1 (APEAL607/04) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 607 OF 2004 Keshav Deochand More ) Age – 45 years, Occ: Agriculture ) R/at : Muldongari, Tal-Nandgaon ) District : Nasik ) (At present lodged in Nasik ) ...Appellant. V/s The State of Maharashtra ) (At the instance of Sr. PI, ) Nandgaon Police Station, ) Dist: Naik ) ... Respondent. Mr. S.A. Ingawale for the appellant. Mr. P.S. Hingorani, APP for the State. CORAM: V. M. KANADE & M.L. TAHALIYANI, JJ. DATE : 15TH NOVEMBER, 2011 ORAL JUDGMENT (Per V.M. Kanade, J.) 1. Appellant is the original accused No.1. He is aggrieved by the judgment and order passed by the Second Additional Sessions Judge, Malegaon in Sessions Case No. 28 of 1997. By the said judgment and order dated 22/04/2004, Trial Court convicted the appellant for the offence punishable 2 (APEAL607/04) under sections 302, 177 and 201 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and and also sentenced him to suffer rigorous imprisonment for six months and one year respectively for other two offences. 2. Prosecution case, in brief, is that the appellant/original accused No.1 (hereinafter referred to for the sake of convenience as “accused No.1”) got married to Shalinibai in the year 1975. According to prosecution, accused No.1 started ill-treating Shalinibai after two years. She, therefore, went back to her father’s house and started residing there and, thereafter, made an application for maintenance under section 125 of the Criminal Procedure Code. Prosecution case is that when Shalinibai was residing with her parents, accused No.1 got marred to Chandrakala in 1980, who was accused No.2 in the said Sessions Case. Thereafter, due to intervention of certain relatives, dispute between accused No.1 and Shalinibai was settled and accused No.1 gave her some agricultural land and one house for her maintenance and residence and, therefore, Shalinibai started residing in the said house. After few years, accused No.2, the second wife of accused No.1, gave birth to two sons and three daughters and Shalinibai, who was the first wife of accused No.1, gave birth to one son Chandrashekhar. According to prosecution, there was apprehension in the mind of both accused Nos. 1 and 2 that the son of Shalinibai viz. Chandrashekhar will seek a share in the ancestral property. 3 (APEAL607/04) A suit was also filed by Shalinibai and her minor son in the Court of Civil Judge, Junior Division, Nandgaon, seeking a declaration that she and her son were owners of Gat No. 270/3 on the basis of partition deed dated 31/08/1995 and for consequential reliefs. The harassment against Shalinibai continued and, therefore, she filed a criminal case against accused Nos. 1 and 2 for the offence punishable under section 498-A, 352, 504, 506 read with section 34 of the Indian Penal Code. 3. On 18/11/1996, a report was given by accused No.1 who was a Police Patil to Nandgaon Police Station that his wife and son were found dead and there was one electric coil heater (segree) besides them. Initially, accidental death report was registered being A.D. No.38/96. The inquest panchanama was prepared. Postmortem was performed. It was found that there were eight surface injuries on the person of Shalinibai and seven injuries were found on the body of Chandrashekhar. The Assistant Electrical Inspector had gone to inspect the scene of offence but since the premises was closed, he inspected the electric coil heater which was seized and he found that one of the wires attached to the coil was broken. He, however, tested the said electric coil heater and found that electrical current did not pass through the said electric coil heater . The Investigating Officer arrested both the accused on 21/11/1996 and, thereafter, accused No.1 agreed to produce the towel which was recovered at his instance. 