Crim.Appeal 382/10 - 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.382/2010 Jayashree Gautam Thorat, age 29 yrs., occu.agri., r/o Pisora Bd. Tq.Shrigonda Dist.Ahmednagar. ...Appellant.. (Org.complainant) Versus 1] Sanjay Jaysing Weer, age 34 yrs., r/o Pisore Bd. Tq.Shrigonda Dist.Ahmednagar. 2] The State of Maharashtra. ...Respondents... ..... Shri Sanghraj D. Rupwate, Advocate h/f Shri Y.N. More, Advocate for appellant. Shri N.R. Shaikh, APP for respondent no.2 - State. ..... CORAM: P.V. HARDAS & A.V. POTDAR, JJ. DATE: 16.12.2010 PER COURT : Crim.Appeal 382/10 - 2 - 1] This appeal has been filed questioning the judgment of the District Judge -3 and Additional Sessions Judge, Ahmednagar, dated 29.7.2010 in Sessions Case No.31/2009 acquitting the respondent no.1 – accused for offence punishable u/s 302 of the Indian Penal Code and u/s 302 r/w Section 3(2)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities Act), 1989, 2] The prosecution had alleged that the deceased Gautam had accompanied the accused to a hotel, of which PW 2 Harischandra Dhawan was the owner. According to the prosecution, the accused had committed murder of deceased Gautam by strangulating the deceased with the aid of a rope or some other material. The trial Court, upon appreciation of the evidence, came to the conclusion that the prosecution had utterly failed to establish not only the complete chain of circumstantial evidence, but the evidence on record completely ruled out possibility of homicidal death of the deceased. 3] Learned counsel for the appellant has invited our attention to the testimony of the Medical Officer i.e. PW 3 Dr.Shaila Dange as well as the testimony of PW 2 Harischandra Dhawan and the findings recorded by the trial Court. 4] We would first advert to the testimony of the Medical Officer i.e. PW 3 Dr.Shaila Dange. According to the PW 3 Dr.Shaila Dange, she had noticed a purple bluish discoloration of upper limbs, face, neck and all over back. She had Crim.Appeal 382/10 - 3 - noticed lateral aspect of upper middle 1/3rd of left thigh and posterior aspect of middle 1/3rd of thigh, tongue was inside the mouth and there was oozing of faint reddish froth at nostrils. Dried blood could be seen at lateral corner of right eye and sub conjunctival hemorrhage was present. She noticed two external injuries, which according to her, were whitish ligature marks two in number parallel to each other 36 cm x ½ cm. size, 3 cm. distance in between them, extending anteriorly at thyroid level obliquely over back of neck at the level of temporal region of head bilaterally. She had also noticed that the brain and coverings were congested and there was fracture of thyroid cartilage. Right and left lungs were congested on cut section reddish froth seen. Right side of the heart was filled with blood and stomach contained about 150 c.c. semi solid. She, therefore, opined that cause of death was due to asphyxia due to hanging. The viscera examination did not reveal the presence of any poison. The post mortem report is at Exhibit 22. In cross-examination, she has admitted that the ligature marks are not seen in the photographs. It further appears that the ligature marks were not referred to at all in the inquest panchanama, which was forwarded to the Medical Officer. Undisputedly, PW 3 Shaila Dange has also admitted that the inquest, which was sent, did not show the existence of such ligature marks on the dead body. She has then admitted, “I did not know that if there was difference in the injuries described in the inquest and the injuries found on the person of dead body then the Medical Officer has to forward a requisition to the police officer for Crim.Appeal 382/10 - 4 - inquest be drawn by Executive Magistrate. I did not make a requisition since I did not know it at that time.” She has further admitted in the cross examination that she is not acquainted with the term “Cafe-Coronary”. She was shown passages from the Medico Legal Text Books of Dr.Modi and Dr.C.K.Parikh. She has stated that she agrees with the proposition in Dr.Modi’s Medical Jurisprudence and Toxicology, Twenty - third Edition (2005) page 466. 5] On the basis of the aforesaid evidence, the trial Court came to the conclusion that the prosecution had not at all established that the deceased Gautam had died a homicidal death. The case against the present respondent no. 1 – accused rests on the basis of circumstantial evidence. The trial Court has reproduced the law relating to circumstantial evidence i.e. the prosecution is enjoined with the responsibility of establishing each and every circumstance on which it proposes to rely upon. The circumstances so proved should be of a conclusive or a definite tendency to implicate the accused. The circumstances so proved should form a complete chain, which should exclude every hypothesis of innocence of the accused and should unerringly point out to the guilt of the accused. The star witness for the prosecution, on whose testimony the prosecution forges the link of circumstantial evidence, is PW 2 Harischandra Gangabisan Dhawan, the owner of the hotel where the deceased Gautam and the Crim.Appeal 382/10 - 5 - accused were seen prior to the death of the deceased. He states that he along with his nephew Chandan manage the hotel and there are 3 to 4 servants in the hotel. He has admitted that there is a permit room and a beer bar and they serve vegetarian and non-vegetarian dishes. He states that he knows the accused and on 22.5.2008, the accused accompanied by another person, had come to their hotel in the afternoon. They occupied table No.18 and placed order for beer. He states that waiter Thapa served them two beer bottles and after some time, the accused ordered full chicken Handi, which was served to the accused. He further states that the accused asked the person, who had accompanied him, to eat the food. PW 2 Dhawan states that he along with waiter Thapa went there and noticed that the person accompanying the accused was not eating and when he was asked to take his food, he had “hic-cup”. He then states that he along with his servant took that person to the back of the hotel and laid him on the ground and sprinkled water on his face. They even made him smell an onion but the said person did not respond. In the mean time, the accused started his motorcycle and left the place, though he was asked to stop. He states that thereafter, a Maruti van was summoned and arrangements were made for removal of the said person to Dr.Lad’s dispensary. In cross examination, he has admitted that he thought that the person was about to vomit and, therefore, he was taken to the rear side of the hotel. He has stated that he along with the waiter and the accused had removed the said person to the rear side of the hotel. He then states that when water was sprinkled on the face of that person, there was some movement on the face. He Crim.Appeal 382/10 - 6 - has then admitted in cross examination that the accused, while going had asked him to telephone his brother Anil and the accused had stated that he would bring a doctor. He also states that the accused had arrived after about half an hour along with one Dr.Harale from Shrigonda Sugar Factory, but the said person had already been removed to the hospital. In further cross examination, he has admitted that there are 10 tables in that room and permit room is adjacent where the 10 tables are situated. Next to that place is a veranda where there are 5 tables where the deceased was made to lie down. 6] The evidence of this witness does not disclose that in a public place, the accused had committed murder of deceased Gautam. It also appears to us to be improbable that a murder could be committed in the hotel where the accused and the deceased were sipping their beer with the waiters moving around in the hotel. Apart from that, the evidence on record does not even remotely indicate that the accused had either throttled or had committed murder of deceased Gautam. As pointed out by us above, the chain of circumstances so established by the prosecution is not complete and does not in any manner exclude every hypothesis of the death being accidental. In such circumstances, the benefit of doubt given by the trial Court to the respondent no.1 – accused can not be said to be mis-placed. 7] The view taken by the trial Court on the basis of the evidence on record appears to be a probable view to be taken and as such we do not find any Crim.Appeal 382/10 - 7 - perversity in the reasoning of the trial Court to justify the admission of this appeal. Consequently, this appeal, being sans merit, is, therefore, summarily dismissed. (A.V. POTDAR, J.) (P.V. HARDAS, J.) ndk/cr16121017