1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPEAL NO. 414 OF 2007 Sharad s/o Kondiba Walke, age 25 years, occ. Agril., r/o Sayyadmir-Loni, Tq. Ashti, Dist. Beed (at present in jail) ...Appellant (Original accused) VERSUS The State of Maharashtra ...Respondent ..... Shri R.N.Dhorde, advocate for the appellant Shri S.D.Kaldate, APP for the respondent ..... CORAM : P.V.HARDAS AND SHRIHARI P.DAVARE, JJ. DATED : 05.01.2010 ORAL JUDGMENT : (Per Shrihari P. Davare, J.) 1 The challenge in this appeal is to the judgment and order rendered by the Additional Sessions Judge, Beed, in Sessions Case No. 41 of 2007 on 14.9.2007, thereby convicting 2 the appellant (original accused no.1) for offences punishable under Sections 498-A and 302 of the Indian Penal Code and sentencing him to undergo R.I. for one year for the offence punishable under Section 498-A of the Indian Penal Code and fine of Rs.100/- in default to undergo further R.I. for one month; and also sentencing him to undergo imprisonment for life for the offence punishable under Section 302 of the Indian Penal Code and fine of Rs.200/- in default to undergo further R.I. for one month 2 The shorn of details and factual conspectus are as follows. The marriage between the appellant/original accused no.1 namely Sharad Kondiba Walke and deceased Chhaya alias Seema was solemnized on 16.6.2006. Accused no.2 Changunabai is the mother of appellant herein; whereas accused no.3 Vandana is the sister of appellant herein. 3 All the accused faced the trial for the offences punishable under Sections 498-A and 302 of the Indian Penal Code in Sessions Case No. 41 of 2007 and the appellant/original accused no.1 was convicted for the offences punishable under 3 Sections 498-A and 302 of the Indian Penal Code as afore said; whereas he was acquitted of offence punishable under Section 201 of the Indian Penal Code. Accused nos. 2 and 3 were also acquitted of all the charges levelled against them. 4 There were allegations against the accused persons in respect of unlawful demand of an amount of Rs. 40,000/- from deceased Chhaya for purchasing material for marriage pendal, to be brought by Chhaya from her parents, since the appellant was engaged in the business of providing marriage pendals and other material. There were allegations against the accused persons that they illtreated deceased Chhaya physically and mentally with a view to coerce her to meet the unlawful demand of Rs.40,000/- and she allegedly informed about the illtreatment to her parents and was not ready to return back to her matrimonial home, but her parents allegedly convinced her and sent herb back to matrimonial home on 21.1.2007. Apparently, the said alleged demand was not fulfilled by deceased Chhaya and hence it is alleged that on 31.1.2007 in the mid night at about 1.00 a.m., the accused persons intentionally or knowingly committed murder of Chhaya when she was asleep in the residential house of the appellant at village Sayyadmir-Loni, Taluka Ashti, by pouring kerosene on her person and by setting her ablaze. It is also 4 alleged that further they caused disappearance of the evidence which led to the death of deceased Chhaya, to screen themselves from the legal punishment. 5 Thereupon, accused no.2 Changunabai informed the police about the accident and the said information was reduced into writing and accidental death was registered as per A.D. No. 4 of 2007 Exh. 45 on 31.1.2007 at about 7.00 a.m. Accordingly the father of deceased Chhaya i.e. PW1 Kundlik Khakal and sister of deceased Chhaya i.e PW3 Jayabai Gore received telephonic message about the death of Chhaya at about 7.00 a.m. On 31.1.2007 and, therefore, they immediately rushed to the house of the accused and found that Chhaya was burnt almost completely. Hence PW1 Kundlik Khakal lodged complaint with Ambhora police station, which was registered at C.R.No. 4 of 2007 against the accused persons. 6 Pursuant to the registration of A.D. No. 4 of 2007, PW6 PSI Umakant More went to the spot of incident and prepared the inquest panchanama Exh.13. He also recorded spot panchanama Exh.14. Since deceased Chhaya was burnt almost 100 per cent, he called doctor on the spot for postmortem and received the provisional certificate Exh.46 from the Medical Officer regarding 5 death of Chhaya. Moreover, the postmortem report dated 31.1.2007 is produced at Exh. 15/C. PW6 PSI More also drew sketch map of the place of incident as well as house of the accused vide Exh.14. He also interrogated the complainant i.e. PW1 Kundlik Khakal and villagers and on the basis of statement given by PW1 Kundlik Khakal, he registered the first information report Exh.35 and registered the crime at C.R.No. 4 of 2007. Thereafter PW6 PSI More arrested the appellant/original accused no.1 Sharad and accused no.2 Changunabai on 1.2.2007. 