Back
2009 Supreme(Bom) 1547
High Court of Judicature at Bombay
THE HONOURABLE MR. JUSTICE B.H. MARLAPALLE & THE HONOURABLE MR. JUSTICE R.Y. GANOO
Ramesh Mahya Kakad Appellant
Versus
The State of Maharashtra Respondent
Criminal Appeal No.620 of 2006
Decided on : 19-11-2009
Advocate Appeared:
For the Petitioner:Mrs. B.P. Jakhade, Advocate.
For the Respondent: P.S. Hingorani, APP.
Headnote:Indian Penal Code, 1860 - Sections 302 and 506(1) Conviction and sentence under For causing murder of wife Appeal against Appellant-accused allegedly unhappy with his wife as she could not bear child Defence, deceased-wife hanged herself Held No evidence before trial Court to hold deceased died unnatural death and it was homicidal death Evidence of witnesses PWs 3 and 4 neither cogent nor consistent Trial Court erroneously relied on testimony of these witnesses L.A. report not supports prosecution’s case No post-mortem report Prosecution failed to establish whether deceased died suicidal death or homicidal death Conviction and sentence of appellant accused not sustainable Impugned judgment and order quashed and set aside Appellant-accused acquitted Appeal allowed. The evidence of PW 1, PW 3 and PW 4 also suffered on the same count and thus become unreliable. Thus the trial Court committed serious error in relying upon the testimony of these four witnesses. PW 7 Mahya Kakad is the father of the accused and he stated before the Court that Vanjubai and accused slept in one part and he along with his wife was in the other part of the house. He was declared hostile by the prosecution and in his cross-examination by the P.P. he denied that he had heard voice between 10.00 to 11.00 p.m. on the fateful day and that he and that he and his wife woke up from the sleep and lighted the lamp. He also denied that he had seen Vanjubai hanging and that he had out the hanging rope by sickle and the dead body was brought down. The admitted that police had made inquiry with him and recorded a statement on 27.8.1998. The I.O. PW 8 on his deposition admitted that the dead body of Vanjubai was sent to the Cottage Hospital at Talasari for post-mortem under the medical yadi at Exh. 34.He also admitted that the cloths of the deceased along with the hanging rope were seized and sent for chemical analysis. He also admitted that after the arrest of the accused, his clothes were also seized and were sent for chemical analysis. The chemical analysis reports dated 6.11.1998 and 14.10.1998 were received at Exhs. 41 and 42 whereas the chemical analysis report at Exh. 43 has been received on 15.12.1998. He also stated that post-mortem report and Medical Certificate were collected and filed in the case papers during the investigation but the record does not support these statements. He concluded that the accused had beaten his wife and due to the same she succumbed to the injuries. There is no corroboration to these statements in the absence of the post-mortem report the evidence of the doctor and the medical certificate.
Court have perused the chemical analysis reports. Report at Exh. 41 shows that human blood was noticed on the clothes of the deceased but the blood group could not be identified. Exh. 42 is the report for determination of blood group of the deceased and it remained inconclusive Exh. 43 indicates that human blood was found on the seized clothes of the accused. In Court opinion this is irrelevant and inconsequential. As Court have noted earlier that the accused was taken in custody on 14.9.1998 i.e. after more than 15 days from the incident. Presence of human blood on the clothes of a tribe man triable is not uncommon having regard to their way of life and therefore these chemical analysis reports by themselves do not support the prosecution case that Vanjubai died a homicidal death and that too at the hands of the accused. There is no such evidence and it appears that the investigation was set in motion only after PW 1 filed a complaint 4 days after the incident. The prosecution could not prove whether Vanjubai died on 26.8.1998 or 27.8.1998 but the report at Exh. 24 lodged by PW 2 and reconfirmed by him during his depositions before the Court stated that Vanjuabi committed suicide on 26.8.1998 late in the night. However as noted earlier the prosecution failed to establish whether Vanjubai died a suicidal death or homicidal death and therefore Court do not agree with the reasoning set out by th trial Court to hold that the accused committed the murder of his wife by causing her injuries on her head and other parts of her body. In the absence of the post-mortem report it was not possible for the trial Court to arrive at such conclusion. It was necessary for the prosecution to prove its case beyond reasonable doubt and in the prosecution utterly failed to do so. Hence the order of conviction and sentence rendered by the trial Court is unsustainable and therefore deserves to be quashed and set aside.
