1 Cri. Appeal .No.61 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Appeal No.61 Of 2010 1) Tukaram s/o Vijay Rathod, ] Age 21 years, ] Occupation : agriculture, ] R/o Gondemahagaon, ] Taluka Kinwat, ] District Nanded. ] ] 2) Vijay s/o Umaji Rathod, ] Age 50 years, ] Occupation : agriculture, ] R/o Gondemahagaon, ] Taluka Kinwat, ] District Nanded. ] ] 3) Narendra s/o Vijay Rathod, ] Age 23 years, ] Occupation : agriculture, ] R/o Gondemahagaon, ] Taluka Kinwat, ] District Nanded. ] ... Appellant. Versus * The State of Maharashtra ] ... Respondent. -------- Smt. S.G. Chincholkar, Advocate, for appellants. Shri. K.G. Patil, Additional Public Prosecutor, for respondent. -------- 2 Cri. Appeal .No.61 of 2010 CORAM: NARESH H PATIL & T.V. NALAWADE, JJ. DATE: 4th MAY 2011 ORAL JUDGMENT :(Per Naresh H Patil, J.) 1) The appellants have challenged the judgment and order dated 21st January 2010 in Sessions Case No. 149 of 2009 passed by the Sessions Judge Nanded thereby convicting the appellants for offences punishable under sections 302, 201 read with section 34 of the Indian Penal Code and sentencing them to suffer life imprisonment with fine of Rs.2000/- each under section 302/34 and to suffer rigorous imprisonment for two years with fine of Rs.1000/- under section 201/34 of the Indian Penal Code. 2) The facts in brief are that one Vithal Chavan, resident of Gondemahagaon, Taluka Kinwat, District Nanded filed a complaint on 6-7-2009 to the police. It is alleged in the complaint that, he had five daughters and wife who were living together. His daughter Anitabai was married to Sandip Rathod on 6-5-2009 resident of Andhori Tanda (Andhra Pradesh). As it was found that due to earlier 3 Cri. Appeal .No.61 of 2010 relationship his daughter remained pregnant, Sandip Rathod left his daughter. The issue was enquired in respect of illicit relations of Anitabai. In presence of Panchas and other persons of village, a Gandharva marriage of Anitabai was performed with appellant No.1 - Tukaram on 22-5-2009 and thereafter Anitabai started residing with appellant No.1. Appellant No.2 is father of appellant No.1 and appellant No.3 is son of appellant No.2. 3) It is alleged that on 6-7-2009 when the complainant Vithal Chavan got up from sleep at about 5.00 a.m. in the morning he found Anitabai lying in front of his house. A rope was found tied around her neck. She was dead. Vithal started shouting due to which neighbourers assembled at the place. He thereafter lodged complaint against the appellants alleging that they committed murder of Anitabai when she was staying in the house along with the appellants. He specifically alleged that the rope, which was used for swing purposes, was used for committing murder of Anitabai. 4 Cri. Appeal .No.61 of 2010 4) PW 9 Police Sub Inspector Sanjay Gaikwad was attached to Islapur Police Station who received a phone call from Police Patil of village Gondemahagaon in respect of murder committed in the village. According to PW 9 some villagers also came to the police station to give information. A note in the station diary was taken. The witness went to the village, reached the place of occurrence in front of the house of Vithal Chavan at Gondemahagaon. He noticed a dead body of woman lying there. Her neck was seen tied at one end with the rope. 5) It is alleged that Vithal identified the deceased to be his daughter. Police recorded statement of Vithal. The said statement is at Exhibit 26. Inquest panchanama was conducted (Exhibit 20). Spot panchanama is at Exhibit 21. The dead body was thereafter sent to Primary Health Centre, Shivni for post mortem. The accused were arrested by drawing memorandum of arrest. Statements of some of the witnesses were recorded. It is alleged that at the instance of appellant No.1 Tukaram a rope was discovered which was produced and seized by police vide Exhibit 23. The rope was kept in front of the house of Tukaram in a 5 Cri. Appeal .No.61 of 2010 cattle shed. Muddemal property was sent for chemical analyzer report along with forwarding letter. The CA report is at Exhibit 50. Charge sheet came to filed against the appellants and the case was committed to the Court of Sessions. 6) The appellants were charged by the trial Court. They pleaded not guilty and claimed to be tried. 7) The prosecution case is based mainly on circumstantial evidence. 