1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.633 OF 1990 The State of Maharashtra ..Appellant Vs. Chandrakant Ramu Koli Age 25, R/o.Near Adake Mala, Nandani, Tal.Shirol, Dist.Kolhapur ..Respondent ......... Ms.U.V.Kejariwal, APP for appellant. ......... CORAM : D.B.BHOSALE & R.G.KETKAR, JJ. DATE : 23rd AUGUST, 2010. JUDGMENT (PER R.G.KETKAR, J.) : This appeal is preferred by the State of Maharashtra against the judgment and order dated 31 st March, 1990 passed by the learned 4 th Additional Sessions Judge, Kolhapur in Sessions Case No.169 of 1989. By that judgment, the learned Sessions Judge acquitted the respondent / original accused of the offence punishable under Section 302 Indian Penal Code, 1860 (for short “IPC”). The facts, giving rise to the filing of present appeal against the order of acquittal, are as under: 2] It is the case of the prosecution that Kalpana d/o.Shivram Kushaba Koli, 2 PW 4 complainant, married to the respondent 12 years prior to the incident. Kalpana was residing with the respondent and his parents jointly for first 10 years of marriage. Since last two years prior to the incident, the respondent was beating Kalpana under the influence of liquor. He was addicted to the vices of liquor. In view of this, the respondent was staying separately. However, PW 4 Shivram constructed one small house for his daughter Kalpana and the respondent with the hope that the respondent will improve his conduct and maintain his daughter happily. PW 4 Shivram given she­buffalo and she­goat to the respondent so as to maintain his family. Inspite of this fact, the respondent did not improve himself, but, he continued with his addiction to liquor and continued to beat Kalpana. The respondent had given threats to kill Kalpana. In view of this, PW 4 Shivram brought Kalpana at his residence at Dhamani. PW 4 Shivram also requested the parents of the respondent to intervene in the matter. Even, the parents of respondent could not persuade him. 3] As PW 4 Shivram brought Kalpana at his residence for one month, the respondent visited his residence for taking back Kalpana. Because of illtreatment, PW 4 Shivram did not send Kalpana. In view of this, Raghunath, brother of respondent, came to him and assured that he will take the responsibility of Kalpana at his shoulder. PW 4 Shivram sent back Kalpana to the place of respondent. The respondent did not improve himself and under the influence of liquor he was beating Kalpana. As there was Nama Day Ceremony of grandson of Shivram, Kalpana came to his residence for attending the said ceremony and, thereafter, returned to her husband’s place. It is the case of prosecution that at about 10 pm. on 13 th July, 1989 PW 4 Shivram came to know about the incident in question in the house of the respondent through 3 Laxman and Bapu Koli. PW 4 Shivram, his wife, his brother and other relatives came to the house of the respondent and found that the dead body of Kalpana was kept near one wall. There were ligature marks on the neck of Kalpana. It raised suspicion in their mind and, accordingly, PW 4 Shivram came to Shirval Police Station and given Vardi at about 3:10 am on 14 th July, 1989 which is at exhibit 18. A.S.I. Kesarkar, attached to Police Station, sent PW 14 Police Head Constable Desai on the spot. On account of darkness, they could not record any panchnama. The police head constable Desai recorded inquest panchnama in the morning on 14 th July, 1989 at exhibit 9. He sent the dead body for post mortem to PW 10 Dr.Arun Gujar. His Senior Dr.Jog carried out the post mortem between 10:30 am and 12 am on 14 th July, 1989. PW 10 Dr.Arun Gujar prepared post mortem notes at exhibit 24. In the meantime, Police Head Constable Desai recorded spot panchnama on 14 th July, 1989 at exhibit 13. he also recorded the complaint of PW 4 Shivram at exhibit 19 and registered Crime No.65 of 1989 under Section 302 Indian Penal Code. A.S.I. Kesarkar attached the ornaments and clothes on the dead body vide panchnama exhibit 10. He also recorded statements of the witnesses and thereafter handed over the investigation to PW 15 Swami, Police Senior Inspector. He also recorded the statements of the witnesses and included MLC. He attached a Kurapa (Sickle) produced by PW 5 Vatsala vide panchnama exhibit 16. Said Vatsala was sent to the Judicial Magistrate F.C. for recording her statement under Section 164 of the Code of Criminal Procedure, 1973 and, accordingly, the Magistrate recorded her statement. After completing the