1 CRIMINAL APPEAL NO.: 386 OF 1994 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CRIMINAL JURISDICTION CRIMINAL AAPPEAL NO.: 386 OF 1994 *** The State of Maharashtra. ... APPELLANT [ORIG. ACCUSED]. VERSUS Balaji @ Raju S/o Sudhakarrao Rudrawar, Aged: 26 years, Occu.: Agri., R/o Tadkalas, Tq. Purna, Dist. Parbhani. ... RESPONDENT [ORIG. ACCUSED] *** Smt. A. V. Gondhalekar, A.P.P. for the State. Shri A. D. Kasliwal, Advocate h/f Shri Anil S. Kasliwal, Advocate for Respondent. *** CORAM: A. H. JOSHI AND A. M. THIPSAY, JJ. DATED:- 14th NOVEMBER, 2011. JUDGMENT [PER: JOSHI, J.]: 1. The accused was charged for offences punishable under sections 498-A and 302 of Indian Penal Code. 2. Wife of the accused Ashabai, died due to head injury. Prosecution has relied upon circumstantial 2 CRIMINAL APPEAL NO.: 386 OF 1994 evidence of father of the accused, to prove the circumstance namely that the accused and the deceased were together in room at the time of the incident. 3. Prosecution had relied upon various other witnesses to prove oral confessional statement of the accused person. 4. It is seen that all witnesses relied upon by the prosecution have turned hostile. Nothing useful could be elucidated in the cross examination. 5. The thrust of the prosecution is on the submission that since the death is homicidal is proved by ample evidence and the accused person being the only person in company of the deceased, he is liable to be held guilty. The prosecution, therefore, relies solely on the solemn testimony of P.W.1 Dr. Bhagwan Dhutmal. 6. Learned A.P.P. has fervently argued, in order to convert the acquittal into conviction, based on 3 CRIMINAL APPEAL NO.: 386 OF 1994 evidence of P.W.1 Dr. Bhagwan. 7. It is seen in the cross examination of P.W.1 Dr. Bhagwan that he has stated as follows: "If the body part of the weapon Art. No.7 is hitted there is possibility of long fracture. I have not noticed a long fracture at the time of post mortem. If a person while coming from the small sited dorr and his head had fallen on rafter and of he fell down, the said injuries mentioned in post mortem notes (Exh. No. 7) are possible. The death of Asha may be homicidal or accidental and I cannot tell definitely about it." [Emphasis supplied] 8. It is, thus, clear that the injury which has led to death is not proved to have been caused by the accused and at the same time it is proved from the medical evidence to be probable on account of fall of rafter which may have fallen down on the head of the deceased. Thus, the very basis on which the inference of guilt of the accused is expected to be drawn, is shaken. 9. In this background, the prosecution had solely to rely on oral dying declarations in which effort 4 CRIMINAL APPEAL NO.: 386 OF 1994 the prosecution has failed in totality. 10. It was imperative on the part of the prosecution to have explored other circumstantial evidence for isolating the accused at the scene of offence and thereby render him liable to answer the fact as to the circumstance in which the deceased suffered injury. In this direction prosecution has not at all exerted. 11. In the result, the judgment of acquittal is seen to be well founded. Rather the learned Sessions Judge had no other option than rendering the judgment of acquittal. 12. Appeal is dismissed. [A. M. THIPSAY, J.] [A. H. JOSHI, J.] Dated:14/11/2011. ans/386 5 CRIMINAL APPEAL NO.: 386 OF 1994 CRIMINAL NO.: 386 OF 1994 Date of decision: 14th NOVEMBER, 2011. For approval and signature THE HONOURABLE SHRI JUSTICE A. H. JOSHI THE HONOURABLE SHRI JUSTICE A. M. THIPSAY. Whether Reporters of local papers ... Yes may be allowed to see the judgment? To be referred to the Reporter or not? ... No Whether Their Lordships wish to see ... No fair copy of the judgment? Whether this case involves a substantial... No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder? Whether it is to be circulated to the ... No Civil Judges? Whether the case involves an important ... No question of law and whether a copy of the judgment should be sent to Nagpur, Goa and Bombay offices? [G. F. ANSARI] PRIVATE SECRETARY TO THE HONOURABLE JUDGE