1 appeal365.04.sxw IN THE HIGH COURT OF JDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 365 OF 2004 Rukmini Navnath Muthekar Age 43 years, At Present lodged in Yerwada Central Prison, Pune. ..Appellant Vs. The State of Maharashtra .. Respondent Ms. Indu Varma, Advocate appointed for the Appellant. Ms. V.R. Bhosale, APP for Respondent. CORAM : P.B. MAJMUDAR AND A.A. SAYED, JJ. DATE : 23RD JUNE, 2011. ORAL JUDGMENT ( Per P.B. Majmudar, J.) 1. This appeal is directed against the judgment and order passed by the learned Additional Sessions Judge, Solapur, dated 28-03-2001 in Sessions case No. 223 of 2000, by which the learned Additional Sessions Judge recorded the conviction against the appellant-accused for the offence punishable under section 302 of Indian Penal Code and life imprisonment was awarded to the appellant-accused and to pay fine of Rs. 3000/- and in default R.I. for 9 months. The learned Additional Sessions Judge acquitted the accused of the offence punishable under Section 498-A of Indian Penal Code. 2. It is the case of the prosecution that the appellant-accused is mother of 2 appeal365.04.sxw two sons viz. Ankush and Balu and her residential house is situated at Ghodake Plot at Barshi, within the local limits of Barshi town. As per the case of the prosecution, the appellant-accused (who shall be hereinafter referred as accused for the sake of brevity) was the mother-in-law of the deceased Rohini Ankush Muthekar. The deceased was married to Ankush. Deceased Rohini was subjected to cruelty including physical and mental harassment on account of domestic reasons, more particularly after coming to know about the incident of rape upon the deceased at Pandharpur town by some persons three years prior to her marriage with her son Ankush. It is also the case of the prosecution that on account of the same, the deceased was harassed by the accused and other family members and accordingly the accused committed offence punishable under section 498A of IPC. It is the further case of the prosecution that the accused committed murder of Rohini by throttling her neck on the date of incident i.e. 26-8-2000, between 9.30 P.M. to 10.30 P.M. at her residential house, at Ghodke Plot. The Investigating Officer investigated the case and submitted the Charge-sheet in the Court of Judicial Magistrate, F.C. Barshi. The learned Magistrate committed the case to the Court of Sessions at Solapur. Subsequently, the charge was framed against the accused at Exh.2. The same was read over and explained to the accused and she denied the charge and claimed to be tried. On behalf of the prosecution 7 witnesses were examined, which included 2 sons of the accused. The learned Trial Judge came to the conclusion that the prosecution has proved its case beyond reasonable doubt regarding involvement of accused in connection with the offence punishable under Section 302 of IPC. But the learned Sessions Judge acquitted the accused so far as offence punishable under Section 498-A of Indian Penal Code. The aforesaid order is impugned at the instance of the accused. 3 appeal365.04.sxw 3. Learned Counsel Ms. Indu Varma appearing for the accused vehemently submitted that there is no evidence against the accused and the prosecution has failed to prove its case against the accused. It is submitted by her that P.W. 2 and 4 who are the sons of the accused have not supported the case of the prosecution and they were declared hostile and if the said evidence is not taken into consideration, there is no evidence by which it can be said that the accused was present at the scene of offence on the relevant date when the accused committed the crime in question. It is submitted by her that the order of conviction recorded by the learned Sessions Judge is required to be set aside, as the prosecution has failed to prove its case against the accused beyond reasonable doubt and even if it is proved that offence is committed by the accused, the offence in any case falls under Section 304 (I) of Indian Penal Code and the conviction of life imprisonment recorded under Section 302 of Indian Penal Code may be altered to section 304 (I) of IPC. 4. Learned APP Ms. Bhosale on the other hand, supported the order of conviction recorded by the learned Sessions Judge. It is submitted by her that it is true that so called two eye witnesses have been declared hostile but the entire evidence of the hostile witnesses need not to be discarded, and part of their evidence which supports the case of the prosecution can be relied upon. It is submitted by her that the prosecution has proved its case beyond doubt that the accused was present at the scene of incident on the relevant date and committed the offence in question. 