{1} Cri. Appeal No274./2011 drp IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.274 OF 2011 Ashok @ Asaram Kadaji Falke APPELLANT Age-38 years, Occ-Agriculture R/o Raheri, Tq-Georai, Dist-Beed VERSUS The State of Maharashtra RESPONDENT ....... Mr.Joydeep Chatterji, Advocate for the appellant Mr.N.R.Shaikh, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 5 th AUGUST 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. Hearing of this criminal appeal was expedited and hence the appeal is taken up for final hearing out of its turn. 2. Challenge in this appeal is to the conviction u/s 302 r/w 34 of the Indian Penal Code and sentence of imprisonment for life and to pay a fine of Rs.2000/- each to the appellant and original accused No.1 Sangita with default stipulation of undergoing further RI for two months, awarded by Additional {2} Cri. Appeal No274./2011 Sessions Judge, Beed, vide judgment dated 20.05.2011 rendered in Sessions Case No.16/2011 . 3. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus- (a) An AD No.18/2010 came to be registered on 13.09.2010 on the basis of report (Exhibit-8) lodged by PW-4 Shahadeo in Talwada police station in respect of death of his brother Shivaji Patekar. Inquiry of the said AD was entrusted to ASI Aitwad, who, after visiting the spot, during the AD inquiry, drew Inquest Panchanama (Exhibit-19) and scene of offence Panchanama (Exhibit-20). At the time of drawing the scene of offence Panchanama a TV cable wire was seized from the spot. Thereafter, the dead body was sent for postmortem examination. (b) Dr.Satish Shinde, PW-7, conducted postmortem on the dead body and noticed that pressure abrasion as deep grove ligature mark around neck above thyroid cartilage anterior and on both lateral sides of neck and back of the neck was completely encircled of size 42 x 1.3 cm underling subcutaneous tissues crushed. During the internal examination, he noticed that the covering of the brain was intact and brain matter was highly congested. He also noticed that right side chamber of the heart was full of blood {3} Cri. Appeal No274./2011 while left chamber was empty. It was opined by the medical officer that the death might have been caused after more than 4 hours of the last meal. According to the medical officer the cause of death was asphyxia due to strangulation. Accordingly, Postmortem report (Exhibit-37) came to be prepared. According to the medical officer strangulation is possible if nylon rope is pressed around neck. (c) On 16.09.2010, Rajeshree Maske (PW-1), sister of the deceased, lodged a complaint (Exhibit-17) on the basis of which an offence at Crime No.90/2010 came to be registered initially against accused Santiga and after supplementary statement of Rajeshree (PW-1) came to be recorded the appellant came to be added as accused in the said offence. Investigation of the said offence was entrusted to PW-6 API Arun Jagrtap. (d) Original accused No.1 Sangita came to be arrested on 16.09.2010 while the appellant came to be arrested on 21.09.2010. On 23.09.2010, the appellant made a disclosure statement (Exhibit-22) which lead to the discovery of a nylon rope from an agricultural field, which came to be seized vide seizure Panchanama (Exhibit-23). Thereafter the said rope was referred to the medical officer for opinion, which was given by him on 30.11.2009. After completion of the investigation charge sheet came to be submitted against the {4} Cri. Appeal No274./2011 appellant and accused Sangita, before JMFC, Georai. (e) On being committal of the case to the Court of Sessions, trial Court famed charge (Exhibit-6) against the appellant and original accused No.1 Sangita for an offence punishable u/s 302 and 201 r/w 34 of the Indian Penal Code. The appellant and original accused No.1 Sangita abjured their guilt and claimed to be tried. Defence of the accused was of total denial. Prosecution, in support of its case examined in all 7 witnesses, however, none of them has witnessed the actual incident. After appreciation of the evidence on record, trial court convicted both the accused for an offence punishable u/s 302 r/w 34 of the Indian Penal Code while acquitted them of the offence punishable u/s 201 of the Indian Penal Code. 4. By the present appeal, original accused No.2 has questioned the correctness of his conviction and sentence whereas original accused No.1 Sangita has not filed any appeal against her conviction and sentence, before this Court. 5. Learned counsel for the appellant and learned APP for respondent State have taken us through the entire record and proceedings. The appellant has not disputed that the death of the deceased is unnatural and homicidal death, however, what he is disputed is that the appellant is not responsible for the said {5} Cri. Appeal No274./2011 homicidal death. Learned counsel for the appellant would submit that PW-5, Akash, son of the deceased has not supported the prosecution case. Learned counsel for the appellant would further urge that the only incriminating evidence against the appellant is the alleged recovery of nylon rope at the instance of the appellant, which in fact cannot link the appellant with the said offence. Learned counsel for the appellant would further urge that the evidence on record is so scanty and insufficient to hold the appellant guilty of the offence of murder with common intention. In the premise, it is urged to acquit the appellant by allowing the appeal. Per contra, learned APP supported the findings arrived at by the trial court while convicting the appellant for an offence u/s 302 r/w 34 of the Indian Penal Code. 6. In order to effectively deal with the submissions advanced before us by the rival parties, it would be appropriate to advert to the evidence of material witnesses examined before the trial court. 