{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.727 OF 2008 Ramesh s/o Shankar Dhotre, Age-27 years, Occ-Agril R/o Yedshi, Tq-Kallam, Dist-Osmanabad APPELLANT VERSUS State of Maharashtra RESPONDENT ....... Mr.R.N.Dhorde, Advocate for the appellant Mr.N.R.Shaikh, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 16th September 2010 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. By the present criminal appeal, the appellant has questioned the legality and correctness of the judgment and order dated 23.12.2008 passed by the Additional Sessions Judge, Osmanabad in Sessions Case No.8/2008. By the impugned order, the appellant is convicted for an offence punishable u/s 302 of the Indian Penal Code and is sentenced to suffer imprisonment for life and to pay a fine of Rs.2,000/-. {2} 2. Facts, in nutshell, leading to file the present appeal, may be stated thus- a) Deceased Archana, daughter of Parvatibai Tamanna Gaikwad (PW-2) had married with the appellant somewhere in the year 2005. From the said wedlock, a daughter was born to them. Deceased Archana and the appellant were residing in the matrimonial house of Archana at Yedshi. b) In the month of September 2007, deceased was carrying 6 months’ pregnancy. Alka (PW-4), married sister of deceased was residing at Parali. On 20.09.2007, PW-2 Parvati had been to Parali and at 11 a.m. deceased had contacted her and requested Parvati to visit Yedshi as she wanted to disclose something to her. In the evening of 20.09.2007, Parvati received message that Archana has expired due to heart attack. Parvati along with Alka came to Yedshi at about 9 p.m. and noticed certain injuries on the person of deceased and hence after cremation, she lodged a report with Osmanabad Rural Police Station. On the basis of the said report, an offence at Crime No.75/2007 was registered for an offence punishable u/s 498A, 302 r/w 34 of the Indian Penal Code, {3} against the appellant, his parents, brother and two sisters. c) It appears that before registration of the said crime, AD No.35/2007 was registered with the same police station in respect of the death of Archana on the report of father of the appellant. PSI Baburao Shinde (PW-8) had carried out investigation in the said AD report. During the inquiry of the said ADR, PW-8 Baburao Shinde had visited the spot and had drawn inquest Panchanama (Exhibit-38). On 21.09.2007 he had again visited the spot and had prepared the spot Panchanama (Exhibit-47). d) It appears that during investigation Mrs.Anjum Shaikh (PW-10) arrested the appellant and his parents on 23.09.2007 and remaining accused on 27.09.2007. After PW-11 Sunil Lokhande took over the investigation, he recorded statements of witnesses, collected postmortem notes and forwarded viscera. After completion of investigation charge sheet was filed before CJM, Osmanabad, who in turn committed the trial to the Court of Sessions, Osmanabad. e) It appears that the trial court framed charge against the appellant and others for an offence {4} punishable u/s 498-A, 302 r/w 34 of the Indian Penal Code to which the accused pleaded not guilty and claimed to be tried. f) It appears that the prosecution examined 11 witnesses, they are – Prosecution witness No.1, Dr.Mahesh Kanade, Medical Officer, Osmanabad who had performed autopsy on the dead body of the deceased. Prosecution witness No.3, Dr.Anil Waghmare, Medical Officer, PHC, Yedshi, who had initially examined Archana and had referred her to civil hospital, Osmanabad. PW-2 Parvati, mother of deceased on whose compliant Crime No.75/2007 is registered. PW-4, Alka, sister of the deceased. PW-5 Dashrath Gaikwad, Panch witness to inquest Panchanama carried out on the dead body of the deceased. PW-6 Sanjay Lokhande, and PW-7 Bapu Itkar, Pancha witnesses, who turned hostile. PW-8 Baburao Shinde, who had carried out investigation pursuant to the registration of the ADR No.35/2007 recorded by PW-9 Rajendra Patil. PW-10 Mrs.Anjum Shaikh, who had carried out initial investigation till 23.09.2007 and later on handed over to PW-11, who after completion of the investigation had filed charge sheet against the accused. Defense of the accused was of total denial. {5} g) It appears that vide the impugned judgment, the trial court acquitted the appellant and others for an offence punishable u/s 498-A r/w 34 of the Indian Penal Code. The trial court also acquitted the other accused other than the appellant of the offence punishable u/s 302 r/w 34 of the Indian Penal Code, however, convicted the appellant for an offence punishable u/s 302 of the Indian Penal Code. 3. In order to appreciate the submissions of the rival parties, it would be useful to advert to the evidence of material witnesses. 