.[1]. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.257 OF 2006 CRIMINAL APPEAL NO.257 OF 2006 CRIMINAL APPEAL NO.257 OF 2006 Shankar Bhavanji Kamble, ] Convict Prisoner No.C/3422, ] Kolhapur Central Prison, ] Kalamba, District: Kolhapur. ] ..Appellant. Versus The State of Maharashtra. ] ..Respondent. . . . Ms.Bhagyashri P. Jakhad, Adv. appointed for the appellant. Smt.V.R.Bhosale, APP, for the Respondent-State. . . . CORAM : CORAM : CORAM : F.I.REBELLO AND F.I.REBELLO AND F.I.REBELLO AND SMT.V.K.TAHILRAMANI, JJ. SMT.V.K.TAHILRAMANI, JJ. SMT.V.K.TAHILRAMANI, JJ. DATED : APRIL 04, 2008. DATED : APRIL 04, 2008. DATED : APRIL 04, 2008. ORAL JUDGMENT (PER SMT.V.K.TAHILRAMANI, J.) : ORAL JUDGMENT (PER SMT.V.K.TAHILRAMANI, J.) : ORAL JUDGMENT (PER SMT.V.K.TAHILRAMANI, J.) : 1. Through this appeal, the appellant has challenged the judgment and order dated 28th October, 2005 passed by the learned 2nd Adhoc Additional Sessions Judge, Thane in Sessions Case No.178 of 2005. By the said judgment and order, the learned Sessions Judge, convicted the appellant under Sections 302 & 309 of Indian Penal Code. For the offence under Section 302 of IPC the appellant was sentenced to imprisonment for .[2]. life and to pay fine of Rs.2500/-, in default, RI for one year. For the offence under Section 309 of IPC, the appellant was sentenced to RI for one month and fine of Rs.500/-, in default, RI for a period of fifteen days. The learned Sessions Judge has directed both the sentences to run concurrently. 2. The prosecution case, briefly stated, is as under : . The appellant along with his paramour Usha Kamble was residing in a hut at Juhu Nagar locality at Nerul, New Bombay at the time of the incident. Both of them used to drink. On the day of the incident i.e. on 21.01.2005 also both of them consumed liquor. A quarrel errupted between them. During the course of the quarrel the accused got enraged and he killed Usha by strangulating her with a nylon rope. Thereafter the accused tried to commit suicide by hanging himself with a cloth strip, however he did not succeed in the attempt to commit suicide and he simply becomes unconscious. Somebody informed .[3]. Nerul Police on telephone. Police reached the spot and they saw the bodies of Usha and the appellant lying in the hut beside each other. Usha was already dead, however, accused was breathing. His throat was rattling. The police found that the accused was alive however he was unconscious, hence he was shifted to the hospital. The death of Usha was initially registered as accidental death. During the course of investigation the police came to the conclusion that the accused had committed murder of Usha, hence charge-sheet came to be filed against him. Thereafter the case came to be committed to the Court of Session. 3. The charge came to be framed against the appellant under Section 302 & 309 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellants, as stated in Para 1 above. Hence, this Appeal. .[4]. 4. We have heard Ms.Bhagyashri Jakhad, learned Advocate appointed for the appellant and Smt.Bhosale, learned APP for the Respondent-State. We have also perused the judgment and order passed by the learned Sessions Judge as well as the record pertaining to the present case. 5. There is no eye witness in the present case. The prosecution has relied only on the evidence of extrajudicial confessions made by the accused person. According to the prosecution, the said extrajudicial confessions have been made to PW-7 Police Constable Shri.Thorat and PW-5 Ramnath Gawand who is the employer of the accused. It is the prosecution case that after the incident the accused made a telephone call from the STD-PCO booth of PW-3 Anagha Anavkar to PW-5 Ramnath Gawand who was his employer. During the telephone call, he informed his employer that he has committed murder of his wife and he requested his employer for Rs.100/- so that he could inform his daughter about the incident. PW-5 Ramnath stated that he received a call from the appellant on his .[5]. mobile phone i.e. 9321030287. The prosecution has also examined PW-12 Mr.Nitin Baghchandnani who has supplied the details relating to mobile No.9321030287 which was the mobile phone of PW-5 Ramnath. PW-3 Anagha has stated that between 1:30 p.m. to 2:00 p.m. accused came to her STD-PCO booth. He was in frightened condition and he made a telephone call. She issued bill of STD call. She has identified the bill (Exh.13) as being the bill she had given to the accused. According to her the bill bears the timing and telephone number which the accused had dialled from her STD booth. We have also perused the details of the mobile phone which have been produced by PW-12 Mr.Nitin who was working with Reliance. The details of the mobile phone of PW-5 Ramnath do not show that any call was made between 1:30 p.m to 2:00 p.m. on his mobile number. There are three telephone calls which were received on 21st January, 2005 on the mobile phone of PW-5 Ramnath between 2:29 p.m. and 2:52 p.m. Prior to the call at 2:29 p.m. no call was received on the mobile phone of PW-5 on that day and after the call at 2:52 p.m. the next call is at 4:10 p.m.. The three telephone calls .