judgment in apeal-292-05.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE
CRIMINAL APPEAL NO. 292 of 2005.
Ishwarbhai Narayan Makwana .. Appellant.
C/5024,Nashik Road,Central Prison. (Original Accused).
versus
The State of Maharashtra ..Respondent.
CORAM :- SMT. V.K. TAHILRAMANI AND
A.R. JOSHI, JJ.
JUDGMENT RESERVED ON : 23rd NOVEMBER, 2012
JUDGMENT PRONOUNCED ON : 5th DECEMBER, 2012
Ms Rohini Dandekar, Advocate, for the Appellant.
Mrs P.P. Bhosale, Additional Public Prosecutor, for the State.
JUDGMENT (PER A.R. JOSHI, J)
1) Heard rival submissions on this criminal appeal preferred by the appellant/accused challenging the judgment and order of conviction dated 21st September, 2004, passed by Additional Sessions Judge, Greater Mumbai in Sessions Case No. 439 of 2003.
2) By the impugned judgment and order, the present appellant/accused was convicted for the offence punishable under section 1 /8 ::: Downloaded on - 09/06/2013 19:27:53 ::: judgment in apeal-292-05.doc 302 of IPC and was sentenced to suffer imprisonment for life and to pay fine of Rs.5000/-, in default to suffer RI for three months.
3) At present, the appellant is in custody.
4) The case of the prosecution, in nut-shell, is as under :-
The victim Raji was initially married to one Soma and they were staying at Mumbai at Babrekar road. Due to tuberculoses said Soma died at his native place in Gujarat. Thereafter, victim his wife, came back to Mumbai. When earlier she was staying with her husband Soma, they had secured rental accommodation at the instance of the appellant-accused.
During the life time, Soma was working as a sweeper in the Corporation. After his death, victim Raji got the said job on compassionate ground. The appellant accused was on visiting terms with the family of victim during the life time of her husband Soma and even after his death the appellant continued to visit the house of Raji when she was alone staying at home. At times, the victim was visiting the house of PW-1 complainant Shantabai who was her near relative. At some occasions, the appellant accused was also visiting the house of PW-1 complainant and used to talk to the victim. Apparently, on some occasions, the appellant-accused had expressed his desire to marry with the victim and as such he had talk with the victim on this subject in presence of the complainant PW1. Victim Raji was not giving much response to the appellant-accused and was not inclined to have 2 /8 ::: Downloaded on - 09/06/2013 19:27:53 ::: judgment in apeal-292-05.doc any relation with him. Probably this situation had enraged the appellant and according to the prosecution, it was the motive behind killing of Raji which took place on the night between 9.3.2003 and 10.3.2003.
5) The fateful incident happened some-where in the night of 9th March, 2003 till the evening of 10th March, 2003. On 10th March, 2003 at about 2:00 p.m. neighbour of the victim, PW 3 Mrs Nanda Purshottam Makwana came to the house of the victim and noticed that victim was lying in the room in pool of blood. Probably, victim died on the spot due to severe cut injury on her neck. Noticing this situation, PW 3 immediately informed PW 1, relative of the victim. PW 3 was acquainted with PW1 and was knowing her place. Thereafter, PW 1 reached the house of victim and after ascertaining the situation, she gave her complaint to the police who reached on the spot on information. During investigation the dead body was sent for postmortem. Panchnamas were prepared revealing name of the accused. He was put under arrest. After completion of the investigation charge sheet was filed. During the trial total 9 witnesses were examined and the matter ended in conviction of the appellant accused for the offence of murder. This judgment and order is challenged in the present appeal.
6) During the argument, learned Advocate for the appellant - accused submitted that entire case of the prosecution is based on circumstantial evidence and said circumstances are allegedly incriminating against the appellant. The said circumstances are :-
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(i) The accused had expressed his desire to marry with the victim;
(ii) He was on visiting terms with the victim and being a widow she was staying alone.
(iii) Accused was seen passing through the house of the victim at the early hour on the date of the incident as witnessed by PW No.6 one Shabana Shaikh, a woman residing in the neighborhood of the victim.
(iv) There is a recovery of blood stained shirt and pant of the accused at his instance on 13.3.2003 and the said clothes were having blood stains of B group and blood found on the clothes of the victim is also of B group whereas the blood group of the accused is A.
7) By pointing out the above alleged circumstances, it is submitted on behalf of the accused/appellant that these circumstances cannot be taken as so incriminating and clinching so far as pointing to only one hypothesis as to accused had committed murder of the victim on the relevant night.