4. PW-1 Dr.Mahesh Kanande conducted autopsy on the dead body of deceased Archana and had noticed that - “blood stained fluid oozing from both nostrils. Face was pale and whitish. He noticed two nail marks on face. The face was slightly swollen. Drooling of saliva not noted at angle of mouth. Her arms were flexed at elbow joint partly and inwardly rotated in defence position at wrist joint. He noticed the following external injuries on the person of the deceased- i) contusion and swelling at elbow and left ear-adm 3 X 2 cm ii) Two nail marks on face. One on lower lip, semicircular, {6} size 1.5 cm X 0.5 cm. Another on left side of cheek, below nose. iii) One black liniar mark starting from chin and ends at left nape of neck, no upgraded margin, no depth. On dissection o glistering surface or bleeding spot below that mark. iv) Contused skin injury over neck, infront of neck on both side. 7-8 cm long X 4 cm wide on both sides of the neck. On internal dissection, hemorrhagic spot on right side 2 X 1 cm and two such haemorrhagic spot, one below another. Size 2 X 1 cm on further dissection, frothy bleeding in trachea. v) Abrasion on left thigh 2 X 1 cm vi) Abrasion on right thigh 3 X 2 cm These injuries were antemortem. He also noticed the following internal injuries on the person of the deceased. i) Hemorrhagic spot on left side of scalp region. ii) injury over thorasic region. 6th rib bone was found {7} fractured. On opening thoracic chamber, blood was oozing from right atrium. Laryans, trachea and bronchi found congested. Right and left lung found congested. On opening of abdomen, he noticed 80-100 m.l. of undigested food material found in stomach without any peculiar smell. Kidney was found with blunt trauma. 5. According to this witness, the death caused due to throttling with the evidence of multiple injuries. Through this witness, the prosecution got proved the Postmortem notes. In view of the evidence of this witness there cannot be duality of opinion that the death of deceased Archana is a homicidal one. 6. PW-3 Dr.Anil Waghmare, has deposed that Archana was brought in the Primary Health Center, Yedshi at about 2.30 to 2.45 pm on 20.09.2007 by her relatives. When she was brought in the PHC, she was already dead. Relatives gave history that she fall on the ground due to giddiness due to pregnancy. After giving life saving injections, she was referred to Civil Hospital Osmanabad. a) In his cross examination, this witness has admitted that he was unable to identify the relatives of deceased, who had brought her in Primary Health Center, Yedshi. {8} 7. It transpired from the evidence of PW-2 Parvati, mother of the deceased and PW-4 Alka, sister of the deceased that on 20.09.2007 on receipt of telephonic message from the appellant in the evening, both of them along with father of deceased, came to Yedshi at about 8.00 or 9.00 p.m. They noticed contusions on the person of the deceased so also there were marks of injury around her neck. Besides that blood and fluid was oozing from her nose and mouth. On the next day, after cremation of the deceased, PW-2 lodged a report (Exhibit-23) in Rural Police Station, Osmanabad against the appellant and his relatives. On the basis of the said complaint, offence at Crime No.75/2007 was registered against the appellant and others. In the evidence of PW-2 and PW-4 there is reference to some demand at the hands of the appellant for the purchase of a tractor. 8. From perusal of the evidence of these witnesses it is clear that they are not claiming that they are the eye witnesses to the alleged incident or that they came to know about the alleged incident of assault on the deceased by the appellant and others, through somebody. 9. Considering the overall effect of the evidence it is clear that the case against the appellant rests on circumstantial evidence. {9} 10. During the course of submissions, our attention is drawn by the learned counsel for the appellant towards the spot Panchanama (Exhibit-47), which was proved in the evidence of PW-8 Baburao Shinde, which was drawn during the AD inquiry. In the said spot Panchanama, presence of one Smita Ramdas Itkar was recorded. Said Smita has stated that on hearing the cries of a small child, she had entered in the house of the appellant, which was not latched, and noticed that deceased was lying in unconscious condition near the bed at about 2.30 p.m. She informed accordingly to the brother in law of the deceased and others. Thereafter with the help of others, the deceased was taken to primary health center, Yedshi where she was examined and referred to Civil Hospital, Osnamabad, from where her body was brought back to Yedshi. 11. It is also brought to our notice that none of the witness, examined by the prosecution, has stated that the appellant was present at the spot soon before or soon after the incident. It is also brought to our notice that after the arrest of the appellant nothing incriminating was recovered at his instance. According to learned counsel for the appellant, perusal of the evidence of PW-11 Lokhande indicates that during the investigation he has recorded statements of neighbours of the deceased i.e. Smita Itkar, Neelabai Dhotre and Kamal Unde who had carried her to the Primary Health Center, however, those witnesses are not examined before the Court. It is also urged that as the trial court {10} has acquitted the appellant as well as other accused from the offence punishable u/s 498A r/w 34 of the Indian Penal Code, the alleged motive behind the crime is not established by the prosecution. It is further urged on behalf of the appellant that considering all these aspects, the presumption u/s 106 of the Indian Evidence Act cannot be drawn in the present case. Therefore, it is urged to allow the appeal and acquit the appellant. 12. Per contra, learned APP opposed the submissions of learned counsel for the appellant and supported the impugned judgment. According to learned APP, admittedly death of the deceased occurred in the matrimonial house and hence presumption u/s 106 of the Indian Evidence Act can be drawn in the present case. Hence he has urged to dismiss the appeal and confirm the conviction of the appellant. 