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2019 Supreme(Bom) 1008
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD
T.V. Nalawade, K.K. Sonawane, JJ.
Rahim - Appellant
Vs.
State of Maharashtra - Respondent
Criminal Appeal No. 5 of 2014
Decided On : 04-06-2019
Kuldeep S. Kakhalekar, Adv., Nilesh Ghanekar, Adv., D.S. Jape, Adv.
Headnote:
Indian Penal Code,1860 – Section 302 – Criminal Procedure Cofe,1973 – Section 374,313 and 437-A - Evidence Act, 1872 - Section 154 and 106 – Offence of murder - Ill-fated victim was wife of appellant-accused - Their marriage was solemnized prior to ten years of the incident - Spouses were residing in their own house - Parents, brother also residing in same locality of residential house of victim - Unfortunately, there were no issues to spouse - Deceased could not conceived during wedlock from husband - It has been alleged that appellant- accused developed habit of drinking liquor - He was also addicted to gambling - He had frittered away cash, gold ornaments etc in gambling - Eventually, he was bent upon to sell residential house, which was recorded jointly in name of deceased-wife and appellant-accused in record of civic authority - He was insisting deceased-wife for sale of residential house - There were frequent quarrels in between spouse - Appellant-husband used to give threats of life to wife - First informant, brother was on duty at place of his employment - Brother of the appellant-accused came to him and informed that his brother - appellant-accused was fighting with wife and he was not in mood to listen - First informant rushed to the house of victim on motorbike - He barged into the house of victim and saw that in bed-room, brother-in-law i.e. appellant-accused fallen his wife on the floor and attempted to strangulate her by putting Dupatta around her neck - But, after seeing first informant, brother-in-law, accused-appellant woke up and fled away from spot - Brother saw sister laying on ground in withered condition - He came out of the house and yelled for help - Neighbours and parents thronged at spot - Victim was escorted to the Government Hospital but on examination, doctor declared her dead – Held, learned Sessions Judge overlooked these legal infirmities in the prosecution case and drawn adverse inference against accused based on surmises and conjectures - There was no positive evidence on record that at time of incident husband and wife were last seen together in the house - Evidence of prosecution witnesses are totally silent on this material aspect - In view of factual aspect of case on legal parameter, court are of the considered opinion that inference drawn by learned Sessions Judge in impugned judgment is erroneous, illegal and rests on figment of imagination - Learned Sessions Judge relied upon the circumstances, which are totally inadmissible in evidence under provisions of law - Therefore, court have no hesitation to arrive at conclusion that evidence recorded before learned trial Court is not at all sufficient to draw adverse inference against accused for murderous attack on his wife - In such circumstances, impugned findings of conviction expressed by learned Sessions Judge are perverse, improper, and required to be quashed and set aside - Fine amount, if any, deposited by appellant-accused be refunded to him, after appeal period is over- Since the appellant-accused is in jail, he be set at liberty, forthwith, if not required in any crime - Writ of this order be sent to concern Jail authority for compliance of provisions of Section 437-A of the Cr.P.C on execution of PR bond with one solvent surety of like amount for a period of six months. The order regarding muddemal property is maintained as it is – Appeal allowed.
JUDGMENT :
K.K. Sonawane, J.
The instant appeal calls in question the impugned Judgment and order dated 05-12-2013 rendered by Additional Sessions Judge-3, Latur, in Sessions Case No. 77 of 2012. The appellant-accused was convicted for the offence punishable under Section 302 of the Indian Penal Code ("IPC") and sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/- in default to suffer rigorous imprisonment for one month. Being aggrieved by the impugned Judgment and order of conviction and resultant sentence, the appellant-accused, taking recourse of remedy under Section 374 of the Code of Criminal Procedure ("Cr.P.C."), preferred the present appeal to redress his grievance.
2. The factual matrix of the matter in nutshell is that, the ill-fated victim Rubina was the wife of appellant-accused. Their marriage was solemnized prior to ten years of the incident. The spouses were residing in their own house located in Hatte nagar area, Latur. The parents, brother also residing in the same locality of residential house of victim - Rubina. Unfortunately, there were no issues to the spouse. The deceased-Rubina could not conceived during wedlock from the husband. It has been alleged that the appellant- accused developed habit of drinking liquor. He was also addicted to gambling. He had frittered away cash, gold ornaments etc. in the gambling. Eventually, he was bent upon to sell the residential house, which was recorded jointly in the name of deceased-wife-Rubina and appellant-accused in the record of civic authority. He was insisting the deceased-wife for sale of residential house. There were frequent quarrels in between the spouse. The appellant-husband used to give threats of life to wife Rubina. The parents as well as brother of the victim-Rubina made endeavour to give understanding to the appellant-husband, but there was no improvement in his behaviour. It has been contended that on 16-04-2012 at about 2.00 p.m, the appellate-accused picked up quarrels with Rubina on account of sale of house property. In the quarrel, he gave threats of life to wife-Rubina. The deceased-Rubina divulged about apprehension to parents, brother etc. But, it had something different in-store for victim-Rubina. On 18-04-2012, first informant, brother Mohd. Mehraj was on duty at the place of his employment. At about 3.30 p.m., brother of the appellant-accused came to him and informed that his brother - appellant-accused was fighting with wife-Rubina and he was not in mood to listen. Therefore, first informant - Mohd. Mehraj rushed to the house of Rubina on motorbike. He barged into the house of victim Rubina and saw that in the bed-room, brother-in-law i.e. appellant-accused fallen his wife-Rubina on the floor and attempted to strangulate her by putting Dupatta around her neck. But, after seeing the first informant, brother-in-law, the accused-appellant woke up and fled away from the spot. The brother - Mohd. Mehraj saw sister- Rubina laying on the ground in withered condition. He came out of the house and yelled for help. The neighbourers and parents thronged at the spot. The victim - Rubina was escorted to the Government Hospital at Latur, but on examination, doctor declared her dead.
3. The MLC was passed to the concerned Police Station and accordingly, AD No. 30 of 2012 came to be registered. The dead body of victim-deceased-Rubina was referred for autopsy. The Medical Expert performed the autopsy and opined that death of deceased Rubina was caused due to 'asphyxia by compression of neck with ligature'. The first informant - brother Mohd. Mehraj filed the report to Police and blamed the appellant-accused for death of sister Rubina.
4. Pursuant to FIR of Mohd. Mehraj, Police of Gandhi Chowk Police Station, Latur registered the Crime No. 70 of 2012 under Section 302 of the IPC and set the penal law in motion. The concerned Investigating Officer visited to the spot and drawn the panchnama of scene of occurrence. He collected the blood stain
