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2014 DIGILAW 1918 (BOM)

Vijay Bapu Kamble v. State of Maharashtra

2014-09-01

B.P.COLABAWALLA, P.V.HARDAS

body2014
JUDGMENT : P.V. Hardas, J. 1. The appellant, who stands convicted for offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs. 10007-, in default of which to undergo further RI for six months, by the 7th Ad-hoc Additional Sessions Judge, Sewree, Mumbai, by judgment dated 13/04/2007, in Sessions Case No. 220 of 2006, by this appeal questions the correctness of his conviction and sentence. Facts, as are necessary for the decision of this appeal, may briefly be stated thus:- P.W. 1 - P.S.I. Shankar Pagare, who was attached to Nehrunagar Police Station and was on duty on 30/12/2005, received a message from the Control Room at about 4 a.m. informing him that one lady was found lying in the open ground in the shrubs in front of the Tilaknagar Terminus. On receipt of the said information, P.W. 1 - P.S.I. Pagare informed PI Choudhary and thereafter, along with other police staff, went to the scene of the incident and reached there at about 5 a.m. He noticed the dead body of a lady lying at the footpath in front of the Tilaknagar Terminus. He also noticed dupatta tied around the neck of that lady. P.W. 1 - P.S.I. Pagare, thereafter, informed the Nehrunagar Mobile Van No. 1 and shifted the lady to the Rajawadi Hospital, Ghatkopar. The Medical Officer of the Rajawadi Hospital examined the said lady and declared that she was dead. P.W. 1 - P.S.I. Pagare then obtained ADR No. 176 of 2005 from the Nehrunagar Police Station and in the presence of the panchas, drew the inquest panchanama of the dead body at Exh. 13. He thereafter proceeded to the scene of the incident and in the presence of the panch witnesses, drew the scene of the incident panchanama at Exh. 14. One pair of slipper and sample of mud were obtained and seized. A photographer was called, who took the photographs of the scene of the incident. He returned back to the police station and the ornaments of the deceased lady were produced by Police Constable, which were seized under seizure memo at Exh. 15. P.W. 1 - P.S.I. Pagare, thereafter, lodged his complaint at Exh. A photographer was called, who took the photographs of the scene of the incident. He returned back to the police station and the ornaments of the deceased lady were produced by Police Constable, which were seized under seizure memo at Exh. 15. P.W. 1 - P.S.I. Pagare, thereafter, lodged his complaint at Exh. 18, on the basis of which offence, vide Crime No. 365 of 2005, was registered under Section 302 of the I.P.C. P.W. 12 - PI Choudhary, who was also attached to the Nehrunagar Police Station, was informed by P.W. 1 - P.S.I. Pagare about receipt of the information about the dead body lying in front of the Tilaknagar Terminus. P.W. 12 - PI Choudhary accompanied P.W. 1 - P.S.I. Pagare and the staff to the scene of the incident. He, thereafter, accompanied P.W. 1 - P.S.I. Pagare to the hospital as well as to the scene of the incident. On 31/12/2005 at about 7 p.m. P.W. 12 - PI Choudhary received a telephone call from the appellant, who informed him that he was a P.S.I. and was on bandobast duty in Matunga Police Station and that he wanted to lodge a missing complaint regarding his wife Alka. P.W. 12 - PI Choudhary asked the appellant to come to the police station. The appellant had also disclosed the address of his father-in-law. P.W. 12 - PI Choudhary, accordingly, telephoned P.W. 2 - Anant Malgaonkar, father-in-law of the appellant and called him to the police station and had shown the clothes of the deceased. P.W. 2 - Anant Malgaonkar and P.W. 3 - Smt. Ashalata, mother-in-law of the appellant were then referred to the Rajawadi Hospital and were asked to identify the dead body. Statements of P.W. 2 - Anant and P.W. 3 - Smt. Ashalata were recorded. The appellant was arrested at about 11 p.m. on 31/12/2005 and during custodial interrogation, the appellant expressed his willingness to point out the scene of the offence. Accordingly, a memorandum was recorded at Exh. 25. The appellant led the police and the panchas to Tilaknagar Terminus and led them to the scene of the incident. A panchanama was accordingly drawn at Exh. 15. The appellant made further statement about his willingness to point out the place where his clothes had been concealed. Accordingly, a memorandum was recorded at Exh. 25. The appellant led the police and the panchas to Tilaknagar