drp {1} Cri. Appeal No.566/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.566 OF 2009 1. Ganesh s/o Shamrao Raut APPELLANTS Age-25 years, Occ-Agri 2. Shamrao s/o Shivram Raut Age-50 years, Occ-Agri 3. Parigabai w/o Samrao Raut Age-45 years, Occ-Household All R/o Nivdunge, Tq-Pathardi, Dist-Ahmednagar VERSUS The State of Maharashtra RESPONDENT ....... Mr.Satej S.Jadhav h/f Mrs.S.S.Jadhav, Advocate for appellants Mr.D.V.Tele, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 11 th February 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellants, by filing the present criminal appeal, have assailed their conviction for an offence punishable u/s 302 r/w 34, 498A r/s 34 and 201 r/w 34 of the Indian Penal Code and drp {2} Cri. Appeal No.566/2009 sentenced to suffer imprisonment for life and to pay a fine of Rs. 1000/- each for the first offence and sentenced to suffer RI for 3 years and to pay a fine of Rs.1000/- each for second and third offence, in default of each sentence to suffer further RI for six months, in Sessions Case No.184/2007, by the Additional Sessions Judge, Ahmednagar, vide judgment and order dated 07.10.2009. 2. The prosecution case, as unfolded during the trial, is as under - a) On 18.05.2007, appellant No.2, Shamrao lodged a report (Exhibit-37) in the police station alleging that his house was burnt due to short circut. On the basis of the said report ADR No.3/2007 was registered. PW-9 Dilip Kurawale, visited the spot, situated a village Nivdunge, on 19.05.2007 b) At the time of drawing of spot Panchanama Mhatardeo Sasane (PW-6) was present. Burnt pieces of human body and some gold ornaments were noticed at the spot. According to PW-6 Mhatardeo, the burnt pieces of human body were of his daughter Manisha, wife of appellant No.1 Ganesh, while the gold ornaments were of his daughter. PW-6 Mhatardeo lodged report (Exhibit-26) at the spot itself. On the basis of the said report (Exhibit-26), an offence at drp {3} Cri. Appeal No.566/2009 Crime No.75/2007 was registered against the accused persons. c) Investigation of the said offence was entrusted to PW-9 PI Kurawale. Thereafter, inquest Panchanama (Exhibit-38) was drawn. The Medical Officer was summoned at the spot to conduct the Postmortem. d) Dr.Bansilal Wagh (PW-7) conducted Postmortem on the dead body, on the spot and prepared PM report (Exhibit-29). He noticed some pieces of human bones, most of the body was burnt and upper limb was not found but 6 inch femur bone was found in burnt condition. Bony part of anterior side of face was found with nozal and orbitory cavity. Over lumber spine with sacrum was found in partially burnt condition. The whole body was totally burnt. The doctor was unable to give the probable cause of death, however from the situation at the spot, he opined that the probable cause of death is due to burn. He has also opined that sex of the dead body was not identified. He has also stated that the death might have been caused within 48 hours. e) Spot Panchanama (Exhibit-14) was drawn in presence of the witnesses. Thereafter statements of drp {4} Cri. Appeal No.566/2009 witnesses were recorded by the police. The appellants were put under arrest vide arrest Panchanama (Exhibit-40 to 43). f) On 20.05.2007, statements of some more villagers were recorded by the police, including the statement of owner of the house in question. Necessary information was also collected from the office of MSEB. The seized property was sent to Chemical Analyzer on 27.05.2007. Thereafter supplementary statements of the relatives of the deceased and neighbours were recorded. After completion of the investigation, charge sheet was filed against the accused persons in the Court of JMFC, Pathardi. g) After the trial was committed to the Court of Sessions, Adhoc Additional Sessions Judge, Ahmednagar framed charge (Exhibit-6) against the accused persons for an offence punishable u/s 498 A r/w 34, 302 r/w 34 and 201 r/w 34 of the Indian Penal Code. The accused had abjured their guilt and claimed to be tried. h) To substantiate the charges leveled against the accused persons, the prosecution had examined total drp {5} Cri. Appeal No.566/2009 9 witnesses. Defence of the appellants was of total denial. The trial court, after appreciation of the evidence, came to the conclusion that the charge has been proved against the appellants and hence convicted them accordingly, however no charge is proved against accused No.4 Rohini and hence acquitted her of the offence. Admittedly, acquittal of accused No.4 has not been challenged by the State and hence it has attained finality. 3. Evidence on record indicates that the conviction of the appellants is based on circumstances. For better appreciation of the rival submissions, it may be useful to advert to the evidence of material witnesses examined before the trial court. 4. PW-1 Aasaram Sase, is the Panch witness to the Spot Panchanama (Exhibit-14). He has stated that on 19.05.2007 he and one Appasaheb were called at the house of Abasaheb Markad where the appellants and deceased used to reside. The said house is situated at the center of the village. One JCB machine was brought to remove the soil. They noticed one female body in partly burnt condition, after removal of the soil. He had noticed some golden ornaments and red colour bangles (Article 2). He has admitted in his cross examination that the house, which was burnt, is situated in thickly crowded area and was surrounded by other houses. Other than the articles mentioned in the spot drp {6} Cri. Appeal No.566/2009 Panchanama, gunny bags containing grain as well as household articles were also noticed at the spot, however the same were not mentioned in the spot Panchanama. 