drp {1} Cri. Appeal No.420/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.420 OF 2009 Pandit s/o Shamrao Kavle APPELLANT Age-55 years, Occ-Agriculturist R/o Pir Kalyan, Taluka and Dist-Jalna VERSUS The State of Maharashtra RESPONDENT ....... Mr.N.B.Suryawanshi, Advocate for the appellant (Appointed) Mrs.R.K.Ladda, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 24th January 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.): 1. The appellant, by the present criminal appeal, has questioned his conviction u/s 302 of the Indian Penal Code and sentence of imprisonment for life and fine of Rs.1000/- with default stipulation of undergoing further RI for one month, awarded by Additional Sessions Judge-2, Jalna vide judgment and order dated 19.08.2009, in Sessions Case No.38/2009. drp {2} Cri. Appeal No.420/2009 2. Story of the prosecution, as unfolded during the trial, may briefly be summarized thus - a) PW-3 Sadashiv Lande, brother of deceased Shashikala, had lodged a complaint (Exhibit-26) with Taluka Janla police station on 02.01.2009. Pursuant to the said complaint an offence at Crime No.2/2009 was registered u/s 302 of the Indian Penal Code, against the appellant. Investigation of the said crime was entrusted to PSI Shaikh Salim (PW-5). b) During the investigation, the investigating officer first drew inquest Panchanama (Exhibit-17) on the dead body of Shashikala, which was identified by PW-3 Sadashiv. Thereafter, the dead body was referred for postmortem to civil hospital Jalna. c) Medical Officer, Civil Hospital, Jalna, had conducted postmortem on the dead body of Shashikala and had prepared postmortem report (Exhibit-35). Postmortem report (Exhibit-35) indicates that there was abrasion on legs, chest, breast and neck so also laceration on chin and irregular laceration over face exposing eye ball. On internal examination, it was noticed that there was subcutaneous haematome under scalp and below facial skin. Brain as well as right and left lungs were congested. The medical officer has opined that the cause of death was due to hemorrhage shock due to multiple injuries on vital organs. drp {3} Cri. Appeal No.420/2009 d) During the investigation, spot Panchanama (Exhibit-16) was drawn in presence of Pancha witnesses and clothes on the person of the deceased were seized under Panchanama (Exhibit-18). Thereafter, statements of certain witnesses were recorded. Appellant was put under arrest on 05.01.2009 and clothes on his person were seized under Panchanama (Exhibit-19). e) While in custody, on 06.01.2009, the appellant made a voluntary disclosure statement (Exhibit-30) in presence of Panch witnesses leading to the place shown by the appellant. Panchanama of the same was drawn at Exhibit-31. Thereafter, the seized property was sent to Chemical Analyzer for examination along with requisition letter (Exhibit-32). f) After completion of the investigation, charge sheet was submitted before the JMFC, Jalna, who committed the trial to the Court of Sessions. g) Trial Court framed charge (Exhibit-5) against the accused-appellant for an offence punishable u/s 302 of the Indian Penal Code. The appellant abjured his guilt and claimed to be tried. Record shows that on admission of the appellant, u/s 294 of the Criminal Procedure Code, Spot Panchanama (Exhibit-16), Inquest Panchanama (Exhibit-17), Seizure Panchanama of seizure of clothes of the deceased (Exhibit-18), Seizure Panchanama of drp {4} Cri. Appeal No.420/2009 seizure of clothes of the accused (Exhibit-19), map / sketch of scene of offence (Exhibit-20) and the postmortem report (Exhibit-35) were exhibited before the trial court. In order to substantiate the charge levelled against the appellant, the prosecution had examined in all 5 witnesses. However, out of the 5 witnesses, PW-1 Kailash-son of the deceased, PW-2 Narayan- neighbour and PW-4 Dnyaneshwar-Sarpanch, did not support the prosecution case. The trial court, relying on the evidence of PW-3 complainant Sadashiv and Investigating Officer (PW-5) coupled with medical and circumstantial evidence, convicted the appellant for the offence punishable u/s 302 of the Indian Penal Code and sentenced him accordingly. 3. For better appreciation of the submissions advanced on behalf of the learned counsel appointed on behalf of the appellant and that of learned APP for respondent State, it may be useful to advert to the evidence of material witnesses examined before the trial court. 4. It is in the evidence of PW-3 Sadashiv that the appellant is his brother in law while deceased Shashikala was his sister. The appellant and deceased have two sons and a daughter. The appellant used to abuse and assault the deceased, as he was suspecting the character of the deceased. During the visits of the deceased to the house of this witness, she used to inform him about the ill-treatment meted out to her by the appellant. Though drp {5} Cri. Appeal No.420/2009 he had tried to convince the appellant, yet it was of no avail. On 01.01.2009, when he was at Ambad, he received a message on 7.00 p.m. that Shashikala was ill, he, therefore, rushed to Pir Kalyan, matrimonial house of the deceased and on his way when he enquired with the neighbour of the appellant, he came to know that Shashikala was no more. Thereafter he went to the house of the appellant and noticed that dead body of Shashikala was lying in a corner and blood was oozing from her injuries. He also noticed that one big stone, weighing about 10/12 kg, was lying near the dead body. Deceased had sustained injuries on her head. Sarpancha of the village had informed the police about the incident, on phone. The police drew inquest Panchanama in his presence on the dead body in the civil hospital. Thereafter, he lodged the complaint (Exhibit-26). Though he denied that he has given false evidence that during the visits Shashikala (deceased) used to inform him about the ill-treatment meted out by the appellant, yet fact remains that he has not witnessed the incident in question. So also he had only seen the dead body of Shashikala lying in one corner of the house. He had no knowledge as to how the deceased met with the homicidal death. 5. PW-4 Dnyaneshwar, has stated in his evidence that at the relevant time, he was Sarpancha of the village Pir Kalyan. The appellant and the deceased were husband and wife. According to him, he received a message that Shashikala has expired, when he was at Jalna. He came to Pir Kalyan and saw that dead body of drp {6} Cri. Appeal No.420/2009 Shashikala was lying at one corner in the house of the appellant. Hence, he informed the police about the death of Shashikala. Thus, his evidence is of no avail to link the appellant with the death of Shashikala. 