7 Thereafter the appellant herein allegedly expressed willingness to produce kerosene can and match box and therefore, said statement of appellant was recorded in presence of panchas Exh.40. In pursuance of the said statement, the appellant went to his house and allegedly produced kerosene can and match box from the tin roof of his house and same were seized under memorandum panchanama Exh.41 and said kerosene can is marked article 1 and said match box is marked as article 2. PW6 PSI More sent the said articles to the office of the Chemical Analyser for examination purpose along with forwarding letter Exh.46. Accordingly, the chemical analysis report was received, which is produced at Exh. 48 as positive for detection of kerosene from kerosene can and result of match box was 6 negative for detection of kerosene. 8 During the course of investigation, PW6 PSI More also recorded statements of PW2 Kamal Khakal i.e. mother of deceased Chhaya, PW3 Jayabai Gore i.e. sister of victim Chhaya and PW5 Raosaheb, neighbourer, as well as recorded the statements of other relatives of deceased. Subsequently, accused no.3 Vandana came to be arrested on 7.2.2007. 9 After completion of investigation by PW6 PSI More, the charge sheet came to be filed against the accused persons in the court of Judicial Magistrate, First Class, Ashti and thereafter since the alleged offences were triable by the Court of Sessions, the case was committed to the Sessions Court, Beed on 9.5.2007 and was numbered as Sessions Case No. 41 of 2007. 10 The learned Additional Sessions Judge, Beed framed the charge against the accused persons at Exh. 7-C for the offence punishable under Section 498-A r/w Section 34 of the Indian Penal Code, also for the offence punishable under Section 302 r/w Section 34 of the Indian Penal Code; as well as for the offence punishable under Section 201 r/w Section 34 of the Indian Penal Code and they denied the said charges and claimed to be tried 7 and accordingly they faced the trial in the said Sessions Case. 11 The prosecution examined in all six witnesses to substantiate the charges levelled against the accused persons as mentioned below. PW1 Kundlik Khakal Complainant-the father of deceased Chhaya PW2 Mrs.Kamal Khakal Mother of deceased Chhaya PW3 Jayabai Gore Sister of deceased Chhaya PW4 Parashram Recovery panch for the Sakharam Waman panchanamas Exhs. 40 and 41 PW5 Raosaheb Narayan Neighbourer of the accused persons – turned hostile PW6 PSI Umakant More Investigating officer 12 After adducing the evidence by the prosecution witnesses, the statements of accused persons under Section 313 of the Code of Criminal Procedure were recorded, wherein they stated that incident in which Chhaya died was nothing but an accident and also they stated that since Chhaya died in the accident, her parents and relatives deposed falsely against them, and more particularly against the appellant herein who filed written submission and stated that on the fateful night he went for 8 sleep at 10.00 p.m. and Chhaya came thereafter and he woke up as Chhapari caught fire and therefore, he tried to extinguish the fire and received minor burn injuries. He also submitted that he has not committed any offence and he was having business of marriage pendal and he never insisted deceased Chhaya to bring amount for pendal business and since Chhaya died in his house, he was falsely implicated in the said case. 13 After assessing the evidence adduced and produced by the prosecution, learned Additional Sessions Judge, Beed delivered the judgment and order in Sessions Case No. 41 of 2007 and thereby convicted and sentenced the appellant/original accused no.1 as afore said. Being aggrieved and dissatisfied by the said judgment and order, the appellant/original accused no.1 has preferred the present appeal challenging the same with a prayer to quash and set aside the same. 14 Before we deal with the submissions advanced by the learned counsel for the parties, we feel it necessary to scrutinize the oral evidence adduced by the prosecution and PW1 Kundlik Khakal i.e. the father of victim Chhaya has stated in his deposition that Chhaya married with the appellant 5-6 months prior to her death, and after marriage; she started cohabiting with the 9 appellant