1 CR.APPEAL NO.428/2010 unreported IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.428 OF 2010 Tukaram s/o Murlidhar Wakde, Age 26 years, Occ: Labour, r/o Wadgaon Kolhati, Taluka and district Aurangabad. ...APPELLANT VERSUS The State of Maharashtra. ...RESPONDENT ... S/Shri N.S.Ghanekar, with Mr.N.G.Shah, Advocates for appellant. Shri S.D.Shelke, APP for State. ... CORAM: A.H.JOSHI & A.R.JOSHI, JJ. Date: AUGUST 29th,2011 *** Date of reserving the judgment:23/8/2011 Date of pronouncing judgment:29/8/2011 *** JUDGMENT:(Per A.H.Joshi, J.) 1. Heard learned Advocates and perused the record. 2. The appellant was charged for commission 2 CR.APPEAL NO.428/2010 of offense under Section 302 of IPC, for intentionally causing death of his wife Kalpana, by strangulating her neck by, use of a rope, at his residence, on 1st June, 2008, at about 1 a.m. 3. The prosecution has relied upon following witnesses: PW 1 Ashok Kirtikar, who is brother of the deceased, PW 2 Ashabai Bansi Kirtikar, at Exh.17, who is aunt of deceased Kalpana, PW 3 Avinash Karbhari Ghate at Exh.19, who is panch to the spot panchnama, PW 4 Deelip Shantabai Kale at Exh.24, PW 5 Sundar Ramchandra Ghate at Exh. 26, who is a panch for panchnama under Section 27 of the Indian Evidence Act, PW 6 Dr.Sachin Janbaji Gadge, at Exh.31, who conducted the autopsy on the dead body of Kalpana, and PW 7 Raosaheb Shrirang Bavale at Exh.44, who is investigating officer. 4. The learned Sessions Judge convicted the accused/appellant based on circumstantial evidence as, admittedly, there are no eye witnesses. 5. The substance of circumstantial evidence relied upon by the learned Sessions Judge is summarized as follows: 3 CR.APPEAL NO.428/2010 (1) On the earlier day - of the midnight when the fateful event occurred, PW No. 1, brother of the deceased had paid Rs. 300/- to deceased (his sister), and said money was taken away by the accused for squandering it on his vices. (2) The accused did not do any activity for earning his livelihood and lived on income of his wife. (3) There was no other person in the house except the accused and his children, who were infants, four and half years old, respectively. (4) Deceased had injuries on her back, face, etc., and ligature mark was seen around the neck. (5) The defense put up by the accused that Kalpana was found hanged to a rafter - supporting roof and or the ceiling fan is proved to be untrue. (6) The circumstances in which Kalpana, being the only person, in the house, the defense raised by the accused was proved to be false. The circumstantial evidences were adequate to convict him. 4 CR.APPEAL NO.428/2010 5. Learned Advocate for the petitioner has urged, in support of appeal, the grounds, namely: (1) That there are no eye witnesses. Nobody has seen the accused doing the act of hanging. (2) The case was not falling in the category of Section 304-B of IPC which would have attracted certain presumption contingent upon fulfillment of the conditions as to ill-treatment of certain gravity. (3) Circumstantial evidence does not prove that the accused is the author of homicidal death of wife. (4) Even though the defense of the accused may not be proved or, is found to be false, yet law does not raise a presumption that the accused alone had committed the act. 6. Learned Advocate has placed reliance on following reported judgments: (1) 2009 ALL MR (Cri) 2231 (Jagannath s/o Dhamaji Pol vs. State of Maharashtra) 5 CR.APPEAL NO.428/2010 (2) AIR 1976 SUPREME COURT 975 (Bhagirath V. State of M.P.) (3) 2009 ALL MR (Cri) 2118 (S.C.) (Subramaniam v. State of Tamil Nadu and Anr.) 7. It shall suffice to refer to the judgment of the Hon'ble Supreme Court in case of Subramaniam Vs. State of Tamilnadu (Supra). Relevant portion from the dictum of Judgment can be usefully reproduced, which reads as below: "14. So far as the circumstance that they had been 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 a death by homicide takes place it will be for the husband to explain the circumstances in which she might have died. However, we cannot lose sight of the fact that although the same may be considered to be a strong circumstance but that by alone in absence of any 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. ... ... ... ... .... 23. ... ... Failure to prove the plea of alibi and/or giving of false evidence itself may not be sufficient to arrive at a verdict of guilt; it may be an additional circumstance. But before such additional circumstance is taken into consideration, the prosecution must prove all other circumstances to prove his guilt." 6 CR.APPEAL NO.428/2010 8. Present case is squarely governed by the precedent relied upon by the appellant i.e. Subramaniam's case, supra. 9. Admittedly, the accused has tried to push forward a defense, which could be viewed by anyone to be topsy-turvy or, of the nature of alibi in totality, and the accused has failed in proving it. 10. Apart from whatsoever be the defence of the accused, the prosecution is not exonerated or relieved of its responsibility, and un-shirkable duty to prove that, the accused is author of the offense. 11. Had the case been covered by presumption whereby the accused could have been forced by law to explain the circumstances, being matters of personal knowledge, the situation would have been different. 12. In the present case, the prosecution has failed to establish, by bringing positive and/or cogent evidence that the accused had knowledge of the circumstances in which the deceased has suffered the injuries resulting into death. 7 CR.APPEAL NO.428/2010 13. In the result, the judgment and order of conviction rendered by the Sessions Judge turns out to be based on perception of the guilt than proof. 14. In no circumstances it can be held that the prosecution has succeeded in proving the guilt against the accused beyond a reasonable suspicion. 15. In the result, appeal succeeds. The judgment and order of conviction is set aside. Appellant(accused) be set at liberty forthwith, if not required in any other offense. (A.R.JOSHI, J.) (A.H.JOSHI,J.) ... AGP/428-10cr.a 8 CR.APPEAL NO.428/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD /UNREPORTED/ CRIMINAL APPEAL NO.428 OF 2010 Date of decision:29/8/2011 For approval and signature HON'BLE MR.JUSTICE A.H.JOSHI HON'BLE MR.JUSTICE A.R.JOSHI 1. Whether the Reporters of Local Papers Yes may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. 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 ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? Private Secretary AGP/office/428-10cr.a