. 1 Cri.Appeal No.81/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 81 OF 2010 Gorakh s/o Pandurang Shinde. Age 35 years, Occu.Agril., R/o Golegaon,Taluka Khultabad, District Aurangabad .. Appellant Versus The State of Maharashtra .. Respondent Mr N.S.Ghanekar, Advocate for appellant Mrs R.K. Ladda, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ DATE : 20th January 2011 ORAL JUDGMENT ( PER P.V.HARDAS, J.) 1. The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.2,000/- in default of which to undergo further rigorous imprisonment for one year, by the Additional Sessions Judge – 4, Aurangabad by judgment dated 10.2.2010, in Sessions Case No.221/2008, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. . 2 Cri.Appeal No.81/2010 P.W.10 Vaijnath Latpate, Police Inspector attached to the Khultabad Police Station was informed by the Police Patil of village Golegaon about the death of Geetabai and, therefore, the accidental death came to be registered. On the same day, brother of deceased Geetabai i.e. P.W.1 Sanjay lodged his report at the Police Station at Exh.13, on the basis of which offence vide Crime No.52/2008 came to be registered. The investigation of the said crime was entrusted to P.W.10 Police Inspector Latpate. He accordingly arrested the appellant and thereafter on 29.3.2008 recorded the statements of witnesses. During custodial interrogation the appellant expressed his willingness to point out the place where the clothes had been concealed. Accordingly, the memorandum at Exh.24 came to be recorded in the presence of P.W.8 Jamalshah. The accused led the Police and the panchas to a neem tree and produced the clothes, which came to be seized vide seizure memo at Exh.25. Thereafter original accused No.2 came to be arrested and the further investigation was handed over to the S.D.P.O. Statements of witnesses came to be recorded and the seized property was referred to the Chemical Analyzer and further to the completion of investigation a charge-sheet against the appellant and original accused No.2 came to be filed. . 3 Cri.Appeal No.81/2010 3. On committal of the case to Court of Sessions, the trial Court vide Exh.9 framed charge against the appellant and original accused No.2 for offence punishable under Section 302 read with 34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined ten witnesses. The defence of the appellant-accused is one of denial. The trial Court accepted the prosecution case and accordingly convicted and sentenced the appellant. 4. In order to effectively deal with the submissions advanced before us by Mr Ghanekar, learned Counsel for the appellant and Mrs Ladda, learned Assistant Public Prosecutor on behalf of the respondent-State, it would be useful to refer to the evidence of the prosecution witnesses. 5. Prosecution has examined the informant P.W.1 Sanjay Warkad. P.W.1 Sanjay, brother of deceased Geetabai states that Geetabai was his sister, who was called as Heerabai prior to her marriage. She was married to the appellant about 14 years prior to the incident. Geetabai had two sons namely Ankush and Amol and one daughter Sheetal. P.W.1 Sanjay further states that on 28.3.2008 he had received a telephone from his nephew Ankush who informed him that he had found his mother hanging by a rope from a tree. Ankush, therefore, requested P.W.1 Sanjay to . 4 Cri.Appeal No.81/2010 immediately come to his house. Sanjay accordingly rushed to the house of Ankush and noticed that the villagers had already removed the dead body of Geetabai and had placed her on a cot in the house. He had noticed a ligature mark around her neck. He accordingly informed the Police and thereafter his report came to be scribed at Exh.13. P.W.1 Sanjay did not support the prosecution and was declared hostile by the prosecution. In cross-examination he has admitted that on some occasions deceased Geetabai had informed him that the accused used to harass her in a drunken condition. He has also admitted as correct that once he and his cousin Rajendra had convinced the accused to abstain himself from consuming liquor. In cross- examination on behalf of the appellant he has admitted that on visiting the house of the accused he had learnt that on the previous night the appellant had gone out of station and had returned in the afternoon. He has denied to have stated portion marked “A” in his first information report at Exh.30. 6. P.W.2 Sanjay Tukaram Jadhav, a panch to the scene of the offence panchnama also did not support the prosecution and was declared hostile. P.W.3 Ankush, son of Geetabai and appellant states that on the day of the incident he along with his brother and sister and his mother were sleeping in the house. He states that prior to the day of the incident his mother had gone to the . 5 Cri.Appeal No.81/2010 agricultural field for work and his father had gone out of station. He further states that on the day of the incident he woke up as usual, took his bath and drank the tea prepared by his sister. His mother, however, did not get up and he noticed his mother hanging by a rope from a mango tree. He accordingly informed P.W.1 Sanjay since his father had gone out of station. The villagers took the body of his mother from the tree and placed it in the house. He states that he had noticed a ligature mark around her neck and had not noticed any other injury. He states that his father returned home after his uncle P.W.1 Sanjay had arrived. He was cross-examined on behalf of the prosecution after he was declared hostile and portion marked “A” from his 164 statement was confronted to him. He has denied to have stated the aforesaid portion. Similarly, portion marked “B” was also put upto him, which he denied to have stated. Prosecution has also examined P.W.6 Amol, who is the other son of Geetabai and of the appellant. He too deposes as per the evidence of P.W. 3 Ankush. He was cross-examined by the prosecutor but apart from confronting the portion from his previous statement, nothing of importance has been elicited in the cross-examination. 