1 Criminal Appeal No.109 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.109 OF 2009 Babasaheb S/o.Gangadhar Nikalje, Age-28 years, Occu-Agriculture, R/o.Kusali Tq.Badnapur, Dist. Jalna APPELLANT VERSUS The State of Maharashtra RESPONDENT Mrs.U.P.Kale, learned counsel for the appellant. Mr.K.S.Patil, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 06/12/2010 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. The appellant stands convicted u/s. 302 of The IPC and sentenced to suffer life imprisonment and to pay fine of Rs.1,000/- in default to suffer further RI for 2 months in Sessions Case No. 67/2008 vide judgment and order dated 20/12/2008 by the Additional Sessions Judge, Jalna, has questioned the correctness and legality of the said judgment and order passed in the present criminal appeal. 2. Such of the facts as are necessary for the decision in this 2 Criminal Appeal No.109 of 2009 appeal can be briefly stated as follows : a) On the report lodged by Rameshwar Laxman Khillare (P.W.No.1) on 10/03/2008 in Badnapur Police Station of Dist. Jalna, at about 1.30 a.m., an AD was registered vide ADR No.16/2008. Investigation of the said ADR No.16/2008 was entrusted to one Syed Asif Syed Mohd. (P.W.No.6) P.S.I. attached to Badnapur Police Station. Immediately, he visited the place of incidence i.e. residential house of the appellant. On reaching the place of incidence, he drew spot panchnama Exh.27. Dead body of one female by name Neeta, wife of appellant was found lying at the place of incidence. He drew inquest panchnama at Exh.28 on the dead body of the deceased in the presence of panch witnesses. Immediately thereafter the dead body was forwarded to Rural Hospital, Badnapur to conduct the autopsy. b) Dr.Bhanudas Ratan Savale (P.W.No.5) the Medical Officer, attached to Rural Hospital, Badnapur conducted the autopsy on the dead body of Neeta in between 12.30 p.m. to 1.30 p.m. of the same day. He noticed following external injuries on the dead body. 1. Contusion 10 x 2 cm, extending vertically from 8th to 10th rib, horizontally from mid axillary line to 2 cm. from mid line on Back Below Scapula. 2. Abrasion, 2 x 1 cm on shin in the middle of right leg. 3. Abrasion 1 x 1 cm (left) forearm at wrist, anteriorly ; He had also noticed some internal injuries - Liver is lacerated at right middle and right upper lob on posterior aspect respectively 4 x 3 Criminal Appeal No.109 of 2009 3 cms and 2 x 1 cms. Spleen completely ruptured. Contusion on post surface of left kidney 3 x 4 cms. He had also noticed Uterus 16 weeks of gestation with foetus with membrane intact. According to him, the cause of death is due to hemorrhagic shock due to injury to vital organs, i.e. spleen, left kidney and liver. Accordingly he had prepared post mortem report at Exh.37. According to him, injuries shown in coloumn no.17 of the post mortem report are sufficient to cause death in the ordinary course of nature. According to him, injury at Sr.No.1 of Exh.17 is corresponding to injury of spleen, kidney and liver. c) Thereafter brother of the deceased Rameshwar (P.W.No.1) lodged the complaint (Exh.25) in Badnapur Police Station. On the basis of this complaint, an offence was registered vide CR No. 35/2008 u/s. 498(A), 302 r/w. 34 of IPC against the appellant and his parents. Investigation in the said CR was also entrusted to Syed Asif (P.W.No.6). d) On 10/03/2008, appellant and his father came to be arrested. Clothes on the person of the deceased were seized in the presence of panch witnesses under the panchnama at Exh.47. On the next day, i.e. on 11/03/2008, clothes on the person of appellant were seized under the panchnama at Exh.48. On 11/03/2008, statement of appellant u/s. 27 of The Indian Evidence Act was recorded by way of Memorandum at Exh.44 in presence of panch 4 Criminal Appeal No.109 of 2009 witnesses. Leading to the recovery of one stick, Article 6 was seized under recovery panchnama Exh.45. During the investigation, he had recorded statements of certain witnesses including the neighbourers. Thereafter, he had forwarded seized property to C.A., so also viscera collected from the dead body alongwith the covering letter. Mother of the appellant was then arrested on 08/06/2008. After receipt of CA report at Exh.30, P.M. report and other relevant documents and after completion of investigation, he had filed charge sheet against the appellant and his parents in the Court of J.M.F.C. Badnapur. e) By passing requisite committal order, trial against the appellant and his parents was committed to the Court of Sessions, Jalna. f) After the trial was assigned to The Additional Sessions Judge, Jalna, he had framed charge at Exh.10 against the appellant and his parents for an offence punishable u/s. 498(A) r/w.34 of The IPC and u/s. 302 r/w. 34 of IPC, to which appellant and his parents pleaded not guilty and claimed to be tried. Record and proceeding received from the trial court shows that to substantiate the charges lavelled against the appellant and others, prosecution has examined in all 6 witnesses i.e. Rameshwar Khillare, brother of the deceased, Laxman Khillare, father of the deceased, Vishnu Bhanudas Magare, neighbourer of complainant, Nivrutti Devidas Magare, panch