4 (APEAL607/04) 4. We have heard the learned Counsel appearing on behalf of appellant/accused No.1 and the learned APP appearing on behalf of the State at length. They have taken us through the judgment and order of the Trial Court as also the notes of evidence from the paper-book. 5. It was submitted by the learned Counsel appearing on behalf accused No.1 that there was no material on record to connect accused No.1 with the commission of the said offence. He submitted that there was no evidence on record to show that accused No.1 was even last seen in the company of the deceased. He submitted that in the absence of any evidence connecting the accused No.1 with the commission of offence, he was entitled to be acquitted by giving him benefit of doubt. He submitted that even though motive was established that by itself was not sufficient to convict the accused No.1 for the offence punishable under sections 302, 177 and 201 of the Indian Penal Code. 6. The learned APP, on the other hand, submitted that the motive was established by the prosecution and it was also submitted that death of Shalinibai, the first wife of accused No.1 and her son Chandrashekhar was established as homicidal and not accidental. It was, therefore, submitted that the Trial Court was justified in convicting the accused No.1 for the offence punishable under section 302, 177 and 201 of the Indian Penal Code. 5 (APEAL607/04) 7. In our view, after having perused the evidence on record, prosecution has miserably failed to establish beyond the reasonable doubt that accused No.1 was responsible for commission of murder of Shalinibai and Chandrashekhar. 8. Prosecution has examined in all 10 witnesses in support of its case. P.W.1 – Shivaji More is the panch witness who has proved panchanamas at Exhibits-18 and 19. P.W. 2 – Keshavrao Patil and P.W. 3 – Nilkanth Patil are close relatives of deceased Shalinibai. P.W. 3 is the brother of Shalinibai. These three witnesses have given evidence about ill- treatment which was given by accused No.1 to Shalinibai. P.W. 4 – Manohar Sardar is the Assistant Electrical Inspector who inspected the electric coil heater and gave his reports at Exhibit-30 and 31. P.W. 6 – Dhondu Mahale is the neighbour of deceased Shalinibai. The other witnesses are Dr. Lalchand Jadhav who performed postmortem, panchas and the Investigating Officer. 9. From the perusal of evidence on record, in our view, it has been established by the prosecution that relationship between accused No.1 and deceased Shalinibai was very much strained. There were several disputes between the parties and that, initially, maintenance case was filed by Shalinibai. However, later on, the said dispute was settled and that she was residing in a separate house. It is also established that she had filed a suit for partition and for 6 (APEAL607/04) consequential reliefs against accused No.1. However, there is no evidence whatsoever on record to establish that accused No.1 had visited the house of Shalinibai on the night of 17/11/1996 when the said incident had taken place. None of the witnesses has stated that he has seen the accused No.1 on the date of incident. Though recovery has been made of the towel at the instance of accused No.1, that by itself does not establish that accused No.1 had committed the said offence. Recovery is a weak type of evidence and that itself cannot form the basis of conviction. In the present case, it has been established by the prosecution that the death of Shalinibai and her son Chandrashekhar is homicidal. The doctor who performed the postmortem has given evidence to this effect. Though the prosecution has established that death of Shalinibai and her son Chandrashekhar was homicidal and not accidental, there is still a missing link in the chain of circumstances and the prosecution has not been able to establish an important circumstance of proving the presence of accused No.1 in the house of the deceased. It has come on record that accused No.1 and accused No.2 used to reside in one house. Trial Court acquitted the accused No.2 since there was no material on record. Trial Court was also having doubts regarding participation of accused No.2 in commission of the said offence and, therefore, it gave benefit of doubt to accused No.2. On the same analogy, therefore, though suspicion is raised against accused No.1 that he may be perpetrator of the crime, yet, suspicion alone cannot take 7 (APEAL607/04) the place of proof and in the absence of proof, benefit of doubt has to be given to accused No.1. In the circumstances, therefore, the judgment and order of the Trial Court will have to be set aside. 10. In the result, the following order is passed:- ORDER (1) Criminal Appeal is allowed and judgment and order passed by the Trial Court is set aside. (2) The Appellant is acquitted of the offences punishable under sections 302, 117, 201 of the Indian Penal Code. The Appellant be released forthwith unless he is required in any other case. (M.L. TAHALIYANI, J.) (V.M. KANADE, J.) 8 (APEAL607/04)