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(Appeal 1138 of 2004)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1138 OF 2004
Satish Hiranna Pujari )
Room No.6, Abdul Rehman Chawal )
Shankarrao Naram Path, )
Opp. BDD Chawl No.117, )
Lower Parel, Mumbai
ig )...Appellant
Versus
The State of Maharashtra )
N.M. Joshi Marg Police Station, )...Respondent
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Mr.Jagdish G. Shetty for Appellant
Mr. P.S. Hingorani -APP for the State
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CORAM: V.M. KANADE &
P.D.KODE, JJ.
DATE: 5th December, 2012 ORAL JUDGMENT [ PER V.M. KANADE J]
1. Heard the learned counsel appearing on behalf of the Appellant and the learned APP for the State.
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2. The Appellant has been convicted by the Sessions Court vide judgment and order dated 29th April,2004 for the offence punishable under section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.1,000/- and, in default, to further suffer R.I. for six months.
3. The prosecution case in brief is that the Appellant was residing with his wife and two children on the mezzanine floor of a room which was given by PW- 2 - Smt. Indrava Madhukar Upaskar on rent. According to the prosecution, on the date of the incident, the PW-2 had seen the Appellant -Accused in the house along with his wife at 7.00 p.m. and, thereafter, she went to sleep at 9.00 p.m. and at 1 0'clock she went to the house to ask for some food since her grand-son was hungry and saw that the door was bolted from outside. She, thereafter, opened the door and found that the wife of the Appellant was lying on the cot and she was motionless and she could realize that the wife of the Appellant was not in a good condition. She, therefore, called the mother of the deceased Lucy Gopal Pujari, who came there and, thereafter, a complaint was lodged with the police. Accused came to the spot soon thereafter and he was promptly arrested by the police. Statements of the witnesses were recorded. Charge was framed. The Accused has pleaded not guilty. The Trial Court on the basis of the evidence adduced by the prosecution, was 2/7 ::: Downloaded on - 09/06/2013 19:27:58 ::: 3 (Appeal 1138 of 2004) pleased to convict the Appellant for the offence punishable under section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life.
4. The learned counsel appearing on behalf of the Appellant submits that there is no material on record to show that the Appellant had committed murder of his wife. He submitted that in all nine witnesses have been examined by the had not witnessed prosecution and PW-1 who was the mother of the deceased, the said incident and, therefore, her evidence does not support for the purpose of establishing the offence. PW-2, whose mezzanine floor was given on rent has also not witnessed the incident and merely stated that she had seen the husband of the deceased at about 7.00 p.m. in the evening. PW-3 is a Panch Witness, who turned hostile. He was examined for recovery of mangalsutra and other ornaments which were allegedly found in possession of the Appellant. PW-4 is an another Panch Witness regarding the seizure of the clothes of the accused. He also turned hostile. PW-5 is doctor, who performed the postmortem and gave an opinion that the cause of death is due to asphyxia due to compression of neck. PW-6 is again a panch witness in respect of recovery who also turned hostile. PW-7 is a Panch Witness who also turned hostile. PW-8 - Sunil Rajaram Murudkar is a panch in respect of arrest of the accused. He also turned hostile. The next witness is PW-9- Pravin 3/7 ::: Downloaded on - 09/06/2013 19:27:58 ::: 4 (Appeal 1138 of 2004) Chandrakant Ghosalkar in respect of recovery dated 2.6.2002, he also partly turned hostile, in the sense, he admitted that he had not seen anything and merely signed the panchnama. PW-10- Rajendra Jijaba Mohite, who recorded the FIR. PW-
11, is the Investigating Officer.
The learned counsel for the Appellant, therefore, submitted that there was no material on record to show that at the relevant time the accused was present in the house and that he was last seen along with his wife at the same time when the said offence was committed. He submitted that the entire evidence, therefore, created suspicion that the accused may have committed the offence, and the said suspicion is the only ground for convicting the Appellant.
