mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.772 OF 2002 1. Suresh Shankar Jadhav, Age 24 years, Occ. Burud Work, 2. Surekha Virbhadrayya Swami, Age 40 years, occ.housewife, both r/o. Near Galgali Wood Depot, Jat, Tal.Jat, District Sangli and in Central Prison, at Kalamba, Kolhapur. Appellants (Org.Accused 1 & 2) versus The State of Maharashtra through the Police Station Officer, Jat Police Station. Respondent Mr.S.K.Shinde for appellants. Mrs.S.D.Shinde, APP for State. CORAM : BILAL NAZKI AND A.A.KUMBHAKONI, JJ. DATE : 31st July 2008 ORAL JUDGEMENT :- (PER : BILAL NAZKI, J.) :- 1. Heard learned counsel for the appellants as well as learned APP.. This appeal has been filed by two persons who were accused in Sessions Case No.39 of 1999 tried by Second Addtional Sessions Judge, Sangli being Sessions Case No.39 of 1999. The accused were charged for the offences punishable under sections 302 and 201 R/W section 34 of Indian Penal Code for committing murder of one Sadashiv Parsappa Mane (hereinafter referred to as "the deceased") in furtherance of common intention on 12th October 1998 at about 7.30 p.m. in the house of accused no.2 Surekha at Jat town and for causing certain evidence of the said offence to disappear with an intention of screening co-accused from legal punishment. 2. The case, briefly, of the prosecution was that the accused nos.1 and 2 had illicit relations. The deceased was the maternal uncle of accused no.1 and he was objecting to his nephew of having illicit relationship with accused no.2. Therefore, the accused nos.1 and 2 conspired and took away the life of the deceased. 3. This case is interesting inasmuch as the occurrence took place on 12th October 1998 at 7.30 p.m. and the Police registered a complaint in its diary as an accidental death; the entry being 57/1998. But on the next day i.e. on 13th October 1998 the Police registered a case under section 302 r/w 34 of IPC against the accused persons on the basis of a complaint received from the accused no.1 which is Exhibit-22. 4. On the basis of the allegations charges were framed against the accused, who pleaded not guilty. The prosecution examined eight witnesses and exhibited certain documents. 5. Needless to state that there is no eye witness to the occurrence and the prosecution tried to establish guilt of the accused on the basis of circumstantial evidence and there are only two circumstances which the prosecution wanted to establish to prove the guilt of the accused persons. 6. The prosecution tried to establish that accused nos.1 and 2 were in the house of accused no.2 as they had illicit relationship. The deceased came to the house of accused no.2 to find whether accused no.1 was there. When accused entered the house, accused nos.1 and 2 committed his murder and then put the deceased in a wooden box but certain people became suspicious and they reached the house of the accused no.2. They knocked the door. Nobody opened the door, but on giving threat that the Police will be called, the accused no.2 opened the door. Many people entered the house but they found in the house only accused no.2. There was a wooden box kept in the house. So, people became suspicious. The wooden box was locked. They asked accused no.2 to give keys. She did not give the keys. The box was opened with force and they found accused no.1 as well as deceased in the box. The FIR which is allegedly given by accused no.1 himself states that murder of the deceased had taken place first and then he was put into the box but later on the prosecution produced the evidence to suggest that he was not murdered first and then put inside the box as when the box was opened, both-the deceased as well as accused no.1 were alive but unconscious. Therefore, the prosecution is not even certain about the circumstance which it wanted to prove against the accused. 7. With this observation let us now examine the statements of witnesses which were produced before the Court. 8. PW-1 is the witness of recovery of wooden box and lock from the house of accused no.2. When he reached the house of accused no.2, on the disclosure of accused no.1, the said wooden box was opened. It contained a bag. The said bag contained some educational papers. The Police seized these articles under Panchanama. He identified the said articles and certified the contents of the Panchanama. PW-1 also exhiited the Panchanama by which the box in which the deceased and accused no.1 were allegedly found. The particulars of the box are given in Panchanama at page 39. The wooden box was admeasuring 36"x25"25" in size. 9. PW-2 is the husband of accused no.2 who stated that his wife had started keeping illicit relationship with accused no.1, the deceased and also with other persons and as a result many persons were frequently visiting accused no.2. He tried that his wife and her conduct improves but she did not improve. Therefore, he left his house seven to eight months prior to the date of occurrence and started residing with his sister. In the cross examination he has stated that he had three children and one of his daughters was classmate of accused no.1 and his children were staying with the mother in the house of accused no.2. 