8) PW 1 – Dr. Gajajan Pendkar was working as Medical Officer at Primary Health Centre Apparaopeth. He conducted post mortem on the dead body of the deceased on 6-7-2009. He deposed that there were no stains of blood on the clothes. He found three ligature marks around the neck. According to the Medical Officer, the first ligature was about a level of thyroid cartilage of the size of 37 cm x 1 cm. The second one at the level the thyroid cartilage of the size of 39 cm x 1 cm and the third was below the level of thyroid cartilage of the size of 38 cm x 1 cm. Along the 6 Cri. Appeal .No.61 of 2010 ligature marks the Medical Officer found multiple small abrasions with ecchymoses. The external injuries were ante mortem, according to the Medical Officer. The Medical Officer noticed that, the deceased had 34 weeks male dead foetus and the death had occurred within 24 hours prior to the time of post mortem examination. According to the Medical Officer, 'strangulation', the cause of death in the instant case, is caused manually. In the cross-examination the witness deposed that rope (articles 1 and 2) are of nylon whereas, rope (article 3) is not nylon rope. The ligature mark described at Sr.No.1 in column No.17 was the first ligature in order. According to the Medical Officer, there is possibility of a thyroid cartilage in case there are three ligatures and the two ends of the ligature are pulled by force. The ligature described at Sr.No.1 in column No.17 was in between the level of thyroid cartilage and the cartilage. He denied that in case of use of three ligatures, the thyroid bone should necessarily get fractured. 9) In the evidence of PW 4 Vithal, father of the deceased, he deposed that his daughter was married with 7 Cri. Appeal .No.61 of 2010 appellant No.1 before one and half months. Prior to her marriage with appellant No.1 she was married to Sandip Rathod. The witness stated that as deceased was pregnant Sandip had disowned her. A meeting was arranged before the Tanta Mukti Samiti. It transpired that the daughter was pregnant due to Tukaram, appellant No.1. With the intervention of the persons in the village it was decided that Tukaram and Anitabai to perform Gandharva marriage. It was accordingly agreed to and the same was set down in writing on a paper. The said document is at Exhibit 27 signed by the parties including Tukaram. Tukaram also, according to the witness, confessed that he married Anitabai in the Gandharva form. According to the witness they were leading happy married life. In the cross-examination the witness stated that, marriage of his daughter was solemnized with Sandip but it failed as it was noticed that deceased Anitabai was already pregnant and Sandip disowned her. Anitabai returned back. The witness admitted that there was no divorce between Sandip and Anitabai as in their community the parties do not take divorce. Separation takes place by returning the Mangalsutra to the bridegroom. In respect of 8 Cri. Appeal .No.61 of 2010 the proceedings which took place before the Tanta Mukti Samiti the witness stated that about 50 persons from the village were present. Panchas were also present. About 2 to 4 women were present. The meeting was held in a temple. The witness further deposed that he alone went to the police station on 6-5-2009 and no villager accompanied him. The witness deposed that the rope which was around the neck of Anitabai was not removed by police. The witness denied that Anitabai was pregnant from Sandip. 10) PW 5 is Prakash Rathod who claims himself to be the President of Tanta Mukti Samiti of village Gondemahagaon. He stated that a meeting was arranged and in that it was agreed that the appellant No.1 would marry deceased Anitabai in Gandharva form. It was reduced into writing. The parties and the panchas signed on the same. In the cross-examination the witness stated that he is the Up-Sarpanch of the village. One Nirmalabai Gulab Chavan is the Sarpanch. There was no woman attending the meeting. Sandip and his parents were not called to attend the meeting. The witness stated that he was not appointed by the Government as the President of 9 Cri. Appeal .No.61 of 2010 the Tanta Mukti Samiti neither there is any office of the Samiti. He stated that the meeting was held near the temple. In the next breath he denied the suggestion that, he is not the President of the Tanta Mukti Samiti and a bogus document was prepared by him. The witness deposed that, he did not notice blood stains on the rope which was tied around the neck of deceased Anitabai. 11) PW 6 is Datta Rathod who states that the document at Exhibit 27 was signed by him. He is the scribe of the said document which was dictated to him at the house of Gulab Chavan. 12) PW 7 is Gulab Chavan. Deceased Anitabai was the niece of this witness. He supported the prosecution case that Anitabai was married to Sandip. He further supported the prosecution case that Gandharva form of marriage of deceased Anitabai and appellant No.1 - Tukaram was performed. The witness stated that he found that deceased was lying dead in front of the house of her father. According to the witness there is one house between the house of appellant Tukaram and the 10 Cri. Appeal .No.61 of 2010 complainant Vithal. In the cross-examination the witness deposed that his wife is the Sarpanch of the village. He denied the suggestion that Anitabai was living with her father Vithal at the relevant time. 13) PW 8 is Gadavaribai Chavan. 14) PW 9 is Sanjay Gaikwad, Police Sub Inspector who has investigated the crime. 