: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 620 OF 2006 Ramesh Mahya Kakad present in imprisonment at:- C/o C-2719, central prison, at. Kalamba, Kolhapur-416 607. permanent resident of :- Karanjgaon, Thakarpada, Tal. Talsari, Dist. Thane .. Petitioner v/s. The State of Maharashtra (Thru’ the Talsari police station) .. Respondent ........ Mrs. B.P. Jakhade for petitioner. Mr. P.S. Hingorani, APP for State. ........ CORAM : B.H. MARLAPALLE & R.Y.GANOO, JJ. Dated : 19th November, 2009. Oral Judgment : ( Per B.H. Marlapalle, J) 1. This appeal arises from the order of conviction and sentence dated 08.12.2004 passed by the learned First Adhoc Addl. Sessions Judge at Palghar, Dist. Thane in Sessions Case No.21/99. The appellant has been : 2 : convicted for the offence punishable under Section 302 of IPC and sentenced to suffer rigorous imprisonment for life and in addition to pay a fine of Rs.2,000/- or in default thereof to suffer R.I. for 3 months more. He has also been convicted for the offence punishable under Section 506(1) of IPC. and sentenced to suffer R.I. for 6 months. Both the sentences have been directed to run concurrently. The appellant is presently undergoing the sentence. 2. As per the prosecution, the appellant Ramesh is the son of Mahya Kakad, resident of Karanjgaon, Thakarpada, Tal. Talasari and he was married to Vanjubaibai, the daughter of Jivan Parle resident of Vevji, Karlepada, Tal Talasari, sometimes in the year 1988. The couple did not have a child and it is alleged that on that count, the appellant was unhappy with his wife as she could not bear a child for him. Both of them were staying in the house of Jivan and about two months prior to the incident, the appellant had gone to stay in his village where he had his parents i.e. on 25th August, 1998, the appellant left his father-in-law’s house and went to Karajgaon. On the next day, Sakhu (PW-1), the wife of Vanjubai’s brother wanted to visit her parents in village Karajgaon and, therefore, she came to Karajgaon along with Vanjubai at about 10.00 a.m. Vanjubai went to the house of the appellant, whereas Sakhu went to her : 3 : mother’s house and the distance between the two houses is claimed to be about a kilometer. After sometime, Sakhu heard the shouts of Vanjubai and, therefore, she went to her house along with Gulab Vartha PW-3 and Gulab Devji Malavkar PW-4 and they saw that the accused was assaulting his wife. He was abusing her as she could not give a child to him. He was told not to beat her by Sakhu and her companions, but there was no heed. Sometime later, he became quite and, therefore, Sakhu and her companions went back. On the next day i.e. on 27.8.1998, Sakhu came to know that Vanjubai was dead. A message was sent to Jivan PW-2 and he came to village Karajgaon. He saw the dead body of his daughter in the house of the accused, where his parents were also present and he was told that she had hanged herself. The police arrived at the scene at 5.00 p.m. 27.8.1998 and inquest panchanama Exh.28 and spot panchanama Exh.29 were recorded in the presence of Chandu Morgha PW-5 and Ratnya Dodka PW-6 as the panch witnesses. PW-2 Jivan went to the Talasari Police Station, where his statement was recorded (Exh.24) and the same was registered at about 4.00 p.m. On the next day, PW-1 lodged a complaint with the Talasari police station and the same was registered as a FIR on 29.5.1998 for the offences punishable under Section 302 and 506 of IPC against the appellant and alleging that he committed the murder of his wife Vanjubai by causing severe injuries on her body including her head. : 4 : The appellant came to be arrested on 13.9.1998 and on completion of investigation, chargesheet was filed on 11.12.1998. The case being exclusively triable by the Sessions Court, it was committed to the Sessions Court on 08.02.1999. Charge was framed on 17.7.2002 for the offences punishable under Section 302 and 506 of IPC against the appellant and the appellant pleaded as not guilty. In his statement recorded under Section 313 of Cr.P.C., he denied the charges and claimed that prosecution had filed a false case against him. In the meanwhile, Vanjubai’s dead body was sent for postmortem to the Medical Officer of Cottage Hospital on 27.8.1998 by the police. Chemical Analysis report was received at Exh.41 and 42. The prosecution examined in all 8 witnesses including PW-7 Mahya Kakad, the father of the appellant and Vikas Vasalkar PW-8, the Investigating Officer. 3. It is pertinent to note at this stage itself that the prosecution did not examine the Medical Officer who conducted atopsy on the mortal remains on Vanjubai and further the postmortem report, if any, was not brought on record. Thus, there was no evidence available before the trial Court and which evidence could be relied to hold that Vanjubai died an unnatural death and further that it was a homicidal death. Even the trial Court did not frame such an issue. The trial court framed the following two issues, : 5 : namely; a) Whether the prosecution has proved that the accused on 26.8.1998 at about 10.30 p.m. committed murder of his wife by assaulting her with fist blows and stone on her chest, back, head and thus committed an offence punishable u/s. 302 of IPC. b) Whether the prosecution has proved its case of criminal intimidation against the accused by threatening the complainant Sakhubai, Gulab Devji Malavkar and Gulab Mavshya Vartha with causing injury and with a intent to cause alarm in their mind and thus committed an offence punishable u/s 506(1) of IPC. Both the issues were answered in the affirmative by the trial Court. 