1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPEAL NO. 614 OF 2008 Surendra Sribali Sahu ) C/6549, r/o RCP, Nashik )...Appellant versus The State of Maharashtra ...Respondent Shri Murtaza M. Najmi (appointed) for the appellant. Ms. P.P. Shinde, Additional Public Prosecutor, for the State. CORAM: P.B. MAJMUDAR & R.G. KETKAR, JJ. Judgment reserved on: 19th January, 2010 Judgment pronounced on: 1 st February, 2010 JUDGMENT : (Per P.B.Majmudar, J.) This appeal is directed against the judgment and order of the learned District Judge-4 and Additional Sessions Judge, Thane, in Sessions Case No. 120 of 2006, by which the learned Judge has convicted the appellant-original accused No.1 for an offence punishable under Section 302 of the Indian Penal Code (hereinafter “IPC”). By the aforesaid judgment, the learned Judge acquitted the original accused No.2-Indubai, wife of the present appellant for the alleged offence. The appellant was awarded life imprisonment and was directed to pay fine of Rs. 1,000/-, in default to suffer 2 rigorous imprisonment for six months. Being aggrieved by the order of the learned Judge, the appellant-original accused No.1 has preferred this appeal through jail. 2. The charge was framed against the appellant as well as the original accused No.2 that on 23rd December, 2005, accused Nos. 1 and 2 at about 10.10 hrs., within the jurisdiction of Narpoli Police Station, Bhiwandi, committed murder of one Pramod Amrit Ram, aged 27 years, in furtherance of their common intention and accordingly committed an offence punishable under Section 302 read with Section 34 IPC. It is also alleged against the accused Nos.1 and 2 that after committing murder of Pramod Ram on the aforesaid date, they tried to cause evidence of commission of that offence to disappear with the intention of screening themselves from legal punishment and thereby committed an offence punishable under Section 201 read with Section 34 of the IPC. The accused did not plead guilty to the charge. 3. The prosecution, in all, examined 11 witnesses. The learned Sessions Judge, after considering the evidence on record, came to the conclusion that the deceased Pramod died of a homicidal death. The learned Judge, however, found that the prosecution has failed to prove that the aforesaid act was committed in furtherance of common intention by both the accused. Accordingly, accused No.2 was acquitted and accused No.1 was 3 convicted for the alleged act. 4. The prosecution case is that the parties involved in the matter hail from Bihar and that they had come in search of job at Bhiwandi and were working as powerloom workers. Initially accused Surendra had not brought his wife viz. Indu to Bhiwandi. As per the case of prosecution, the victim Pramod was residing with his brother Vinod and his cousin brothers Uday and Mukesh Ravi @ Rakesh in one room and the accused was residing in the adjoining room in the same locality. Accused Surendra later on brought his wife, original accused No.2-Indu, to Bhiwandi and since then accused Nos. 1 and 2 were residing together. The deceased Pramod and his cousin brothers were residing in another room. It is alleged that the victim had an illicit relationship with the said Indubai which resulted into quarrel between the accused and victim Pramod about one year prior to the incident in question. The accused Surendra had sent back his wife Indubai to his village in Bihar State but subsequently about one month prior to the incident he brought her back to Bhiwandi and shifted to another room in the same area belonging to one Ravindra Adep. It is also the case of the prosecution that on 22nd December, 2005, victim Pramod had gone to attend to his work. Vinod and cousin brother Rakesh had night shifts on that day. Their cousin Uday and Mukesh were at the room. Accused Surendra at that time came to make enquiry about the victim Pramod. He was informed that Pramod would 4 return back at about 10.00 p.m. Pramod thereafter returned back and was taking his dinner. At the relevant time accused Surendra again came to the room of deceased and gave him call from the window of the room. At that time Pramod was wearing a towel around his waist. In response to the call, he came out and accompanied the accused. His roommates waited till 1.00 a.m. but he did not return. In the morning, while Vinod was returning back on his way, he was informed by his cousin Mukesh that Pramod who had accompanied accused Surendra did not return back and in the meantime they came to know that somebody was killed and his dead body was thrown on garbage at the fish market in Ramnagar area. Before they could reach there, PW 5, Vijay Lambture, along with Senior PI-PW 11 – Tawade, and panch witnesses had arrived a the place, in response to one anonymous phone call. They found one dead body wrapped in one plastic white coloured gunny bag. On opening the said bag, they found a pair of chappal, one railway ticket from Kalyan to Patna dated 5th October, 2005 and one receipt dated 21st December, 2005 on which the name of Pramod was mentioned and the name of one photo studio was also mentioned. In the presence of panch witnesses, Police Officer Tawade completed the procedure of preparing the inquest panchanama and spot panchanama. The dead body was thereafter taken to Indira Gandhi Memorial Hospital, Bhiwandi for post-mortem examination. In the meantime, Vinod, Uday and others reached the said hospital and they identified the dead body of Pramod. The Investigating Officer thereafter 5 recorded the statement of witnesses and subsequently arrested both the accused in connection with the crime in question. Since injuries were noticed on the person of both the accused, the Investigating Officer referred them for their medical