5. We have heard both learned Counsel at length. We have gone through 4 appeal365.04.sxw the entire evidence adduced on record by the prosecution. We have also gone through the order of conviction recorded by the learned Sessions Judge. 6. In order to prove its case, the prosecution has examined the father of the deceased Mahaveer Vithoba Godase P.W.1 at Exh.14. The said witness in his examination-in-chief stated that the accused is mother-in-law of deceased Rohini and they were residing together at Barshi in Ghodake Plot. The witness has further stated that on 27-8-2000 at 1 p.m. he was collecting cotton from the field at Kavthali, Taluka Pandharpur, Dist Solapur. He was informed that his daughter has died at Barshi. Thereafter he reached the house of accused at Barshi by Jeep from village Kavthali. He saw the dead body of his daughter Rohini. She succumbed to death on account of throttling. This witness further stated that there were marks on her neck and there were abrasions and scratches on her face. The witness has also stated that he inquired with his son-in-law, who told him that their was a quarrel between accused and his wife and the accused pressed the neck of his daughter. The complaint given by this witness is at Exh.15. In the cross- examination the witness has stated that there was complaint against the accused and her son. The witness denied that there was no complaint filed by him against the accused and her son. The witness further stated that he was told by his daughter that his son-in-law was ill treating her and he was suspecting the character of the deceased. In cross-examination this witness has stated that it is true that his daughter was murdered by the accused, her husband as well as by her son i.e. his son-in-law. 7. The prosecution has also examined Ankush Muthekar (husband of the 5 appeal365.04.sxw deceased) as P.W.2 at Exh. 16. This witness has stated that he married with the deceased about 2 years back prior to the incident. He stated that he was residing with accused and deceased Rohini at Ghodake plot. He has further stated in his examination-in-chief that he, his wife and accused were residing together on the date of incident at Ghodke Plot. This witness has further stated that he did not know when the alleged incident took place. He has further stated that he came to the house in the night time on 26-8-2000 and knocked the door of the house and at that time her mother opened the door and his wife was lying on the ground. He tried to wake her up. Blood was oozing out from the mouth cavity of the deceased. The witness further deposed that when he inquired with his mother, she told him that there was quarrel in between his wife Rohini and her and in that quarrel she become unconscious. Subsequently, the said witness did not support the prosecution case and therefore, he was declared hostile. 8. The prosecution also examined Dr. Namdeo Patil, P.W.3 at Exh.19. The said witness stated in his evidence that on 28-8-2000 he and one Dr. A.L. Suryavanshi performed autopsy on the dead body of deceased Rohini Ankush Muthekar. The said witness deposed that the deceased succumbed to death due to asphyxia, due to throttling. The said doctor issued certificate at Exh.20. As per his evidence he found following injuries on the person of deceased : (1) Contusion over front of neck 10 X 8 Cms. (2) Abrasion over right elbow 8 X 8 Cms. (3) Abrasion over left below 6 X 5 Cms. (4) Contusion over sternal region of chest 10 X 8 Cms. 6 appeal365.04.sxw (5) Abrasion over back of neck 4 X 4 Cms. (6) Palpable fracture of hyoid bone. The Doctor has further deposed that injuries No. 1 to 6 are definitely ante-mortem. Doctor has further stated that on the same day he examined Rukmini Navnath Muthekar (present accused) and he found following injuries on her person.: (1) Abrasion over left little finger admeasuring 2 X 1 cms. (2) Abrasion over right thumb admeasuring 3 X 2 cms. (3) Abrasion over right knee admeasuring 6 X 5 cms. (4) Abrasion below right eye admeasuring 6 X 4 cms. The witness further stated that all the injuries were caused by hard and blunt object and were simple in nature and doctor has also issued certificate at Exh.22. He further deposed that all the injuries may be possible at the time of quarrel. In the cross-examination the said witness has stated that the injuries as shown in the medical certificate Exh.22 may be caused on account of fall on the ground. He denied the suggestion that the said injuries have been caused on account of struggle between accused and another person. 