investigation, PW 15 Swami filed Charge Sheet against the respondent under Section 302 Indian Penal Code on 20 th September, 1989. During the course of investigation, it was found that there was illicit relations between deceased Kalpana and PW 6 Sanjay Karale and on that 4 ground the respondent murdered his wife. 4] As the offence punishable under Section 302 Indian Penal Code is exclusively triable by the court of Sessions, the learned Magistrate committed the case to the court of Sessions at Kolhapur under Section 209 of the Cr.P.C. After committal of the case, learned Sessions Judge heard the learned APP and learned Advocate for respondent. He framed charge to which the accused pleaded not guilty. His defence was of total denial. Before the learned trial Judge, the prosecution examined as many as 15 witnesses. The respondent did not examine any witness. After considering the material on record, the learned Sessions Judge acquitted the accused. It is against this judgment and order, the State has preferred present Appeal. 5] In support of this appeal, we have heard Ms.U.V.Kejariwal, learned APP, at length. She invited our attention to the evidence on record and submitted that the findings recorded by the learned Sessions Judge are perverse and, consequently, the impugned judgment is liable to be set aside thereby convicting the respondent of the offence under Section 302 Indian Penal Code. 6] In support of the case, the prosecution examined as many as 15 witnesses as under:­ (1) PW 1 Siddappa s/o.Shivappa Naik at exhibit 12. He is witness to the panchnama of scene of offence dated 14 th July, 1989 exhibit 13. (2) PW 2 Vishnu Yashwant Vaze at exhibit 14. The prosecution examined him as he was witness to panchnama dated 20 th 5 September, 1989 exhibit 15 of attachment of Khurapa (sickle). He, however, was declared hostile. (3) PW 3 Balwant Mahipati Patil at exhibit 16, another panch witness as regards the attachment of Khurapa exhibit 15. (4) PW 4 Shivram Khushaba Koli at exhibit 17. He is father of Kalpana, who initially gave Vardi on 14 th July, 1989 exhibit 18 and subsequently, gave complaint on 14 th July, 1989. (5) PW 5 Vatsala Raghunath Koli at exhibit 20. She is wife of Raghunath, brother of respondent. Deceased Kalpana was her real cousin. She was declared hostile by the prosecution. (6) PW 6 Sanjay Narayan Karale at exhibit 21. He was declared hostile. (7) PW 7 Bapu Annappa Koli at exhibit 21. It is the case of the prosecution that Bapu along with one Laxman gave information to PW 4 Shivram in respect of the incident in question. He, however, did not support the prosecution. (8) PW 8 Raghunath Ramu Koli at exhibit 23. He is brother of respondent accused. He was declared as hostile by the prosecution. (9) PW 9 Ashok Manga Koli at exhibit 24. He is cousin of PW 4 Shivram (10)PW 10 Dr.Arun Ganapati Gujar, attached to Primary Health Centre, Nandani, at exhibit 25. He carried out post mortem on Kalpana at Shirol along with Dr.Jog. He has produced the post mortem notes at exhibit 26. The cause of death, in his opinion, is shock and asphyxia as a result of strangulation. 6 (11) PW 11 is Mallapa Gundu Chougule at exhibit 27 who was residing near the place of the respondent. He was declared hostile. (12) PW 12 Gundu Kalappa Ainapure at exhibit 28. He was declared hostile. (13)PW 13 Namdeo Vithoba Mane at exhibit 30. He recorded the complaint of PW 4 Shivram at exhibit 19. (14)PW 14 Subhash Dattoba Desai at exhibit 31. He was Investigating Officer who recorded inquest panchnama at exhibit 9 as also the scene of offence exhibit 30. He recorded the statements of witnesses from 14 th July, 1989 to 17 th July, 1989. (15)PW 15 Satish Subramaiya Swami at exhibit 34. He also carried out the investigation in this case. He recorded the statements of two witnesses on 26 th August, 1989. 7] Ms. Kejariwal learned APP submitted that the evidence of PW 10 Dr.Arun Gujar is not correctly appreciated by the learned Sessions Judge. She criticized the findings recorded by the learned Sessions Judge on the basis of the sentence in the cross examination of the said witness which is to the following effect : “ It is true strangulation may be homicidal, suicidal or accidental.” According to her, the death of Kalpana was not suicidal. This aspect would be clear from the perusal of the deposition of PW 10 Dr.Arun Gujar as also post mortem notes at exhibit 26. In order to appreciate this contention, we have gone 7 through the post mortem notes as also evidence of PW 10 Dr.Arun Gujar. 