4. The star witness of the prosecution is PW-1 Sakhubai. She stated that the accused was often quarreling with his wife and beating her but she did not know the reason for the same. Fifteen days after he went to Karajgaon to stay, she went there along with Vanjubai on 26.8.1998. She admitted that the house of the accused was about a kilometer away from the house of her mother and while sitting in her mother’s house she heard Vanjubai’s shout and, therefore, she went to the house of the accused along with PW-3 and PW-4, she saw that the accused was beating Vanjubai with stone and he said that he would kill her. They tried to separate husband and wife but the accused did not pay any heed and, therefore, : 6 : they went to their respective houses. She further stated that thereafter accused killed Vanjubai in his house and she went to Talasari police station and lodged a complaint Exh.22. She stated that the thumb impression at Exh.22 was hers. In the cross-examination, she admitted that the complaint was lodged after 4 days from the incident and as per her statement in the cross-examination Vanjubai was killed on 26.9.1998. Police had not read the contents of her complaint before she put her thumb impression mark on the same. She also admitted that she did not know the contents of her complaint. She denied the suggestion that Vanjubai strangulated herself and committed suicide. She also denied that her father-in-law PW-2 had filed report with the Police Station that Vanjubai died a suicidal death and he had informed her as such. She denied the suggestion that she had filed a false complaint. She also admitted that she had not stated before the police that accused had killed Vanjubai inside his house. 5. PW-3 who was claimed to be another eye witness by the prosecution, stated that at about 8.00 a.m. on the day of incident, there was a fight between the accused and his wife which resulted in commotion and they heard the shout and they all went to rescue Vanjubai. The accused No.2 asked him whether Vanjubai was his wife and, therefore, : 7 : PW-3 and PW-4 went back to their respective houses and on the next day morning they came to know that Vanjubai died. In his cross-examination, he admitted that the Police had not recorded his statement in respect of the incident. PW-4 also deposed almost on the same lines as PW-3 except to clarify in his cross-examination that the incident of beating the accused to his wife was between 10.00 and 11.00 a.m. He also admitted that the Police did not inquire with him and did not record about the statement of the incident. Both these witnesses did not say that Vanjubai died because of the beating or the assault by her husband. They had not stated that they had seen Vanjubai with bleeding injuries whereas PW-1 Sakhu stated in her examination-in-chief that despite their intervention, the accused continued to beat but after some time they were separated and all the three went to their respective houses and thereafter she got a news on the next day that Vanjubai was dead. The depositions of PW-1 indicate that as per her, Vanjubai died on 26.8.1998 whereas as per the evidence of PW-3 and PW-4 she died on 27.8.1998. 6. PW-2 Jivan is the father of Vanjubai. He stated in his examination- in-chief that one Devji, brother of the accused visited his house and informed that accused had killed Vanjubai and, therefore, he went to Karasgaon. He saw Vanjubai inside the house of the accused. Thereafter, : 8 : he went to Talasari Police Station where his statement was recorded on 27.8.1998. He stated that the contents in his statement at Exh.24 were true and correct and he had put his thumb impression mark on it. He had seen a string around the neck of the Vanjubai. Accused was drinking liquor and used to beat his wife as she was issueless. He came to know from PW-1, PW-3 and PW-4 that accused has beaten Vanjubai with stone. In his cross-examination, he has stated that he lodged a complaint with Talasari police station in the morning and it was read over to him before he put his thumb impression mark on it. He denied the suggestion that the report made by him was false. He also denied the suggestion that the accused had not beaten Vanjubai by stone and killed her. He denied the suggestion that Vanjubai had committed suicide. He also admitted that Devji had informed him that Vanjubai had strangulated herself and died. We have perused the report at Exh.24 and it clearly states that on 27.8.1998, Devji reached to his home at 8.00 a.m. in the morning and told him that in the earlier night at around 10.00 p.m. Vanjubai strangulated herself and accordingly he went to Karanjgaon, Thakarpada and informed his brother-in-law Kakad that Vanjubai died. The report also states that he had seen the hanging mark around the neck of Vanjubai and the rope pieces were hanging to the ceiling of the room, where her dead body was lying. He was also informed by the father of the accused that after dinner, : 9 : Vanjubai went to sleep in the inside room and he along with his wife was slept in the outer room. Around 10.00 p.m. he heard the voice of something falling down and he woke up, went inside and saw his daughter-in-law was hanging. He cut the hanging rope and Vanjubai was taken down, they tried to give water to her but she died. PW-2 has noted earlier both in his examination-in-chief as well as his cross-examination reiterated that the report at Exh.24 given by him to the police station was written as per the statement he made and it was correctly recorded. Thus, there is a contradiction in his own report and in the statement made by him in his cross-examination before the Court that Vanjubai was killed and she did not died a homicidal death. 