witness to the memorandum statement, Dr.Bhanudas Ratan Savale, Autopsy Surgeon and Investigation Officer Syed Asif Syed Mohd. On 5 Criminal Appeal No.109 of 2009 appreciation of the evidence of prosecution, learned Lower Court pleased to acquit the appellant and his parents for an offence punishable u/s. 498(A) r/w. 34 of The IPC. The parents of the appellant were also acquitted for an offence punishable u/s. 302 r/w. 34 of The IPC. Appellant was convicted for an offence punishable u/s. 302 of The IPC, which judgment is impugned in the present criminal appeal. g) Admittedly, State has not challenged the order of acquittal u/s. 498(A) r/w. 34 of The IPC against the appellant and his parents as well as the judgment of acquittal of the parents of appellant u/s. 302 r/w. 34 of The IPC. 3. In this background, it is necessary to advert to the evidence of material witnesses for considering the submissions of learned counsel for appellant and that of learned APP for State. 4. It has come in the evidence of Rameshwar Khillare (P.W.No.1) brother of the deceased that on 09/03/2008. at about 9.00 p.m.. message was received from one Ramdas Vaidya about the demise of Neeta at her matrimonial house. He then visited the house of Neeta alongwith his relatives. He found dead body of Neeta in the house of appellant. Her dead body was covered with Chhadar. He noticed injuries on her thigh and on her back. Remaining evidence is in respect of cruelty. and harassment to constitute an offence u/s. 498(A) of The IPC, for which the appellant is acquitted, hence need 6 Criminal Appeal No.109 of 2009 not be considered. The admissions given by him in his cross examination require consideration, which read as, "since last 2 years prior to the incident, he has not visited the house of the accused persons", "I do not know whether Neeta slipped and fell down and received injuries on her thigh and back." 5. The evidence of Laxman Khillare (P.W.No.2), the father of the deceased is identical like the evidence of his son Rameshwar, hence need not be discussed separately. 6. P.W.No.4 Nivrutti Magare, panch witness to the memorandum statement need not be discussed as he has not supported the case of prosecution. 7. Thus the fact is clear from the evidence lead by the prosecution before the Lower Court that other than medical evidence, this is the evidence against the appellant and on appreciation of this evidence, as no proper explanation was offered by the appellant about the death of his wife, he was convicted by the Lower Court for an offence punishable u/s. 302 of The IPC. 8. In the background of this evidence, heard learned counsel for the appellant followed by the submissions of learned A.P.P. for State. 9. During the course of submissions across the bar, it is urged on behalf of appellant that considering the overall evidence on record, 7 Criminal Appeal No.109 of 2009 the appellant has not seriously disputed that the death of the deceased is an un-natural death, but disputed that the death of the deceased is a homicidal death. It is also urged that considering the overall effect of the ocular evidence, case of the prosecution rests on the circumstantial evidence. It is urged that even though death of deceased Neeta occurred in her matrimonial house, but the incident occurred somewhere during the day time of 09/03/2008. None of the prosecution witness has come with the case that at the relevant time, appellant was present in his house. In this regard, our attention is drawn by the learned counsel for appellant towards the answer given by the appellant to question no.30 recorded in his statement u/s. 313 of The Cr.P.C., wherein he has stated that, "When I returned back to house from field, Neeta was lying in the house. On inquiry she told me that due to giddiness she fell on the ground. I shifter her to the hospital with Narayan Magare and Mangal Shinde." Again our attention was drawn towards the admissions given by the Investigation Officer Syed Asif in his cross examination that during the course of investigation, he had recorded the statements of Champabai Magare, Sumitra Magare, Narayan Magare and Mangal Shinde. He had also recorded the statement of Auto Rikshaw Driver who has taken Neeta in his auto rikshaw. He has recorded statement of Dr.Patil of Badnapur, who gave treatment to Neeta. It transpired from the statement of these witnesses that Neeta was complaining pain. Appellant was with Neeta while shifting her to hospital of Dr.Patil. It is nowhere came on record that deceased was complaining to these witnesses that the appellant assaulted her. It 8 Criminal Appeal No.109 of 2009 is also urged across the bar that even though it is opined by the Autopsy Surgeon P.W.No.5 Dr.Bhanudas Savale that the injuries mentioned in the post mortem notes are possible due to Article 6, the stick, but witness to the alleged memorandum statement of the appellant which resulted in the recovery of this stick at Article 6, has not supported the case of prosecution. Hence evidence of recovery of stick at the instance of appellant, require to be discarded. Considering this aspect, according to her, presumption u/s.106 of The Indian Evidence Act will not applicable to the facts and circumstances of the present case. It is also urged that as the motive behind the crime is non fulfillment of the alleged illegal demand for which the appellant was also charged for an offence punishable u/s. 498(A) of The IPC, for which the appellant and others were acquitted. In the premise, the motive behind the crime also stands not proved. 