Apeal1061-judgment.sxw jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1061 OF 2002 1. Mr. Ashok Namdeo Gorad 2. Mr. Namdeo Dnyanu Gorad 3. Mrs. Bayabai Namdeo Gorad .. Appellants (Original Accused Nos. 1 to 3) The State of Maharashtra (through officer-in-charge Mhaswad Police station, Satara) .. Respondent Mr. D. G. Khamkar for the appellants Mr. K.V. Saste, APP for the State CORAM : P.V. HARDAS & N. D. DESHPANDE, JJ. DATE : 10th March, 2011. ORAL JUDGEMENT (Per P.V.Hardas J): 1. The appellants, who stand convicted for the offences punishable under section 302 read with 34, under section 201 read with 34 and under section 498-A read with 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.2000/- each, in default of which to undergo rigorous imprisonment for three months, rigorous imprisonment for five years and to pay fine of Rs.1000/- each, in default of which to undergo rigorous imprisonment for three months and rigorous 1 Apeal1061-judgment.sxw imprisonment for two years and also to pay fine of Rs.1000/- each, in default of which to undergo rigorous imprisonment for three months respectively, with the direction that the substantive sentences shall run concurrently, by the Joint District Judge & Additional Sessions Judge, Satara by Judgment dated 28.2.2002 in Sessions Case Nos. 47 of 1996, by this appeal, question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus: i. P.W.7 Shrirang Ramchandra Awghade, A.S.I. who was then attached to Mhaswad Police Station as Police Head Constable recorded the information received from accused No.2 about the death of his daughter-in-law i.e. deceased Suman. On the basis of the said statement of accused No.2 at Exh.62, accidental death came to be registered and the investigation thereof came to be entrusted to PW-8 Sunil Gharge who was then working as PSI at Mhaswad Police Station. PSI Gharge took over the investigation of the accidental death of 27.10.1995. On the same day he visited scene of offence at village Kapuswadi near Varali Village. When he went near the well of one Dagdu Vishnu Gorad, a dead body was seen floating on the water. The dead body was removed from the well and an 2 Apeal1061-judgment.sxw inquest panchanama- Exh.50 came to be drawn in the presence of witnesses. Then the spot panchanama was drawn at Exh.51 in the presence of Pancha witnesses. Medical officer was requested to perform postmortem at the scene itself and accordingly postmortem came to be performed by PW-6 Dr. Jaywant Galande on the dead body of the deceased Suman and he noticed the following injuries: (1) Abrasion over middle part of upper 11p.1cm x ½ cm. on nicosal surface. (2) Abrasion over right clavicle on medial side 1cm x ½ cm. (3) Abrasion over right side of right first intercostal space near angle of lous. Crisentric shape ½ cm. X ¼ cm. (4) Abrasion over right side first intercostal space near injury no.3 on lateral side of same size and shape. (5) Subconjutical heamorrahage present in right and left eyes. (6) Contusion over right side of neck anteriorly. (7) Blood clots presents over right sternomastoied mussle. On internal examination he found heamorrahage present in the brain plura was conjusted. Blood clots were present in lyrinx and tracia. Lyrinxa and tracia are conjusted. Right and left lung conjusted with peticial haemohharage. The death was due to asphyxia due to smothering. 3 Apeal1061-judgment.sxw He therefore opined that injuries were possible if nose and mouth was blocked and neck was held. Cause of death, according to him was given in Postmortem report which is at Exh.57. ii. On the basis of the aforesaid material, PW-8 PSI Sunil Gharge registered an offence against the accused vide Crime No.55 of 1995 for the offence punishable under Sections 302, 498-A, 201 read with Section 34 of the Indian Penal Code. Complaint filed by PW-8 API Sunil Gharge is at Exh. 68. PW-8 API Sunil Gharge, thereafter, recorded the statement of the wetnesses and arrested the accused on 28.10.1995. During custodial interrogation, accused no.1 Ashok Gorad expressed his willingness to produce a blanket and cotton swab which he had hidden under Kangi. Accordingly a memorandum came to be drawn on 29.10.1995 in the presence of Panch witnesses at Exh.69. Accused No.1 led the police and panchas to village Kapuswadi and pointed out his house and produced one blanket and cotton swab which came to be seized under Panchanama at Exh.70. House of the accused came to be searched and accordingly search Panchanama Exh.71 came to be drawn. Subsequently investigation came to be handed over to PSI Yadav and upon completion of the investigation he submitted the charge-sheet. 