5. Chandrakant Nangare (PW-2) is the maternal uncle of deceased Manisha. He has stated that Manisha was treated well for initial four months of her marriage, however, thereafter she was ill- treated by the appellants alleging that she was not doing the household work properly. The appellants had also demanded Rs. 25,000/- from the parents of Manisha and Manisha had informed the same to him when she had visited to his house at Pune. In turn, he had informed the same to the father of Manisha (PW-6). He has further stated that father of Manisha had been to the house of deceased and the appellants were convinced. On 18.05.2007 he had received message that house of Manisha was burnt and he was asked by PW-6 as to whether Manisha had came to his house. On 19.05.2007, he had reached to the house of Manisha at about 11.00 a.m. where father of Manisha met him. He has further stated that PW-6 had identified the burnt pieces of dead body as of his daughter Manisha. He has admitted in his cross examination that since 1993 he is residing at Pune and since marriage of Manisha till 19.05.2007, only twice he had been to the house of Manisha i.e. first he visited her house after 6 months of marriage of Manisha, while she was leading a happy married life. Certain omissions are proved in his cross examination that Manisha had disclosed about her ill-treatment by the accused drp {7} Cri. Appeal No.566/2009 during her visit at Pune, which he had informed to PW-6 and requested him to convince the appellants. Though he was present at the time of drawing of spot Panchanama, he was unable to sate as to whether exactly at which place the dead body was found. He has also admitted that the house of the appellants was not completely burnt. He has also admitted that after he learnt about the illegal demand by the appellants, he did not feel it necessary to visit the house Manisha and convince the appellants. 6. PW-3 Sanjay Markad, has stated that 15 days prior to the incident PW-6 and his friend Dadamiya had been to his hotel and had told him that Manisha was not treated well by the appellants. On 18.05.2007, at about 2.15 p.m. he and PW-4 Manik Asaram were proceeding towards water tank at that time, they saw that door of the house of the appellant was open and smoke was coming from backside of the said house. When they returned from the water tank, they noticed that the door of the said house was latched from outside, they opened the door and entered in the house and removed two bags of grain. The house was burning and the debris had fallen. They shouted for help and tried to extinguish the fire, however could not succeed. Thereafter somebody had informed the police and police had arrived at the spot. After some time fire brigade was also reached and extinguished the fire. The deceased was residing in the said house along with the appellants. He has admitted in his cross examination that father of Manisha had never informed him about the ill-treatment to Manisha prior to drp {8} Cri. Appeal No.566/2009 their visit 15 days before the incident. He has also admitted that he has no personal knowledge whether in reality father of Manisha had been to the house of the appellants or not. Though they had opened the door of the house and noticed smoke from back side, they did not feel it necessary to enter in further portion of the house. On the day of the incident, they did not give call to Ganesh- appellant No.1 to ascertain as to whether he was inside the house or not. They did not disclose to anybody that smoke was coming from the house of the appellants when they went to water tank. He has also admitted in his cross examination that he had no personal knowledge as to how the house of the appellants caught fire. Omission is proved that he has not stated in the statement before police that they had seen smoke coming from the backside of the house of the appellants. 7. Evidence of PW-4 Manik Aasarm is on the similar lines as that of PW-3 Sanjay Markad. He has stated in his cross examination that about 50 persons had gathered at the spot. He has categorically admitted that at the relevant time the appellants were not present in their house. 8. PW-5 Sambhaji Markad, has stated in his evidence that at the material time he was working in the shop run by cooperative society at Nivdunge. On 17.05.2007 appellant No.1 had purchased 10 liters of kerosene. Appellant No.1 had never purchased kerosene in such a large quantity before that. In the drp {9} Cri. Appeal No.566/2009 cross examination he has stated that the bill of sale of 10 liters of kerosene to the appellant No.1 is not available in the bill book. He tried to explain that sometimes, due to rush, they do not prepare bills of sale of kerosene. 9. PW-6 Mhatardeo Sasane, father of the deceased has stated in his evidence that Manisha had got married with appellant No.1 about one year 3 months prior to the incident. Manisha was treated well for initial four months, however thereafter, the appellants started harassing her. The appellants were insisting Manisha to bring Rs.25000/- for household expenses. Manisha was also being harassed on the count that she was not doing the household work properly. Manisha had disclosed these facts to him over telephone. 