examination. The Medical Officer reserved opinion as regards thumb injury found on the person of accused Surendra, lower jaw injuries in respect of accused Indubai. In respect of other injuries, he opined that the same were simple in nature and were possible by hard and blunt object. The Medical Officer who conducted post-mortem examination opined that the injuries were ante-mortem and the cause of death was cardio respiratory failure and asyphyxia due to throttling. It is also the case of prosecution that the accused Surendra was interrogated in the presence of panch witnesses while he was in police custody when he confessed the guilt and made a disclosure statement leading to the recovery of clothes, saree, blouse and towel from the residential premises of the accused. The Investigating Officer also noticed bloodstained tiles at the said place and he seized two pieces of tiles having bloodstains. During investigation he also seized one lungi from the accused. According to the prosecution, in view of the alleged strained relationship between the victim and accused Indubai, both the accused, in furtherance of their common intention, committed murder of the victim and threw away the dead body on the garbage of fish market in Ramnagar area, after wrapping the dead body on plastic gunny bag. The Investigating Officer, on the aforesaid basis, completed the investigation and submitted charge- 6 sheet in the Court of Judicial Magistrate, First Class, Bhiwandi who committed the case to the Court of Sessions. 5. On behalf of the prosecution, one Madhukar Jagtap was examined as PW 1 at exhibit-8. The said witness was called as a panch on 23rd December, 2005. The plastic bag containing the dead body was opened in his presence. According to the said prosecution witness, police had prepared inquest panchanama in his presence which bears his signature. The same is marked at Exh. 10. 6. The prosecution has also examined Dr. Jaywant Dhule as PW 2 at Exhibit-12. The said doctor conducted post-mortem examination on deceased Pramod on 23rd December, 2005. The following injuries were noticed by the said doctor. “1. Contused abrasion on either side of thyroid cartilage region of neck. It is reddish in colour, size about 2 cm. X ½ cm. 2 cm. X ½ cm. On cut section haemorrhage under cutaneous tissue and muscles over thyroid cartilage. 2. C.L.W. over vertex of the scalp, size about 3 cm. X 1 cm. Skin deep.” 7. The prosecution has also examined one Mohammad Shaikh as prosecution witness No.3 at Exh. 15 who was called as a panch witness. 7 8. Another panch witness Shabu Solse was examined as prosecution witness No.4 in connection with the arrest of the accused. 9. Vijaykumar Lambture, PSI of the Narpoli Police Station was examined as PW 5. The said Police Officer received an anonymous phone call on 23rd December, 2005. Thereafter he went to the scene of offence along with Senior PI Tawade and two panch witnesses. A dead body in the plastic gunny bag was found at the relevant place and thereafter panchanama was prepared. 10. Another panch witness, Pundalik Sambharan was examined as Prosecution Witness No.6 in whose presence the accused made a disclosure statement regarding production of the clothes which were on his person. 11. One Udaykumar Ram was examined as prosecution witness No.7 at Exh. 29. The said witness has stated that he knew both the accused persons as both are husband and wife. He stated that he was staying along with his brother Mukesh as well as cousin brother Vinod and all of them were residing together and working at different places. According to the said witness, the incident took place on 22nd in the year 2005 and he stated that he did not recollect the month. As per the evidence of the said witness, on the aforesaid date at about 9.00 a.m. when he and his brother Mukesh were at the room, 8 accused Surendra came and enquired about his cousin Pramod. He informed him that he would return at about 10 p.m. The victim returned back home at about 10.15 p.m. and after taking wash, he has changed his clothes. He was wearing towel and sat for dinner. While he was taking dinner, accused Surendra again came there and gave a call to Pramod from window. Thereafter Pramod accompanied him and at that time he was wearing towel. The said witness has further stated that Pramod did not return back to room and they waited for him till about 1.00 a.m. On the next day, at about 9 a.m. One person by name Ramvilas Yadav informed him that one dead body was found tied in one gunny bag in garbage near fish market and the said dead body was having resemblance with deceased Pramod. Thereafter they reached at the said place but they did not see the dead body and they were told that the dead body is taken to Indira Gandhi Memorial Hospital, Bhiwandi. Thereafter he went to the said hospital and the dead body of deceased Pramod was found there. In the cross-examination, the said witness has stated that his relationship with the accused prior to the incident were cordial but the relations between deceased Pramod and accused were not cordial. The said witness has denied the suggestion that deceased Pramod used to harass ladies residing in the said locality. 12. The prosecution has also examined one Vinod Ram as prosecution witness No.8 at Exh. 30. The said witness has stated that he and his deceased 9 brother Pramod as well as both the accused used to reside together for about five years prior to the incident. According to the said witness, about one year prior to the murder of his brother, quarrel had taken place between his brother Pramod and accused Surendra on account of the alleged relationship of his brother Pramod with the wife of the accused Surendra. Thereafter accused No.1 had sent his wife back to the village but after about one year the accused No.1 again brought back her to Bhiwandi. The said witness has stated that he and his brother Pramod as well as his first cousin brothers were all residing together and accused were residing just near their room at a distance of hardly one minute’s walk. In the cross-examination, the said witness has stated that initially his relationship with the accused were cordial but subsequently the said relationship was strained because of Indubai. 