10. PW-3 is the brother of the deceased. He stated that the accused no.1 was going often to the accused no.2’s house for a period of two years and the deceased was advising the accused not to go to the house of accused no.2. However, he did not listen to the deceased. On 12th, four years before his deposition in Court it was a Monday. At about 7.15.15 p.m., Sadashiv’s wife Jayashree came to his house and told him that there was some chaos and she asked him to accompany her. Jayashree took him to the house of accused no.2. Many people had gathered in front of the hoses of the accused no.2. Jayashree told the people that her husband had been there. The door of the house of the accused no.2 was found closed. There was darkness in the house. People asked accused no.2 to open the door, however, she refused. Then the people threatened her that they would make a complaint to the Police and then she opened the door. Then the accused no.2 told that there was nobody in her house. There was a wooden box in the house and it was locked. People asked for the keys of the said box, however, accused no.2 Surekha did not give the keys. Therefore, people forcibly opened the said box. On opening the said box they found that the deceased was in the said box and accused no.1 was also in the said box. He and others took out the accused Suresh and also Sadashiv from the said box. Both of them were unconscious. Then accused no.2 Surekha went to the house of one Sutar and He followed her. 11. Now, on analysing the evidence of PW-2 and PW-3 and especially PW-2 who was husband of accused no.2 stated that he had left his house because his wife had illicit relationship with many including the deceased. He had not stated that his wife had illicit relationship with only one. The prosecution story becomes doubtful when it tried to establish that the deceased was murdered because he was having objection of his nephew having illicit relationship. Similarly, PW-3 has not explained as to why people had assembled at the house of PW-2. It may be that Jayashree-wife of deceased suspected that her husband had gone to the house of accused no.2 but how did other people assemble around accused no.2’s house is not at all explained. It is also suspicious whether Jayshree would suspect that her husband had gone to the house of accused no.2 when, according to the prosecution, he was even objecting to accused no.1’s going to the house of accused no.2. 12. Now coming to the other witness i.e. PW-4 who introduces a new version and as such it is important. He states that in the year 1998 he was working as a Conductor in S.T. Department. On 12th October 1998 he completed his duty and returned to his home at about 7.30.30 p.m.. When he was about to change his uniform the accused no.2 Surekha rushed to his house. She was followed by about 15 to 20 people. One Yellavva was amongst those persons. Accused no.2 was asking him to save her. Yellavva told him that he should not give her shelter in his house and Yellavva and others dragged the accused no.2 out. If at 7.30 p.m. people found accused no.2 inside the house of PW-4, how could she be found in her own house? 13. PW-5 is Medical Officer who conducted the Post Mortem. Although the prosecution witnesses stated that the deceased was brought out of the wooden box, he was unconscious thereby suggesting that he was alive, but the Doctor did not find him alive and, therefore, it is also not sure whether he died in the box or allegedly before putting into the box or after taking him out of the box. This Doctor found ante-mortem injuries on the body of the person namely Nail mark around the neck at anterior aspect, four contusions on right side neck just lateral to middle, one contusion mark on left side of neck just lateral to mid-line, abrassion on pasterior lateral aspect of left elbow, abrassion on posterior lateral aspect of left elbow. He also found internal injuries namely haemotoma in para-tracheal region. These injuries were on the vital part of the body. There was radish black fluid in the tracehea. There was red black forthy fluid in both the lungs and the lungs were congested. The right side of the heard was full of blood, while the left side was empty. There was cyanosis on the face. The organs like Panchase liver, spleen, kidney were congested. The Doctor stated that the probable cause of death is due to cardio- respiratory failure due to asphyxia due to thoratling. . In his cross examination he stated that there was no fracture of trachea and vertibra. However, this Doctor has not reported fracture of any bones especially limbs or vertibral column in the background of the case of the prosecution that his body was found along with first accused locked inside a wooden box admeasuring only 36"x25"25". 14. PW-6 stated that he was witness to the inquest of the body. PW-7 stated that accused nos.1 and 2 had illicit relations. He new the deceased and both the accused. There had been quarrel between the accused no.1 and the deceased on two occasions. The cause of quarrel between the two was that the deceased was asking the accused no.1 not to go to the house of accused no.2. On 12th October 1998 he returned at about 7.30 p.m. to his house. There was some chaos near the house of accused no.2. Therefore, he also went to the spot. Many people had gathered there. Yellavva, Mallavva, Bashir Jamadar, Gani Nagarji were amongst those persons. These peop-loe had gathered in front of the house of Swamibai. The door was closed by putting a chain from inside. People asked her to open the door. He did not open the door. Then Yellavva told that she would make a complaint to the police and then only accused no.2 opened the door. Then they all entered in the house. Nothing was found except a wooden box in the house of accused no.2. A lock was found put on the same. The electric light was on. Yellavva and he asked the accused no.2 to give the keys of the wooden box. She told that she was not having theh keys.. One Rukmiddin Patel broke open the said lock. They found deceased Sadashiv and accused no.1 Suresh in the said box. Both of them were unconscious. Both of them were taken out and sent to hospital in rickshaw. At about 9.00 p.m. he came to know that Sadashiv expired. 