1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.226 OF 2000 Raju Babu Kambli ...Appellant (presently lodged at Daman Jail (Orig. Accused) as convict) Vs. The State of Maharashtra and Union Territory of Daman ...Respondents Mrs. Teja Katdare with Ms. Alpa Zaveri for Appellant Mr. A.R.Patil , Addl.P. P for the Respondent No.1 Mr. D.A. Nalawade, A.P.P for the Respondent No.2 CORAM: DR. S. RADHAKRISHNAN & SMT.ROSHAN DALVI, JJ. DATED: 28TH SEPTEMBER, 2007 JUDGMENT (Per Smt. Roshan Dalvi, J.) 1. The appellant/accused, who is the husband of the deceased victim has been charged, convicted and sentenced for committing the offence of murder of his wife under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and pay a fine of Rs.1000/- in default to suffer Rigorous Imprisonment for 6 months. 2 2. The appellant/accused and the victim were married on 15 th March, 1996. The appellant is stated to have committed the murder of his wife on 15 th March, 1999, the 3rd anniversary of their marriage. 3. It is the case of the prosecution that the accused suspected the fidelity of his wife and hence, in the late night – early morning hours (almost at midnight) of 15 th March, 1999 he stabbed his wife. There are no eye witnesses to the offence of murder. The offence has taken place in a small hamlet called Kachigam in the town of Daman which is a Union Territory. The appellant left his home on his scooter at about 12.15 a.m on 16 th March, 1999. The neighbour of the appellant one Rukiben, whose house was admittedly in front of the house of the accused, saw the appellant go on the scooter upon she hearing the noise of the scooter engine at that time. The victim is stated to have screamed for help. The neighbour went to her house and saw her wounded and 3 lying in a pool of blood. Her child, who was then an infant of about 1 year was in the house. She called her brother who came with his wife. The brother's son called the mother and brother of the victim who lived 3 kms away. The Police received a telephonic message of some quarrel on that night and reached there. The deceased/victim is stated to have made 4 oral dying declarations, first to the neighbour Rukiben, then to Rukiben's brother Raghu and to her brother and also to the Police Officer who came at the scene of the offence upon the telephonic message. The victim died in the hospital, after giving 4 dying declarations as aforesaid. 4. It is further the prosecution case that the appellant/accused was last seen by the Complainant who is the brother of the deceased/victim at about 9.30 hours that evening when the brother and mother of the deceased attended her house upon being called on the premise that the appellant was to attend night shift and the victim would be alone in her house with her infant child, so that the 4 mother could spend the night with her. Though the brother and mother attended as called upon by a message given by Vijay, the victim's brother's friend, the appellant was in the house and hence, they departed. 5. The offence took place after such departure. They returned upon being called. 6. It is the prosecution case that the appellant was arrested within a couple of hours of the incident. The Police Officer received the message that the appellant/accused, who is the husband of the victim, had left. He therefore, went on his motor- cycle in search of him. The appellant was on the only motor- cycle which was the only vehicle on the road in that village at that hour. He had sustained an injury to his right thumb. His clothes had blood stains. He was arrested and brought to the Police Station at about 2.00 a.m. 7. His voluntary disclosure led to the recovery of a knife 5 which was stained with blood from the rear side of his house. The blood stained clothes of the appellant/accused which were on his person at the time of his arrest, were seized. The clothes of the victim were also seized and inquest panchanama was prepared. The Postmortem Report was obtained. It shows as many as 15 injuries, 5 of which were fatal. They have been opined by the Doctor to be sufficient to cause her death. It has also been opined that they could have been caused by the knife such as the knife produced in Court and shown to the Doctor. 8. The appellant/accused has not explained his injuries. The appellant/accused has also not explained his absence in the house. However, in the evidence of the complainant, it was his case that he was on night shift duty. Such a case, which is in the nature of alibi, has not been substantiated. 9. The case of the accused/appellant is a mere denial. It is contended by Mrs. Katdare on behalf of the 6 appellant/accused that the case rests on circumstantial evidence, there being no eye witness to the offence. It is contended by her that the chain of events, showing that it was the only appellant/accused who committed the offence of murder of his wife, is not complete and hence, the appellant/accused deserves to be given the benefit of doubt. To raise such reasonable doubt she has contended that a road passes between the house of the appellant and Rukiben and hence the seminal case of the prosecution that Rukiben heard the scooter noise and saw the appellant, as also that she heard the scream of the victim cannot be believed. She contended that recording the statements of Rukiben as also of the other witnesses has been long delayed, they having been recorded on 17.3.1999, the next day after the incident and hence, leaving them ample opportunity to falsely frame the accused. She also contended that the recovery of the knife cannot be relied upon as corroboration because it has been recovered from an open space, its measurements were not taken in the presence of the panchas and the Station 7 Diary entry to the effect of its recovery has not been made. She further contended that the knife was found bent and the evidence of the Doctor shows that the injuries of the victim as shown in the Postmortem Report, could not have been caused by such a bent knife. She has further argued that at one place in the evidence of one of the 2 panchas relating to the recovery of the knife, the timing is shown to be 6.00 to 7.30 in the evening and not 6.00 to 7.30 in the morning. 