9. The prosecution has also examined Balu Navnath Muthekar, P.W. 4 at Exh.23. The said witness has stated that the deceased Rohini was wife of his brother. He further stated that he did not know anything about the cause of death of Rohini. The said witness was declared as hostile witness. The learned APP cross-examined the said witness. This witness stated that it is 7 appeal365.04.sxw true that his mother opened the door of the house during the midnight of 26-8-2000 and allowed his brother to enter in the house. 10. The prosecution has examined Somnath Mahadeo Kumbhar P.W. 5 at Exh.24. The said witness was examined as he is the neighbor of the accused. The said witness has not supported the case of the prosecution. 11. The prosecution has examined Maheboob Shabbir Landge P.W.6. This witness stated that he was called by police to act as a panch on 31-8-2000. He stated that the police seized yellow coloured saree, which was stained with blood. The said saree was belonging to the accused. The said witness has signed panchanama Exh.29 regarding seizure of saree of the accused. 12. The prosecution also examined one Phattesinha Nanasaheb Patil, P.W.7, who was investigating officer. The accused has also given a separate statement Exh.36 under section 313 of Cr.P.C., wherein she has stated that she had fallen down on the railway track on account of rains and because of which she received injuries of abrasion. She has stated that she is residing separately with her husband and other son, and that Ankush was residing independently with his wife (deceased). 13. So far as evidence of hostile witness is concerned, it is required to be noted that it is well settled proposition of law that the entire evidence of hostile witness need not be discarded, if part of it is believable. In the case of Sayed Akbar Vs. State of Karnataka, AIR 1979 S.C. 1848, it has been observed by the Supreme Court in paras 12 and 13 as under : 8 appeal365.04.sxw " As a legal proposition, it is now settled by the decisions of this Court, that the evidence of a prosecution witness cannot be rejected wholesale, merely on the ground that the prosecution had dubbed him 'hostile' and had cross-examined him. We need say no more than reiterate what this Court said on this point in Sat Paul V. Delhi Administration (1976) 2 SCR 11 : AIR 1976 SC 294: "Even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be credit-worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto." The instant case is not one where the whole of the testimony of these witnesses was impugned in cross-examination by the prosecution. Their credit, on material points, was hardly shaken. The courts below, therefore, were not justified in brushing aside their testimony." Considering the aforesaid aspect of the matter, it is required to be considered as to whether the evidence adduced by P.W. 2 is required to be discarded in toto or whether part of the same can be said to be believable. 14. In our opinion, the evidence of P.W. 2 is not required to be discarded 9 appeal365.04.sxw in toto. The said witness has stated in his evidence that deceased Rohini was his wife. He, his wife and the accused were residing together on the date of incident at Ghodake Plot. The witness has clearly stated that when he came to his house at night he knocked the door and his mother opened the door and at that time he saw his wife was lying on the ground. Similarly witness Balu Muthekar, another son of the accused has stated in his cross- examination which was taken on behalf of the prosecution that it is true that his mother opened the door of the house on the relevant date and allowed his brother to enter the house. Over and above the aforesaid evidence, which in our view can be said to be reliable, there is also additional aspect which can prove the presence of the accused at the site of the incident. In the report of Chemical Analyzer at Exh. 31 the blood stains were found on the saree of the accused as well as on the saree of the deceased and the same was found to be human blood though the blood grouping was not found to be conclusive. The document Exh.32 is the Chemical Analyzer's report regarding blood and nail pits of accused as well as deceased. As per C.A.'s report the nail pits of accused as well as deceased, there is a positive finding that both the nail pits were stained with blood. However, though it could not be analyzed further as particular group it was found to be human blood. There is another circumstance, which may prove the presence of the accused i.e. the medical evidence and the certificate given by Doctor at Exh.22 that 10 appeal365.04.sxw accused has also sustained injuries of abrasion etc. The aforesaid circumstances in our view, is clinching circumstance for coming to the conclusion that the accused was present at the time of incident and she was last seen in the company of the deceased. The aforesaid evidence in our view, therefore, is sufficient for proving a charge against the accused regarding committing