Terminus and led them to the scene of the incident. A panchanama was accordingly drawn at Exh. 15. The appellant made further statement about his willingness to point out the place where his clothes had been concealed. Accordingly, the appellant produced one pant and one shirt from his house, which were seized under the panchanama at Exh. 15. Further investigation was then entrusted to P.W. 13 - PI Suryawanshi. P.W. 13 - PI Udaykumar Suryawanshi, who was also attached to the Nehrunagar Police Station, was entrusted with the investigation of Crime No. 365 of 2005. On 2/1/2006, he forwarded the viscera to the Chemical Analyzer under requisition at Exh. 39. On 22/1/2006, statement of Jayshree Asulkar was recorded under Section 164 of Cr.P.C. Further to the completion of investigation, a charge-sheet against the appellant was filed. Postmortem on the dead body of deceased Alka was performed by P.W. 8 - Dr. Prakash Shinde. P.W. 8 - Dr. Prakash Shinde noticed the following external injuries: (i) Horizontal ligature marks completely encircling the neck, anteriorly 7 c.m. below the chin over right lateral aspect of the neck. It is 4 c.m. below the mostoid. It is 4 c.m. below the left mostoid. It runs completely over the posterior aspect of the neck (from neck of neck to downwards). Length of the ligature mark was 36 c.m. and width is 5 c.m. Reddish and brownish in colour. On dissection - blood infiltration observed in the skin underneath the ligature mark. Browsing seen in the structure underneath the ligature mark. Hyoid was fractured. All the injuries mentioned above were ante-mortem . On internal examination, the following internal injuries were noticed:- (i) Larynx trachea and bronchi-congested. Browsing underneath the ligature mark. Right lung and left lung - congested. (ii) Right side of the heart was full with blood and blood clots. Left side empty. (iii) Injured pharynx congested. Desophagua - congested underneath the ligature mark. Stomach and its contents - 100 cc of pasty food. P.W. 8 - Dr. Shinde, therefore, opined that death was asphyxial death due to constriction of neck. The postmortem report is at Exh. 29. 2. On committal of the case to court of Sessions, the trial court vide Exh. (iii) Injured pharynx congested. Desophagua - congested underneath the ligature mark. Stomach and its contents - 100 cc of pasty food. P.W. 8 - Dr. Shinde, therefore, opined that death was asphyxial death due to constriction of neck. The postmortem report is at Exh. 29. 2. On committal of the case to court of Sessions, the trial court vide Exh. 5 framed charge against the appellant for offence punishable under Section 302 of the IPC. The appellant denied his guilt and claimed to be tried. The prosecution, in support of its case, examined 13 witnesses. The defence of the appellant was of denial. The trial court upon appreciation of the evidence, convicted and sentenced the appellant as afore-stated. 3. In order to effectively deal with the submissions advanced by Mrs. Anita Agarwal, the learned counsel for the appellant and Mrs. U.V. Kejriwal, the learned APP for the State, it would be useful to refer to the evidence of the prosecution witnesses. 4. Prosecution has examined P.W. 2 - Anant Malgaonkar, father of deceased Alka and father-in-law of the appellant, who deposes that deceased Alka was married to the appellant about 12 to 13 years prior to the incident. Alka used to complain that the appellant was ill-treating her and was, at times, assaulting her, suspecting the character of Alka. According to P.W. 2 - Anant, on 30/12/2005, the appellant, along with his children and nephew by name Kunal, had come to the house of P.W. 2 - Anant at about 8 p.m. At about 9 to 9.30 p.m. Alka had also come to the house of P.W. 2 - Anant. Thereafter, all of them had taken their dinner and at about 10 p.m. the appellant, deceased Alka and nephew of the appellant by name Kunal, left the house of P.W. 2 - Alka. On the next day i.e. on 31/12/2005, P.W. 2-Anant received a telephone from the police station and was called to the police station. Anant, therefore, along with his wife P.W. 3 - Smt. Ashalata, went to the Nehrunagar Police Station, where he identified the photograph of his daughter. Clothes of Alka had been shown to P.W. 2 - Anant, which he had identified. The police thereafter recorded the complaint and P.W. 2 - Anant was also asked to identify the dead body of deceased Alka. 5. Clothes of Alka had been shown to P.W. 2 - Anant, which he had identified. The