10. The prosecution case in the trial has been also based upon an extra judicial confession of the accused/appellant made to the Doctor by way of stating his medical history, when he was sent for examination by the Investigating Officer. The Doctor's evidence as well as the Medical Certificate shows the history given by the patient, that the appellant/accused sustained the injury whilst hitting his wife. That aspect has not been put to the appellant/accused whilst recording his statement under Section 313 Cr.P.C. It is, therefore, rightly contended that, that aspect cannot be 8 used against the appellant/accused as has been done by the trial Judge. 11. The learned Counsel also contended that the fact that the appellant/accused was sent for medical examination cannot be relied upon by the prosecution because a Station Diary entry to that effect has not been made. 12. It can, therefore, be seen that the prosecution case that the appellant/accused having murdered his wife must be tested upon the last seen theory, the oral evidence of the witnesses inter alia containing 4 oral dying declarations, the motive of the accused, the total lack of enmity or grudge of any of the witnesses who deposed against him, the medical evidence contained in the P.M. Report, the oral evidence of the Doctor, the oral as well as documentary evidence relating to the injury caused to the accused/appellant himself, showing his presence at the scene of the offence (albeit without the extra judicial confession in the form of the 9 patient history given by the accused/appellant), the fact of his immediate arrest within a couple of hours on the same night and the attempt of the accused/appellant in raising up plea of alibi but not substantiating it coupled with the fact that he had not explained his absence after the incident. 13. The prosecution case has been set out in the evidence of 13 witnesses. The complainant is the brother of the victim, Nitin examined as P.W.1 who has deposed how he went to the house of the victim his sister Sangita in the evening on that day before the incident and how he was called by the same friend after the incident. He has deposed about what he saw as soon as he reached the house and how he lodged the complaint. He has been examined as P.W.1. 14. Rukiben, the neighbour, who saw the appellant/accused riding the scooter and who heard the call of Sangita and went to her house, has deposed about what she saw and heard after the incident. She has been examined as P.W. 2. 10 Her brother Raghu in whose room the appellant and the victim lived as their tenant / lessee and who was called by his sister Rukiben has also deposed about what he saw and heard after the incident in the house of the victim. He has been examined as P.W.3 . 15. There are several panchas who have been examined as P.W.4,6 and 9 for recovery of the clothes of the deceased, the clothes of the appellant, recovery of the knife from the scene of the offence. 16. The Doctor who conducted Postmortem of the victim has been examined as P.W.5 . He has deposed about the 15 injuries suffered by the victim as well as about the sufficiency of those injuries to cause death with a sharp weapon such as a knife produced before him. He has produced and proved the Postmortem report that is marked Exhibit- 24 . 11 17. P.W. 7 is a Vendor, who sold the knife to the accused/appellant earlier the same evening but whose evidence has not been believed or relied upon by the learned trial Judge. 18. The friend of Nitin who gave the message as aforesaid in the evening to the mother and brother of the victim and who also called them after the incident has been examined as P.W.8. He is the immediate neighbour of the deceased being the son of Raghu , P.W.No.3 in whose room the appellant/accused and deceased resided. 19. P.W.No.10 is the Police Officer who received the telephone call from Head Constable about the quarrel which took place at village Arjan Falia, Kachigam, Nani Daman and who came to the spot. He has deposed about the last dying declaration made by the deceased to him, before being shifted to the hospital where she expired. He has also arrested the accused/appellant upon suspicion at being on the road in 12 the night hours on a motor- cycle. He has deposed about the investigation done by him by way of various panchanamas relating to the recovery of knife, seizure of the clothes and the recording of the inquest panchanama. 20. P.W. 11 is the Doctor who examined the accused/appellant and who identified the accused/appellant in Court as having been examined and who has deposed about his injury and produced the Medical Certificate marked Exhibit- 36 in evidence. P.W. 12 is the Head Constable who received a message telephonically and who telephoned the Police Officer P.W.No.10 . P.W. No.13 is the Police Officer who took up the later investigation. 