10. In support of the contentions raised during the submissions across the bar, reliance is placed on the observations in the judgment of the Division Bench of this Court in the matter of Syed Aslam Syed Abdul versus State of Maharashtra 2008 B.C.I. 68 = 2008(4) Bombay Criminal Cases, page 811, to which one of us (Shri.P.V.Hardas, J.) is a party, wherein it is observed that, "In support thereof, learned counsel for the appellant has placed reliance on the judgment of Supreme Court in (Vikramjit Singh Alias Vicky Versus State of Punjab) 1, 2006 DGLS (soft) 894 : (2006) 12 S.C.C. 306. In the said judgment, the Supreme Court has held that burden of proving the fact especially within knowledge of the accused would not 9 Criminal Appeal No.109 of 2009 relieve the prosecution of proving its case beyond reasonable doubt. It is only when the prosecution case has been proved that the burden in regard to such facts which was within the special knowledge of the accused may be shifted to the accused for explaining the same subject to certain statutory exceptions. Reliance is also placed by the learned counsel for the appellant on the judgment of Supreme Court in (P.Mani Versus State of Tamil Nadu)2, 2006 DGLS (soft) 105 : A.I.R. 2006 S.C. 1319. The Supreme Court in the said judgment has held that in a criminal case it was for the prosecution to prove the involvement of the accused beyond all reasonable doubt. Supreme Court further found that it was not a case where both the husband and wife were last seen together inside a room. The incident might have taken place in a room but the prosecution had brought out evidence to the effect that the children who had been witnessing the television were asked to go out by the deceased and she had bolted the room from inside. As the children had seen the smoke coming out from the room, they rushed towards the same and broke open the door. In the circumstances, the Supreme Court held that Section 106 of The Evidence Act can not be said to have any application whatsoever." "At this juncture, a reference also be made to the judgment of Supreme Court in (Mulak Raj and others Versus State of Haryana) 3, 1996 DGLS (soft) 151 : 1996 DGLS (Cri.) soft 53 : (1996)7 S.C.C. 308. The Supreme Court in the said judgment has held that merely because the deceased died a homicidal death and her dead body was found in the kitchen with post-mortem burns, it can not be said that the said circumstance by itself would connect all the accused or any one of 10 Criminal Appeal No.109 of 2009 them with the crime. The Supreme Court, therefore, came to the conclusion that in view of the unsatisfactory state of evidence led by the prosecution, the question as to who killed the deceased remains unanswered." As against this, learned A.P.P. support the finding recorded by the Trial Court while convicting the appellant for the offence charged against him. 11. Considering these submissions of learned counsel for appellant and learned APP for State, it is established that the case of prosecution rests on circumstantial evidence. Only circumstance against the appellant is that the dead body of Neeta was found in her matrimonial house i.e. his own house. Other than this, there is nothing on record which is adverse against the appellant. Admittedly, the learned Trial Court had acquitted the appellant and his parents from the charges of offence punishable u/s. 498(A) of IPC, which finding is not challenged by the State, by filing an appeal against the acquittal. On appreciating the evidence led before the Lower Court, we are also in agreement with a view taken by the Lower Court in this regard. In other words, the acquittal of the appellant for the offence punishable u/s. 498(A) of The IPC destroy the intention and motive alleged by the prosecution against the appellant behind the present offence for which he was convicted. 12. Apart from the facts discussed in the paragraph supra, nothing is on record by way of evidence to infer that at the material time, the 11 Criminal Appeal No.109 of 2009 deceased was in the custody of the appellant as the incident occurred as observed earlier sometime during the day time and not occurred during night hours. In view of this, there is a room to draw the inference that the presumption u/s. 106 of The Indian Evidence Act is not attracted to the facts and circumstances of the present case as rightly pointed out by the learned counsel for appellant. If it is so, the appellant is entitled to be given benefit of doubt. In the result, we are inclined to allow the present appeal and accordingly pass following order. O R D E R Appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and is acquitted of the offences with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. Since the appellant is in jail, he be released forthwith, if not wanted in any other case. (A.V.POTDAR, J.) (P.V.HARDAS, J.) khs/DEC. 2010/cri.appeal 109-09 f