4 Apeal1061-judgment.sxw iii. On committal of the trial to the Court of Sessions, trial court vide Exh.11 framed charge against the appellants for the offence punishable under section 302 read with 34, under section 201 read with 34 and under section 498-A read with 34 of the Indian Penal Code. The appellants- accused denied their guilt and claimed to be tried. The prosecution, in support of its case examined 8 witnesses. Undisputedly, the case against the accused rests on circumstantial evidence. The trial Court, upon appreciating the evidence found that the prosecution had proved the offence against the accused beyond reasonable doubt and accordingly convicted and sentenced the accused. The appellants, therefore, being aggrieved by their conviction and sentence, have filed the present appeal questioning the same. 3. In order to appreciate the submissions advanced before us by the learned counsel for the appellants and the learned Assistant Public Prosecutor for the state, it would be useful to refer to the evidence of the prosecution witnesses. Prosecution examined PW-1 Dagdu Gorad, a witness to the inquest Panchanama at Exh. 50, scene of the offence Panchanama Exh.51. PW-2 Sanjay Sawant did not support the prosecution and was declared hostile. Similarly PW-3 Balekhan Sayyad did not support the prosecution and therefore was declared hostile. The prosecution relied on the 5 Apeal1061-judgment.sxw evidence of PW-4 Sukhdeo Ghutugade, father of the deceased Suman, PW-5- Appa Ghutugude, cousin of the deceased Suman. 4. PW-4 Sukhdeo Ghutugude states that the deceased Suman was his daughter who was married to accused Ashok Gorad 3 to 4 years prior to her death. Suman, after her marriage resided with the accused at village Kapuswadi. He further states that initially she was treated well and thereafter accused 1 and 2 came to his house and told that they were indebted and therefore Sukhdeo should pay them Rs.42,0000/- as loan. Sukhdeo told them that he would give loan provided, some landed property was transferred in the name of Suman. Accordingly PW-4 Sukhdeo paid an amount of Rs.45,000/-. Accused thereafter did not send Suman to his house for one year and when Sukhdeo visited the house of the accused, Suman was not sent along with him. He claimed that Suman had informed that the accused were ill treating her and also stated that the accused were demanding re-transfer of land in the name of the accused no.1 Ashok. PW-4 Sukhdeo further stated that from time to time he had gone to the house of the accused but Suman was not sent along with him. He stated that during Diwali Festival of 1995 nephew of the accused no.2 came to him and informed him that Suman was not in the house and whether she had come to his house. Sukhdeo informed the nephew of the accused no.2 that Suman was not present in his house and 6 Apeal1061-judgment.sxw thereafter they searched for Suman in the houses of their relatives but in vain. On the next day, nephew of accused no.2 and one another person had informed that dead body of Suman was seen floating in the well. Sukhdeo therefore, along with his relative PW-5- his nephew Appa Ghutugude proceeded to the village of the accused. In cross examination he admitted that he had not stated in his previous statement that he had asked the accused for transfer of land in favour of his daughter. Omission has been duly proved that he has not stated in his previous statement that he had gone to fetch Suman after she had delivered a child. Similarly, omission has been also proved that he had not stated that the accused were ill treating and beating Suman. 5. PW-5 Appa Ghutugude, cousin of the deceased stated that he had visited the house of Suman. She had informed that she was ill treated by the accused and someone should come to take her. She told him that the land had been transferred in her name but accused were insisting for re-transfer of the land. He also stated that four five days thereafter, accused no.2 had come enquiring as to whether Suman had come to his house and two days thereafter he learnt that Suman had died. In cross examination omission has been duly proved that he had not stated in his previous statement that he had stayed in the house of Suman. 