21. To understand the incident and the consequent investigation, all of which took place in a matter of hours corroborative incidents and dates must be first set out :- (i)The appellant/accused and the victim were married 13 on 15 th March, 1996. (ii)On 15 th March, 1999 at about 8.00 p.m one Vijay, who is the friend of the brother of the victim, met the victim at grocery shop of one Ganesh which is next to the house of the appellant/accused and the victim. He was told by the victim that the accused/appellant would be on night shift and hence, a message be given to the mother of the victim to come to her residence to spend the night with her whilst she would be alone with her child. (iii)At about 9.00 p.m. Vijay gave a said message to his friend Nitin who is the brother of the victim after dinner time. (iv)At about 9.30p.m. Nitin and his mother came to the house of the victim. They saw the accused/appellant there. Hence, they departed. (v)At midnight or 12.15 a.m. Rukiben, P.W. No.2 heard the noise of a scooter and saw the accused/appellant go. She heard the call of Sangita “Fui Fui”. She went to the house of the victim. She saw the victim and heard her dying declaration. The 14 victim told her to give a message to her house. (vi)At 12.30 a.m. Vijay went to the house of the brother of victim, Nitin. He informed Nitin about the incident who came there with his mother. (vii)At 12.45 a.m. Head Constable P.W. 12 received an anonymous telephone call of mara- mari at the place where the victim resided. He informed the Police Officer, P.W. 10, who investigated the case. (viii)The Police arrived at the house of the victim. The victim told the Police Officer P.W.10 about what happened. She was shifted to the hospital. (ix) Within 10 minutes, she expired. (x)At 2.00 a.m. Nitin, the brother of the victim P.W. 1 lodged his FI.I.R Exhibit- 15. (xi)The Police Officer P.W.10 went out on his moto- cycle to apprehend and arrest the accused/appellant. He found the accused/appellant on a motor- cycle which was the only one on the road at that time. He apprehended him on suspicion, as 15 he found him to be having an injury. (xii)At 2.30 a.m he arrested the accused in interrogated him until 5.00 a.m. He called certain panchas to effect the recovery consequent upon a voluntary disclosure which the accused/appellant offered to make. (xiii)At 6.00 a.m the panchas P.W.6 and P.W. 9 went to Daman Police Station. (xiv)At 6.00 a.m they left Daman Police Station. Between 6.00 a.m. To 7.30 a.m they recovered the knife at the instance of the accused from behind the house of the accused. (xv)At 7.30 a.m the accused/appellant was sent to the hospital and examined by the Doctor P.W. 11 who prepared the certificate Exhibit- 36. (xvi)At 7.50 a.m. Panch and the Police Officer P.W.10 returned to the Police Station. (xvii)Between 9.00 a.m. To 10.15 a.m. P.W. 10 went to the hospital, prepared the inquest panchanama and 16 seized the clothes of the deceased. (xviii)At 11.00 a.m. P.W.9 was again called and spot panchanama was prepared. (xix)At about 2.00 p.m. P.W. 10 seized the clothes of the accused/appellant under panchanama and made the spot panchanama. (xx)At 4.55 p.m the Police Officers returned to the police station. (xxi)On 17.3.1999 the Investigating Officer recorded the statements of Rukiben P.W.2 , Raghu P.W.3 , Vijay P.W. 8 and one Kankuben. 22. The Station Diary entries were made showing registration of Crime No.47 of 1999 under Section 302 of the Indian Penal Code (I.P.C.) at the relevant time at 2.00 a.m on 15 th March, 1999, the arrest of the accused at 2.30 a.m., followed by the accused/appellant being taken with the 2 panchas in a police jeep for drawing up of panchanama at 7.00 a.m, the Investigating Officer P.W.10 having left for investigation at 17 2.20 p.m and his return at 4.55 p.m. There are no station diary entries showing the separate stages of investigation after the Police Officer P.W. 10 left at 2.20 p.m. And before he returned at 4.55 p.m., a fact for which strong exception has been taken by Mrs. Katdare on behalf of the appellant/accused. 23. The prosecution case is required to be examined based upon the aforesaid chronology. 24. The evidence of P.W.1, the brother of the victim, shows that the accused/appellant suspected the victim Sangita, his sister. He deposed that on 15 th March, 1999 Vijay came to his house after he had dinner. Vijay informed him that Sangita had sent a message that her husband is not at home and therefore, his mother should go and sleep with her. He took his mother on his scooter to the house of the accused/appellant. However, appellant/accused was present in his house. They chit- chatted for 10 to 15 minutes 18 and returned home. On that same night at 12.30 a.m. Vijay again came home and informed him that the appellant/accused has stabbed Sangita with a knife and had run away. He said that Sangita would be required to be taken to the hospital. Therefore, his mother and he went to her house. The door was open, the light was switched on. Sangita was lying on the floor, bleeding. She was talking, he asked her what had happened. Sangita stated to him that at about midnight the appellant/accused woke- up and said that she had illicit relations with Ganesh. (He is the next door neighbour who run a grocery store). She narrated that the accused had a knife in his hand and said that he would kill her. He took out a bottle of poison and forced her to drink. Thereafter, he stabbed her on her chest, stomach, legs and hands and went away. He further deposed that the police arrived and took Sangita to Marwad hospital. His mother, Raghu kaka, P.W.3 , Rukiben, P.W.2 and he himself went to the hospital in the police jeep. After about 15 to 20 minutes Sangita died. He lodged his complaint Exhibit- 15. 