8] The external injuries in column no.17 of the post mortem notes are as under:­ “1. Ligature Mark about 14” length, starting from a point 4” below left ear pinna on neck­extending around the neck from left side continuously with intermittent abrasion passing on back of neck up to a point about 5” below right ear lobe. Crossing anteriorly above the Thyroid certilage reching the angle of mendible on left side and reaching a point 4” below left ear pinna where the ligature was starting. 2. Abrasion with echymosis at regular interval obliquely of the size of 1 c.m. X ½ c.m. along with line of ligature mark. 3. Abrasion measuring about 1” X 1/2” skin deep along ligature mark on right angle of mandible with acchymotis. 4. A curved abrasion measuring about 1” X 4 ½ “ curved superiorly on left cheek. All these injuries were anti mortem.” PW 10 Dr.Arun Gujar deposed that the ligature mark around the neck may be on account of injury due to strangulation. He further deposed that such type of injury may be possible if Kalpana’s neck was pressed with the help of the rope which was produced before the court. In the case of strangulation, there is ligature mark completely around the neck. However, the ligature mark is incomplete in cases of hanging. In the case of hanging there is further possibility of fracture of Thyroid cartilage. In the case of hanging there is dislocation of 8 axis i.e. first vertebra and atlas i.e. second vertebra. The first vertebra starts at the base of the skull i.e.foramen magnum. Then second and third vertebra comes. In the instant case there is no possibility of hanging. 9] In the cross­examination, PW 10 Dr.Arun Gujar deposed that it is true that the ligature marks are possible in both the cases of strangulation and hanging. If the force is great, then in the case of strangulation there is fracture of larynx and trechea and hyoid bone. It is true that in the case of strangulation the person will try to survive. It is true that in the case of strangulation signs of struggles may found on the body. In the instant case, such type of injury is injury no.4. No other such type of injury was found on the body of the deceased. He further admitted in the cross that he did not mention in the post mortem notes about the fracture of lyrinx treachate, cervical vertibra. The evidence of PW 10 Dr.Arun Gujar was considered by the learned Sessions Judge in detail in paragraph 22 of the impugned judgment which reads as under : “ 22. After giving anxious thought to the submission couple with the evidence on the record, I find must substance in the submission of Mr.Bardeskar rather than Mr.Pisal. Because even evidence of Dr.Gujar cannot rule out the possibility of hanging. That is to say possibility of deceased Kalpana might have been hanged herself with the help of rope cannot be ruled out. Because PW 10 Dr.Gujar has clearly admitted in the last of his cross­examination para 5 that strangulation may be homicidal, suicidal or accidental. Then it goes without saying that only his opinion as she died on account of strangulation is not sufficient to hold possibility that her death is homicidal death. The possibility that she might have committed suicide and therefore, she died on account of strangulation cannot be ruled out. No doubt, Dr.Gujar stated 9 in para 3 Ex.25 that in the case of hanging ligature marks is incomplete, whereas in the case of strangulation ligature marks are complete. He has further stated that in the case of hanging there is a possibility of fracture of Thyroid Cartilage and dislocation of axis. He admits in the cross para 5 ex.25 that ligature marks are possible in both the cases. And if the force is great then even in case of strangulation there is possibility of fracture of lyrinx and trechea and hyoid bone. And there is a fracture of cervical vertebra. Thus in the instant case the possibility of not finding these fractures as there would not have been much force utilised. Thus his view that such type of fractures or dislocation of part of his body are only found in the case of hanging in not correct even as per his admission in cross para 5. Such type of fracture also can be possible in the case of strangulation. And therefore, it cannot be said on the basis of not having fractures of this part of body. This must be the case of strangulation. Even possibility of hanging by Kalpana herself of rope cannot be ruled out. Because as per his admission para 6 ligature marks is always found in the case of hanging