{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.124 OF 2009 Namdeo Tukaram Budde APPELLANT Age-25 years, Occ-Agriculture R/o Kawathali, Taluka-Chakur, Dist-Latur VERSUS The State of Maharashtra RESPONDENT ....... Mr. Joydeep Chatterjee, Advocate for the appellant Mr. N.R.Shaikh, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 24th September 2010 ORAL JUDGMENT (PER P.V.HARDAS, J.) : 1. The appellant, who stands convicted for an offence punishable u/s 302 of the Indian Penal Code and 498A of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.2000/-, in default to undergo Rigorous Imprisonment for one year and Rigorous Imprisonment for two years and to pay a fine of Rs.1000/- with default stipulation of undergoing further Rigorous Imprisonment for 6 months, respectively, by the Ad Hoc Additional Sessions Judge-3, Latur, by {2} judgment dated 28.01.2009, in Sessions Case No.89/2008, by this appeal questioned 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 - a) PW-10, Atmaram Sujoad, Assistant Police Inspector, who was attached to Chakur Police Station, was entrusted with the investigation, after registration of accidental death in respect of death of Urmila, wife of the present appellant. Accidental death came to be registered vide Exhibit-21 on the basis of an application, which was given by one Ramrao, resident of Kavthali. Incidentally, said Ramrao, who had given information to the police, has not be examined by the prosecution. Accordingly, PW-10 API Sujoad visited the scene of the offence and drew inquest and spot Panchanamas at Exhibit-23 and Exhibit-25, respectively. Deadbody of deceased Urmila was referred for Postmortem examination and the Postmortem was conducted by PW-7 Dr.Kamble. Dr.Kamble noticed an external injury on the neck of deceased Urmila and accordingly opined that Urmila had died as a result of asphyxia on account of throttling. The Postmortem report is at Exhibit-45. Exhibit-58 is the provisional certificate issued by Dr.Kamble in respect of cause of death. PW-3, Hanmant, brother of deceased Urmila, lodged report at Exhibit-36 and accordingly an offence came to be registered. PW-10, API Sujoad continued with the investigation and accordingly recorded statements of the {3} witnesses and arrested the accused-appellant on 12.08.2008. PW-10 API Sujoad, requested Tahsildar, Chakur, to draw sketch map of the scene of the offence. Further to the completion of the investigation, a charge sheet, against the appellant, was filed. b) On committal of the case to the Court of Sessions, the trial court, vide Exhibit-15, framed charge against the appellant for an offence punishable u/s 498A and 302 of the Indian Penal Code. The prosecution examined 10 witnesses in support of its case. The trial court came to the conclusion that the prosecution had proved the offence against the appellant-accused beyond reasonable doubt and accordingly convicted and sentenced the appellant. 3. In order to appreciate and deal with the submissions advanced before us by Mr.Joydeep Chatterjee, learned counsel for the appellant and learned APP on behalf of the respondent-State, it would be useful to advert to the prosecution evidence. PW-1 Vishnu, neighbour of the appellant-accused, states that on 11.06.2008, at about 12 noon, he was passing through the land of the accused, in order to draw water from a well. He states that the accused also came along with him and after drawing water, the accused went back to his field while PW-1 Vishnu returned back to his field. He states that he took his lunch while the accused was irrigating his groundnut crop and thereafter he had seen the accused proceeding towards cattle shed. PW-1 Vishnu states that wife of the accused was in the cattle shed when Vishnu and the {4} accused had gone for drawing water from the well. He states that after entering the cattle shed, the accused ran towards eastern side from his cattle shed and thereafter one Namdeo, PW-2 Sambhaji and one Narayan, came to the cattle shed of the accused on a motorcycle and thereafter took Urmila on the motorcycle towards the village. He states that he learnt that Urmila had died. In cross-examination, he has admitted that the cattle shed of the accused is adjacent to his land and that there is no door to the cattle shed of the accused. He further states in the cross- examination that the wife of the accused had come to the filed around 12 noon carrying the lunch for the accused. He states that he had talked with Urmila before proceeding towards the well. Urmila had also replied that she did not have drinking water and after returning from the well, the appellant-accused had placed the pot of water on the ground in the cattle shed. Urmila had asked the appellant-accused to take his lunch, but the appellant-accused replied that Urmila should take her lunch first and he would take the lunch later on. The accused, thereafter, went to irrigate the groundnut crop and continued to do so for about an hour or half an hour. Later on, the appellant-accused went towards the cattle shed and then immediately ran towards the percolation tank. He has also admitted that the relations between the appellant-accused and his wife were good and the accused had never assaulted his wife nor had he demanded any money from her. 4. PW-2 Sambhaji states about the accused coming to his {5} house at noon and telling him that the wife of the accused is required to be taken to hospital as saliva -froth was coming out of her mouth. Sambhaji states that he along with Namdeo went towards the cattle shed of the accused on a motorcycle and thereafter carried Urmila on the motorcycle to the hospital of Dr.Kharmula. The Medical officer, upon examining Urmila had declared that Urmila was dead. 5. PW-9 Dr.Karmude states that he is a private medical practitioner at village Kharola. On 11.06.2008 at about 3.45 p.m. Sambhaji and the appellant had brought the wife of the appellant to his hospital on a motorcycle. After examining her he declared that the wife of the accused was dead. He accordingly advised them to remove the patient to the civil hospital. 6. In respect of the offence punishable u/s 498A of the Indian Penal Code, the prosecution has examined PW-3 Hanmant, brother of deceased Urmila, who states that marriage of Urmila was solemnized with the accused about a year prior to the incident. He states that the accused had treated Urmila well for a period of 6 months and later on started harassing and ill-treating her. He states that his cousin had advised the accused to treat Urmila well. Hanmant further states that the accused continued harassment and ill-treatment of Urmila and was demanding money. He states that on learning that Urmila had died, he along with his relatives, had gone to the house of the accused. He states {6} that the police had removed the dead body and when he learnt that Urmila had been murdered, he had lodged the complaint at Exhibit-36. In his cross-examination omission has been duly proved that he had not stated in the complaint at Exhibit-36 about the accused harassing and ill-treating Urmila on account of non payment of money. 