police thereafter recorded the complaint and P.W. 2 - Anant was also asked to identify the dead body of deceased Alka. 5. In cross-examination, he has admitted that he had shifted to the Siddeshwar Housing Society on 30/12/2005 and the appellant had also come along with P.W. 2 - Anant for arranging the household articles in the new premises. He has also admitted that Alka had been married earlier to one Kiran Salgaonkar. The marriage between Alka and Kiran Salgaonkar was dissolved as Alka had taken divorce from Kiran. He has further admitted that the house of the appellant is at a walking distance of 10 to 12 minutes from the house of P.W. 2 - Anant. He also claims that Alka had lodged the complaint against the appellant in September, 2005. He has further admitted as correct that on 30/12/2005, the appellant had brought food and liquor from a hotel. 6. Prosecution has examined P.W. 3 - Smt. Ashalata, mother of deceased Alka and wife of P.W. 2 - Anant. P.W. 3 - Ashalata also deposes that on 30/12/2005 they had shifted to their new premises and on that day, the appellant had come to the house along with nephew at about 8 a.m. Deceased Alka came to the house subsequently. Ashalata further deposes that they had taken dinner at about 10.15 p.m. and Alka, appellant and Kunal had then left the house of P.W. 2 - Anant for going to their house. According to P.W. 3 - Smt. Ashalata, the appellant was ill-treating Alka as the appellant was suspecting her character and this had been informed to Ashalata by deceased Alka. Ashalata further deposes that on the next day in the morning she had received a telephone call from her sister, who informed her that the appellant had telephoned her and had requested her not to inform Ashalata about appellant going to Mulund. Sister of Ashalata further disclosed that when she had asked the appellant about Alka, the appellant had stated that she would come to know about it. Ashalata and P.W. 2 - Anant thereafter had gone to the house of Alka and had made inquiry from the wife of brother of the appellant about Alka. Sister of Ashalata further disclosed that when she had asked the appellant about Alka, the appellant had stated that she would come to know about it. Ashalata and P.W. 2 - Anant thereafter had gone to the house of Alka and had made inquiry from the wife of brother of the appellant about Alka. The sister-in-law of the appellant had informed them that Alka had not come home and as per the appellant, Alka had gone to the house of her parents. Ashalata then deposes about identifying the dead body of deceased Alka and about identifying the clothes of deceased Alka. 7. In cross-examination, an omission has been elicited that she had not stated in her previous statement about receiving telephone call from her sister, who had informed her that the appellant had told the sister of Ashalata not to inform Ashalata about appellant visiting Mulund. Omission has also been elicited that she had not stated that the appellant had informed her that she would come to know about the whereabouts of Alka. Omission is also elicited that she had not stated in her previous statement that she accompanied by her husband had gone to the house of Alka and had learnt from daughter-in-law of the appellant that appellant had informed her that Alka was at the house of her parents. 8. Prosecution has examined P.W. 7 Ghanshyam Asolkar, cousin of deceased Alka, who deposes that on 31/12/2005 at about 9.30 a.m., the appellant had telephoned him on his mobile and had told him that the future of the appellant as well as the future of his sons depended on P.W. 7 - Ghanshyam. Ghanshyam, therefore, inquired from the appellant as to what had happened, but the appellant had informed him that he would inform later on. Ghanshyam inquired from the appellant as to where Alka was and the appellant had told Ghanshyam that he did not know as to where Alka was. The appellant was also informed Ghanshyam that he was in the Crime Branch office and was on duty. After about 15 minutes, the appellant again telephoned him and informed Ghanshyam that the appellant and Alka had come to meet mother of Ghanshyam, but Ghanshyam should not inform this fact to anyone. The appellant was also informed Ghanshyam that he was in the Crime Branch office and was on duty. After about 15 minutes, the appellant again telephoned him and informed Ghanshyam that the appellant and Alka had come to meet mother of Ghanshyam, but Ghanshyam should not inform this fact to