7 Apeal1061-judgment.sxw 6. Careful scrutiny of the evidence of PW-4 Sukhdeo and PW-5 Appa reveals that both the witnesses have made omnibus statements regarding harassment and ill treatment. Both these witnesses have stated that Suman informed that she was ill treated. No particulars are stated about the ill treatment nor any specific date or month is specified. Such omnibus evidence, according to us, is insufficient for bringing home the offence under section 498-A of the Indian Penal Code. There is no material on record to indicate that in fact PW- 4 Sukhdeo has paid an amount Rs. 45,000/-. In such circumstances, therefore, and particularly in the light of the fact that the PW- 4 Sukhdeo had not lodged any report, we are not inclined to place reliance upon the evidence of PW-4 Sukhdeo and PW-5 Appa in respect of the charge punishable under sections 498-A and 302 of Indian Penal Code. We find that there is absolutely no evidence which would establish that it was the accused and accused alone who had committed the offence. 7. In a case which rests on circumstantial evidence the prosecution has to establish each and every circumstance which the prosecution propose to rely upon. Circumstances should be of conclusive nature and the circumstance should form a chain of evidence which should be complete and should rule out every hypothesis of guilt of the accused. 8 Apeal1061-judgment.sxw 8. Reference may usefully be made to the observations of the Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622. Reference may also, at this juncture, be made to the Judgment of the Supreme Court in the case of Hanumant Govind Nargundkar and another V. State of Madhya Pradesh, AIR 1952 S.C. 343, which reads thus: “10. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should of a conclusive nature and tendency and they should be such as to exclude every hypothesis is but the one proposed to be proved.. In other words, there must be chain of evidence so far complete and not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. 9. Learned APP has urged before us that accused has not offered any explanation or information under Section 106 of Indian Evidence Act and therefore, conviction of the accused does not require any interference by this Court. At this stage, conduct of the accused may be taken into consideration. Two days prior to the recovery of dead body of Suman, nephew of accused No.2 had gone to the house of of PW-4 Sukhadeo to enquire as to whether deceased Suman had come to his house. Sukhdeo- along with nephew of the accused searched for Suman in the houses of their 9 Apeal1061-judgment.sxw relatives. Similar query was made to PW-5 Appa as to whether Suman had come to his house. Dead body of the deceased Suman was found floating in the well which is situated at a distance of 4 kms from the house of the accused. Prosecution has utterly failed to establish any circumstance which would be incrementory so as to draw an inference that it is the accused and accused alone had committed the offence. The accused had offered probable explanation in their statements under section 313 of the Criminal Procedure Code. The accused had also immediately lodged a report on the basis of which inquiry was initiated. Accused in their explanation had stated that a false case has been filed against them. This is not a case where murder was committed in the secrecy of the house or the dead body was found inside the house. Failure of the accused therefore, in such circumstances to offer any explanation, cannot be made use of as a solitary circumstance to draw an inference that it is the accused and accused who have alone committed the offence. 10. Learned APP placed reliance on the decision of the Division Bench of this Court in the case of State of Maharashtra Vs. Baban Kisan Kulvade & ors., 2010 ( 3) Bom. C.r.(Cri.) 48. The facts of the case being different from the facts in the reported judgment, the ratio laid down therein is not applicable to the present case. In the present case, we found that apart from 10 Apeal1061-judgment.sxw establishing a circumstance that deceased died a homicidal death, the prosecution has not been able to prove any other circumstance. In the absence of other circumstance, no inference of guilt against the accused can be drawn. The conviction and sentence of the appellant, therefore, is unsustainable in law. 11. Accordingly, this criminal appeal is allowed and the conviction and sentence of the appellants is here by quashed and set aside and a they are acquitted of the offence with which they were charged and convicted. 12. Fine amount if paid by the appellants be refunded to them. 13. Appellants 1 and 3 namely Ashok Namdeo Gorad and Bayabai Namdeo Gorad respectively be released forthwith if not wanted in any other case. 14. Bail bond of Appellant No.2 Namdeo Dnyanu Gorad stands canceled. ( N. D. DESHPANDE, J. ) ( P.V. HARDAS, J.) 11