1 cri-app.152-02 & cri.app.82-03 ''[[ mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.152 OF 2002 Mr. Vilas Raghunath Kurhade ..Appellant (accused No.2) Vs. The State of Maharashtra ..Respondent WITH CRIMINAL APPEAL NO.82 OF 2003 Harischandra Sitaram Manjule ..Appellant (accused No.1) Vs. The State of Maharashtra ..Respondent Mr. Jayesh B. Kocheta with Mr. Pankaj D. Purway, for the Appellants. Mrs. A.S. Pai, A.P.P., for the State. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. DATED: 7/8th February, 2011 ORAL JUDGMENT (PER B.H. MARLAPALLE, J.) These appeals filed under Section 374 (2) of Cr.P.C., arise from the order of conviction and sentence passed on 7th January, 2002 by the learned Ad-hoc Additional Sessions Judge at Pune, in Sessions Case No.238 of 2 cri-app.152-02 & cri.app.82-03 2001. The appellant in Criminal Appeal No.152 of 2002 is on bail as of now and the appellant in appeal No.82 of 2003 is in jail and he is undergoing the sentence. Both the accused came to be arrested on 14th February, 2001 and accused No.1 has been in jail continuously from that date. 2. As per the prosecution case accused No.1 is the husband of P.W.3- Mangal and accused No.2 is his cousin brother from maternal side and both of them are permanent residents of Panvel. On the date of the incident i.e. on 12th February, 2001 P.W.3-Mangal was in her parental home at village Rase for about one month prior to 10th February, 2001. During the said time there was yearly fete in the said village and, therefore, to celebrate the same accused had also gone to Rase. On 12th February, 2001 both the accused were in the house of the mother of Mangal i.e. P.W.2- Sugandha Dhondiba Gote as the guests. They were served with dinner and deceased Sayaji Mungse along with P.W.10-Shivaji Kedari was also present in the house of P.W.2 at about 10.00 p.m. Both Sayaji and Shivaji were the residents of village Rase. After he was served dinner Sayaji eft the house of P.W.2 along with the accused and P.W.10-Shivaji so as to return to his house. The accused also accompanied Sayaji as well as P.W.10 as the house of P.W.10 was on the way and after dropping Shivaji at his house the accused continued to go with Sayaji. They returned to the 3 cri-app.152-02 & cri.app.82-03 house of P.W.2 past midnight and P.W.3-Mangal opened the door and they slept on the varandha whereas P.W.2-Sugandha and P.W.3-Mangal slept in the room. As per the prosecution accused No.1 woke up Mangal and told her that he had murdered Sayaji and on the next day early morning both the accused left for Panvel and were paid Rs.200/- for bus fare charges by P.W.2. After their departure P.W.3-Mangal asked her mother P.W.2- Sugandha to go to the house of Sayaji and to find out his whereabouts as she suspected something at the behest of the accused. P.W.2-Sugandha, therefore, went to the house of Sayaji along with P.W.10 and she did not find him there. She heard some rumour and, therefore, she went to the bridge side and came to know that Sayaji was done to death and his body was in the water pit along side the bridge wall. Baban Kondiba Chavan, P.W.1 gave intimation to the Chakan Police Station and within a short time the police party arrived. P.W.9-Kisan Dagadu Mungse identified the body of Sayaji as he was Sayaji's uncle. The dead body was sent for postmortem which was conducted by P.W.7-Dr. Shivaji Rakhamaji Kharat. The chappal which was lying near the dead body was also recovered and the clothes of the deceased along with the chappal were sent for Chemical Analysis. The postmortem report Exhibit “30” indicated that Sayaji was assaulted with fist blows and he had head injury with fracture of skull and thus he died a homicidal death. P.W.8-Dattatraya Bhagvant Mungse claimed that he had seen the deceased Sayaji Mungse in the company of the accused in the 4 cri-app.152-02 & cri.app.82-03 night of 12tgh February, 2001. The accused came to be arrested on 14th February, 2001. P.W.13-Ramchandra Namdeo Pathare was the Investigating Officer and P.W.12-Dnyandeshwar Shankar Mali conducted accidental enquiry and thereafter recorded the F.I.R. On completion of investigation P.W.13 submitted a charge sheet and the case being exclusively triable by the Sessions Court the same came to be committed to the Sessions Court. The charge at Exhibit “4” was framed on 18th July, 2001. 