7. PW-1 Rajeshree, sister of the deceased states in her evidence that the deceased was blind and was not doing any work and he used to beg to earn his livelihood. She further states that on 13.09.2010, after receipt of message that deceased has expired due to chest pain, she along with her husband had rushed to village Raheri and reached there at 11.00 a.m. At that time wife of the deceased, original accused No.1 Sangita was present there. A {6} Cri. Appeal No274./2011 cloth was tied around the mouth of the deceased, who was made to sit with support of a wall. While the deceased was taken for the last bath, they noticed blackish marks around his neck and suspected some foul play. Immediately, PW-4 Shahadeo lodged a report with the police, thereafter Inquest Panchanama was drawn and the dead body was referred for Postmortem. On her inquiry, PW-5 Ashok, son of deceased, who was studying in 8th standard, informed that the appellant used to visit their house and on that count quarrel used to take place in their house. She further states that the deceased had informed him in the past that he suspects the character of his wife i.e. original accused No.1 Sangita. Therefore, she suspected that the appellant, along with original accused No.1 Sangita might have killed the deceased and as she was mentally disturbed due to demise of her brother, she lodged the complaint (Exhibit-17) after 3 days of the incident. In cross examination, she admits that she had lodged the complaint only on suspicion. She however, denies that she was present at the time of conducting the postmortem. She further states in her cross examination that the deceased had married with accused Sangita 17 to 18 yeas prior to the incident and they were leading a happy married life. She further admits that 3 months prior to the incident she had been to the house of the deceased on account of marriage of his elder daughter, which was properly performed by accused Sangita. She further admits that the police had enquired with her at the time of drawing of the Inquest and Spot Panchanamas. She further admits that she had not disclosed the {7} Cri. Appeal No274./2011 information provided by PW-5 Ashok till she lodged the complaint with the police. She also admits that she had not stated in her complaint that the deceased had disclosed to her the name of the appellant whenever she used to visit him. She also admits that she had not disclosed in the complaint that mouth of the deceased was tied with cloth. 8. PW-2 Anand, is a Panch witness to the Inquest Panchanama (Exhibit-19) and spot Panchanama (Exhibit-20). He states that at the time when the spot Panchanama was drawn, the police had seized one wire, which was tied to a beam beneath the tin shed of the front room of the house of the deceased. He admits in his cross examination that the house of the deceased is surrounded by other houses. 9. PW-3 Vikram Lad is a Pancha witness to the disclosure statement (Exhibit-22) made by the appellant which lead to recovery of nylon rope from a field, at the instance of the appellant and was recovered vide Panchanama at Exhibit-23. He, however, admits in his cross examination that a criminal case is pending against his father and brother in which brother of the appellant has given evidence against them. 10. PW-4 Shahadeo, is the brother of the deceased Shivaji. He states in his evidence that after receipt of message on 12.09.2010 that deceased has expired due to heart attack, he had {8} Cri. Appeal No274./2011 reached at the house of the deceased at about 12.00 noon. When the last bath was being given to the deceased he noticed marks around the neck of the deceased. Therefore, he lodged the report (Exhibit-28) in the police station. He further states that accused Sangita had threatened him on phone that she would kill the deceased. Even PW-5 Akash, had disclosed him, 8/10 days prior to the incident that the appellant had beat him on 2/3 occasions on account of his disliking the visits of the appellant to their house. He has admitted in his cross examination that he has not disclosed in his statement recorded by the police that accused Sangita had threatened him that she would kill the deceased. He further admits that his supplementary statement was recorded by the police on 16.09.2010. He had also not stated in his statement given to police that PW-5 Akash had disclosed him that the appellant had beaten him on 2/3 occasions. He has also not stated in his statement recorded by the police that the appellant and accused Sangita had killed the deceased. He has categorically admitted in his cross examination that he had stated before the police only on suspicion. 11. Though prosecution has examined PW-5 Akash, son of the deceased, yet he has not supported the prosecution case and hence was declared hostile. 12. In the light of this evidence we have heard learned counsel for the appellant and learned APP for respondent State. As {9} Cri. Appeal No274./2011 rightly pointed out by learned counsel for the appellant that the only evidence against the appellant is the recovery of nylon rope vide Panchanama (Exhibit-23), which in fact cannot link the appellant with the offence of murder for two reasons, firstly that the recovery itself is doubtful and secondly though the rope is allegedly recovered at the instance of the appellant, yet the same was not sent for chemical examination to ascertain as to whether any tissues were there on the rope or not, in the light of injury mentioned in postmortem report that “underling subcupnevous tissues crushed”. Learned counsel for the appellant has urged that had the deceased been strangulated by the said rope then some tissues must have been present on the same, but in absence of chemical analysis it cannot be inferred that the said rope was used to strangulate the deceased. Thus, careful scrutiny of the entire evidence on record reveals that there is no legal evidence against the appellant, which links the appellant with the death of the deceased. 