15) The post mortem report is at Exhibit 16. In column 16 the Medical Officer opined thus : "Right upper limb extended parallel to body. Left upper limb slightly fixed at elbow joint. No sand or earth on hands." In column 17 the medical officer opined thus : Three ligature marks around the neck: i) above the level of thyroid cartilage size 37 cm x 1 cm. ii) At the level of thyroid cartilage size 39 cm x 1 cm. iii) Below the level of thyroid cartilage size 38 cm x cm. 11 Cri. Appeal .No.61 of 2010 Along the edges of ligature mark multiple small abrasions and ecchymoses are seen. The cause of death, according to the doctor, was "due to asphyxia due to strangulation." 16) The ligature material which was around the neck was cut by the Medical Officer who conducted post mortem examination at the time of post mortem of the dead body. This material, viz. two nylon ropes of the size of 28 inches and 38 inches were seized by police under panchanama. 17) The learned counsel appearing for the appellants submitted that the entire case of the prosecution is based on circumstantial evidence. The prosecution has failed to complete the chain of circumstance for establishing the guilt against the appellants. On its face, according to the counsel, the role attributed to appellant Nos.2 and 3 is that, they were members of the house in which the deceased was staying with appellant No.1 and leading a married life. There are 12 Cri. Appeal .No.61 of 2010 serious discrepancies in the prosecution evidence. The prosecution has not examined independent witnesses. The counsel submits that the theory of the prosecution that the deceased was found dead in front of the house of the appellants or in the courtyard of the house itself is an imaginary story of the prosecution. It was submitted that there is no evidence on record to show that deceased took divorce from Sandip, her first husband. The theory of Gandharva form of marriage propounded by the prosecution was also not convincing. There is no evidence in respect of the appellant No.1 and the deceased being last seen together, neither there is any independent evidence that they were staying together. There was no blood found on the rope which was tied around the neck neither so called discovery made at the instance of the appellants is established. The counsel submits that the medical evidence in respect of death of Anitabai is also not convincing. One of the important circumstances was that there was no motive established by the prosecution. There are no incriminating circumstances to involve the appellants. Therefore, the counsel prayed for acquittal of the appellants. 13 Cri. Appeal .No.61 of 2010 18) The learned Additional Public Prosecutor submitted that there is evidence that the appellant No.1 and the deceased were residing together along with appellant Nos.2 and 3. The evidence of PW 4, PW 5 and PW 7 is material on this aspect. The APP submitted that the deceased was seen on the earlier day along with her husband, appellant No.1. Therefore the explanation of the accused was material. In this case the appellant has not given any explanation in respect of the circumstances and the transition which resulted in death of Anitabai. This itself is a strong circumstance against the appellants. The cause of death of Anitabai was strangulation and the medical evidence supports the prosecution case. The learned APP submitted that though there is no specific motive emerging from the prosecution case but the same shall not destroy the entire prosecution case. The deceased was brutally done to death and in absence of silence of the accused persons the circumstances are established against the accused pointing out their involvement in the crime. 19) We have perused the original record and proceedings, the judgment of the trial Court and 14 Cri. Appeal .No.61 of 2010 considered the submissions advanced by the counsel. 20) The prosecution case is based entirely on circumstantial evidence. In such case the prosecution will have to link up the chain of circumstances and complete the chain so as to point out unhesitatingly that the accused must be the culprit. Any vital missing link in the chain would adversely affect the prosecution case. In the present case it has come on record that Anitabai was married firstly to one Sandip. After it was found that, she was carrying pregnancy, the husband disowned and left her. Anitabai came back to her parents. Thereafter it was enquired into the matter and found that she developed pregnancy due to appellant No.1 Tukaram. A meeting was arranged and in that it was decided that both should get married in Gandharva form. It was reduced in writing on a piece of paper (Exhibit 27). It was signed by the parties. 