3. The prosecution examined in all 13 witnesses and the accused did not examine any witnesses. There was no eye witness and the case was based upon the circumstantial evidence in support of the charges against both the accused. P.W.4-Sakharam, P.W.5-Popat More, P.W.6-Nagesh Kadam and P.W.11-Rajendra Tukaram Otarane were the panch witnesses and P.W.6-Nagesh Tukaram Kadam and P.W.11-Rajendra Tukaram Otarane turned hostile. P.W.12-Dnyaneshwar Shankar Mali was the Police Head Constable. The prosecution relied upon the following circumstances in support of its case. 1. Last seen together 2. Motive – based on the illicit relationship of the deceased with P.W.2- Sugandha. 3. Extra judicial confession by accused No.1 to his wife P.W.3-Mangal. 5 cri-app.152-02 & cri.app.82-03 4. The blood group AB found on the clothes of accused No.2. 4. In support of the last seen theory, the prosecution relied upon the evidence of P.W.2-Sugandha Dhondiba Gote, P.W.3-Mangal Harischandra Munjule, P.W.8-Dattatraya Bhagvant Mungse and P.W.10-Shivaji Bhaguji Kedari. On the issue of motive, it was claimed by the prosecution that deceased Sayaji Mungse had left his wife and was staying alone. He was associated with P.W.-2-Sugandha for the manufacture and sale of country liquor and he was involved with her in illicit relationship. This was not liked by the accused No.1 and, therefore, with the help of accused No.2 he eliminated Sayaji Mungse after the midnight of 12th February, 2001 by hitting/smashing stones on the head of the deceased. The prosecution also claimed that accused No.1 had made extra judicial confession to his wife P.W.3-Mangal after 1.30 a.m. on 13th February, 2001. The learned trial Judge accepted the case of the prosecution and held that both the accused in furtherance of their common intention had convicted for the murder of Sayaji Mungse and caused disappearance of the evidence of commission of the said offence. Consequently both of them came to be committed for the offences punishable under Sections 302 and 201 read with Section 34 of the I.P.C. Both of them have been sentenced to suffer R.I. for life for the offence punishable under Section 302 read with Section 34 of the I.P.C. and R.I., for three months and pay a fine of Rs.500/- for the offence punishable 6 cri-app.152-02 & cri.app.82-03 under Section 201 read with Section 34 of the I.P.C. 5. Mr. Kocheta, the learned Counsel for the appellants submitted before us that on all counts i.e. last seen theory, motive and extra judicial confession the prosecution case could not have been accepted by the trial Court as there was no reliable evidence adduced by the prosecution before it. The only circumstance of locating the blood of group AB on the clothes of accused No.2 cannot be sufficient to connect the accused with the homicidal death of the deceased Sayaji and more so when panch witness P.W.6-Nagesh Tukaram Kadam and P.W.11 Rajendra Tukaram Otarane had turned hostile. So far as the theory of motive was concerned, Mr. Kocheta pointed out that the same was based only on hearsay and even the evidence of P.W.2-Sugandha or P.W.-3 Mangal or P.W.12-Dnyaneshwar Mali did not whisper anything on such an illicit relationship between P.W.2-Sugandha and the deceased Sayaji. It was further submitted that even in support of the last seen theory the prosecution failed to prove that the accused were in the company of the deceased or they were seen together last with him after 11.00 p.m. on 12th February, 2001 till 8.00 a.m. on the next date when his dead body was seen in the pit near the bridge wall on the bank of the local stream. He also submitted that the so-called extra judicial confession made by the accused No.1 to P.W.3-Mangal has also not been proved and it is a very weak piece of evidence. Even otherwise, in view of Section 122 of 7 cri-app.152-02 & cri.app.82-03 the Indian Evidence Act the communication between the husband and wife is not admissible in evidence, unless the accused No.1 had consented for the same. It was pointed out that there was no such consent and, therefore, the alleged extra judicial confession could not have been taken into consideration by the trial Court. The learned Counsel relied upon the following decisions of the Supreme Court:- 1.Ram Bharosey vs. State of U.P., A.I.R. 1954 S.C. 704. 2.M.C. Verghese vs. T.J. Ponnan & Anr., AIR 1970 S.C.1876. In addition he relied upon a Division Bench decision of the Karnataka High Court in the case of Nagaraj alias Kumar alias Anand alias Selvam vs. State of Karnataka, 1996 CRI. L.J.2901 and a judgment of this Court in the case of Bhalchandra Namdeo Shinde vs. State of Maharashtra, 2003 Bom. C.R. (Cri.) 1331. 