13. The prosecution has also examined Dr. Tawade as prosecution witness No.9 who examined accused Surendra. The doctor examined the said Surendra regarding the injuries which he had sustained. According to the doctor, the injuries were simple and in his opinion the age of injuries was within 24 hours and injury No.2 was possible by hard and blunt object and injury Nos. 3 and 4 were possible by hard and rough object. Regarding thumb injury he suggested examination through Orthopaedic surgeon. According to the said report, the said injuries were all possible during scuffle. The accused No.2 Indubai was also examined by the doctor and he found that there was 10 bruising over forehead 1 cm. X 1 cm. and bruising above right eye-brow. According to him, the colour of the injuries were bluish black and he had noticed discolouration and central (lower) incisor was broken of the lower jaw. Regarding injury No.2, he had referred the patient to Dental Surgeon. According to him, the injury noticed on the person of original accused No.2- Indubai is possible during scuffle. 14. The prosecution also examined one Ravindra Adep as prosecution witness No.10. He is the landlord of the premises occupied by the accused. According to the said witness, both the accused had come to him on 20th November, 2005 as they were in need of room on rent. He provided them room owned by him on rent. According to the said witness, the incident took place after about one month of providing the room to the accused . On the relevant day at about 10.00 p.m. he had returned back from duty and after taking dinner he was standing in front of his house and at about 10.30 p.m. one person had accompanied accused. He was having towel on his person. Both of them had entered the room which was let out to the accused-Surendra and thereafter he heard a loud talking inside the room. On the next day he came to know that somebody was killed near fish market. He saw the dead body at I.G.M. Hospital, Bhiwandi. The said dead body was of the person who had come along with the accused on the previous night. 11 15. The prosecution also examined Police Officer Tawade as prosecution witness No.11 who had carried out the investigation of the case. In the cross-examination, the said police officer has stated that he had recorded the statement of PW 10 Ravindra. He had not stated in his statement that he came to know that somebody was murdered near the fish market and he had not specifically stated that he had been the I.G.M. Hospital at Bhiwandi where he saw the dead body and that it was of the same person who had accompanied Surendra in the previous night. The said witness has stated in the cross-examination that it is true to suggest hat he did not produce any document along with the charge-sheet that the said room is owned by witness Ravindra Ade, though he denied the suggestion that the accused persons were never residing there. 16. Mr. Murtaza, learned counsel for the appellant, submits that since appellant and original accused No.2 were charged under Section 302 read with 34 of the IPC and when accused No.2 is acquitted, no conviction could have been recorded against the appellant. According to the learned advocate, if co-accused is acquitted then naturally the said benefit should also go to the appellant when it is proved that there was no common intention for committing the alleged offence. Learned counsel further submitted that the case is merely on circumstantial evidence and no direct evidence is available on record. According to the learned advocate, it is highly doubtful that the 12 victim would accompany the accused in spite of the fact that they were having strained relationship. It is required to be noted that even though the house of the victim and his brother and cousins was just adjacent to the house of the accused, it is not possible to believe that till morning they could not ascertain the whereabouts of the deceased. It is submitted that the motive attributed is also stale one as so-called incident of illicit relationship of the wife of accused No.1 with deceased is alleged to have been one year old and thereafter for one year the wife of the appellant was residing in her native place in Bihar. In that view of the matter, there is hardly any evidence about motive which is necessary in the case of circumstantial evidence. It is submitted that prosecution has also failed to explain the injury on accused Nos. 1 and 2. It is further submitted that in any case, the prosecution has not led any evidence to suggest that the alleged act was done by the appellant-accused. As both the accused were charged under Section 302 read with 34 of the IPC, no specific role of the present appellant is brought on record and the appellant could not have been convicted for the alleged offence. It is submitted that since no independent charge under Section 302 of the IPC has been framed, the appellant could not have been convicted. No specific question was asked to the accused in this behalf under Section 313 of the Criminal Procedure Code pointing out to the accused that as per the evidence on record, he had committed the murder of the deceased. It is submitted that even the blood group of the deceased and the appellant was the same and the blood group of 13 the wife of the appellant was different. Therefore, it cannot be said that the blood group of deceased was found on the clothes of the accused. 