- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.517/2008 Mubinkhan s/o Osmankhan, age 27 yrs., occu.labour, r/o Parbhani Tq. & Dist.Parbhani. ...Appellant.. (Org.accused no.1) Versus The State of Maharashtra, through the Police Station, Nanalpeth, Parbhani Tq. & Dist.Parbhani. ...Respondent... ..... Shri R.S. Deshmukh, Advocate for appellant. Shri N.R. Shaikh, APP for respondent. ..... CORAM: P.V. HARDAS & A.V. POTDAR , JJ. DATE: 02.09.2010 ORAL JUDGMENT (Per P.V. Hardas, J.) : 1] The appellant, who stands convicted for offence punishable u/s 302 and 498-A r/w 34 of the Indian Penal Code and sentenced to rigorous imprisonment for three years and to pay fine of Rs.10,000/-, in default of which to undergo further - 2 - simple imprisonment for six months, by the Additional Sessions Judge, Parbhani, by judgment dated 13.8.2008, in Sessions Trial No.22/2008, by this appeal questions the correctness of his conviction and sentence. 2] Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: PW 6 PSI Ambhore, who was attached to Nanalpeth Police Station, recorded the complaint of PW 1 Jamilkhan Pathan, father of deceased Mehrajbee, at Exhibit 22. On the basis of the said complaint, he registered an offence vide Crime No.164/2007 for offence punishable u/s 498-A, 306 r/w 34 of the Indian Penal Code against accused nos.1 to 4. The investigation of the said crime came to be entrusted to PW 7 API Aziz Andurkar. PW 7 API Andurkar on being entrusted with the investigation, recorded supplementary statement of the complainant and drew the scene of the offence – panchanama (Exhibit 18). Accused nos.1 to 3 came to be arrested on 10.9.2007. The clothes on the person of accused no.2 came to be seized under panchanama at Exhibit 39. The arrested accused were referred for medical examination. During custodial interrogation, accused no.1 disclosed his willingness to produce the weapon used in the offence and also the clothes, which he was wearing. Accordingly, a memorandum came to be recorded at Exhibit 32. The accused led the Police and the panch to his house and produced the articles viz. iron rod, stick and his clothes. The aforesaid articles came to be seized under panchanama at Exhibit 33. Certain disclosure statement is alleged to have been made by accused no.3, however, since accused no.3 has - 3 - been acquitted, we make no reference to the aforesaid disclosure memorandum. The sketch of the scene of the offence came to be drawn and the seized property was referred to the Chemical Analyser along with the requisition at Exhibit 41. The reports of the Chemical Analyser are at Exhibits 43 to 45. Further to the completion of investigation, a charge-sheet against the appellant-accused came to be filed. 3] On committal of the case to Court of Sessions, charge vide Exhibit 10 came to be framed against the appellant and three other accused for offence punishable u/s 302 and 498-A r/w 34 of the Indian Penal Code. The accused denied their guilt and came to be tried. The trial Court, upon appreciation of the evidence, acquitted original accused nos.2 to 4 and convicted the appellant as afore-stated. 4] Post mortem on the dead body of deceased Mehrajbee came to be conducted by W 5 Dr.Bhalerao. PW 5 Dr.Bhalerao noticed following external injuries on the dead body of deceased Mehrajbee: 1] Injury no.1 stab wound over posterior occipital region of size 5 x 3 x 2 cms. 2] Abrasion below the left chin of size 2 x 2 cms. 3] Abrasion over right buttock 1 x 1 cms. 4] Contusion over neck anteriorly of size 6 x 2 cms. 5] Contusion over neck on right superior side of size 5 x 2 cms. - 4 - 6] Contusion over neck right inferiorly of size 5 x 2 cms. He opined that injury no.1 was caused by sharp object while injury nos.2 & 3 were caused by hard and blunt object. He opined that all the injuries were ante mortem. He further found that there was a punctured wound below the scalp wound with bleeding intra cranial haemorrhage, which corresponded to external injury no.1. He opined that cause of heath was intra cranial haemorrhage due to head injury. He further opined that injury no.1 had been caused by piercing a sharp object. The post mortem report is at Exhibit 37. 