6. Mrs. Pai, the learned A.P.P., has placed on record her written note so as to point out that Section 122 of the Indian Evidence Act is not applicable in the instant case and as per her this Court in the case of Bhalchandra Namdeo Shinde (supra), had not considered the Three Judge Bench decision of the Supreme Court in the case of M.C. Varghese (supra). She also submitted that the prosecution case of last seen together and the motive behind the crime has been duly proved. Mrs. Pai also submitted that the arguments based on scheme of Section 122 of the Indian 8 cri-app.152-02 & cri.app.82-03 Evidence Act were not advanced before the trial Court no such defence was raised by the accused when their statements under section 313 of Cr.P.C. came to be recorded. On the basis of these rival submissions we proceed to sift the evidence placed before the trial Court. 7. P.W.1-Baban Kondiba Chavan was the Kotwal of village Rase as on 13th February, 2001 and he had put in about 35 years as such. He stated before the trial Court that he saw a crowd gathered on the bank of river which was known as Thorla-odha and there was a ditch with a depth of around 10 ft. He peeped into that ditch and he saw a leg of human being. The body was covered by the dry leaves. He, therefore, immediately left for Chakan Police Station and submitted his report (Exhibit 12) under his signature. He again came back to the place of incident along with the police officers who took the photographs of the place of incident as well as the dead body and after removal of the leaves the dead body was recovered and was like of a man. The crowd assembled there identified the dead body of Sayaji Tukaram Mungse, who was the resident of village Rase and the Inquest Panchanama (Exhibit 16) of the dead body along with the spot panchanama (Exhibit 25) was drawn by the police. The dead body was referred to Chakan Hospital for postmortem examination. He further stated that he had noticed the injuries on the head and forehead of the dead body. In his cross examination he had admitted that he had seen the body 9 cri-app.152-02 & cri.app.82-03 from the railing of the bridge and stated that the bridge is required to be crossed if one wants to go to village Rase. The bridge is around 10/15 feet and there are rocks and stones towards the east side of the bridge. The dead body was found near the rocks and stones. He admitted in his cross examination that some persons had gathered there, after 11.30 a.m., but denied the suggestion that some of them were saying that death of Sayaji was caused on account of fall from the bridge. 8. P.W.2-Sugandha Dhondiba Gote is the wife of Dhondiba Gote and mother of P.W.3-Mangal. She stated before the Court that she was residing with her husband, son Maruti and the second wife of her husband Dhondiba at village Rase. P.W.3-Mangal, her daughter had come to village Rase about one month prior to the incident and on account of the yearly fete (Urus). Accused No.1 is the husband of P.W.3 and accused No.2 is his cousin from the maternal side. Her family was cultivating the land belonging to deceased Sayaji. She stated before the trial Court that the deceased had come to their residence in the night of 12th February, 2001 along with P.W.10-Shri Shivaji Bhaguji Kedari. Both of them were served with meals and left her residence at about 10.00 p.m., along with the accused. After both of them left their house she went to bed and got up at 2.00 a.m. when P.W.3-Mangal told her to go to the house of Sayaji in the morning. When she went to the house of Sayaji his uncle was in the house, 10 cri-app.152-02 & cri.app.82-03 but Sayaji was not found there and, therefore, she returned to her house. She had seen a chappal of Sayaji on the road near the bridge and, therefore, she peeped down the bridge. At that time she saw the trouser and leg of a human being. Both of them went to the house of Sayaji again and informed this fact to his uncle P.W.9-Kisan Dagadu Mungse. She then went to her house. In her cross examination she admitted that her statement was recorded by the police on 13th February, 2001. She had got up at 8.00 a.m., and by then both the accused had left their house. She also admitted that deceased Sayaji was addicted to liquor, and that he and P.W.10-Shivaji B. Kedari had consumed liquor when they had come to her house in the night of the incident. The deceased Sayaji was in the company of P.W.10-Shivaji B. Kedari when they were served meals and thereafter Shivaji left earlier whereas both the accused left with Sayaji at about 10.00 p.m. and returned at about 10.30 p.m. Thus this witness is silent about the alleged relationship between her and the deceased and that after 