19 25. He has been extensively cross examined. The case of the accused/ appellant is that he worked in a mechanical company at Somnath and was on shift duty, has been admitted by P.W.1. He has volunteered that the appellant/accused rarely went on night duty and whenever he had night duty they were informed. He admitted the fact that the accused had hired the room of Mahesh Raghu (the son of Raghu P.W.3) who is his friend and who is the brother of Vijay, the messenger. They reside 150 to 200 ft away from the house of the accused/appellant. He deposed that he himself resided about 3 Kms., away. 26. His cross examination further showed that Rukiben P.W.2, Raghu kaka P.W.3 and one Kankuben were present when he had arrived. Vijay had followed him on his return journey on a Scooter. His cross examination shows that Vijay was informed by Rukiben who sent him to fetch the brother and mother of the victim. He has deposed about the 20 blood which was on the kachha floor of the house of the victim, much of which had been absorbed. He had refuted the suggestion that Sangita had not spoken to any one including him. He has however, accepted as true that nobody had talked with the victim in the jeep when she was taken to the hospital. He has twice refuted the suggestion that Sangita was unconscious – in her house as well as in the jeep. In paragraph 11 of the cross examination he has re-iterated that Sangita had mentioned about the incident to Raghu, Rukiben and Kankuben including the fact of poison as well as stabbing. An attempt has been made in his cross examination to show an affair between Santiga and Ganesh. Whilst refuting the affair , P.W. 1 has deposed that he knew Ganesh who lived next to Sangita and who had good relations with Mahesh, the brother of Vijay, son of Raghu. The main case put to this witness was that the accused was on night duty during that night and had gone on his duty, which case has been refuted. It may be mentioned that, that case is in the nature of alibi which has not been 21 substantiated by the accused/appellant in his 313 Statement or otherwise. Such a case has not been put to any other witness. 27. The crux of his evidence is the dying declaration of the victim. The detailed dying declaration set out in the examination- in-chief has not been upturned in his evidence. The suggestion of the victim being unconscious has been twice refuted. The fact that the victim never stated anything to anybody else has also been refuted. The fact of the accused having night duty at some time has been brought out in the evidence coupled with the fact that on those dates, which were rare, the witness and his family were informed. This evidence shows that the victim did not desire to spend the night alone with her infant child when her husband was a way. On such occasions she sent for her mother. That itself shows the total lack of any possibility of an affair. If she had any affair with her neighbour Ganesh who was a grocer, she would not have sent for her brother and mother 22 that evening. The fact that the mother and brother came to her house at about 9.30 p.m upon being informed has not been refuted in the cross examination. However, the case of the appellant/accused that he was having night duty on that night has been denied by P.W.1 . The evidence shows the clear character of the victim in the attempt of the husband to show the alibi for the denial of the prosecution case. 28. The dying declaration set out in the FIR is much the same as that deposed in evidence. It contains the fact of the affair alleged to be between Sangita and Ganesh, the accused/appellant wanting to kill her, the factum of the poisoning as well as stabbing her on stomach, back and hands with knife. The material part of the dying declaration as deposed stands corroborated in the FIR. A reading of translation in English of the F.I.R, Exhibit- 15, in the case papers, shows that the translation is incorrect. 23 29. The translation shows the continuation of the Dying Declaration further that within a short time Rukiben P.W.2 , Raghu P.W.3 and Kankuben arrived at the place of incident. It further shows that Sangita narrated her story to them. We have gone through the FIR Exhibit- 15 in Gujarati language. The FIR shows the dying declaration in the first person by the use of the pronoun “I” throughout. It is translated in English also in the first person. However, the fact that Rukiben, Raghu and Kankiben arrived in the house of the victim is the continuation of the dying declaration in the original Gujarati FIR. That is shown by the conjunction “And”. It is specifically shown by the term “ANE” “THODI VAARMA.” it therefore, shows the continuation of the fact that the accused/appellant attacked her with a knife which he took with him and after which Rukiben, Raghu and Kankuben arrived at her house to whom also she narrated the story. The fact of the narration of the incident made by Sangita to Rukiben, Raghu and Kankuben is also a part of the dying declaration deposed by P.W.1. P.W. 1 deposed 24 about the dying declaration made to him. In his cross examination he has refuted the suggestion that Sangita had not talked with anyone else or the police. That part of his evidence shows only what transpired in his presence, after he arrived. He has further deposed that when he reached the house Rukiben, Raghu and Kankuben were already present, but the Police had not arrived before him. 30. Hence, his evidence shows that Rukiben, Raghu and Kankuben had arrived before him and his mother. The police arrived thereafter. The deceased