7. Prosecution has examined P.W.4 Kachru in whose presence the scene of the offence panchnama at Exh.19 came to be recorded. He states about noticing the marks of a rope on the . 6 Cri.Appeal No.81/2010 branch of the tree. P.W.5 Sangeetabai, a neighbour states that P.W.3 Ankush had come to call her at about 10.00 to 11.00 a.m. requesting her to come to his house. She had noticed Geetabai hanging by a rope from a mango tree. She further states that thereafter the body of Geetabai was lowered from the tree and was kept on a cot. This witness was also cross-examined by the prosecution but nothing of importance has been elicited in the cross-examination. 8. P.W.6 Anita, who appears to be a self-styled President of an organisation called as “Darubandi Vyasanmukti Madat Kendra” claims that Geetabai had complained to her that the appellant used to assault her by consuming liquor and, therefore, she had called the appellant in the Grampanchayat office and had convinced the appellant not to assault Geetabai after consuming liquor and also to abstain from consuming liquor. In cross- examination on behalf of the appellant that the appellant had not record her statement and whatever stated by her in the Court was being stated for the first time. She also could not produce any documents regarding the organisation of which she claimed to be the President nor had she produced the documents before the Police. . 7 Cri.Appeal No.81/2010 9. Prosecution has examined P.W.8 Jamalshah, who states that he was called as a witness and the appellant had expressed in his presence his willingness to point out the place where the clothes had been concealed. He states that accordingly memorandum at Exh.24 came to be drawn and the clothes came to be seized at Exh.25 on being produced by the appellant. In cross-examination he has admitted that when he was called to the Police Station he was informed that he would be required to act as a panch to the seizure of the clothes. He has further admitted that he was informed by the Police Officer that the accused had been arrested and the clothes have been recovered and the panchnama had been drawn. He has admitted that when he seen the panchnama he had not read the contents. Exh.24 which is the memorandum discloses that there is overwriting in respect of the date and the time of the memorandum. The registration number of the vehicle appears to have been inserted subsequently in a different pen. Similarly, the name of the first witness also appears to have been written subsequently. In respect of Exh.25 also there is overwriting in respect of the date of the panchnama. All these circumstances together with the infirmities in the evidence of P.W.8 Jalanshah does not inspire the confidence of this Court to accept the evidence relating to discovery of clothes. . 8 Cri.Appeal No.81/2010 10. P.W.9 Dr.Jagpal Yewtikar, the Medical Officer who had performed the post mortem states that he had noticed a laceration over the neck transverse four in numbers 2 x ½ cms on left side, brownish to blackish in colour. There was a circular rope marking of the ligature on the neck linear to mandible on both the sides. The mark was absent on the back near spine, the ligature mark was reddish to brownish in colour and it was between thyroid cartilages and it was obliquely cross above towards the ear and and intermittent abrasions were seen over it and underneath the ligature marks. Clotted blood was oozing below the skin and seen around the pharynx also. He has opined that the injuries were ante mortem and, he therefore opined that cause of death was asphyxia due to strangulation. In cross- examination he has admitted that he had received the inquest report and had gone through the inquest report before proceeding with the post mortem. He then states “ from the contents of inquest showing that, the body was lying on the cot, I found it to be a case of strangulation”. He has further admitted that he had not observed the post mortem ligature marks. He has also admitted that the deceased was wearing bangles in both the hands and he had not found any other evidence of struggle, scratches or nail marks. He has admitted that the ligature mark was obliquely placed. He has admitted further that in case of strangulation scratches, abrasions of finger nail bruises on the . 9 Cri.Appeal No.81/2010 face, neck and other parts of the body are usually found which are not present in case of hanging. He has further admitted that in case of strangulation, the ligature mark is horizontal and complete. He has admitted that in case of hanging the ligature mark is oblique. On being recalled he has admitted to have examined the accused on 29.3.2008 at about 11.55 a.m. and had noticed two abrasions, one on right temporal region, which was superficial ½ cm long with with irregular marks and the second abrasion on the right pinna of ear on backside was ½ cm x ½ cm with irregular marks. He has opined that the age of the injuries was within 24 hours and the injuries were possible by hard and blunt object. In cross-examination he has admitted that the said injuries sustained by the accused were possible in case of assault. 