Criminal Appeal No.992 of 2006

5th May, 2015.

Petitioner Counsel: Mr. MURTAZA M. NAJMI with Mr. DILIP SHUKLA i/b M/s. YASH ASSOCIATES
Respondent Counsel: Mrs. G.P. MULEKAR

JUDGMENT

SMT. V. K. TAHILRAMANI, J. :- The Appellant - original accused No.1 has preferred this Appeal against the judgment and order dated 31st August 2006 passed by the learned District and Sessions Judge-I, Gadhinglaj, District Kolhapur in Sessions Case No.11 of 2005. By the said judgment and order, the learned Sessions Judge convicted the Appellant as under:-

Convicted u/s	Sentenced to
498A of IPC	Rigorous imprisonment for three years and to pay fine of Rs.1,000/-, in default, further Rigorous imprisonment for three months.
302 of IPC	Life imprisonment and fine of Rs.1,000/-, in default, further Rigorous imprisonment for three months.
201 of IPC	Rigorous imprisonment for three years and to pay fine of Rs.1,000/-, in default, further Rigorous impris

The learned Sessions Judge directed that all the substantive sentences of imprisonment shall run concurrently.

2. The prosecution case briefly stated is as under :-

The deceased Sou Kanchan @ Sucheta was the daughter of PW 1 - Mahadev Appa Kamble who was resident of village Rayandewadi, Taluka Chandgad, District Kolhapur. PW 5 - Surekha was the mother of Kanchan and PW 3 - Geeta and PW 4 - Sou Kalyani were the sisters of Kanchan. The marriage of Kanchan and the Appellant took place on 8th May 2004. After the marriage, Kanchan went to reside with the Appellant and his parents i.e. original accused Nos.2 and 4 and Madhukar, brother of the Appellant - accused No.3. It is the prosecution case that till Diwali festival in the year 2005 Kanchan was treated properly by the Appellant and her in-laws. Thereafter, the appellant demanded a gold ring and chain. As the demand was not met, the Appellant ill-treated and assaulted Kanchan. On 3rd April 2005, Kanchan went missing. PW 1 - mahadev, father of Kanchan was informed and he lodged missing report with the Police. He alongwith others tried to trace Kanchan but she was not found hence he returned to his village. On 5th April 2005, it was learnt that the dead body of Kanchan was found hanging on a tree in the forest area of village Rayandewadi. Then FIR was lodged against the Appellant, his brother and his parents under sections 302, 498A and 201 of IPC. Thereafter investigation commenced. After completion of investigation, the charge-sheet was filed. In due course, the case was committed to the Court of Sessions.

3. Charge came to be framed against the Appellant - original Accused No.1 as well as original accused Nos.2, 3 and 4 who were the parents and brother of the Appellant under sections 302, 498A and 201 of IPC. The Accused pleaded not guilty to the said charge and claimed to be tried. Their defence was that Kanchan committed suicide by hanging herself from a tree. After going through the evidence adduced in this case, the learned Sessions Judge acquitted original Nos.2 to 4 of all the offences charged, however the learned Sessions Judge convicted and sentenced the Appellant as stated in paragraph 1 above, hence this Appeal.

4. We have heard the learned Advocate for the Appellant and the learned APP for the State. We have carefully considered their submissions, the judgment and order passed by the learned Sessions Judge and the evidence in this case. After carefully considering the matter, for the below mentioned reasons, we are of the opinion that the prosecution has not proved its case against the Appellant beyond reasonable doubt.

5. The prosecution has examined nine witnesses, they are as under :-

"PW 1 - Mahadev was father of deceased Kanchan;

PW 2 - Sanjay Kamble, was running STD booth on Motanwadi Bye-pass Road;

PW 3 - Geeta Kamble, was sister of Kanchan;

PW 4 - Sou Kalyani Kamble, was also sister of Kanchan;

PW 5 - Sou Surekha, was mother of Kanchan;

PW 6 - Panch witness Sayyed who has deposed that the Appellant showed the tree from which Kanchan was found hanging;

PW 7 - PSI Naik, was Investigating Officer;

PW 8 - Dr Chaya Gaikwad, who conducted the post mortem of Kanchan;

PW 9 - Suresh Gawade, was the photographer who took out the photographs of the dead body and the scene of offence."