5] In order to appreciate and effectively deal with the submissions advanced before us by Shri R.S. Deshmukh, learned counsel for the appellant and the learned APP on behalf of the State, it would be useful to refer to the evidence of the prosecution witnesses. Prosecution has examined PW 1 Jamilkhan, father of deceased Mehrajbee. PW 1 Jamilkhan states that Mehrajbee was married to the appellant on 11.5.2007. He states that he had paid Rs.50,000/- to accused no.1 and had also presented other household articles. He states that for two and half months after her marriage, Mehrajbee was treated well. Mehrajbee had given birth to a female child. He had invited the accused to attend the naming ceremony of the child. He states that the accused had stated at his house and had demanded Rs.50,000/- for his business. He further states that the other accused had also demanded the aforesaid amount. He then states that all the accused started harassing his daughter and they used to assault and abuse her, and demand - 5 - money from her. He also states that his daughter had telephoned him and had complained about the harassment. He states that about four days prior to the incident, they had gone to Parbhani and had attempted to convince the accused that PW 1 Jamilkhan did not have the requisite amount to satisfy their demand. He also states that his daughter had complained to him that she was being harassed. He then states that on 9.9.2007 in the evening at 5-00 p.m., his daughter had telephoned him that the accused were harassing her and there was no certainty of her life. He informed her that he would come to her house in order to take her back with him within two days. At about 10-30 p.m. on the same day, he received a telephone call from the accused no.1 that his daughter had committed suicide and they had carried the dead body to the civil hospital. He states that he along with other persons came to the civil hospital at Parbhani and saw the dead body of his daughter. He noticed an injury on the back of her head and had also noticed blood oozing from her left eye. He had also noticed other injuries. He states that after the post mortem was conducted, Dr.Bhalerao informed him that deceased had sustained an injury by sharp weapon and had died as a result of the said injury. He states that he went to Nanalpeth Police Station and lodged his complaint against the accused. In cross examination, he has admitted that in the list at Exhibit 25, there was no mention of payment of Rs. 50,000/- as dowry. He has admitted that the northern and the southern walls of the room in which his daughter was residing are incomplete to the extent of 3 ft. from the ceiling. He states that deceased had been to his house on number of occasions and on two occasions, she had not complained about ill-treatment or - 6 - harassment. He has denied the suggestion that an unknown person, by climbing the wall, had entered the room and had killed deceased Mehrajbee. 6] Prosecution has examined PW 2 Farkundabee, mother of deceased Mehrajbee. She states that her daughter had complained against the accused when she had come to her house on the first occasion i.e. for naming ceremony of her daughter. On that day at about 9-00 p.m., accused no.1 had demanded Rs. 50,000/- for his business. Accused was informed that they did not have the necessary money and accordingly the accused along with her daughter returned to Parbhani. She further states that her daughter had disclosed to her that accused no.1 had assaulted her while accused no.2 was abusing her and accused nos.3 & 4 were not providing food to her. She states that such telephone calls had been received on 2 to 4 occasions. She further states that PW 1 Jamilkhan and one Atikkhan had gone to Parbhani to convince the accused to treat the deceased properly. She states that her daughter had complained that she was being ill- treated. She states that on 9.9.2007, she had received a telephone call from accused no.1 in the evening that Mehrajbee had committed suicide. She states that she had not gone to the civil hospital at Parbhani. In cross examination, she has admitted that no writing was prepared in respect of payment of Rs.50,000/-. She was unable to state the dates on which her daughter had complained to her on telephone about the ill-treatment. 7] Prosecution has examined PW 3 Sk.Fakruddin, son in law of PWs.1 & 2. - 7 - He too states that at the time when the marriage was fixed, an amount of Rs. 50,000/- was paid to the accused for purchase of his clothes and other articles. He states that when the accused had attended the naming ceremony of the grand daughter of PWs.1 & 2, the accused no.1 had demanded Rs.50,000/- from PW 1 Jamilkhan for his business. He states that on 6.9.2007, PW 1 Jamilkhan had informed him that deceased Mehrajbee was being treated with cruelty by accused no.1 on account of failure to pay the money as per the demand. He states that he accompanied PW 1 Jamilkhan to the house of the accused at Parbhani and had tried to convince him of their inability to pay the said amount. He states that thereafter he had received information that the accused had killed Mehrajbee. In cross examination, he has admitted not to have stated in his police statement that accused no.1 had demanded Rs.50,000/-. 