11. Mr Ghanekar, learned Counsel for the appellant has urged before us that there is virtually no evidence to even remotely indicate that the appellant was present in the house when deceased Geetabai had died and consequently, the appellant could not be called upon to offer explanation under Section 106 of the Indian Evidence Act. It is also urged before us that there is no case whatsoever which would unerringly point to the guilt of the appellant-accused. . 10 Cri.Appeal No.81/2010 12. P.W.1 Sanjay, P.W.3 Ankush and P.W.6 Amol did not support the prosecution. The evidence of Ankush and Amol clearly indicate that the appellant was not present on the day of the incident as the appellant had gone out of station and had returned only after the arrival of P.W.1 Sanjay. Nothing has been elicited in the cross-examination of these witnesses which would in any manner suggest that the appellant was present and the witnesses were stating the falsehood. The portion in their previous portion with which the witnesses were confronted would not be substantive evidence on the basis of which the Court could draw an inference that the appellant was present. The evidence of P.W.1 Sanjay, P.W.3 Ankush and P.W.6 Amol, therefore, is of no assistance to the prosecution. Prosecution has also examined P.W.5 Sangeeta, a neighbour who also states about seeing the dead body of Geetabai hanging from a tree. It, therefore, would clearly indicate that the dead body was hanging from the tree. 13. We are not much impressed with the medical evidence i.e. the opinion of P.W.9 Dr.Yewtikar. It appears that P.W.9 Dr.Yewtikar has opined that it was a case of strangulation merely because of the recitals in the inquest panchnama that the dead body was found lying on a cot. The evidence of the prosecution witnesses in terms indicate that the dead body was seen hanging from a tree. The nature of the ligature mark as well as the fact . 11 Cri.Appeal No.81/2010 that the ligature mark was oblique would clearly indicate that it is a case of hanging rather than a case of strangulation. P.W.9 Dr.Yewtikar has further admitted that in case of strangulation marks of injuries would generally be present and which would be absent in the case of hanging. In the present case also we find that there are no other injuries save and except the ligature mark around the neck. The evidence of the Medical Officer is wholly unsatisfactory to establish that it was a case of strangulation rather than the case of hanging. Importantly, P.W.9 Dr.Yewtikar has admitted that no post mortem ligature mark was found. IF Geetabai had been strangulated inside the house and the dead body had been carried outside and strung to a tree, obviously there would be a post mortem ligature mark. The absence of a post mortem ligature mark, therefore, would clearly suggest that it was a case of hanging and not a case of strangulation. 14. The evidence in respect of the discovery of the clothes of the accused also does inspire confidence. P.W.8 Jalanshah has admitted that when he had gone to the police station he was informed that the accused had been arrested and the clothes had been seized and the panchnama had been drawn. If the Police had already effected the seizure of the clothes, the recording of the memorandum under Section 27 in the presence of the witnesses would be wholly inconsequential. Apart from that the . 12 Cri.Appeal No.81/2010 report of the Chemical Analyzer shows that on the shirt of the appellant blood stains were found on the left and the right shoulder. The appellant had sustained the injuries and the report of the Chemical Analyzer indicates that the blood group of deceased as well as that of the appellant is “A” group. In such circumstances, therefore, finding of blood stains on the clothes of the accused, in the absence of any other evidence, which would suggest that the appellant was present in the house on the day of the incident, would not advance the prosecution case. Even, the injuries sustained by the accused are of no consequence. The appellant-accused was examined on 29th and had been arrested on 28th. The Medical Officer has opined that two injuries could be caused by hard and rough object. In cross-examination he has admitted that the injuries could be caused during an assault. There is nothing to indicate that the injuries had been sustained by the appellant in the process of committing murder of deceased Geetabai. Thus, even the existence of the two injuries on the person of the appellant-accused does not assist the prosecution case. 15. The learned Assistant Public Prosecutor has urged before us that the web of the circumstantial evidence woven by the prosecution is complete that it excludes every hypothesis of the offence of the accused and points to the guilt of the accused. We . 13 Cri.Appeal No.81/2010 are unable to agree with this submission. The prosecution has not led any evidence in respect of the presence of the appellant in the house at the time when the offence is alleged to have been committed. The other evidence also falls well short of proving the offence against the appellant beyond reasonable doubt. The circumstances so proved by the prosecution are innocuous and do not complete the chain of circumstances, which excludes the possibility of innocence of the accused and does not, in any manner, point to the guilt of the accused. According to us, therefore, the appellant is entitled to be given the benefit of doubt. 16. Accordingly, this criminal appeal is allowed and the conviction and sentence of the appellant/accused 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.) (vvr/81.10criapeal)