culpable homicide. Even at the scene of incident the beads of Mangalsutra and broken pieces of bangles were found. Thus the circumstances as indicated above, are sufficient to establish the case of the prosecution that the accused was present at the scene of incident and she was residing with the deceased and was last seen in the company of the accused. In our view, the part of the evidence of P.W.2 which is believable and trustworthy, clearly proves that the accused was present at the relevant time and she opened the door when accused No.2 knocked the door. Considering the aforesaid evidence and other clinching circumstances, in our view, the prosecution has clearly established the presence of the accused at the scene of offence. Though in her u/s 313 Cr.P.C. statement by a separate say at Exh. 36 it is sought to be suggested that the accused was not present at the site and was residing separately from the deceased and her son Ankush, no witness has been examined in support of her claim of alibi. Though it is true, as argued by learned Counsel for the accused, that there is no direct evidence about the motive but the prosecution tried to prove the motive 11 appeal365.04.sxw regarding quarrel going on between the accused and the deceased in the past. Though there is no sufficient evidence to prove motive, but there is other evidence on record which clearly establish the case of the prosecution. In our view, it cannot be said that the prosecution failed to prove the case against the accused beyond reasonable doubt as aforesaid circumstances are enough for establishing the case against the accused. It is true as argued by learned Counsel for the accused that offence under section 498-A is not proved but it has come in the evidence that quarrel took place between accused and deceased and during the quarrel even there are injuries found on the person of the accused as per Exh.22. The presence of the accused at the scene of the incident therefore is proved beyond doubt and the circumstance clearly suggest that during the course of quarrel she committed the aforesaid crime. The medical evidence also clearly supports the case of the prosecution as regards the cause of death of the deceased. 15. The learned Counsel for the accused submitted in the alternative that this is not a case in which conviction under section 302 IPC was required to be recorded as in this case the incident had happened during the spur of moment and in a fight between accused and deceased and unfortunately the said incident happened. We find substance in this submission. As pointed out earlier the prosecution in this case has not led any reliable evidence regarding motive in connection with the crime in question and she stands 12 appeal365.04.sxw acquitted of the charge under section 498-A IPC. As per the evidence of P.W. 2 which can be relied in part, it has come on record that quarrel took place between his mother and the deceased and as per evidence of doctor at Exh. 22 even accused sustained some injuries. In our view, considering the aforesaid aspect of the matter, it cannot be said that the aforesaid act is committed by the accused with pre-meditation and circumstances suggest that the said act has been committed in the heat of passion and because of sudden quarrel. In our view, the conviction is required to be altered to part (I) of Section 304 of IPC. In the result, we set aside the conviction and sentence of the accused under section 302 of IPC and alter the conviction of the appellant by holding that the accused is found guilty of the offence punishable under section 304 (I) of IPC and is sentenced to undergo imprisonment for a period of 10 years. The appellant shall be entitled to set off of the period of imprisonment already undergone by her. The order passed by the Sessions Judge regarding the payment of fine of Rs. 3000/- and in default sentence to suffer R.I. for 9 months is confirmed. The Appeal is partly allowed in the aforesaid terms. ( A.A. SAYED, J. ) (P.B. MAJMUDAR, J.) 13 appeal365.04.sxw P.C. For the reasons separately recorded in the judgment, the following order is passed. In the result, we set aside the conviction and sentence of the accused under section 302 of IPC and alter the conviction of the appellant by holding that the accused is found guilty of the offence under section 304 (I) of IPC and is sentenced to undergo imprisonment for a period of 10 years. The appellant shall be entitled to set off of the period of imprisonment already 14 appeal365.04.sxw undergone by him. The order passed by the Sessions Judge regarding the payment of fine of Rs. 3000/- and in default sentence to suffer R.I. for 9 months is confirmed. The Appeal is partly allowed in the aforesaid terms. ( A.A. SAYED, J. ) (P.B. MAJMUDAR, J.)