and along with his family members and she was treated properly initially for the period of 2-3 months. However, thereafter it is alleged that the accused started illtreating her for the demand of Rs.40,000/- to be brought by Chhaya from her parents for the expansion of business of marriage pendal. It is alleged that accused used to beat her and were not providing food to her, which was communicated by Chhaya when she had come for Diwali. He further stated that Chhaya was not willing to go back for cohabitation with the appellant, but after convincing her he sent her back to her matrimonial home. He further stated that after lapse of 10-15 days, he received a telephonic call from an unknown person that roof of house of Chhaya was burnt and she died in the said incident and hence, he along with his wife PW2- Kamal immediately rushed and found the dead body of Chhaya in burnt condition. Hence, PW1-Kundlik lodged report of the said incident at Exh.35. 15 The cross-examination of PW1-Kundlik appears to be in the form of suggestions, which were obviously denied by him. He stated in the cross-examination that when they reached to the house of the accused, police were not present, but they came within short time. Besides the allegations that the accused used to beat Chhaya and were not providing food to her and the 10 allegation of unlawful demand of Rs.40,000/-, there is nothing in the deposition of PW1 Kundlik in respect of alleged illtreatment meted out to deceased Chhaya. Pertinently, PW1 Kundlik has nowhere furnished any particulars or details of illtreatment allegedly sustained by deceased Chhaya. Moreover, admittedly PW1 Kundlik arrived on the scene of offence after occurrence of the alleged incident and his testimony does not connect the appellant with the alleged crime. 16 Coming to the testimony of PW2 Kamal i.e. mother of deceased Chhaya, who also stated that Chhaya married with the appellant about 7 months back and for initial 3 months she was treated properly by the accused persons, but thereafter they started illtreating her and demanding money from her. She stated that the appellant used to insist deceased Chhaya to bring Rs.40,000/- for purchasing Mandap articles. The accused persons used to illtreat her for the said amount. They used to beat her and ask her to bring money from her parents, which was narrated by deceased Chhaya to her at the time of Diwali. She also stated that she gave Rs.5,000/- when the appellant had come to their house at the time of Diwali and assured that rest of the amount would be paid later on. She further stated that they received a telephonic message that the roof of house of Chhaya was burnt and she died 11 therein and therefore, they rushed there and found the dead body of Chhaya in burnt condition. 17 During cross-examination, suggestion was given to PW2-Kamal that she did not give Rs.5,000/- to appellant, but same was denied by her. Moreover, an omission was brought out that burnt hand was lying by the side of dead body and none of the accused were present when they reached on the spot. 18 Considering the testimony of PW2-Kamal, besides the mere allegation of unlawful demand of Rs.40,000/- and alleged illtreatment to deceased Chhaya at the hands of accused, no instances and particulars of alleged illtreatment have been stated by PW2-Kamal. It is material to note that although PW1-Kundlik stated in his deposition that accused persons did not provide food to deceased Chhaya, the testimony of PW2-Kamal is silent in that respect. It is also significant to note that although PW2-Kamal stated in her deposition that she gave Rs.5,000/- to the appellant and assured that rest of the amount would be paid later on, but the testimony of PW1-Kundlik is silent in that respect. Thus the testimonies of PW1-Kundlik and PW2-Kamal are not in consonance with each other. 12 19 That takes us to the deposition of PW3-Jayabai i.e. sister of the victim Chhaya, who stated that Chhaya married with the appellant on 16th June i.e. 7 months prior to the incident and Chhaya was treated properly by the accused persons initially for about 3 months, but thereafter they started demanding Rs. 40,000/- for the purchase of Mandap material and used to illtreat her and beat her on the said cause, which was disclosed by her when she had visited at the time of Diwali. She further stated that Chhaya was kept starving by the accused persons and her parents and other relatives were present when Chhaya disclosed the same. Chhaya had again come at the time of Makar Sankrant and reiterated about said illtreatment and even she was not ready to go to her matrimonial home, but she was convinced and sent to her matrimonial home, and thereafter on the morning of 31.1.2007, they received the telephonic message about the incident and thereupon PW3 Jayabai herself and other relatives rushed to the house of accused and found dead body of Chhaya in the house which was burnt. 