anyone. Ghanshyam had, therefore, inquired from the appellant as to what had happened, but the appellant had informed Ghanshyam that he would come to know about it later on. The appellant had again stated that he did not know as to where Alka was. Ghanshyam further deposes that thereafter at about 11.30 a.m. to 12 noon, he had gone to the house of P.W. 2 - Anant and requested that they should search for Alka. P.W. 7 - Ghanshyam thereafter went to attend to his duty and telephoned the elder sister of Alka and inquired about Alka. The elder sister of Alka also informed him that she did not know the whereabouts of Alka. Ghanshyam then went to the office of the appellant for inquiring about Alka and requested the appellant to telephone father of Alka. The appellant, therefore, informed P.W. 2 - Anant that he should lodge a complaint to the police station. The appellant had again reiterated that he did not know as to where Alka was. Ghanshyam thereafter went to the house of P.W. 2 - Anant and in the meantime he learnt about finding of dead body of deceased Alka. 9. In cross-examination, he has admitted that he is being prosecuted by the Mulund Police Station for an offence punishable under Sections 498-A and 306 of IPC. Omission has been elicited in his cross-examination that he had not stated in his previous statement about Ghanshyam informing P.W. 2 - Anant about a quarrel between the appellant and Alka and about the appellant not knowing the whereabouts of Alka and, therefore, a search should be launched for Alka. 10. Prosecution has examined P.W. 9 - Jayshree, sister of P.W. 3 - Smt. Ashalata. P.W. 9 - Jayshree deposes that on 30/11/2005 at about 11.15 p.m. when she was returning home, she met deceased Alka and the appellant. Jayshree further deposes that the appellant and deceased were quarreling and Alka had informed P.W. 9 - Jayshree that the appellant was suspecting her character and was ill-treating her. P.W. 9 - Jayshree deposes that on 30/11/2005 at about 11.15 p.m. when she was returning home, she met deceased Alka and the appellant. Jayshree further deposes that the appellant and deceased were quarreling and Alka had informed P.W. 9 - Jayshree that the appellant was suspecting her character and was ill-treating her. Jayshree, therefore, asked deceased Alka and the appellant to come to her house, but they declined since it was late. Jayshree further requested the appellant and Alka to let bygones be bygones, but the appellant and deceased Alka were stilling quarreling with each other. According to Jayshree, Alka had disclosed to her that the appellant would kill her. The appellant and Jayshree thereafter went ahead. According to Jayshree, on the next day, she received telephone from the appellant, who informed her that Jayshree should not inform anyone that the appellant had met her. 11. In cross-examination, she has admitted she had not gone out of Bombay for a week after 30/12/2005. She has admitted that after 2 to 4 days, her statement was recorded. She has also admitted that her daughter-in-law had filed a complaint against her and her son in the Mulund Police Station. She has further admitted that deceased Alka used to come to her house once a month, but had never stayed in her house as Alka had to look after the children. An omission has been elicited that she had not stated in her previous statement that when she had met the appellant and deceased Alka, they were quarreling. Omission has also been elicited that she had not stated in her previous statement that Alka had disclosed to her that the appellant used to ill-treat her suspecting her character. Omission has also been elicited that she told the appellant that he should let bygones be bygones. Omission has also been elicited that she had not stated in her previous statement that she had asked the accused and Alka to come to her house, but they had declined as it was late. Omission has also been elicited that she had not stated that when they went away, they were still quarreling. She has then admitted as correct that Alka used to often leave the house of the appellant and used to reside either with her mother or with Jayshree in her house. 12. Omission has also been elicited that she had not stated that when they went away, they were still quarreling. She has then admitted as correct that Alka used to often leave the house of the appellant and used to reside either with her mother or with Jayshree in her house. 