5. The learned APP for the State, on the other hand, has taken us through the judgment and order passed by the Sessions Court and submitted that the Sessions Court had given cogent reasons and, therefore, the said findings may not be discarded.
6. There is no dispute that the death of the Vasant was homicidal and unnatural. The doctor who conducted the postmortem had stated in his evidence that the death was due to asphyxia due to compression of neck and, therefore, it was unnatural. The prosecution, therefore, has established that the death of Vasanti was homicidal. The next question 4/7 ::: Downloaded on - 09/06/2013 19:27:58 ::: 5 (Appeal 1138 of 2004) which falls for consideration is whether the prosecution had established that the Appellant-husband was responsible or author of the said crime. Since the case is based on the circumstantial evidence, the prosecution has to establish all the links in order to arrive at the conclusion that the Appellant had committed the murder of his wife. All the panch witnesses have turned hostile and as such, the recovery of mangalsutra at the instance of the Appellant has therefore, not been established through an independent witness and, the recovery cannot be held to be established by the prosecution merely on the evidence of the investigating officer. So far as PW-1 is concerned, her evidence does not support the prosecution case since she had not witnessed the said incident. PW-2 also has stated that she went at about 1.00 a.m. in the house of the accused and saw the door was bolted from outside and after removing the latch of the door, she saw that the deceased was lying dead on the cot. On the other hand, there were contradictory statements of PW-1 and PW-2. PW-1 has stated that at about 1.00 a.m. she went to the house of PW-2 and she opened the door and saw her daughter was lying on the bed and the same chronology was given by her in the FIR where she mentioned that she went and opened the door. On the other hand, PW-2 in her statement had stated that she opened the door at about 1.00 a.m. It is, therefore, difficult to rely on the evidence in view of the contradictory version given by PW-1 and PW-2. Moreover, 5/7 ::: Downloaded on - 09/06/2013 19:27:58 ::: 6 (Appeal 1138 of 2004) PW-2 initially says that she saw the Appellant at about 7.00 p.m. in the evening along with his wife, whereas in the cross examination she admitted that she had not seen the accused for whole day in the house. Her evidence, therefore, has not supported the prosecution case and will have to be discarded. Once the PW-2's evidence is discarded, there is no material on record to connect the Appellant with the commission of offence. The accused in his statement, recorded under section 313 of the Cr.P.C., has given an explanation that he was not in the house when the said incident had occurred and admitted that he was arrested after he returned back late in the night.
7. It is a well settled principle of law that suspicion, however, strong cannot take the place of proof and, therefore, the accused cannot be convicted only on the basis of the suspicion. If the prosecution case is to be accepted, then every husband whose wife is found murdered will have to be treated as an accused.
8. Therefore, even if the evidence is viewed from any angle, it is not possible to come to a conclusion that the Appellant alone was an author of committing the offence and therefore, benefit of doubt will have to be given to the accused. The judgment and order passed by the Trial Court will have to be set aside. The Trial Court appears to have been influenced by 6/7 ::: Downloaded on - 09/06/2013 19:27:58 ::: 7 (Appeal 1138 of 2004) the fact of recovery of mangalsutra and earrings made at the instance of the Appellant. The Trial Court, however, has not considered the fact that all the prosecution witnesses have turned hostile and have not supported the prosecution case.
Under these circumstances, it will be difficult to convict the Appellant for the offence punishable under section 302 of the Indian Penal Code. Hence, the following order is passed:
ORDER
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2. Criminal Appeal is allowed.
The Judgment and Order passed by the Trial Court is quashed and set aside.
3. The Appellant is acquitted of the offence punishable under section 302 of the Indian Penal Code .
4. The Appellant be released forthwith, unless his presence is required in any other case.
5. Fine amount, if any paid, be refunded to the Appellant.
(P.D. KODE J.) (V.M. KANADE J.)
V.A. Tikam
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