Dilip did not refer to the alleged confession in the statement made to the police on the date of the incident or on the next day. The claim of Shardaben that she became unconscious was not stated in the police statement. In these circumstances, in our judgment, the alleged extra-judicial confession is nothing but a fertile imagination of Shardaben who possibly was very much upset with the death of her own daughter. In our judgment, the trial Judge was totally wrong in placing any reliance upon his extra-judicial confession to hold that the accused bas committed the offence. It is also necessary to make a reference to the fact that in the Writ Petition' filed by Shardaben in. this Court complaining about the investigation made by the Borivli Police Station and requesting for fresh investigation by the C.I.D., there is no reference to the alleged confession made by the accused. In our judgment, it is impossible to place any reliance upon the testimony of Shardaben about the alleged confession. this Court complaining about the investigation made by the Borivli Police Station and requesting for fresh investigation by the C.I.D., there is no reference to the alleged confession made by the accused. In our judgment, it is impossible to place any reliance upon the testimony of Shardaben about the alleged confession. It is also necessary to point out that Shardaben claimed that she had told Indu to lift the legs of the deceased and make her sleep properly on the divan, but Indu does not corroborate her even on this facet. In our judgment, Shardaben probably was very much upset on entering the flat and noticing the condition of Chetna and then started imagining the facts. It is not possible, therefore, to accept her claim that the accused informed her that he had murdered Chetna. In our judgment, the testimony of Paresh, Indu, Dilip and Shardaben who are close relatives of the deceased does not advance the case of the prosecution that the accused had any motive or in fact committed the murder of his wife Chetna. 7th March 1990. 15. It is necessary at this juncture to refer to, some facts which were noticed after the police visited the flat of the accused at about 10.30 p.m. on the date of the incident. The trial Judge has relied heavily on these facts to reach the conclusion that the accused had visited the flat in the afternoon and, therefore, must have committed the murder of his wife. The panchanama of the scene of offence (Ext. 29) sets out that a nicker of the deceased was kept in a folded position on the teapoy near the divan on which Chetna was lying. The panchanama further shows that the deceased was wearing a sari, petticoat and blouse. The lady panch noticed that there were semen stains on the private part of the deceased and thereupon a vagina (sic) was taken and forwarded to the Chemical Analyser to ascertain what was the group of the semen found in the vagina. The Chemical Analyser's report indicates that the semen belonged to group 'B'. The Doctor opined in the witness-box that the blood-group and the semen group of a person is always the same. It is not in dispute that the blood-group of the accused is 'B'. The panchanama also indicates that semen stain of about 15 cms. The Chemical Analyser's report indicates that the semen belonged to group 'B'. The Doctor opined in the witness-box that the blood-group and the semen group of a person is always the same. It is not in dispute that the blood-group of the accused is 'B'. The panchanama also indicates that semen stain of about 15 cms. was found on the petticoat on the person of the deceased. These factors were heavily relied upon by the trial Judge to conclude that the accused must have returned to the flat after 12 noon and must have sexual intercourse with his wife and then murdered her. We are unable to draw any such conclusion from these facts. The trial Judge felt surprised as to how a nicker would be kept in the teapoy in the sitting room. The explanation is not the accused and the deceased were alone staying in the flat and the deposition of Panna and Shobhana who are the immediate neighbours, and the other residents of the building unmistakably establishes that both the accused and the deceased were persons of reserved nature and even close neighbours were not on talking terms with them or visiting the flat. It is not surprising if the nicker is kept on the teapoy in the flat in such circumstances. Even assuming that it is unusual that the nicker would be kept on the teapoy in the drawing-room, still in our judgment, it is difficult to appreciate how that fact would lead to the conclusion that the accused had visited the flat in the afternoon and had sexual intercourse with the wife. It is undoubtedly true that semen of the group of the accused was found in the vagina of the deceased and semen stain was also found on the petticoat of the deceased, but these facts are only indicative that the accused had sexual intercourse with his wife on the date of the incident. It is not possible to exclude the possibility that the accused must have sexual intercourse with his wife before leaving the house at 12 noon. The medical evidence does not indicate that sexual intercourse took place at a particular hour prior to the death or the semen would remain in the vagina for a particular duration. It is