7. The evidence of PW-1, PW-3 and PW-4 also suffered on the same count and thus become unreliable. Thus, the trial Court committed serious eror in relying upon the testimony of these four witnesses. PW-7 Mahya Kakad is the father of the accused and he stated before the Court that Vanjubai and accused slept in one part and he along with his wife was in the other part of the house. He was declared hostile by the prosecution and in his cross-examination by the P.P., he denied that he had heard voice between 10.00 to 11.00 p.m. on the fateful day and that he and his wife woke up from the sleep and lighted the lamp. He also denied that he had : 10 : seen Vanjubai hanging and that he had cut the hanging rope by sickle and the dead body was brought down. He admitted that police had made inquiry with him and recorded a statement on 27.8.1998. The I.O. PW-8 in his deposition admitted that the dead body of Vanjubai was sent to the Cottage Hospital at Talasari for postmortem under the medical yadi at Exh. 34. He also admitted that the cloths of the deceased along with the hanging rope were seized and sent for chemical analysis. He also admitted that after the arrest of the accused, his clothes were also seized and were sent for chemical analysis. The chemical analysis reports dated 6.11.1998 and 14.10.1998 were received at Exh.41 and 42 whereas the chemical analysis report at Exh.43 has been received on 15.12.1998. He also stated that postmortem report and Medical Certificate were collected and filed in the case papers during the investigation but the record does not support these statements. He concluded that the accused had beaten his wife and due to the same, she succumbed to the injuries. There is no corroboration to these statements, in the absence of the postmortem report, the evidence of the doctor and the medical certificate. 8. We have perused the chemical analysis reports. Report at Exh.41 shows that human blood was noticed on the clothes of the deceased but the blood group could not be identified. Exh.42 is the report for : 11 : determination of blood group of the deceased and it remained inconclusive. Exh.43 indicates that human blood was found on the seized clothes of the accused. In our opinion, this is irrelevant and inconsequential. As we have noted earlier that the accused was taken in custody on 14.9.1998 i.e. after more than 15 days from the incident. Presence of human blood on the clothes of a trible man triable is not uncommon, having regard to their way of life and, therefore, these chemical analysis reports by themselves do not support the prosecution case that Vanjubai died a homicidal death and that too at the hands of the accused. There is no such evidence and it appears that the investigation was set in motion only after PW-1 filed a complaint 4 days after the incident. The prosecution could not prove whether Vanjubai died on 26.8.1998 or 27.8.1998 but the report at Exh.24 lodged by PW-2 and reconfirmed by him during his depositions before the Court stated that Vanjubai committed suicide on 26.8.1998 late in the night. However, as noted earlier, the prosecution failed to establish whether Vanjubai died a suicidal death or homicidal death and, therefore, we do not agree with the reasoning set out by the trial Court to hold that the accused committed the murder of his wife by causing her injuries on her head and other parts of her body. In the absence of the postmortem report, it was not possible for the trial Court to arrive at such conclusion. It was necessary for the : 12 : prosecution to prove its case beyond reasonable doubts and in our opinion, the prosecution utterly failed to do so. Hence, the order of conviction and sentence rendered by the trial Court is unsustainable and, therefore, deserves to be quashed and set aside. 9. Even on the charge of the offence punishable u/s 506 of IPC, there is no evidence leave alone reliable evidence placed before the trial Court by the prosecution through the depositions of PW-1, PW-2, PW-3 and PW-4. Hence, the conviction of the accused for the same charge is also unsustainable. 10. In the premises, this appeal succeeds and the same is hereby allowed. The impugned order of conviction and sentence passed by the Ld. Ist Adhoc Addl. Sessions Judge, Palghar in sessions case No.21 of 1999 on 08.12.2004 is hereby quashed and set aside. The accused stands acquitted of all the charges. The accused is directed to be set free forthwith unless he is required to be detained in some other case. 11. Fine amount deposited, if any, be refunded to the accused. [R.Y.GANOO, J.] [B.H. MARLAPALLE, J.]