10.30 p.m. the accused were seen with the deceased. As per her the deceased and the accused left her home at about 10.00 p.m, and both of them returned to her house at 10.30 p.m., on 12-2-2001. She also admitted that the distance between her residence and the bridge is about half an hour by walk. 9. Now coming to the evidence of P.W.3-Mangal, she stated before the 11 cri-app.152-02 & cri.app.82-03 trial Court that her marriage with accused No.1 was performed in the year 1995 and P.W.2-Sugandha was her mother and since her marriage she was residing at Panvel with accused No.1. Accused No.2 had come with accused No.1 to village Rase on 10th February, 2001. On 12th February, 2001 at about 10.00 p.m. all of them were sitting at her mother's house and deceased Sayaji along with P.W.10-Shivaji Kedari came in. Her mother served meals to the guests including Sayaji and thereafter Sayaji asked her mother to accompany him to his house. Her mother told Sayaji that the accused will accompany him and, therefore, accused went with Sayaji in the company of P.W.10-Shivaji Kedari. Between 1.00 to 1.30 a.m. both the accused returned to the house and she opened the door for them. Then she provided them bed sheets to go to bed. Her husband woke up and told her that he and accused No.2 had committed the murder of Sayaji. Thereafter she went inside the house and slept, whereas both the accused slept outside the house on the platform. Her mother got up at 2.00 a.m. to answer the nature's call and, therefore, she was also woken up. She told her mother that she suspected about her husband and, therefore, she should go and see Sayaji in the morning. Accordingly, in the morning her mother left for Sayaji's house and by that time accused had already left village Rase. Her mother returned and told her that accused had killed Sayaji. In the cross examination she admitted that her mother was engaged in the sale of country liquor and both the accused had come to village Rase to take her 12 cri-app.152-02 & cri.app.82-03 back to Panvel. She denied the suggestion that she had quarreled with the accused and, therefore, her mother did not send her back with them. She further stated that only Sayaji had taken meals and Shivaji had also left along with both the accused at about 10.00 p.m. Her house consisted of only one room and there was a Varandah attached to the same. She also admitted that when her husband confessed she did not pass on the said information immediately to her mother. She also admitted the affidavit at Exhibit 15 which was signed by her in the presence of the Nazir in the Court at Khed. Her mother had also filed an affidavit and she was taken to Khed Court by her mother-in-law. She was not aware whether the police had filed any case against her mother under the Bombay Prohibition Act. She denied the suggestion that she was giving false evidence before the Court on account of the threats given by the Police. She denied the suggestion that her husband had not confessed to her. 10. Before we proceed to discuss the evidence of other witnesses it is necessary for us to deal with the submissions of Mr. Kocheta about the interpretation of Section 122 (2) of the Indian Evidence Act. A Three Judge Bench of the Supreme Court of India in the case of Ram Bharosey (supra) held that the communication between the husband and wife was inadmissible as evidence under Section 122 of the Evidence Act. The Karnataka High Court in the case of Nagaraj (supra) referred to the law 13 cri-app.152-02 & cri.app.82-03 laid down by the Supreme Court in the case of M.C. Verghese while dealing with the interpretation of Section 122 of the Evidence Act while it was called upon to consider as to whether the following statement given by the wife to her husband was permissible to be read as evidence in view of Section 122 of the Evidence Act:- “When she was questioned as to where Jayamma and Gowramma were, the accused stated that one who had followed him was Sangota and he wanted to indulge in sexual pleasure with Gowramma. When he was engaged in such act Jayamma got frightened and ran away. He (probably meaning Sangota) killed Gowramma by tying the saree round her neck. Thereafter he caught hold of Jayamma and killed her also. When Gowramma was killed Jayamma started shouting and she was pulled down and her legs and hands were broken and after tying her saree round her neck she was killed. After both of them died Sangota left.” The accused was the husband of the witness who gave the above mentioned oral depositions before the trial Court. The Karnataka High