8] Shri R.S. Deshmukh, learned counsel for the appellant has urged before us that no reliance at all can be placed on the disclosure memorandum relating to the discovery of the weapon viz. iron rod and the clothes of the appellant – accused. It is also urged before us that the clothes came to be seized from the same room where the offence is alleged to have been committed and the police, while searching the room, could have seized the said articles, but instead, a discovery memorandum is prepared to show that the appellant-accused had produced th weapon and his clothes. It is further stated before us that an unknown person could have gained an entry in the house and could have committed the aforesaid crime. The leaned APP on behalf of the respondent-State has urged before us - 8 - that there is overwhelming evidence in support of the guilt of the appellant- accused. 9] The present case rests on circumstantial evidence and in order to bring home the guilt against the accused, it is necessary for the prosecution to establish each and every circumstance on which reliance is placed and such circumstances should be of a conclusive nature. The circumstances so proved should form a complete chain, which would exclude every hypothesis of the innocence of the accused and should unerringly point to the guilt of the accused. In the present case, the appellant-accused had falsely informed PW 1 Jamilkhan that his daughter had committed suicide. Deceased Mehrajbee had received injuries and there is nothing to indicate that deceased Mehrajbee had committed suicide. In respect of the defence of the appellant-accused that an intruder had gained entry in the house and had committed the aforesaid crime, according to us, the aforesaid defence has not been probabalised at all. The appellant-accused did not immediately lodge a report with the Police about an intruder or an unknown person committing murder of his wife. Apart from that, it is not shown to us that any theft of any valuable articles had been committed in the house by the intruder. We find it extremely far-fetched that an intruder would gain entry inside the house only to commit murder of deceased Mehrajbee. We also see that there are no signs of an intruder having gained an entry. Merely because some portion of the wall was incomplete, that would necessary mean that an intruder could have gained entry in the house. It was for the appellant to have shown the possibility of an intruder or - 9 - an unknown person gaining entry in the house. As pointed out by us earlier, no valuables had been stolen and we find it extremely difficult to believe that an intruder had gained an entry in the house only in order to commit murder of deceased Mehrajbee. Though no reliance can be placed on the discovery memorandum relating to the seizure of the weapon and the clothes, yet the fact remains that clothes of the appellant were found stained with human blood. As per the report of the Chemical Analyser, the blood group on the clothes of the appellant was matching the blood of deceased. Even the weapon i.e. iron rod was found stained with blood of “B” group, which matched with the blood group of deceased. The prosecution has, therefore, established beyond reasonable doubt that it was the appellant, who had committed murder of deceased Mehrajbee. The reason as to why the appellant had committed the murder of deceased Mehrajbee is difficult for the prosecution to answer. Suffice it to say that failure of the prosecution to prove motive by itself would not result in jettisoning the entire prosecution case, particularly because of availability of other strong and clinching evidence, which excludes every hypothesis of innocence of the accused and points towards his guilt. The evidence of PWs.1,2 & 3 in respect of an offence punishable u/s 498-A of the Indian Penal Code is extremely vague. PW 1 only makes a bald reference to accused causing harassment to his daughter. PW 2 states about accused no.2 assaulting deceased Mehrajbee and that too once. PW 3 has no personal knowledge about any ill-treatment. Though the prosecution witnesses claim that the accused had demanded an amount of Rs.50,000/-, demand by itself unaccompanied by any ill-treatment, either physical or mental, - 10 - for failure to comply the demand, would not amount to an offence punishable u/s 498-A of the Indian Penal Code. The accused had demanded Rs.50,000/- for his business. The evidence is extremely discrepant ini respect of ill-treatment meted out to deceased Mehrajbee consequent upon failure of the parents of Mehrajbee to pay the aforesaid amount. In that background, therefore, according to us, the appellant-accused would be entitled to be given the benefit of doubt in respect of the offence punishable u/s 498-A of the Indian Penal Code. However, we find that there is overwhelming evidence in respect of the offence punishable u/s 302 of the Indian Penal Code. 10] We accordingly partly allow this appeal and acquit the appellant – accused for offence punishable u/s 498-A of the Indian Penal Code. The appeal of the appellant-accused in respect of his conviction u/s 302 of the Indian Penal Code is dismissed confirming his conviction and sentence. (A.V. Potdar , J.) (P.V. Hardas, J.) ndk/cr291012