20 During cross-examination, omission was taken out in respect of the alleged beating and starving of Chhaya at the hands of accused persons. Suggestion was given to her that Chhaya was not illtreated and beaten for demand of money, but 13 same was denied by her. Although PW3-Jayabai stated in her deposition in respect of alleged assault upon deceased Chhaya at the hands of accused persons, the said contents are under the cloud of omission and even PW2 Kamal has not supported the said contention of PW3-Jayabai in her testimony. 21 The net result of the testimonies of PW1-Kundlik i.e. father of deceased Chhaya, PW2-Kamal i.e. mother of deceased Chhaya and PW3-Jayabai i.e. sister of deceased Chhaya is that the said testimonies are not in consonance with each other, in respect of the alleged illtreatment sustained by deceased Chhaya, and pertinently, there are no instances and particulars given by the said witnesses in respect of the alleged cruelty and illtreatment meted out to Chhaya allegedly by the accused persons and further the testimonies of PW1-Kundlik, PW2-Kamal and PW3- Jayabai do not whisper about any willful conduct of the accused persons, which was of such nature as was likely to drive deceased Chhaya to commit suicide or to cause injury or danger to life, limb or health of deceased Chhaya, as well as the testimonies of PW1- Kundlik, PW2-Kamal and PW3-Jayabai are silent in respect of alleged harassment to deceased Chhaya allegedly given by the accused persons with a view to coercing her to meet the alleged unlawful demand of Rs.40,000/-. Hence, there is no cogent 14 evidence against the accused persons in respect of the charge for the offence punishable under Section 498-A of the Indian Penal Code, except making few bald allegations by the afore said witnesses, which are not supported by any legal evidence. 22 The postmortem report produced at Exh. 15/C discloses that the victim sustained 100% burn injuries and the probable cause of death disclosed was neurogenic shock due to injury to vital organs due to burning, and hence, it is amply clear that the victim Seema alias Chhaya met with unnatural death. 23 Admittedly there is no direct evidence to connect the accused persons with the alleged crime punishable under Section 302 of the Indian Penal Code and the prosecution case is rested upon the circumstantial evidence. Pertinently, the prosecution has failed to prove and establish the motive against the accused persons in respect of the alleged offence. In fact, in the cases where the evidence of a circumstantial nature is adduced, the circumstances, from which the conclusion of guilt is to be drawn, should be the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again the circumstances should be of conclusive nature and they should be such as to exclude every 15 hypothesis, but the one proposed to be proved. In other words, there must a chain of evidence so far complete and not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. However, after assessing the evidence adduced and produced by the prosecution, we have no hesitation to conclude that such is not the position in the instant case. 24 It was canvassed by learned A.P.P. that the death of Chhaya occurred during intervening night between 30th and 31st January, 2007 while she was sleeping along her husband i.e. appellant herein, and therefore, it is submitted that the death of deceased Chhaya occurred as a custodial death and the appellant herein was required to explain the circumstances under which the death of deceased Chhaya took place, which are under the special knowledge of the appellant herein, but the appellant herein failed to discharge the said burden under Section 106 of the Indian Evidence Act and hence, the Trial Court has rightly convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code and sentenced him accordingly. 