Shankar Bhawanji Kamble Vs the State of Maharashtra

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 .[1].

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.257 OF 2006

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 Shankar Bhavanji Kamble, ]
 Convict Prisoner No.C/3422, ]
 Kolhapur Central Prison, ]
 Kalamba, District: Kolhapur. ] ..Appellant.

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 Versus

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 The State of Maharashtra. ] ..Respondent.

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 Ms.Bhagyashri P. Jakhad, Adv. appointed for the
 appellant.

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 Smt.V.R.Bhosale, APP, for the Respondent-State.

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CORAM : F.I.REBELLO AND
SMT.V.K.TAHILRAMANI, JJ.

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DATED : APRIL 04, 2008.

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ORAL JUDGMENT (PER SMT.V.K.TAHILRAMANI, J.) :

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 1. Through this appeal, the appellant has

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 challenged the judgment and order dated 28th
 October, 2005 passed by the learned 2nd Adhoc
 Additional Sessions Judge, Thane in Sessions Case
 No.178 of 2005. By the said judgment and order,
 the learned Sessions Judge, convicted the
 appellant under Sections 302 & 309 of Indian Penal
 Code. For the offence under Section 302 of IPC
 the appellant was sentenced to imprisonment for

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 .[2].

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 life and to pay fine of Rs.2500/-, in default, RI
 for one year. For the offence under Section 309
 of IPC, the appellant was sentenced to RI for one
 month and fine of Rs.500/-, in default, RI for a
 period of fifteen days. The learned Sessions
 Judge has directed both the sentences to run
 concurrently.

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

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 . The appellant along with his paramour Usha
 Kamble was residing in a hut at Juhu Nagar
 locality at Nerul, New Bombay at the time of the
 incident. Both of them used to drink. On the day
 of the incident i.e. on 21.01.2005 also both of
 them consumed liquor. A quarrel errupted between
 them. During the course of the quarrel the
 accused got enraged and he killed Usha by
 strangulating her with a nylon rope. Thereafter
 the accused tried to commit suicide by hanging
 himself with a cloth strip, however he did not
 succeed in the attempt to commit suicide and he
 simply becomes unconscious. Somebody informed

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 .[3].

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 Nerul Police on telephone. Police reached the

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 spot and they saw the bodies of Usha and the
 appellant lying in the hut beside each other.
 Usha was already dead, however, accused was
 breathing. His throat was rattling. The police
 found that the accused was alive however he was
 unconscious, hence he was shifted to the hospital.
 The death of Usha was initially registered as
 accidental death. During the course of
 investigation the police came to the conclusion
 that the accused had committed murder of Usha,
 hence charge-sheet came to be filed against him.
 Thereafter the case came to be committed to the
 Court of Session.

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 3. The charge came to be framed against the
 appellant under Section 302 & 309 of IPC. The
 appellant pleaded not guilty to the said charge
 and claimed to be tried. The defence of the
 appellant is that of total denial and false
 implication. After going through the evidence
 adduced by the prosecution, the learned Sessions
 Judge convicted and sentenced the appellants, as
 stated in Para 1 above. Hence, this Appeal.

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 .[4].

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 4. We have heard Ms.Bhagyashri Jakhad, learned
 Advocate appointed for the appellant and
 Smt.Bhosale, learned APP for the Respondent-State.
 We have also perused the judgment and order passed
 by the learned Sessions Judge as well as the
 record pertaining to the present case.

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 5. There is no eye witness in the present
 case. The prosecution has relied only on the
 evidence of extrajudicial confessions made by the
 accused person. According to the prosecution, the
 said extrajudicial confessions have been made to
 PW-7 Police Constable Shri.Thorat and PW-5 Ramnath
 Gawand who is the employer of the accused. It is
 the prosecution case that after the incident the
 accused made a telephone call from the STD-PCO
 booth of PW-3 Anagha Anavkar to PW-5 Ramnath
 Gawand who was his employer. During the telephone
 call, he informed his employer that he has
 committed murder of his wife and he requested his
 employer for Rs.100/- so that he could inform his
 daughter about the incident. PW-5 Ramnath stated
 that he received a call from the appellant on his

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 .[5].