not possible to exclude the possibility that the accused must have sexual intercourse with his wife before leaving the house at 12 noon. The medical evidence does not indicate that sexual intercourse took place at a particular hour prior to the death or the semen would remain in the vagina for a particular duration. In these circumstances, in our judgment, it is not safe to conclude that the accused did visit the flat in the afternoon on the date of the incident and had sexual intercourse with his wife and, thereafter, murdered her. It is also necessary to make a reference to one more circumstance relied upon by the prosecution to bring home the charge against the accused. The clothes of the accused were taken in possession by the Investigating Officer Police Inspector Jog on March 29, 1985. The accused was wearing at that time a full pant and a full shirt. The clothes were taken in possession under a panchanama (Ext. 58). The prosecution examined panchas Suresh Shinde (P.W. 19) and Rajesh Shah (P.W. 25) to prove the contents of the panchanama, but both the witnesses merely stated that they were called at the Borivli Police Station and their signatures were obtained without explaining to them the contents of the panchanama. Both the witnesses stated that they had not witnessed the attachment of the clothes from the person of the accused. Police Inspector Jog (P.W. 27) in his deposition stated about the panchananla and denied the suggestion that signatures of the panchas were merely obtained and the contents of the panchanama were not explained nor the panchas witnessed the fact of attachment. It is the claim of the prosecution that a blood-stain was found on the left sleeve of the shirt on the person of the accused and that blood-stain was found to be of 'O' group by the Chemical Analyser. The blood-group of the deceased was 'O'. The prosecution claimed that the reading of blood of group 'O' on the sleeve of the accused is one of the circumstances to connect the accused with the commission of the crime. The trial Judge in para 58 of the judgment dealt with this aspect and, with respect, recorded a conflicting finding. The blood-group of the deceased was 'O'. The prosecution claimed that the reading of blood of group 'O' on the sleeve of the accused is one of the circumstances to connect the accused with the commission of the crime. The trial Judge in para 58 of the judgment dealt with this aspect and, with respect, recorded a conflicting finding. At one stage, the trial Judge observed that the circumstance relied upon by the prosecution had no substance and this observation was made by accepting the defence of the accused that blood was detected as on noticing the deceased lying on the divan he had tried to move her body and at that time possibly the blood-stain occurred on the shirt sleeve. Curiously, the trial Judge then recorded a contrary finding by observing that the suggestion made by the accused was total falsehood and the circumstance of finding of the blood on the shirt sleeve can be used. We are unable to accept the conclusion of the trial Judge for more than one reason. In the first instance, as observed by the trial Judge, we do not find that the explanation given by the accused is unacceptable. The trial Judge very rightly observed at one stage that the discovery of blood-stain on the sleeve of the shirt of the accused has no substance. The explanation offered by the accused is not irrational or unbelievable. The accused must have tried to move the deceased after finding that she was lying on the divan in an unnatural position. The possibility of blood-stain occurring on the shirt sleeve at was moment Cannot be ruled out. Secondly, the record establishes that the attachment of the clothes on the person of the accused by Police Inspector Jog was down without taking any precaution in ensuring that the attachment was genuine. Police Inspector Jog admitted in his deposition that he had not sealed the clothes of the accused and he had not wrapped and labelled them. Jog had also to concede that though the clothes were attached on March 29, 1985, the same were forwarded to the Chemical Analyser only on May 3, 1985. Jog was unable to give any explanation for this unreasonable delay in forwarding the clothes to the Chemical Analyser. Jog had also to concede that though the clothes were attached on March 29, 1985, the same were forwarded to the Chemical Analyser only on May 3, 1985. Jog was unable to give any explanation for this unreasonable delay in forwarding the clothes to the Chemical Analyser. The trial Judge observed that Jog was guilty of dereliction of duty and the observation correct, but that is not a ground to hold that the evidence of discovery of the blood-stains on the left sleeve of the shirt of the accused is reliable. In our judgment, this circumstance has to be kept out of consideration. It also cannot be overlooked that in case the accused had inflicted as many as 21 injuries on the neck and face of the deceased and when the deceased profusely bleeded, there would have been several blood-stains on the clothes of the accused and not one blood-stain on the left sleeve of the shirt as claimed by the prosecution. In these circumstances, the discovery of blood on the sleeve of the accused cannot be accepted and relied upon. In our judgment, the prosecution evidence is wholly insufficient to bring home the charge against the accused. 