Out of these, four witnesses i.e. PW 1, 3, 4 and 5 have turned hostile and have not supported the prosecution i.e. the parents and sisters of deceased Kanchan have not supported the prosecution.

6. The prosecution has not been able to prove the motive for the Appellant to commit the murder of Kanchan nor has any evidence been brought on record in relation to ill-treatment and harassment and cruelty to Kanchan by the Appellant. In order to show that the Appellant committed the murder of Kanchan by strangulating her, reliance is placed on the evidence of PW 8 - Dr Chaya Gaikwad who conducted the post mortem on the dead body of Kanchan. Dr Gaikwad has stated that the probable reason of death was asphixia due to strangulation. Dr Gaikwad has further stated that in her opinion, the death was due to strangulation as pharangal cartileges were broken. However, in the cross-examination Dr Gaikwad has admitted that it is true that in suicidal death also, pharangal cartileges may be broken. Dr Gaikwad has further admitted that it is true that the post mortem notes do not mention as to where the knot was located and it is true that in case of strangulation, the place of knot assumes great importance. Dr Gaikwad has further admitted that where there is an external ligature mark, there may well be obvious hemorrhage into the subcutaneous tissues, platys-ma muscles and the strap muscles overlying the lateral sides of the larynx and trachea. Dr Gaikwad has stated that during the post mortem, she could not notice the same. It is pertinent to note that Dr Gaikwad has stated that the case may also be a case of suicidal death. Thus, from the medical evidence, it cannot be said beyond reasonable doubt that the death was homicidal and it was not a case of suicidal death.

7. As far as PW 2 - Sanjay Kamble is concerned, he was running a STD booth near Motanwadi Bye-pass Road. He has stated that Village Rayandewadi is at a distance of 1 ½ kms from his STD booth. His evidence only shows that PW 1 - Mahadeo, about one or two days prior to the incident had made a call to Village Shiroli. That is the sum and substance of his evidence. His evidence in no way helps the prosecution. So also the evidence of PW 9 - Suresh Gawade, who has photographed the spot and dead body, is of no use to the prosecution as it in no way connects the Appellant to the death of Kanchan. As far as the evidence of PW 7 - PSI Naik is concerned, his evidence also does not connect the Appellant to the crime in any manner.

8. Lastly, reliance was placed on the evidence of PW 6 - Sayyed who is a panch witness. The evidence of panch witness Sayyed shows that on 16th April 2005, he was called to the Police Station to act as a panch. Panch witness Sayyed has stated that PSI Naik asked him to accompany him as a panch to the residence of accused Subhash and accordingly he had accompanied him with the accused Subhash. PSI Naik then took him to the residence of Subhash. Accused Subhash pointed out the hut. Thereafter, accused Subhash had taken them to a field through footpath. Thereafter, the accused climbed a tree and gave demonstration. What sort of demonstration was given by the Appellant is not stated by the panch witness. Moreover, on going through the panchanama, it is noticed that there is no mention of any demonstration being given by the Appellant. The only portion admissible in the panchanama is that the Appellant showed the way and the tree. The tree and the spot and the house of the appellant were already known to the Police on 5th April 2005 when the dead body of deceased Kanchan was found hanging from the tree. Thus, the Appellant pointing out the very same tree and the spot 11 days thereafter is a circumstance which cannot be relied upon because the Police already had knowledge of the spot much prior to the Appellant pointing out the spot to the Police.

9. On going through the record, we are of the opinion that there is no sufficient evidence to prove beyond reasonable doubt any of the offences against the Appellant. In such circumstances, the Appeal has to be allowed and it is accordingly allowed.

10. The Appellant is acquitted of all the offences, he be set at liberty, if not required in any other case.

11. Office to communicate this order to the Appellant who is in Kalamba Central Prison, Kolhapur.

Appeal allowed.