Court in paragraph 25 of its judgment observed thus:- “25. The principal objection raised on behalf of the accused is that the statement is hit by section 122 of the Indian Evidence Act, which provides for bar as to admissibility in evidence of communication made during the subsistence of the marriage and the same cannot be 14 cri-app.152-02 & cri.app.82-03 disclosed even, unless the person who made it or his representative in interest consents. The exception made is only in suits between married persons or proceedings in which one married person is prosecuted for any crime committed against the other.” In the case of M.C. Verghese (supra) which was relied upon by Mrs. Pai, Verghese had complained that he was defamed by three letters which were written by Ponnan (accused) to his wife Rathi. However, Ponnan had taken the defence that these letters addressed to him by his wife were not, except with his consent, admissible in evidence by virtue of Section 122 of the Indian Evidence Act. Section 122 of the Evidence Act reads as follows:- “122. Communication during marriage: No person who is or has been married, shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication, unless the person who made, it or his representatives-in-interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other.” The Supreme Court held that Section 122 consists of two parts i.e. (1) that the married person shall not be compelled to disclose any communication made to him during marriage by his spouse and (2) that the married person 15 cri-app.152-02 & cri.app.82-03 shall not, except in two special classes of proceedings, be permitted to disclose by giving evidence in Court the communication, unless the person who made it, or his representative in interest, consents thereto. The Supreme Court in para.16 of the said decision held:- “16.........If the complainant seeks to support his case only upon the evidence of the wife of the accused, he may be met with the bar of section 122 of the Indian Evidence Act. Whether he will be able to prove the letters in any other manner is a matter which must be left to be determined at the trial and cannot be made the subject-matter of an enquiry at this stage.” 11. Following this decision it was necessary for the prosecution to prove the extra judicial confession by some other evidence and its reliance only on the basis of the purported communication made by accused No.1 to his wife P.W.3-Mangal could not be taken into consideration as evidence in view of Section 122 of the Evidence Act. Though the prosecution examined P.W.2-Sugandha Gote her evidence before the Court does not support the extra judicial confession. P.W.2-Sugandha in her cross examination stated “I got up at about 2 in the night. At that time, Mangal told me to go to the house to see Sayaji.” P.W.2-Sugantha did not state before the trial Court that she had heard the extra judicial confession purportedly made by accused No.1 to his wife P.W.3-Mangar between 1.30 16 cri-app.152-02 & cri.app.82-03 to 2.00 a.m. on 13th February, 2001. We, therefore, hold that the extra judicial confession allegedly made to P.W.3-Mangal by accused No.1 that he with the help of accused No.2 had killed Sayaji Mungse could not have been accepted as evidence in view of the bar under Section 122 of the Indian Evidence Act. The view taken by this Court in the case of Shivaji Shinde (supra) is in keeping with the law laid down by the Supreme Court in the case of Ram Bharosey (supra) as well as M.C. Verghese (supra). 12. P.W.4-Sakharam Kondiba Mungse was the panch for identification of the body and so was P.W.9-Kisan Dagadu Mungse. P.W.5-Popat Shankar More was panch, for Exhibit 25, being the panchnama. The prosecution relied upon the evidence of two more witnesses I.e. P.W.8- Dattatraya Bhagvant Mungse and P.W.10-Shivaji Kedari in support of the last seen theory and, therefore, let us examine the evidence of P.W.8 and P.W.10. P.W.8-Dattatraya B. Mungse stated before the trial Court that his house was at a distance of about 200/300 meters away from the house of P.W.2-Sugandha at village Rase and he knew Sayaji Mungse. On 12th February, 2001 at about 10.00 to 10.30 p.m., Sayaji and Shivaji B. Kedari had gone to his house and requested him to take out his rickshaw to drop Sayaji to his house. However, there was no petrol in the rickshaw and, therefore, he turned down the request and both Sayaji and Shivaji left his house. P.W.10-Shivaji Kedari is the resident of village Rase and he stated 17 cri-app.152-02 & cri.app.82-03 before the trial Court that Sayaji met him on