12. Prosecution has examined P.W. 10-Akshay, son of deceased Alka and the appellant. Akshay deposes that on 31/12/2005, a party was arranged by his grandfather as his grandfather has shifted to the new premises. Akshay deposes that he along with his parents i.e. Alka and the appellant was present in the party. After the party was over, Alka and the appellant left the house of his grandfather. He states that he does not know where they had gone. He then deposes that appellant is having a second wife and a child from the second wife. According to Akshay, the appellant used to assault deceased Alka due to that. In cross-examination, he has admitted that his statement was recorded on 3/1/2006. An omission has been elicited that he had not stated that the appellant and deceased Alka were present at the party. Omission has also been elicited about appellant assaulting deceased Alka. Omission is elicited that he had not stated in his previous statement that the appellant had a second wife and a child from the second wife. 13. Prosecution has examined P.W. 11 - Priya, who deposes that she used to frequently meet deceased Alka, who had informed her that the appellant used to assault Alka suspecting her character. She further deposes that on 31/12/2005, she had received a telephone call from Neeta, who had inquired if Alka had come to her house. She had informed Neeta, sister of deceased Alka that Alka had not come to her house. In cross-examination, an omission has been elicited that she had not stated that she used to frequently meet Alka at the Kurla Railway Station. She has admitted that she had met deceased Alka on 4 to 5 occasions from 2004 till death of Alka. An omission has been elicited that she had not stated in her previous statement that Alka had disclosed to her that she was assaulted by her husband. 14. She has admitted that she had met deceased Alka on 4 to 5 occasions from 2004 till death of Alka. An omission has been elicited that she had not stated in her previous statement that Alka had disclosed to her that she was assaulted by her husband. 14. Thus, from the evidence of the prosecution witnesses, it emerges that on 30/12/2005, the appellant, his son and his nephew Kunal had gone to the house of P.W. 2 - Anant to assist P.W. 2 - Anant in shifting and arranging the articles in the new premises. After some time deceased Alka had come to the house of P.W. 2 - Anant. Thereafter, the appellant, deceased Alka and nephew of the appellant by name Kunal had left the house for returning to the house of the appellant. Dead body of deceased Alka was found on the next clay near the Tilaknagar Terminus. The prosecution has been able to establish that the relations between deceased Alka and the appellant were strained and the appellant was ill-treating deceased Alka suspecting her character. However, the ill-treatment and suspicion of the appellant was not something which was recent, but the appellant had been ill-treating and suspecting the character of deceased Alka since quite some time. Deceased Alka and the appellant had been married for nearly 12 to 13 years and it was a love marriage. Thus, the only two circumstances, which the prosecution has proved are, (i) the relations between the appellant and deceased Alka were strained and the appellant was ill-treating deceased Alka suspecting her character and (ii) deceased Alka was last seen alive in the company of the appellant when the appellant, deceased Alka and Kunal had left the house of P.W. 2 - Anant. 15. Supreme Court, in Hanumant Govind Nargundkar and Anr. vs. State of Madhya Pradesh [ AIR 1952 SC 343 ], at para 10, has held thus:- ".It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused." Thus, the prosecution must prove each and every circumstances on which it proposes to rely and the circumstances so proved should be of a conclusive nature i.e. they should have a definite tendency of implicating the accused. The circumstances so proved should form a complete chain which should exclude every hypothesis of the innocence of the accused and should unerringly point to the guilt of the accused. In other words, the circumstances should be capable of only one inference and that is that the accused and the accused alone has committed the crime. 