[6]. which were received between 2:29 p.m. and 2:52 p.m. were not from the STD booth of PW-3 Anagha. Exh.13 which has been identified by PW-3 Anagha as the bill which she had issued to the accused shows that a call was made on telephone number 02355235679. However, as we have already observed above, the mobile phone of PW-5 Ramnath is 9321030287. This shows that the evidence of PW-3 Anagha and PW-5 Ramnath cannot be relied upon. There is no material to show that the accused made a telephone call to PW-5 Ramnath. We find that the evidence of PW-5 that he received a call from the accused is falsified by Exh.13. In such case, we are not inclined to rely upon the evidence of this witness wherein he has stated that the accused made an extrajudicial confession to him during the said telephone call. This witness has further stated that thereafter the accused met him and again told him that he had murdered his wife Usha. We have noticed that this witness has deposed an outright lie about the accused calling him on his mobile phone and informing the witness that he has murdered his wife Usha. In such case, we are loath to rely upon the evidence of this .[7]. witness that the accused thereafter came to him and informed him that he had committed the murder of his wife Usha. Looking to the earlier part of the evidence of this witness, we find that this witness is not truthful witness and hence we do not find his evidence to be worthy of any reliance. 6. As per the prosecution case the accused also made an extrajudicial confession to police constable Thorat that he committed the murder of his wife Usha. We have carefully scrutinised the evidence of PW-7 police constable Thorat. This witness has stated that he received a telephone message from an unknown person regarding dead body lying in Juhu Nagar locality. When they went to the spot, they saw that the accused was lying near the dead body of that female. Forth was coming out from the mouth of the accused. The lady was dead. However, the accused, though unconscious, was alive and his throat was rattling. Hence they admitted him to a hospital at Vashi. After regaining consciousness in the hospital, the accused told this witness that he has killed his .[8]. wife. The prosecution has relied on this extrajudicial confession by the accused to PW-7 Police Constable Thorat. However, as PW-7 was a police constable, we would have to exclude his version from consideration. Besides this, two extrajudicial confessions made by the appellant to PW-5 Ramnath and PW-7 Police Constable Thorat, there is no other material on record. The confession made to PW-7 has to be excluded from the consideration; and we are not inclined to rely upon the extrajudicial confession made to PW-5 Ramnath for the reasons which we have discussed in detail above. In this view of the matter, we find that there is no reliable material to show that the accused had committed the murder of Usha. 7. As far as conviction and sentence under Section 309 of IPC is concerned, it is pertinent to note that the Supreme Court in the case P.Rathinam/Nagbhusan Patnaik Vs. Union of India P.Rathinam/Nagbhusan Patnaik Vs. Union of India P.Rathinam/Nagbhusan Patnaik Vs. Union of India and another, and another, and another, reported in 1994 Cri.L.J. 1605 1994 Cri.L.J. 1605 1994 Cri.L.J. 1605 has held that Section 309 of Indian Penal Code violates Article 21 of the Constitution of India .[9]. and hence it is void. In view of the observations in the above referred case, we are of the opinion that the conviction and sentence of the appellant under Section 309 of IPC also cannot be sustained. 8. In the result, the appeal is allowed. The judgment and order of conviction and sentence passed by the learned 2nd Adhoc Addl. Sessions Judge, Thane in Sessions Case No.178 of 2005 is set aside. The appellant- Shankar Bhavanji Kamble is acquitted of the offences punishable under Sections 302 & 309 of IPC. He be set at liberty forthwith if not required in any other case. (SMT.V.K.TAHILRAMANI,J.) (F.I.REBELLO,J.) (SMT.V.K.TAHILRAMANI,J.) (F.I.REBELLO,J.) (SMT.V.K.TAHILRAMANI,J.) (F.I.REBELLO,J.)