17. Mrs. Shinde, learned Additional Public Prosecutor, on the other hand, submitted that simply because separate charge under Section 302 is not framed, no prejudice has been caused to the appellant. The learned APP submitted that in view of the evidence of P.W. Nos. 7, 8 and 10, the accused was last seen in the company of the deceased and the doctor has also explained the injury sustained by the appellant-accused. It is submitted that in view of the same, since the motive is proved, as the appellant was having doubt that his wife is having illicit relationship with the victim and when the appellant-accused was last seen in the company of the deceased, the learned Judge has rightly convicted the appellant-accused. 18. We have heard the learned counsel appearing in the matter at great length and have gone through the entire evidence. 19. It is required to be noted that as per the evidence of PW 7 Udaykumar, the accused came to the room of the victim at the relevant time and the victim left along with the accused and had not returned till about 1.00 a.m. and thereafter they went to bed. As per the evidence of the said witness, the victim had left home along with the accused on the relevant day 14 at the relevant time. So far as witness No.8 Vinod Ram is concerned, the said witness has also left the room at about 9.30 p.m. but he was subsequently told by Mukesh that his brother had accompanied the accused and that he did not return back. So far as evidence of this witness is concerned, it is true that he had not seen the victim leaving the room along with the accused on the relevant day. 20. PW 10, Ravindra, who is the owner of the room in question which was occupied by the accused, in his evidence has stated that at the relevant time one person accompanied accused Surendra and he was wearing towel on his person. He has stated that he heard a loud talking inside the room. Considering the evidence of the aforesaid witness, it can be said that at the relevant time accused had gone to the house of the deceased and thereafter the deceased accompanied him and went to the house of the appellant- accused. However, the principal question which requires consideration is as to whether the aforesaid evidence is sufficient for coming to the conclusion that it is the accused who has committed the murder of deceased Pramod. 21. So far as non-framing of separate charge under Section 302 IPC is concerned, the learned counsel for the appellant has relied upon the decision of the Supreme Court in the case of State of West Bengal vs. Vindu Lachmandas Sakhrani alias Deru1. In the aforesaid case, a charge was framed under 1 AIR 1994 SC 772 15 Sections 364, 302 /34 of the IPC against the accused for the kidnapping and murder of 6 year old child. In the said judgment, the Supreme Court has observed as under: “3. Learned counsel for the respondent has raised a further point for our consideration. According to him, there was no independent charge under Section 302, Indian penal Code either against the husband or against the wife. Both were charged under S. 302 read with S. 34, Indian Penal Code. He states that the element of sharing the common intention by husband and the wife was the core of the charge. The husband having been acquitted and there being no independent charge u/s 302, IPC against the wife, she cannot be convicted for the said offence. 4. We see force in the argument advanced by the learned counsel. Both husband and wife were charged with an offence u/s 302 read with S. 34, IPC. The charge which was based on the common intention of the two failed with the acquittal of the husband and there being no charge u/s 302 simpliciter against the wife she could not be convicted. In any case there is no evidence on the record to show that she independently committed the offence.” 22. Learned counsel for the appellant has also relied upon the decision of the Supreme Court in the case of Subran @ Subramanian and others vs. State of Kerala1 wherein the Supreme Court has held that when accused is charged for an offence punishable under Section 302 read with Section 149 of the IPC and when no specific charge is framed under Section 302 IPC, accused cannot be convicted for a substantive offence under Section 302 of the IPC. 1 1993 AIR SCW 1014 16 23. Learned counsel for the appellant has also relied upon the decision of the Jharkhand High Court in the case of Deori Bankira and others vs. The State of Bihar1 . In the aforesaid case, the trial Court acquitted three accused persons giving benefit of doubt. In the said case, charge-sheet was framed against all the accused persons under Section 302/34 of the IPC and they were acquitted. The court found that when there is no independent charge framed under Section 302 against the appellants of that case as well as when there is no evidence showing that the appellants independently committed the crime, the rest of the accused cannot be convicted for the same offence. 24. The learned APP, on the other hand, relied upon the decision of the Supreme Court in the case of Willie (William) Slaney vs. State of Madhya Pradesh2 . In the said case in paras 60 and 62 the Hon’ble Supreme Court has observed as under: “ 60. Now when several persons join in the commission of a crime and share a common intention, it means that each has the requisite intention in himself; the fact that others share it does not absolve any one of them individually, and when he crime is actually committed in pursuance of the common intention and the accused is present at its commission, the crime becomes the offence actually committed because of Section