8) So far as the first circumstance is concerned, evidence of PW 1 complainant Shantabai is the only evidence attracting this circumstance. During the cross-examination of the complainant, it is denied by the accused as to expressing any such desire to marry with the victim. On this 4 /8 ::: Downloaded on - 09/06/2013 19:27:53 ::: judgment in apeal-292-05.doc point, it is argued on behalf of the appellant-accused that if at all this circumstance is accepted, still it will not further the case of the prosecution that the accused had done away with the victim. Moreover, it is further submitted that the accused had never acted in such a manner to outrage the modesty of the victim at any time or sexually assaulted her at any time.
9) So far as the second circumstance is concerned, it is apparent that the accused was on visiting terms with victim Raji and also her husband when Soma was alive and as such it was not newly developed relation by the accused with Raji of visiting her house after the death of her husband. On the contrary, the accused was even on visiting terms with the complainant who is near relative of the victim and was meeting the complainant and victim when she used to be at the place of the complainant. As such mere visiting the victim as stated by the complainant and also by neighbouring witnesses PW 3 Nanda and PW 6 Shabana, cannot be construed as a circumstance furthering the case of the prosecution.
10) So far as the third circumstance is concerned the mere statement of PW 6 Shabana as to seeing the accused passing through the house of the victim cannot be considered as clinching material mainly considering that the house/room of the victim situated in a chawl like structure and from the front of the chawl being a public way, various persons pass and re-pass. So far as odd hour of about 2 or 3 a.m. is concerned, it is quite possible that the person and for that matter as mentioned by PW 6, the accused if remained 5 /8 ::: Downloaded on - 09/06/2013 19:27:53 ::: judgment in apeal-292-05.doc present at the said chawl, it cannot be considered as an objectionable circumstance so as to link to the conclusion of the involvement of the accused in the offence of murder. This is more so when water was available in that locality only at such odd hours.
11) So far as fourth and last circumstance is concerned, it is argued on behalf of the appellant-accused that when he was arrested on the night of 11.3.2003 immediately no steps were taken to search his house to find out any incriminating material. It is further argued that it is very much improbable that a person after committing the murder keeps his clothes, having blood stains, concealed in his own house without trying to dispose of them or at least without trying to remove the blood stains from the clothes by washing. As such finding of the blood stained clothes from the house of the accused may not be constructed as a proved circumstance, further argued.
12) We have given thoughtful consideration to the above submissions advanced on behalf of the appellant accused. We have also gone through the merits of the arguments advanced on behalf of the State regarding the circumstances mentioned above and in our considered view, it must be said that though the said circumstances may lead to grave suspicion against the appellant-accused, it would be far fetched to consider that these circumstances point out only to the accused and none-else so far as murder of the victim is concerned.
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13) Lastly, it is argued on behalf of the appellant-accused that allegedly the weapon of offence was found on the spot itself. It is a kitchen knife.
However, no steps were taken during the investigation to find out any finger prints on the handle of the knife. Considering this submission, in our view if those steps would have been taken by the Investigating Agency, it would have given more authentic clue to find out the assailant. However, in the present matter, it has to be ascertained whether the case, as it is produced before the trial court as mentioned in the above referred circumstances, whether can establish involvement of the accused in the offence of murder?
In that view of the matter, not taking the steps to find out the finger prints on the handle of the knife may not be of much relevance.
14) Considering the above submissions, we are of the view that the evidence of the prosecution is falling short of that standard which is required to establish the guilt of the accused for the offence of murder when the case is based on circumstantial evidence.
15) In the result, the present appeal must succeed and same is accordingly allowed with the following order.
ORDER.
(1) Criminal Appeal No. 292 of 2005 is allowed. Impugned judgment and order is set aside. Accused is acquitted of the offence punishable under Section 302 of IPC. The appellant is in jail. He be released forthwith, if not required in any other case.
7 /8 ::: Downloaded on - 09/06/2013 19:27:53 ::: judgment in apeal-292-05.doc (2) Office to communicate this order to the appellant who is in jail. (3) Writ of order be expedited.
(4) Before parting with this judgment, we wish to place on record our appreciation for the way in which Ms Rohini Dandekar, learned appointed advocate appearing for the appellant has conducted the matter. She was thoroughly prepared with the matter and she has very ably argued the matter. We quantify her fees to be paid by the High Court Legal Services Committee, Bombay at Rs.2,500/-(Rupees Two Thousand,Five Hundred only). The same to be paid to learned Advocate Ms Rohini Dandekar within a month from today.
(A.R. JOSHI, J) (SMT. V.K. TAHILRAMANI,J)
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