as well as strangulation and further in the absence of fracture of the above said parts of the body, it cannot be said beyond reasonable doubt that it is the case of strangulation only. Because even in the case of strangulation such type of fractures of the parts of the bodies are possible if force is used. And therefore, the possibility that no such type of force used in the instant case, and therefore, no fracture of the parts of this body found in the instant case. Thus it is not a positive test to hold that in the case of hanging only such type of fracture of parts of bodies are available. Thus his view or opinion in para 3 Ex.25 appears not reasonable and probable on account of his admission in the cross para 5. Further he states in para 5 that in the case of strangulation person will try to survive. And there must be signs of struggle on his body. He further states in the same para that such type of injury No.4 found in the case. But possibility about that injury No.4 found on the cheek on account of body comes into contact with the cheek. Such type of injury can be possible. Therefore, more only one injury No.4 found on her body, it cannot be said that 10 deceased struggled to survive. Because if she would have been tried to survive on account of strangulation her neck by accused with the help of rope. Then there is a possibility of some more injuries on her body. Further she might have been cried or shouted. But it is admitted fact that she never shouted. On the contrary, it is the case of the prosecution that accused came out of the house and called Vatsala as `Bayako, Bayako’. If really accused strangulated the neck of his wife, then he would not have been came out of the house with shouting as `wife, wife’. On the contrary, as per prosecution case he told Vatsala to cut the rope on the neck of his wife. If he would have been strangulated neck of his wife with the help of rope before the court, then he would not have been told likewise to Vatsala to cut the rope. Thus, there is a possibility that the deceased herself committed suicide by hanging or strangulated her neck with the help of this rope, this possibility cannot be ruled out. Even as per the prosecution case there was a quarrel between this cuple on account of one Sanjay Karale to whom there was an illicit relation of the deceased with Sanjay Karale. Even they were enjoying sexual intercourse in the field of Karale. And on account of this fact there was a quarrel between this couple. If prosecution case before the court on such a version, then again possibility of hanging cannot be ruled out. Because on account of this quarrel deceased Kalpana was guilty conscious on account of having illicit relation with Sanjay Karale as per version of the prosecution and accused might have been picked her weak point. And therefore, deceased might have thought to finish her life on account of this illicit relation with third person. And therefore, she might have been impatient, got angry on account of this allegation. And therefore, she herself strangulated her neck with the help of rope and committed suicide. This possibility cannot be ruled out. If accused might have been strangulated her neck with the help of rope, then there would have been more injuries on her body. Further she should have been shouted for help. The accused would not have been come out of the house by saying as `Wife, wife’. He would not have been told Vatsala to cut the rope around the neck of deceased. This speaks against the prosecution and the possibility of hanging 11 Vatsala herself with the help of this rope cannot be riled out. And therefore, it is further evident vide para 2 Ex.12 in which PW 1 Naik stated that there were 2 ropes attached and one rope attached to the roof, whereas other was on the floor and Muddemal Article No.13 Khurupa was there. Thus panch PW 1 further states in para 3 that the roof of the house is about 9 to 10 ft. in the hight and there was one tin found fell down there and the hight of that tin might be 2 ½ to 3 ft. All these material aspects support defence version of hanging as admitted by PW 1 Naik in para 2 Ex.12 are lacking in this spot panchnama Ex.13. In the result, said spot panchnama Exh.13 is not found trustworthy and again on account of this evidence of panch the deceased might have been hanged herself with the help of rope in her own house cannot be ruled out. Even PW 4 her father Shivaram has stated in para 4 Exh.17 that they learnt from laxman and Bapu Koli that Kalapana