15 days prior to the incident, he had been to the house of appellants as Manisha had informed that quarrel had taken place between herself and her mother in law. On 18.05.2007, at about 5.30 p.m. he received message that house of Manisha was burnt in fire. Immediately he reached at Nivdunge and came to know that appellant No.2 had lodged a report with the police in respect of burning of his house. On the next day of the incident, he had brought JCB machine and had removed the debris. At that time a skeleton in burnt condition was noticed, which he identified as of his daughter. He also identified the golden ornaments. Thereafter he had lodged a report (Exhibit-26) at the spot itself, against all the accused persons. In his cross examination he has stated that there was old relations with the appellants prior to the drp {10} Cri. Appeal No.566/2009 marriage of Manisha with first appellant. After the marriage of Manisha she was leading happy married life. He has denied that he had received message from appellant No.2, however he could not name the person who had informed him about the burning of the house of the appellants. He has admitted that there was electricity supply to the house of the appellants. He had no personal knowledge as to how his daughter has expired. 10. PW-8 Ramesh Jadhav, Assistant Engineer, MSEB, has stated in the evidence that his office record does not indicate that electricity supply was provided to the house where the incident has taken place. According to him there was no short circuit. He has admitted in his cross examination that there was no authorized meter connection in the said house and there was also no report of commission of electricity theft and hence he has stated that there cannot be short circuit in the said house. It is to be noted that one electricity supply bill was found in partly burnt condition, which was found while inspecting the house and the same is on record at Exhibit-35. 11. In the light of the above discussed evidence, heard learned counsel for the appellant followed by the submissions of learned APP. 12. Admittedly, the case of the prosecution rests on circumstantial evidence. While supporting the conviction and drp {11} Cri. Appeal No.566/2009 sentence of the appellants, learned APP vehemently urged that it has been clearly established in evidence of PW-6 Mhatrardeo that the skeleton recovered during the spot Panchanama was the skeleton of his daughter Manisha so also he had identified the ornaments of Manisha recovered from the debris. Thus, according to learned APP it has been established that death of Manisha is an unnatural death and the same has taken place in her matrimonial house. It is further urged that evidence of PW-6 clearly indicates that Manisha was ill-treated and harassed by the appellants on account of illegal demand. Learned APP has further asserted that PW-3 Snjay Markad and PW-4 Manik Aasaram have categorically stated that on 18.05.2007 they saw fire at the back side of the house of the appellants. Learned APP further urged that evidence of PW-5 clearly establishes that a day prior to the incident the appellant No.1 had purchased 10 liters of kerosene from the cooperative society’s shop. All these circumstances clearly indicate that Manisha was first killed by the appellants and then to conceal the evidence, the house was set on fire and the motive behind the crime was non satisfaction of illegal demand and hence urged for dismissal of the appeal and for confirmation of the sentence. 13. Per contra, learned counsel for the appellants has urged that even if the entire evidence of the prosecution is accepted as it is, it does not establish that death of Manisha is a homicidal one. Learned counsel for the appellants does not seriously dispute that death of Manisha is unnatural, however according to him from drp {12} Cri. Appeal No.566/2009 the evidence on record it is not established that whether the death of Manisha is homicidal or accidental. Learned counsel for the appellants has urged that evidence of PW-6 has to be read with the evidence of PW-2 and this evidence has destroyed the alleged motive behind the crime that there was illegal demand at the hands of the appellants to bring Rs.25000/-. It is also urged that the evidence of PW-5 has to be discarded as he has admitted in his cross examination that he has not maintained bill book of the shop in respect of sale of 10 liters of kerosene to the appellant No.1 on 17.05.2008 and hence it is not established that appellant No.1 had purchased that much quantity of kerosene on 17.05.2007. It is also urged that the evidence of PW-3 and PW-4 even if accepted as it is, it would only establish that on 18.05.2007 there was fire in the house of the appellants, however it would not establish that the appellants have set the same fire, to conceal the evidence of murder. It is further urged that mere grave suspicion cannot take place of a proof. 14. In the light of these rivals submissions, the circumstances, on which the prosecution’s case rest, can be formulated thus- a) Death of Manisha is unnatural death. b) Manisha was found dead in her matrimonial house c) Appellants have not properly explained the circumstances in which Manisha has expired drp {13} Cri. Appeal No.566/2009 d) There is motive behind the crime of illegal demand of Rs.25,000/- from Manisha. From the medical evidence of Dr.Bansilal Wagh (PW-7) it is clear that the probable cause of death of Manisha is due to burn, however the said opinion has been given by the medical officer on the basis of circumstances in which the human skeleton was found. The Medical Officer has clearly stated that he was unable to opine as to whether the death of Manisha is a homicidal or the same is accidental one. At the same time, it is also not disputed that the death of Manisha is an unnatural death and the same has occurred in her matrimonial house. 