16. It is now necessary to make reference to the medical evidence and that is the testimony of Dr. Gore (P.W. 2) who had performed postmortem on the dead body of Chetna. Dr. Gore deposed about the injuries suffered by the deceased and then claimed that the death might have occurred within three to four hours after taking food. Relying on this evidence, the trial Judge held and that finding was tried to be supported by the Public Prosecutor that the death must have occurred by about 3 O' clock in the afternoon. It was submitted that the evidence of Laxmibai indicates that the couple had their lunch by about 12 O' clock and the post-mortem examination indicates that semi-digested food was found in the stomach of the deceased. In these circumstances, it was contended that the death must have occurred at about 3 p.m. and the accused must have returned to the flat at about 3 p.m. and committed the offence. The reasoning is clearly faulty and cannot be accepted. In these circumstances, it was contended that the death must have occurred at about 3 p.m. and the accused must have returned to the flat at about 3 p.m. and committed the offence. The reasoning is clearly faulty and cannot be accepted. In the first instance, the assumption on the part of the prosecution that semi-digested food was found in the stomach of the deceased was one, which was consumed at the time of lunch. The body of Chetna was first noticed at 9.30 p.m. and it cannot be ruled out that Chetna might have consumed refreshments after having lunch at noon. It is possible that Chetna had refreshment by around 4 or 5 O' clock in the evening and then the murder took place and the semi-digested food in her stomach was one which she had consumed as refreshment. It is not possible to fix the time of death from the deposition of Dr. Gore and the assumption of the trial Judge that the offence must have been committed by about 3 O' clock is wholly incorrect. It seems that the prosecution proceeded to claim that the offence must have been committed at 3 p.m. on the basis of the evidence of watchman Thapa. We have already discussed hereinabove and pointed out that the testimony of Thapa is wholly unreliable. The medical evidence also does not corroborate the claim that the offence must have taken place by about 3 p.m. It is not necessary to discuss the reports of the Chemical Analyser as there is no dispute about the blood-group or the semen group of the accused or the deceased. In our judgment, the medical evidence does not support the claim of the prosecution that the murder accused at about 3 p.m. 17. The prosecution also led evidence of Kamlesh Doshi (P.W. 33) to establish that the accused was at Malad diamond market round about 1 p.m. Evidence was also led to claim that the accused was seen by Rajesh Shah (P.W. 25) while waiting for the bus at a stop located Swami Vivekananda Road, Borivli. This evidence was led by the prosecution to establish that the accused was in the vicinity of Borivli and Malad during afternoon. There is nothing unnatural for the accused to be in the vicinity of Borivli and Malad on the date of the incident. This evidence was led by the prosecution to establish that the accused was in the vicinity of Borivli and Malad during afternoon. There is nothing unnatural for the accused to be in the vicinity of Borivli and Malad on the date of the incident. It is not in dispute that the accused carried brokerage business in diamond transaction and used to attend diamond market at Malad every day. The prosecution also led evidence of Chetna Korani (P.W. 30) and Chandrakant Shah (P.W. 31) to establish the presence of the accused 'in Pancharatna Building at Opera House between 4 p.m. and 7 p.m. This evidence was led to indicate that the accused must have visited his flat at least an hour before 4 p.m. and committed the crime. The accused traveled from Borivli to Charni Road Station from where Pancharatna Building is at a distance of about a furlong. The evidence of these witnesses was led to show the presence of the accused both at Malad and in Pancharatna building at Opera House. We are unable to conclude from this evidence that the accused had visited the flat at 3 p.m. and committed the offence. In our judgment, save - and except the fact that the accused had an access to his flat in the afternoon, there is no evidence whatsoever to establish that the accused in fact visited the flat and committed the crime. In our judgment, the evidence led by the prosecution is wholly insufficient to connect the accused with the commission of the crime. 