Ishwarbhai Narayan Makwana vs The State Of Maharashtra
2012 Latest Caselaw 444 Bom

                                              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

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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

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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

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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

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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.

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(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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