15. From the evidence on record, of PW-1 Aasaram Sase, a Panch witness to the spot Panchanama and from the evidence of PW-3 and PW-4 coupled with the evidence of the Investigating Officer, it has came on record and not even disputed that the place where the incident has taken place, i.e. the house of the appellants, is situated in a thickly crowded area, at the center of the village. The said house is surrounded by number of other houses. If it is so, then how it comes that nobody has came forwarded or as to how nobody has seen the appellants at the spot soon before or soon after the incident. At his juncture, it may be useful to refer to the evidence of the investigating officer. In his cross examination the investigating officer has admitted that he has not recorded the statement of Haribhau Markad, a front door drp {14} Cri. Appeal No.566/2009 neighbour of the appellants. He has also admitted that there is lane in front of the house of the appellants and the house of Haribhau Markad is situated in front of the door of the appellants. The investigating officer has not even recorded statements of the persons whose houses are adjacent to the house of said Markad. Thus, it is clear from the evidence on record that the same is conspicuously silent on the point that at the material time either of the appellant was present at the spot. It cannot be presumed that merely the incident has occurred at the matrimonial house the act must have been committed by the appellants and appellants only. Thus, there is no concrete evidence to establish presence of the appellants at the spot at the relevant time. This fact requires to be considered in the light of the evidence of PW-3 and PW-4 that when they went to water tank, at about 2.00 p.m. on 18.05.2007, they had seen that the door of the house of the appellants was open and some smoke was coming from the backside of the house and when they returned after an hour, at that time the door was latched from outside and the smoke was coming from the rear side of the house. This evidence clearly indicates two facts, viz- firstly that the house was not burnt in fire at a one stroke however it was a slow process and secondly, though PW-3 and PW-4 had entered in the house of the appellants, yet they had not seen any of the appellants at the spot, on both the occasions. 16. Lastly, we may deal with the alleged motive behind the crime. Though the prosecution has tried to project that the drp {15} Cri. Appeal No.566/2009 deceased was ill-treated and was harassed by the appellants on account of illegal demand of Rs.25,000/- to meet the household expenses and that the deceased was not doing the domestic work properly and though have examined PW-2 and PW-6, yet omissions are proved in the evidence PW-2 that he had not stated in the statement before police that deceased had told him about the alleged harassment for not satisfying the illegal demand of Rs. 25,000/-, during her visit to Pune, which he had informed to PW-6 and instructed him to convince the appellants. Moreover, particulars about the said illegal demand are not proved from the evidence of PW-6-father of the deceased. Thus, on overall re- appreciation of the evidence of these two witnesses it is clear that the alleged motive behind the crime, of illegal demand, is not established and hence it cannot be inferred that offence punishable u/s 498A of the Indian Penal Code has been proved against the appellants. 17. On re-appreciation of the evidence of the prosecution witnesses it is clear that the motive behind the crime is not established. Presence of the appellants, at the spot at the relevant time, soon before or soon after the incident is also not established. And from the medical evidence, it is also not clear that the death of Manisha is a homicidal one. To constitute an offence punishable u/s 302 of the Indian Penal Code, it is necessary to establish that the death of the victim is a homicidal one and to constitute an offence punishable u/s 201 of the Indian Penal Code it has to be drp {16} Cri. Appeal No.566/2009 established that the accused have concealed or destroyed the evidence. In the case in hand, the prosecution has failed to establish that the death of Manisha is a homicidal one and as discussed above, the motive behind the offence is also not established and, therefore, it cannot be inferred that the charges leveled against the appellants have been proved beyond reasonable doubt. At this juncture, it may be useful to refer to the observations of the Apex Court in the matter of “Narendra Singh and Another V/s State of M.P.” AIR 2004 SC 3249. The Apex Court, in the said judgment, has observed that suspicion, however grave may be, cannot take place of a proof. It is equally well-settled that there is a long distance between ‘may be’ and ‘must be’. 18. Though there is great suspicion against the present appellants, yet the evidence on record is not sufficient to hold that the offence has been proved against the appellants, beyond reasonable doubt. In the premise, in view of well settled principles of law, benefit of doubt goes in favour of the accused. We accordingly extend the benefit of doubt to the present appellants. In the premise, the appeal ought to succeed. 19. Criminal Appeal is allowed and the conviction of the appellants is hereby quashed and set aside and the appellants are acquitted of the offence with which they were charged and convicted. Fine, if paid by the appellants be refunded to them. Since appellant No.1 Ganesh Shamrao Raut is in jail, he be drp {17} Cri. Appeal No.566/2009 released forthwith, if not wanted in any other case. Bail bonds of appellant No.2 Shamrao Shivram Raut and appellant No.3 Parigabai w/o Shamrao Raut are hereby cancelled. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/A11/criapel566-09