16. The first circumstance, which has been established by the prosecution i.e. that the relations between deceased Alka and the appellant were strained and the appellant used to assault deceased Alka suspecting her character, is a circumstance which would prove or establish motive for the appellant to commit the crime. However, as pointed out by us above, the proximity of the strained relations with the crime has not been established by the prosecution. The appellant was ill-treating deceased Alka for quite some time and the ill-treatment was not recent and, therefore, cannot be directly connected with the death of deceased Alka. The circumstance, however, would faintly suggest that the appellant may have motive for committing murder of deceased Alka. 17. From the prosecution evidence itself it is apparent that appellant accompanied by deceased Alka and Kunal had left the house of P.W. 2 - Anant for returning home. Thus Kunal was present with the appellant when the appellant left the house of P.W. 2 - Anant. Prosecution has not examined Kunal, who, according to us, was a very vital witness. Thus, there is no evidence on record to remotely indicate that the appellant, deceased Alka and Kunal did not return home, but had gone elsewhere. Thus Kunal was present with the appellant when the appellant left the house of P.W. 2 - Anant. Prosecution has not examined Kunal, who, according to us, was a very vital witness. Thus, there is no evidence on record to remotely indicate that the appellant, deceased Alka and Kunal did not return home, but had gone elsewhere. Prosecution has not examined any witnesses nor has prosecution adduced any evidence to establish that the appellant was seen along with deceased Alka near about the scene of the incident. The possibility of appellant, deceased Alka and Kunal returning home and thereafter deceased Alka leaving the house of the appellant in a huff on account of the quarrel between the appellant and deceased Alka cannot be altogether ruled out. Due to failure of the prosecution to examine Kunal as a witness, the prosecution has not completed the chain of circumstances which would exclude the hypothesis of deceased Alka leaving the house of the appellant in a huff and someone else committing murder of deceased Alka. In any event, prosecution has not adduced any evidence that the appellant, instead of returning home, had taken deceased Alka to the scene of the incident and had committed her murder. There is no other circumstantial evidence which would connect the appellant with the commission of the crime. Thus, merely because deceased Alka was seen in the company of the appellant, returning home from the house of P.W. 2 - Anant, is not a circumstance which would give rise for recording a finding that it is the appellant and the appellant alone who has committed murder of deceased Alka. As pointed out by us above, it was incumbent for the prosecution to have examined Kunal as a witness in order to succeed in establishing the offence against the appellant beyond reasonable doubt. The possibility of innocence of the accused, therefore, cannot be excluded on the basis of the circumstances proved by the prosecution. 18. Learned APP has urged before us that the appellant has taken a false defence that the appellant along with his son Akshay and Kunal had gone to the house of P.W. 2 - Anant and deceased Alka had not come there and the appellant and Kunal had alone returned home. Learned APP, therefore, urges before us that the false defence of the appellant can be taken into consideration as an circumstance against the appellant. Learned APP, therefore, urges before us that the false defence of the appellant can be taken into consideration as an circumstance against the appellant. 19. Supreme Court in Shankarlal Gyarasilal Dixit vs. State of Maharashtra ( AIR 1981 SC 765 ], at paragraph 30, has held as under:- ".Besides, falsity of defence cannot take the place of proof of facts which the prosecution has to establish in order to succeed. A false plea can at best be considered as an additional circumstance, if other circumstances point unfailingly to the guilt of the accused." Since the prosecution has failed in forging a chain which is so complete as to exclude every hypothesis of the innocence of the accused and which is capable of unerringly pointing to the guilt of the accused, the falsity of the defence cannot be taken into consideration as an additional circumstance for proving the offence since the prosecution has not established the offence against the appellant beyond reasonable doubt. The appellant, in our opinion, therefore, would be entitled to be given the benefit of doubt. Accordingly, Criminal Appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not required in any other case.