13. Admittedly, accused No.1 Sangita, who has also been convicted along with the appellant for an offence punishable u/s 302 r/w 34 of the Indian Penal Code, has not preferred any appeal before this Court. However, while re-appreciating the evidence against original accused No.2, we find that other than strong suspicion, there is no legal evidence which can sustain conviction even of original accused No.1. In the premise, a question before us is as to whether the same yardstick which is applied to the case of {10} Cri. Appeal No274./2011 the appellant can be applied to original accused No.1 Sangita and the benefit of the appeal can be extended to her also. Learned APP, in support of conviction and sentence of accused Sangita has urged that as the incident has occurred during night hours, the presumption that accused Sangita was in the company of the deceased u/s 106 of the Indian Evidence Act would lie in favour of the prosecution and hence it is imperative for accused Sangita to explain as to in what circumstances the deceased has expired. 14. In this respect, we may usefully refer the observations of the Division Bench of this Court, in “Syed Aslam Syed Abdul V/s State of Maharashtra” 2008 BCI 68 to which one of us, (P.V.Hardas, J.) was a member. The Division Bench, in the said judgment has discussed the scope of presumption u/s 106 of the Indian Evidence Act, which reads thus- "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 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. {11} Cri. Appeal No274./2011 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 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." 15. It may also be useful to refer the observations of the Division Bench of this Court in the judgment dated 24.09.2010 rendered in Criminal Appeal No.124/2009 in the matter of “Namdeo Tukaram Budde V/s The State of Maharashtra” to which both of us are the members, wherein it is observed thus- {12} Cri. Appeal No274./2011 11. At this juncture, it would be useful to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge (1838) 2 Lewin where he said : “The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it considering such matters, to overreach and mislead, itself, to supply some little link that is wanting, to take for granted some facts consistent with its previous theories and necessary to render them complete.” A reference may also usefully be made judgment of the Supreme Court in “Sharad Birdhichand Sarda V/s State of Maharashtra) AIR 1984 SC 1622. The Supreme Court has held that following conditions must be fulfilled before a case against the accused based on circumstantial evidence can be said to be fully established. “(i) The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely ‘may be’ fully established. (ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (iii) The circumstances should be of a conclusive nature and tendency, (iv) they should exclude every possible hypothesis except the one to be proved and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion {13} Cri. Appeal No274./2011 consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 16. It may further useful to refer the judgment of the Division Bench of this Court dated 12.07.2011 rendered in Criminal Appeal No.469/2010 in “Bajirao Raoji Bagul V/s State of Maharashtra” to which both of us are the members, wherein also the similar view is taken by us. 17. As pointed out by us above, conviction of an accused can be based on the legally admissible evidence and not on strong suspicion or moral evidence. On re-appreciation of the evidence on record, according to us no legal evidence is available to sustain the conviction of the appellant for the offence with which he was charged and convicted. In the premise, the conviction and sentence of the appellant requires to be quash and set aside. 18. At this juncture, we may usefully refer the observations of the Supreme Court in “Suresh Chaudhary V/s State of Bihar” (2003) 4 SCC 128. The Apex Court, in the said judgment has observed that - “This Court, in catena of cases has held that where on the evaluation of a case this Court reaches the conclusion that no conviction of any accused is possible, the benefit of doubt must be extended to the co-accused similarly situated though he has not challenged the {14} Cri. Appeal No274./2011 order of conviction by way of an appeal. This Court while rendering the above judgment has placed reliance on some other judgments of this Court in Raja Ram V. State of MP, Dandu Lakshmi Reddy V. State of A.P. And Anil Rai V. State of Bihar wherein this Court has taken a similar view. Following the above dictum of this Court in the judgments noticed by us, herein above, we are of the opinion that since we have come to the conclusion that no conviction of any accused is possible based on the prosecution case as presented, it becomes our duty to extend the benefit of acquittal in these appeals also to a non appealing accused.” 19. Similar view is taken by the Apex Court in “Arokia Thomas V/s State of T.N.” (2006) 10 SCC 542 and “Raju & Others V/s State of Madhya Pradesh” (2008) 15 SCC 133. In the light of the above observations, though original accused No.1 Sangita has not preferred any appeal challenging her conviction and sentence, we deem it appropriate to extend the benefit of the present appeal to her also. 20. Consequently, Criminal appeal is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid by the appellant, be refunded to him. 21. Benefit of doubt is also extended to original accused No.1 Sangita w/o Shivaji Patekar and accordingly we quash and set aside her conviction and acquit her of the offence with which {15} Cri. Appeal No274./2011 she was charged and convicted. Fine, if paid by original accused No.1 Sangita, be refunded to her. 22. Since the appellant i.e. Ashok Alias Asaram Kadaji Falke and original accused No.1 Sangita w/o Shivaji Patekar are in jail, they be released forthwith, if not wanted in any other case. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel274-11