committed suicide with the help of rope. This is further admitted by him in the same para that it is his doubt that accused killed Kalpana. And it is well settled that his more doubt, however strong, cannot take the place of proof. Mere suspicion or doubt is not sufficient to cannot this accused with the serious offence like murder. And her father came to know incident through Vatsala see para 4 Ex. 17. But this Vatsala PW 5 never supported the prosecution case on the material points. On the contrary, her version in para 8 Ex.20 in which she has stated that she saw body of Kalpana was hanging in her house, hence she shouted. In the result, Champabai came. Then she caught hold body of Kalpana. And then Champabai cut the rope, and then body came on the ground. And thereafter she cut rupe near the neck of her i.e.Kalpana. This witness PW 5 Vatsala have supported the version of the prosecution about quarrel took place between this couple. And on account of that reason accused strangulated the neck of his wife. See para 4 Ex.20 in which prosecution suggested in her cross that there was quarrel between accused and Kalpana and Sanjay Karale was in her house to give message to come in his field for the purpose of work. It is further suggested in her cross on account of this quarrel between accused and Kalpana, Sanjay left her house. But it is pertinent to note that this 12 witness PW 5 Vatsala has denied all these material suggestions. Then she further states in the same para that she did not hear as Kalpana said accused why he purchased bicycle, when money debtors visiting their house for the purpose of money. It is further suggested in the cross that there was a quarrel between accused and Kalpana. And thereafter accused came suddenly out of his house by saying as `Bayako, Bayako’. It is further suggested in her cross that thereafter she went to the house of accused, where he saw Kalpana on the wall with the rope in her neck and accused telling her to cut the rope. But it is pertinent to note that all these material suggestions are denied by this material witness. Thus nothing found in her cross to discard her version which otherwise found natural probable one. Thus as per her evidence at Ex.20 prosecution is not able to prove presence of accused in his own house at the time of incident. On the contrary, as per her version in para 8 Ex.20 it supports defence version of hanging by Kalpana with the help of rope. And further prosecution brought on the record as accused was in the field of one Ainapure up to 6 pm. vide paragraph 1 Ex.27. Thus prosecution evidence itself suggested absence of the accused in his house when Kalpana committed suicide by hanging in the house with help of rope. Thus prosecution suggested the version of hanging or in other words, there are 2 news possible as per the evidence on the record and the view more cogent as per the evidence before me is regarding hanging by this lady in his house is more probable and natural as per the version of the material witness PW 5 Vatsala in para 8 Ex.20. This is also supported by the evidence of pancha vide para 2 Ex. 12. It is further noticed that it was informed to PW 4 Shivaram that her daughter committed suicide. All this leads to one inference that this deceased have been hanged herself and committed suicide in his house cannot be ruled out. And when 2 views are possible from the facts of the case and evidence on the record, then view favourable to the accused must be accepted as held in the case of Sharad Vs. State of Maharashtra, A.I.R. 1984 Supreme Court 1622.” 13 10] After considering the material on record, the learned Sessions Judge came to the conclusion that the possibility of hanging or committing suicide by Kalpana by strangulating her neck with the help of a rope cannot be ruled out. The evidence clear supported the said possibility. He therefore came to the conclusion that the prosecution was unable to prove beyond reasonable doubt that the respondent strangulated Kalpana with the help of a rope and, therefore, it was not homicidal death. After hearing learned APP for appellant and after considering the material on record, we are of the opinion that the view of the learned Sessions Judge is a reasonable and possible view. It cannot be said that the entire approach of the learned Sessions in dealing with the evidence was patently illegal or that the conclusion arrived at by him were wholly untenable. In the cross­examination, PW 10 Dr.Gujar clearly admitted that he did not