18. The trial Judge has criticised the conduct of Police Inspector Jog in carrying out investigation and seeking discharge of the accused in the Court of the Metropolitan Magistrate by claiming that the crime remained undetected. The investigation was subsequently carried out by Police Inspector Lembhe attached to C.I.D. in pursuance of the Writ Petition filed by the mother of the deceased in this Court. We find from the record that the relations of the deceased had made definite improvement after the investigation was taken over by P.1. Lembhe. There is great variance on material aspect in the statements recorded at the Borivli Police Station at the earliest opportunity and those recorded subsequently by Police Inspector Lembhe. We find from the record that the relations of the deceased had made definite improvement after the investigation was taken over by P.1. Lembhe. There is great variance on material aspect in the statements recorded at the Borivli Police Station at the earliest opportunity and those recorded subsequently by Police Inspector Lembhe. Taking an overall view of the evidence led by the prosecution, we have no hesitation in concluding that the evidence was far short of the required standard to bring home the conviction. The principle of appreciation of evidence in respect of cases of circumstantial evidence is now well-settled by a Catena of decisions of the Supreme Court and it is not necessary to refer to those decisions. In our judgment, there is no circumstance, which would incriminate the accused with the commission of the crime. The trial Judge in para 5 of the judgment has referred to ten circumstances, which establish that the accused was a perpetrator of the crime against the wife. Some of the circumstances referred to by the trial Judge are wholly irrelevant like movement of the accused early in the morning on the date of the incident behaviour of the accused while at the Borivli Police Station, etc. The circumstances on which strong reliance is placed by the Trial Judge are: (a) extra-judicial confession made by the accused to Shardaben; (b) motive as deposed by Indu, Shardaben and Dilip; (c) presence of the accused in Borivli area and near about his flat at about 3 p.m. as reflected in the evidence of Thapa and (d) finding of semen in the vagina of the dead body of Chetna and stains on petticoat. We have dealt with these circumstances while examining the evidence and we have found that the prosecution has failed to prove the extra-judicial confession or the motive as alleged by Indu, Shardaben and Dilip. We have explained that the testimony of Thapa about the presence of the accused in the compound of the building at about 3 p.m. is wholly wife liable. The trial Judge was not right in relying upon the other circumstances, which do not incriminate the accused with the commission of the crime. We have explained that the testimony of Thapa about the presence of the accused in the compound of the building at about 3 p.m. is wholly wife liable. The trial Judge was not right in relying upon the other circumstances, which do not incriminate the accused with the commission of the crime. In our judgment, what the prosecution has proved is merely that the accused and the deceased were residing together in the flat and the accused left the deceased atone in the Hat at about 12 noon and on return at 9.30 p.m. found her dead. The immediate conduct of the accused on noticing the condition of Chetna speaks volumes. The accused immediately contacted his neighbour and sent for the Doctor. The accused also gave telephone message to the close relations of the deceased and to his own relations. This conduct is a tell tale circumstance to indicate that the accused had not committed the crime with which he is charged. The trial Judge felt that the fact that the accused did not seek the body of his deceased wife for the purpose of performing the last rites is an indicator that the accused had no love and affection for his wife and possibly had committed the murder. We are not impressed by this finding of the trial Judge. The accused was in the Police Station and Dilip, the brother of the deceased had given statement that he had no suspicion whatsoever in respect of the unnatural death of his sister. Dilip also made it clear that he had no suspicion against the accused or any foul play in regard to the death of Chetna. Dilip then sought the body of his sister for performing the last rites after the post-mortem examination and the accused did not object to the request. We fail to understand how the conduct of the accused can lead to the conclusion that the accused had no love and affection for his wife and, therefore, must have committed the crime. The relationship between the accused and his brother-in-law' Dilip was always cordial as both of them were working as brokers in diamond transaction. Dilip had advanced a loan to the accused to purchase the flat. The relationship between the accused and his brother-in-law' Dilip was always cordial as both of them were working as brokers in diamond transaction. Dilip had advanced a loan to the accused to purchase the flat. In these circumstances, to assume that the accused had committed the crime because he did not claim the dead body but allowed Dilip to do so is nothing but a figment of imagination. It is not permissible in criminal trials to appreciate the evidence in this fashion and record conviction. In our judgment, the prosecution has failed to bring home the charge against the accused and the conviction cannot be sustained. 19. Accordingly, the appeal is allowed and the judgment and order of conviction and sentence recorded by the Addl. Sessions judge, Greater Bombay, on December 14, 1989 in Sessions Case No. 720 of 1987 is set aside and the accused is ordered to be acquitted and discharged. The accused shall be set at liberty forthwith, unless required in any other case. The confirmation proceedings are accordingly disposed of.