15. PW-8 is Investigating Officer. He stated that on 13th October 1998 the accused no.1 gave intimation and they reduced the same into writing and then his signatures were obtained. Then he made the Panchanama and seized the wooden box, a lock and regzine bag containing documents. Then he also spoke about the arrest of the accused and various other steps taken including sending the body for post mortem. 16. The total circumstance on the basis of which the prosecution wanted to establish the guilt of the accused is that only three persons were in the house of accused no.2. Two persons were in the wooden box. One of them died and another survived and third person was present. The learned Sessions Judge appears to have been influenced by this circumstance alone to convict the accused persons. 17. The learned Sessions Judge has also relied on the statements made under section 313 by the accused. Even if they are taken into consideration for any corroborative purpose, even then we do not find that the learned Sessions Judge is right in relying on those statements, because what the learned Sessions Judge attributed to the accused persons, was not at all said by the accused persons. When a question was asked about the accused no.1 being taken out from the wooden box along with the deceased, he did not admit the allegation but the accused stated that he did not know. 18. On the other hand, both the accused gave detailed written statements which are on record but they were not taken into consideration by the learned Sessions Judge. We feel that it is physically impossible that two adults, one of 21 years and another of 30 years of age, can be accommodated in a box which is of the measurement of 3’x2’x2’ i.e. total area of 12 cubic feet. Therefore, the prosecution story itself appears tobe false. It is also not proved beyond doubt that only these three persons were in the house because the husband of accused no.2 had categorically stated that he had three children and one of his daughters was classmate of accused no.1. Obviously, she must be of mature age. The evidence is silent on the aspects whether they were in the house or not, when the occurrence took place. No witness has stated that they were not present in the house. It is not even stated by the Investigating Officer or any other prosecution witness that there was only one person present in the house and it was closed from inside. The prosecution has also not explained if there was calm in the house, the lights were switch off from inside, why people assembled there and started opening the doors of said house. People would gather at a particular place on happening of an event or hearing of shouting. But no such explanation was given. 19. There may be even strong suspicion that the accused nos.1 and 2 were involved in the murder of the deceased but on the basis of such strong suspicion the appellants could not have been convicted. The prosecution even tried to show the motive that the accused nos.1 and 2 did not like interference by the deceased in their illicit relationship but the FIR which was allegedly given by accused no.1, gave different story that accused nos.1 and 2 had a relationship but the deceased also wanted to have relationship with accused no.2 which she resisted. But the husband of accused no.2 gave a third version that accused no.2 had illicit relationship not only with deceased but many others as well. 20. For all these reasons we do not think that the conviction can be sustained. Therefore, the appeal is allowed. Conviction and sentence is set aside. The appellants be released forthwith, if not required in any other case. (BILAL NAZKI, J.) (A.A.KUMBHAKONI, J.) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.772 OF 2002 DATE OF JUDGEMENT : 31st July 2008 SUBMITTED FOR APPROVAL :- THE THE THE HON’BLE SHRI JUSTICE BILAL NAZKI HON’BLE SHRI JUSTICE BILAL NAZKI HON’BLE SHRI JUSTICE BILAL NAZKI THE THE THE HON’BLE SHRI JUSTICE A.A.KUMBHAKONI HON’BLE SHRI JUSTICE A.A.KUMBHAKONI HON’BLE SHRI JUSTICE A.A.KUMBHAKONI 1. Whether Reporters of Local ) newspapers may be allowed to ) see the judgement ? ) ) 2. To be referred to the Reporters ) or not ? ) ) 3. Whether Their Ladyship/Lordship wish ) to see the fair copy of the ) judgement ? ) ) 4. Whether this case involves a ) substantial question of law as to ) the interpretation of the ) Constitution of India, 1950 or ) any order made thereunder ? ) ) 5. Whether it is to be circulated ) to the Civil Judges ? ) ) 6. Whether the case involves an ) important question of law and ) whether a copy of the judgement ) should be sent to Nagpur, ) Aurangabad and Goa offices ? )