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 mobile phone i.e. 9321030287. The prosecution
 has also examined PW-12 Mr.Nitin Baghchandnani who
 has supplied the details relating to mobile
 No.9321030287 which was the mobile phone of PW-5
 Ramnath. PW-3 Anagha has stated that between 1:30
 p.m. to 2:00 p.m. accused came to her STD-PCO
 booth. He was in frightened condition and he made
 a telephone call. She issued bill of STD call.
 She has identified the bill (Exh.13) as being the
 bill she had given to the accused. According to
 her the bill bears the timing and telephone number
 which the accused had dialled from her STD booth.
 We have also perused the details of the mobile
 phone which have been produced by PW-12 Mr.Nitin
 who was working with Reliance. The details of the
 mobile phone of PW-5 Ramnath do not show that any
 call was made between 1:30 p.m to 2:00 p.m. on
 his mobile number. There are three telephone
 calls which were received on 21st January, 2005 on
 the mobile phone of PW-5 Ramnath between 2:29 p.m.
 and 2:52 p.m. Prior to the call at 2:29 p.m. no
 call was received on the mobile phone of PW-5 on
 that day and after the call at 2:52 p.m. the next
 call is at 4:10 p.m.. The three telephone calls

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 .[6].

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 which were received between 2:29 p.m. and 2:52
 p.m. were not from the STD booth of PW-3 Anagha.
 Exh.13 which has been identified by PW-3 Anagha as
 the bill which she had issued to the accused shows
 that a call was made on telephone number
 02355235679. However, as we have already observed
 above, the mobile phone of PW-5 Ramnath is
 9321030287. This shows that the evidence of PW-3
 Anagha and PW-5 Ramnath cannot be relied upon.
 There is no material to show that the accused made
 a telephone call to PW-5 Ramnath. We find that
 the evidence of PW-5 that he received a call from
 the accused is falsified by Exh.13. In such case,
 we are not inclined to rely upon the evidence of
 this witness wherein he has stated that the
 accused made an extrajudicial confession to him
 during the said telephone call. This witness has
 further stated that thereafter the accused met him
 and again told him that he had murdered his wife
 Usha. We have noticed that this witness has
 deposed an outright lie about the accused calling
 him on his mobile phone and informing the witness
 that he has murdered his wife Usha. In such case,
 we are loath to rely upon the evidence of this

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 .[7].

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 witness that the accused thereafter came to him

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 and informed him that he had committed the murder
 of his wife Usha. Looking to the earlier part of
 the evidence of this witness, we find that this
 witness is not truthful witness and hence we do
 not find his evidence to be worthy of any
 reliance.

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 6. As per the prosecution case the accused
 also made an extrajudicial confession to police
 constable Thorat that he committed the murder of
 his wife Usha. We have carefully scrutinised the
 evidence of PW-7 police constable Thorat. This
 witness has stated that he received a telephone
 message from an unknown person regarding dead body
 lying in Juhu Nagar locality. When they went to
 the spot, they saw that the accused was lying near
 the dead body of that female. Forth was coming
 out from the mouth of the accused. The lady was
 dead. However, the accused, though unconscious,
 was alive and his throat was rattling. Hence they
 admitted him to a hospital at Vashi. After
 regaining consciousness in the hospital, the
 accused told this witness that he has killed his

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 .[8].

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 wife. The prosecution has relied on this
 extrajudicial confession by the accused to PW-7
 Police Constable Thorat. However, as PW-7 was a
 police constable, we would have to exclude his
 version from consideration. Besides this, two
 extrajudicial confessions made by the appellant to
 PW-5 Ramnath and PW-7 Police Constable Thorat,

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 there is no other material on record. The
 confession made to PW-7 has to be excluded from
 the consideration; and we are not inclined to
 rely upon the extrajudicial confession made to
 PW-5 Ramnath for the reasons which we have
 discussed in detail above. In this view of the
 matter, we find that there is no reliable material
 to show that the accused had committed the murder
 of Usha.

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 7. As far as conviction and sentence under
 Section 309 of IPC is concerned, it is pertinent
 to note that the Supreme Court in the case
P.Rathinam/Nagbhusan Patnaik Vs. Union of India

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and another, reported in 1994 Cri.L.J. 1605 has
 held that Section 309 of Indian Penal Code
 violates Article 21 of the Constitution of India

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 .[9].

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 and hence it is void. In view of the observations
 in the above referred case, we are of the opinion
 that the conviction and sentence of the appellant
 under Section 309 of IPC also cannot be sustained.

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 8. In the result, the appeal is allowed. The
 judgment and order of conviction and sentence
 passed by the learned 2nd Adhoc Addl. Sessions
 Judge, Thane in Sessions Case No.178 of 2005 is
 set aside. The appellant- Shankar Bhavanji Kamble
 is acquitted of the offences punishable under
 Sections 302 & 309 of IPC. He be set at liberty
 forthwith if not required in any other case.

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(SMT.V.K.TAHILRAMANI,J.) (F.I.REBELLO,J.)

Shankar Bhawanji Kamble v. the State of Maharashtra

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Shankar Bhawanji Kamble v. the State of Maharashtra

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