Even on the charge of the offence punishable under Section 506 of IPC there is no evidence leave alone reliable evidence placed before the trial Court by the prosecution through the depositions of PW 1, PW 2, PW 3. Hence the conviction of the accused for the same charge is also unsustainable.
In the premises this appeal succeeds and the same is hereby allowed. The impugned order of conviction and sentence passed by the learned Ist Ad hoc Additional Sessions Judge, Palghar in Sessions Case No. 21 of 1999 on 8.12.2004 is hereby quashed and set aside. The accused stands acquitted of all the charges. The accused is directed to be set free forthwith unless he is required to be detained in some other case.
Oral Judgment: (B.H. Marlapalle, J.)
1. This appeal arises from the order of conviction and sentence dated 08.12.2004 passed by the learned First Adhoc Addl. Sessions Judge at Palghar, Dist. Thane in Sessions Case No.21/99. The appellant has been convicted for the offence punishable under Section 302 of IPC and sentenced to suffer rigorous imprisonment for life and in addition to pay a fine of Rs.2,000/- or in default thereof to suffer R.I. for 3 months more. He has also been convicted for the offence punishable under Section 506(1) of IPC. and sentenced to suffer R.I. for 6 months. Both the sentences have been directed to run concurrently. The appellant is presently undergoing the sentence.
2. As per the prosecution, the appellant Ramesh is the son of Mahya Kakad, resident of Karanjgaon, Thakarpada, Tal. Talasari and he was married to Vanjubaibai, the daughter of Jivan Parle resident of Vevji, Karlepada, Tal Talasari, sometimes in the year 1988. The couple did not have a child and it is alleged that on that count, the appellant was unhappy with his wife as she could not bear a child for him. Both of them were staying in the house of Jivan and about two months prior to the incident, the appellant had gone to stay in his village where he had his parents i.e. on 25th August, 1998, the appellant left his fatherinlaw’s house and went to Karajgaon. On the next day, Sakhu (PW1), the wife of Vanjubai’s brother wanted to visit her parents in village Karajgaon and, therefore, she came to Karajgaon along with Vanjubai at about 10.00 a.m. Vanjubai went to the house of the appellant, whereas Sakhu went to her mother’s house and the distance between the two houses is claimed to be about a kilometer. After sometime, Sakhu heard the shouts of Vanjubai and, therefore, she went to her house along with Gulab Vartha PW3 and Gulab Devji Malavkar PW4 and they saw that the accused was assaulting his wife. He was abusing her as she could not give a child to him. He was told not to beat her by Sakhu and her companions, but there was no heed. Sometime later, he became quite and, therefore, Sakhu and her companions went back. On the next day i.e. on 27.8.1998, Sakhu came to know that Vanjubai was dead. A message was sent to Jivan PW2 and he came to village Karajgaon. He saw the dead body of his daughter in the house of the accused, where his parents were also present and he was told that she had hanged herself. The police arrived at the scene at 5.00 p.m. 27.8.1998 and inquest panchanama Exh.28 and spot panchanama Exh.29 were recorded in the presence of Chandu Morgha PW5 and Ratnya Dodka PW6 as the panch witnesses. PW2 Jivan went to the Talasari Police Station, where his statement was recorded (Exh.24) and the same was registered at about 4.00 p.m. On the next day, PW1 lodged a complaint with the Talasari police station and the same was registered as a FIR on 29.5.1998 for the offences punishable under Section 302 and 506 of IPC against the appellant and alleging that he committed the murder of his wife Vanjubai by causing severe injuries on her body including her head. The appellant came to be arrested on 13.9.1998 and on completion of investigation, chargesheet was filed on 11.12.1998. The case being exclusively triable by the Sessions Court, it was committed to the Sessions Court on 08.02.1999. Charge was framed on 17.7.2002 for the offences punishable under Section 302 and 506 of IPC against the appellant and the appellant pleaded as not guilty. In his statement recorded under Section 313 of Cr.P.C., he denied the charges and claimed that prosecution had filed a false case against him. In the meanwhile, Vanjubai’s dead body was sent for postmortem to the Medical Officer of Cottage Hospital on 27.8.1998 by the police. Chemical Analysis report was received at Exh.41 and 42. The prosecution examined in all 8 witnesses including PW7 Mahya Kakad, the father of the appellant and Vikas Vasalkar PW8, the Investigating Officer.
3. It is pertinen