7. PW-4 Haridas cousin of Urmila states that the accused had come to the house of the parents of Urmila 7-8 days prior to the incident and had collected Rs.10,000/-. Even thereafter the accused was harassing and ill-treating Urmila. He states that he, along with Hanmant had requested the accused not to ill-treat Urmila. He states that he had seen the dead body of Urmila and had noticed swelling around her neck. Though this witness states that the accused had collected Rs.10,000/-, PW-3 Hanmant, who is the real brother of Urmila, does not state so. This witness states that he along with Hanmant had gone to the house of Urmila and had cautioned the accused to treat Urmila well, but Hanmant does not state so. 8. Prosecution has examined PW-5 Dnyanoba, a neighbour of the appellant and Urmila, who states that Urmila was treated well for the first 6 months and thereafter was harassed and ill-treated on account of demand of money. Dnyanoba states that the accused had demanded an amount of Rs.50,000/- and this was told to him by Urmila, when she had visited her parents {7} house. He further states that Urmila had called him on 11.06.2008 and had told him that he should pay Urmila Rs.50,000/- and on the same day he learnt that Urmila was no more. Curiously, neither Hanmant nor Haridas nor PW-6 Mathurabai, mother of Urmila state about any telephone call being made by Urmila demanding Rs.50,000/-. 9. PW-6 Mathurabai, mother of deceased Urmila states that Urmila was treated well for the first 6 months and thereafter the accused demanded Rs.10,000/-, which was paid to the accused and subsequently the accused demanded Rs.50,000/-. She states that Urmila had disclosed the demand to her. About payment of Rs.10,000/- PW-3 Hanmant, real brother of Urmila does not state so. He also does not state about any demand being made by the accused for payment of Rs.50,000/-. In fact, omission has been elicited that Hanmant had not stated that Urmila was ill- treated on account of failure to pay money to the accused. In such circumstances, according to us, no reliance at all can be placed upon the alleged demand being made by the accused and the alleged harassment and ill-treatment being given to Urmila on account of failure to satisfy the greed of the accused. In fact, the allegations of ill-treatment and harassment are extremely vague. No particulars are given and the witnesses in a parrotlike manner have only stated that Urmila was harassed and ill-treated without specifying the instances of harassment and ill-treatment. {8} 10. Mr.Chatterjee, learned counsel for the appellant has urged before us that the case punishable u/s 302 of the Indian Penal Code against the appellant-accused rests on circumstantial evidence and if evidence of PW-1 Vishnu is carefully perused, it would indicate that when the appellant had gone to irrigate the groundnut crop, Urmila was alive and the appellant returned to the cattle shed and immediately rushed for summoning help. It is, therefore, urged before us that the evidence falls short of unerringly pointing out that it is the appellant and the appellant alone who has committed the offence. Learned APP has urged before us that the appellant had sufficient time for throttling Urmila and thereafter made a show of taking Urmila to the medical practitioner. According to the learned APP, the prosecution has established the offence against the appellant-accused beyond reasonable doubt. 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 {9} 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 consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 12. In the present case, therefore, the only evidence in respect of establishing of an offence against the appellant-accused u/s 302 of the Indian Penal Coded is the evidence of PW-1 Vishnu. Evidence of PW-1 Vishnu establishes that Urmila was in the cattle shed and Urmila was alive when the appellant-accused had gone to {10} irrigate the groundnut crop. His evidence further establishes that the appellant accused was irrigating the groundnut crop for about 1 to 1 ½ hours. His evidence also establishes that thereafter the appellant-accused returned to the cattle shed and immediately ran towards the percolation tank and summoned help and carried his wife towards the village. We, therefore, find that the evidence of PW-1 does not indicate that the appellant-accused had returned and gone in the cattle shed and after sometime had rushed towards the percolation tank. It is, therefore, clear that the appellant-accused did not have sufficient time to throttle his wife. As per the evidence of PW-1 Vishnu, the appellant immediately, on entering the cattle shed, ran towards the percolation tank. The defence of the appellant-accused is also in consonance with the evidence of PW-1 Vishnu. The appellant-accused, in his statement u/s 313 states that he noticed that froth was coming from the mouth of his wife and rushed for summoning help. We, therefore, find that the prosecution has not been able to establish that it is the appellant and appellant alone, who has committed murder of his wife Urmila. Coupled with this, there is total absence of motive for the appellant to have killed his wife. We have disbelieved the prosecution evidence so far as it relates to offence punishable u/s 498A of the Indian Penal Code. PW-1 has admitted that the relations between the appellant and his wife were cordial and the appellant had never ill-treated or assaulted his wife by demanding any money. PW-1 Vishnu is a {11} prosecution witness and these admissions have been elicited in his cross-examination. No effort was made by the prosecution for cross-examining PW-1 Vishnu, further to the cross-examination on behalf of the accused-appellant. The prosecution cannot just wish away the admissions elicited in the cross-examination. 13. We, therefore, find that the prosecution has failed in establishing that the murder of Urmila was committed by the appellant and the appellant alone and none else but the appellant had committed the crime. If that be the case, according to us, the appellant would be entitled to be given benefit of doubt. 14. Accordingly, this criminal appeal succeeds and the conviction and sentence of the appellant for an offence punishable u/s 498A and 302 of the Indian Penal Code, is 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/criapel124-09