6. We have heard learned counsel for the appellant followed by the submissions of learned APP for State. Learned APP supported the impugned judgment of conviction and sentence. 7, Learned counsel appointed on behalf of the appellant contended that the trial court has convicted the appellant merely on two grounds viz. firstly that the PM report establishes that the death of Shashikala is homicidal and secondly that the dead body of Shashikala was found lying in the house of the appellant and hence it is for the appellant to explain as to how the death of his wife has occurred and hence the presumption u/s 106 of the Indian Evidence Act lies against the appellant and he has failed to discharge the said burden of explaining the circumstances in which Shashikala, wife of the appellant, has expired. Learned counsel for the appellant further asserted that only on the sole ground that the death of Shashikala occurred in the residential premises of the appellant, the trial court has came to the conclusion that the appellant is the author of the homicidal death of the victim. It is urged by learned counsel for the appellant that evidence on record nowhere discloses or whisper that at the relevant time the appellant was present at his house. It is further drp {7} Cri. Appeal No.420/2009 urged that no incriminating articles are recovered at the instance of the appellant. In the premise, it is urged that the appeal be allowed and the appellant be acquitted of the charge for which he is convicted and sentenced. 8. At this juncture, it may be useful to refer the observations of the Supreme Court, in the mater of “Shankarlal Gyarasilal Dixit V/s State of Maharashtra” AIR 1981 SC 765, “Manjunath Chennabasapa Madalli V/s State of Karnataka” 2007 AIR SCW 3196 and “Mulkraj V/s State of Haryana” (1996) 7 SCC 308. It is held by the Supreme Court in the said judgments that, “in case of circumstantial evidence the circumstances must be consistent with the sole hypothesis of the guilt of the accused. It is not to be expected that in every case depending on circumstantial evidence, the whole of the law governing cases of circumstantial evidence should be set out in the judgment. Legal principles are not magic incantations and their importance lies more in their application to a given set of facts than in their recital in the judgment. The simple expectation is that the finding of guilt, if any, has been reached after a proper and careful evaluation of circumstances in order to determine whether they are compatible with any other reasonable hypothesis.” 9. Since the trial court has observed that as the death of the victim has occurred in the matrimonial house, the explanation has to be offered by the appellant, being a husband of the drp {8} Cri. Appeal No.420/2009 deceased, it would be useful to refer the observations of the Supreme Court in the matter of “Subramaniam V/s State of Tamil Nadu” 2009 ALL MR (Cri) 2118 (S.C.). “So far as the circumstance that the husband and wife living together is concerned, indisputably, the entirety of the situation should be taken into consideration. Ordinarily, when the husband and wife remained within the four walls of a house and the death of homicide takes place, it will be for the husband to explain the circumstances in which she might have died. However, we cannot loose sight of the fact that although the same may be considered to be a strong circumstance, but that by alone, in absence of evidence of violence on the deceased cannot be held to be conclusive. It may be difficult to arrive at a conclusion that the husband and husband alone was responsible therefor.” The Apex Court, in the matter of “P.Mani V/s State of Tamil Nadu” 2006 AIR SCW 1053 has observed that to draw a presumption u/s 106 of the Evidence Act, burden is on the prosecution that the accused and the deceased were last seen together and in absence of such proof, presumption u/s 106 of the Evidence Act, cannot be drawn. 10. Leading cases on the point of last seen together, are discussed by the Apex Court in the matter of “Dasari Siva Prasad Reddy V/s Public Prosecutor, High Court of A.P.” AIR 2004 SC 4383 and in “Sohel Mehaboob Shaikh V/s State of Maharashtra” 2009 AIR SCW 4145. The Supreme Court, in both drp {9} Cri. Appeal No.420/2009 the above referred judgments, has held that even though death of the wife occurred in the premises occupied by the husband and wife, it is necessary to bring evidence on record that at the time of the incident, the husband and wife were last seen together. 11. Considering the observations of the Supreme Court, in the rulings cited supra, it is clear that unless it is established that at the relevant time the deceased was in the company of the appellant, presumption u/s 106 of the Indian Evidence Act cannot be drawn, requiring the appellant to explain as to how the death of his wife has occurred. Admittedly, the evidence on record is conspicuously silent on the point that at the relevant time the deceased and appellant were together. None of the witness has came forward with a case that soon before or soon after the incident, the appellant was seen along with the deceased. Admittedly, the incident in question has not occurred during the night time to draw the inference and presumption that the deceased must be in the company of the appellant that hence the incident must be in the exclusive knowledge of the appellant and appellant only. In absence of any evidence brought on record, it is not safe to draw the inference that at the relevant time the deceased was in the company of the appellant. Moreover, nothing incriminating is recovered at the instance of the appellant coupled with the fact that there is no report of Chemical Analyzer, on record, to link the appellant with the death of Shashikala. For the above discussion, we are of the considered view that the drp {10} Cri. Appeal No.420/2009 prosecution has not proved, beyond reasonable doubt, that the appellant and the appellant only is guilty of committing of murder of Shashikala. In the premise, the appeal ought to succeed. 12. Consequently, Criminal Appeal No.420 of 2009 is allowed and conviction and sentence of the appellant 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. Fees payable to the learned counsel appointed on behalf of the appellant, quantified at Rs.5,000/- [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/A11/criapel420-09