25 To counter the said argument, the learned counsel for 16 the appellant submitted that primarily the burden of proving the guilt against the appellant was upon the prosecution, which prosecution has failed to discharge and it is also submitted that Section 106 of the Evidence Act is the exception to Section 101 of the Evidence Act, which can be invoked when the facts are preeminently and exceptionally within the knowledge of the appellant, and therefore, it is submitted that there is no application of Section 106 of the Evidence Act in the present case. To substantiate the said contention, learned counsel for the appellant placed reliance on the following observations made in the case of Shambhu Nath Mehra, Appellant vs. The State of Ajmer, Respondent, reported at 1956 S.C.404 (S) : “ Section 106 is an exception to S. 101. The latter with its illustration (a) lays down the general rule that in a criminal case the burden of proof is on the prosecution and S. 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience. The word “especially” stresses that. It means facts that are preeminently or exceptionally within his knowledge. ” 26 Considering the rival submissions, at the out set the 17 prosecution has failed to establish the very presence of the appellant in the house during the intervening night between 30th and 31st January, 2007 by any cogent evidence and it was a duty of the prosecution to establish primarily the nexus between the appellant and the alleged crime, and it was the primary duty of the prosecution to prove and establish the facts that the death of deceased Chhaya was within the special knowledge of the appellant herein, then only provisions of Section 106 of the Evidence Act could have been invoked, but the prosecution has failed in that exercise, and therefore, Section 106 of the Evidence Act cannot be invoked in the present case and liability of death of deceased Chhaya cannot be fastened upon the appellant herein relying upon the observations made in the above referred case (supra). 27 The learned counsel for the appellant also placed reliance on the case of Subramaniam vs State of Tamil Nadu and Anr., reported at 2009 ALL MR (Cri) 2118 (S.C.) that, “husband and wife were living together in the house and homicidal death of wife took place and, therefore, it was held that it is for husband to explain circumstance in which she might have died, but absence of explanation though strong circumstance against husband cannot per se be taken to mean that he alone was responsible 18 therefor.” 28 In the case of Sohel Mehaboob Shaikh vs State of Maharashtra, reported at 2009 AIR SCW 4145, it was held by the Apex Court that, “when the accused husband was charged of killing his wife, when at the time of death of wife the room was exclusively shared by accused and the victim, but there is no evidence to show that accused was present in the room when occurrence took place. Hence, it was held that chain of circumstances was not complete and therefore, accused was entitled to be acquitted and fact that accused had not given any explanation about unnatural death of wife is not material.” 29 In the case of P.Mani vs State of Tamil Nadu, reported at 2006 CRI.L.J. 1629 it was held by Honourable Supreme Court that, “in a criminal case, it is for the prosecution to prove the involvement of an accused beyond all reasonable doubt. It was not a case where both, husband and wife, were last seen together inside a room. The incident might have taken place in a room but the prosecution itself has brought out evidences to the effect that the children who had been witnessing television were asked to go out by the deceased and then she bolted the room from inside. As they saw smoke coming out from the room, they rushed 19 towards the same and broke open the door. In the aforementioned situation S.106 cannot be said to have any application whatsoever.” 30 Having comprehensive view of the matter, we have no hesitation to come to the conclusion that there is no legal incriminating evidence against the appellant herein to connect the appellant herein/original accused no.1 with an alleged crime punishable under Section 498-A and Section 302 of the Indian Penal Code and therefore, the conviction and sentence inflicted by the learned Additional Sessions Judge, Beed upon the appellant herein thereunder, shall not sustain and same deserves to be quashed and set aside, entitling the appellant herein to be released forthwith, if not required in any other case. 31 In the result, the appeal is allowed and conviction and sentence of the appellant for offences punishable under Sections 302 and 498-A of the Indian Penal Code is hereby quashed and set aside and the appellant is acquitted of the offences 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. (SHRIHARI P.DAVARE, J.) (P.V.HARDAS, J.) 20