13. In the light of the rival submissions it is clear that the case against the appellant rests on circumstances, which are summarized thus - i) Death of the deceased is a homicidal one. ii) Death of deceased occurred in her matrimonial house. iii) Motive behind the alleged crime is non satisfaction of illegal demand. iv) Whether false information is given by the appellant to the parents of the deceased that Archana expired due {11} to heart attack, when admittedly the death is a homicidal one. 14. The first two circumstances are not disputed seriously by the appellant while it is urged that the third circumstance to be held as not proved as recorded by the trial court and the said finding is not challenged by the prosecution by preferring appeal against the acquittal of the appellant recorded by the trial court for the offence punishable u/s 498-A r/w 34 of the Indian Penal Code. On careful and minute perusal of the evidence of the prosecution, it no where appears that the appellant was last seen together with the deceased either soon before or soon after the incident. There is also no evidence that the relations between the deceased and the appellant were strained immediately before the alleged incident. Considering these aspects, now a question arose for consideration is whether in such circumstances, the presumption u/s 106 of the Evidence Act can be drawn or not. 15. The Apex Court, in the mater of “Shankarlal Gyarasilal Dixit V/s State of Maharashtra” AIR 1981 SC 765, “Manjunath Chennabasapa Madalli V/s State of Karnataka” 2007 AIR SCW 3196 and “Mulkraj V/s State of Haryana” (1996) 7 SCC 308, has observed that “in case of circumstantial the circumstances must be consistent with the sole hypothesis of the guilt of the accused. It is not to be expected that in every case depending on circumstantial evidence, the whole of the law {12} governing cases of circumstantial evidence should be set out in the judgment. Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment. The simple expectation is that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis.” 16. Since the trial court has observed that as the death occurred in the matrimonial house, the explanation to be offered by the appellant, being a husband of the deceased, it would be useful to refer the observations of the Apex Court in the matter of “Subramaniam V/s State of Tamil Nadu” 2009 ALL MR (Cri) 2118 (S.C.). “So far as the circumstance that the husband and wife living together is concerned, indisputedly, the entirety of the situation should be taken into consideration. Ordinarily, when the husband and wife remained within the four walls of a house and the death of homicide takes place, it will be for the husband to explain the circumstances in which she might have died. However, we cannot loose sight of the fact that although the same may be considered to be a strong circumstance, but that by alone, in absence of evidence of violence on the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and husband alone was responsible therefor.” The Apex Court, in the matter of “P.Mani V/s State of Tamil Nadu” 2006 AIR SCW 1053 has observed that to draw a presumption u/s 106 {13} of the Evidence Act, burden is on the prosecution that the accused and the deceased were last seen together and in absence of such proof, presumption u/s 106 of the Evidence Act, cannot be drawn. 17. Leading cases on the point of last seen together, are discussed by the Apex Court in the matter of “Dasari Siva Prasad Reddy V/s Public Prosecutor, High Court of A.P.” AIR 2004 SC 4383 and in “Sohel Mehaboob Shaikh V/s State of Maharashtra” 2009 AIR SCW 4145. The Apex Court, in both the above referred judgments, has held that even though death of the wife occurred in the premises occupied by the husband and wife, it is necessary to bring evidence on record that at the time of the incident, the husband and wife were last seen together. 18. In the case in hand, the evidence is silent on the point that at the relevant time, the deceased was in the company of the appellant. As we have already discussed, none of the witness has came forward with a case that soon before or soon after the incident, the appellant was seen in the company of the deceased. We have also discussed that nothing incriminating is recovered at the instance of the appellant after his arrest or that nothing incriminating has been recovered from the spot of the incident. Nor the spot Panchanama shows presence of the appellant at the time of alleged incident. Considering the factual aspects of the case as well as the legal parameters, we are of the view that the inference drawn by the trial court in the impugned judgment is based on {14} hypothesis and not on the facts, which are proved. In the premise, it ought to be held that the evidence before the trial court is not sufficient to hold the appellant guilty of the charge of murder of his wife. In this light of the matter, therefore, the impugned judgment is liable to be quashed and set aside and the appeal ought to succeed. 19. The 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. 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.] drp/B10/criapel727-08