21) It is immaterial as to whether the President of the Tanta Mukti Samiti was appointed by the Government and how many persons attended the meeting. Even if it is assumed that the meeting was held and it was reduced 15 Cri. Appeal .No.61 of 2010 into writing by the parties and the appellant No.1 agreed to perform Gandharva marriage with deceased Anitabai by owing the responsibility of pregnancy of Anitabai, the mute question remains to be considered is whether the appellants more particularity appellant No.1 committed murder of Anitabai. 22) There is substance in the submissions of the appellants that in respect of this crime there is no cogent and reliable independent evidence on record to show that Anitabai started staying with the appellants as wife of appellant No.1. Though it has come on record that, Anitabai was leading married life with appellant No.1, but nobody from the neighborhood was examined by the prosecution in support of the same. The witnesses, who deposed to this effect, were closely related to the appellants and highly interested in the prosecution. 23) Another noticeable feature in the case is that, the prosecution has failed to point out any motive on the part of the appellants to commit the crime. When, according to the complainant the dispute was resolved and 16 Cri. Appeal .No.61 of 2010 amicably settled and appellant No.1 agreed to marry Anitabai and they started staying together as husband and wife, then there was no reason for the appellants to commit murder of Anitabai. Even close relatives of the deceased have failed to make out a case that there was any motive. In the case of this nature, which is based totally on circumstantial evidence, the motive plays a vital role. In absence of motive the prosecutions case itself is to be looked upon with suspicion. 24) The theory that deceased Anitabai was strangulated with the help of nylon rope is also not convincing. The rope which was recovered at the instance of the accused was a jute rope. Considering the length of the rope tied around the neck and recovery of two pieces of rope we are not fully convinced with the medical evidence that the death must have been caused due to strangulation with the rope tied around the neck. In the evidence the father of the deceased stated that the rope tied around the neck of the deceased belonged to him as the said rope was used by him for the purpose of swing. 25) The doctor failed to mention whether the 17 Cri. Appeal .No.61 of 2010 strangulation was encircled or oblique. There is serious lacunae in the prosecution evidence. There has to be a definite opinion in respect of cause of death which, in the light of attending facts and circumstances of the case, is not convincing. 26) We have perused the spot panchanama and inquest panchanama. Even from these panchanamas the theory of the prosecution is not supported. The prosecution has failed to establish the role played by appellant Nos.2 and 3. Merely because they were residing along with appellant No.1 in the house it cannot be held that they must be involved in the commission of murder of Anitabai. The father of the deceased Anitabai stated that, he alone went to the police station and lodged the complaint which theory is also disputed and falsified by the evidence of the investigating officer and other witnesses. The prosecution witnesses are not coming out with truthful version inspiring confidence in the prosecution case. Something some where is being suppressed. Due to this suspicion is created and no evidence based on suspicion howsoever strong take place of evidence. 18 Cri. Appeal .No.61 of 2010 27) Considering all these facets and facts of the case we are of the view that the prosecution has failed to establish the material circumstances against the appellants. There are so many missing links in the chain of circumstances. The chain is not complete. The result is that benefit should go to the appellants. 28) The Criminal Appeal is allowed. The judgment and order dated 21st January 2010 passed by the Sessions Judge, Nanded in Sessions Case No.149 of 2009 convicting the appellants for offences punishable under section 302 read with section 34 of the Indian Penal Code and sentencing each one of them to undergo imprisonment for life and to pay fine of Rs.2000/- (Rupees two thousand) each, in default, to undergo further rigorous imprisonment for one year and also convicting them for an offence punishable under section 201 read with section 34 of the Indian Penal Code and sentencing each one of them to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.1000/- (Rupees one thousand) each, in default of payment of fine, to undergo further rigorous imprisonment for one year, is quashed and set aside. The 19 Cri. Appeal .No.61 of 2010 appellant No.1 Tukaram Vijay Rathod, appellant No.2 Vijay Umaji Rathod and appellant No.3 Narendra Vijay Rathod are acquitted of the offences for which they were charged. The appellants be released forthwith, if not required in any other case. Fine amount, if paid, be refunded to the appellants. Sd/- Sd/- (T.V. NALAWADE, J.) (NARESH H PATIL, J.) rsl