drp {1} Cri. Appeal No.178/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 178 OF 2011 Suryakant s/o Chaganrao Andhare APPELLANT Age-38 years, Occ-Service R/o Kaij, Tq-Kaij, Dist-Beed VERSUS 1. Suryakant Dnyanoba Tarkase RESPONDENTS Age-45 yeas, Occ-Service R/o Quarter MSEB, Kaij Tq-Kaij, Dist-Beed 2. Narayan s/o Bhagwan Kadam, Age-54 years, Occ-Service R/o Quarter MSEB, Kaij, Tq-Kaij, Dist-Beed 3. The State of Maharashtra ....... Mr.P.S.Shinde, Advocate for appellant Mr.A.A.Jagatkar, Advocate for respondent No.1 Mr.A.S.Kadam, Advocate for respondent No.2 Mr.S.K.Tambe, APP for respondent No.3 State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 29 th June 2011 ORAL ORDER (PER A.V.POTDAR, J.): 1. By the present appeal, the appellant, original drp {2} Cri. Appeal No.178/2011 complainant, has questioned the correctness of the judgment and order dated 16.06.2010, passed by Additional Sessions Judge-2, Ambajogai, in Sessions Case No.72/2008, thereby acquitting respondents No.1 and 2 (Original accused) for an offence punishable u/s 302 r/w 34 of the Indian Penal Code. 2. We have heard learned counsel for the appellant and we have perused the impugned judgment. We have also perused the record and proceedings. It appears that deceased Venkat Andhare, brother of present appellant, was working as an operator in MSEB 132 KV sub Station at Kaij and was on duty on 06.07.2008 during 4.00 p.m. to 12.00 mid night. PW-2 Ganesh Khade, Lineman, was also on duty along with Venkat (deceased). It further appears that the deceased had drinks with respondent No. 1. Thereafter, deceased, respondent No.1 and PW-2 Ganesh had dinner, which was over at 11.30 p.m. Thereafter, they heard sound of breaking of window glass, however, no one was noticed. After consultation with senior officers they decided to lodge complaint about the same, in the morning. Thereafter, PW-2 Ganesh went to rest room while the deceased remained in the office. Around 2.30 a.m. on 07.07.2008, PW-2 Ganesh heard noise of quarrel and when he went there he saw that the deceased and respondent No.1 were quarreling and at that time respondent No.1 was holding knife and gave blow of knife on the neck of the deceased. Thereafter respondent No.2 came there and separated the deceased and respondent No.1. PW-2 Ganesh heard that respondent No.1 was drp {3} Cri. Appeal No.178/2011 asking the deceased as to why he had teased his daughter. Thereafter respondent No.1 went to 133 KV sub station while the deceased and PW-2 Ganesh came to 132 KV sub station. Deceased changed his shirt and threw the one stained with blood, in a water tank. PW-2 Ganesh applied medicine to the bleeding injury of the deceased and went to 133 KV sub station where he noticed that respondent No.1 was talking with his uncle in respect of the incident and was asking him as to whether complaint should be lodged with the police or not. At that time deceased was in his office. Around 5.00 a.m. on 07.07.2008, PW-2 Ganesh woke up on hearing telephone bell. The phone was attended by the deceased. Thereafter, the deceased left the office saying that he was going to answer nature’s call. However, deceased did not return till 6.00 a.m. As it was necessary to take the reading, PW-2 Ganesh took search of the deceased and noticed that dead body of the deceased was hanging on a neem tree in the court yard. On receipt of the information police arrived at the spot and removed the dead body. Thereafter, Inquest Panchanama (Exhibit-21) so also Spot Panchanama (Exhibit-22) came to be drawn. Clothes of the deceased so also one register and one chit from the clothes of the deceased was seized under seizure memorandum (Exhibit-23). Initially, AD No.28/2008 was registered. Thereafter, present appellant, lodged complaint against respondents No.1 and 2. On the basis of the complaint lodged by PW-3 Suryakant, an offence at Crime No.163/2008 came to be registered against respondents- accused. The seized documents were referred to the hand writing drp {4} Cri. Appeal No.178/2011 expert and on completion of the investigation charge sheet came to be filed against respondents-accused before JMFM, Kaij. On being committal of the case to the Court of Sessions, trial court framed charge (Exhibit-6) against respondents-accused for an offence punishable u/s 302 r/w 34 of the Indian Penal Code. 3. Record further indicates that prosecution had examined 10 witnesses in support of its case. Defence of the respondents-accused was of total denial and their false implication in the offence. Admittedly, case of the prosecution is based on circumstantial evidence. PW-4 Dr. Keshav Ingole had performed postmortem on the dead body of Venkat. The medical officer had noticed the following injuries on the dead body of deceased Venkat. 1. Abrasion on left side of neck from scalp line 2 inch lateral to treachea 1 cm x 7 cm 2. Abrasion on left side of neck 1 cm below the above abrasion ½ x 1 cm width 3 cm. 3. Ligature mark around the neck incomplete 1 cm (width) marked inclined upward behind left ear about 2 cm wide gap between two ends of ligature marks. Accordingly, Postmortem report (Exhibit-35) came to be issued. The medical officer opined that the probable cause of death was due to asphyxia due to hanging. It was further opined that the 3rd injury found on the person of the deceased is possible in drp {5} Cri. Appeal No.178/2011 suicidal hanging and the same is not possible in homicidal hanging. According to the medical officer, in the homicidal hanging the ligature mark is complete around the neck and there remains no gap. According to the medical officer, Injury No.3 is possible if the neck is pressed by wire (Article-2). He has stated in the cross examination that homicidal hanging is possible if the victim is unconscious or the victim is a small child. In homicidal hanging there must be signs of struggle, but he had not noticed any offensive or defensive injuries on the person of the deceased to infer that the death was homicidal. He has also admitted in the cross examination that if a cord is used for pressing the neck or around the neck, then the same may extend due to the weight of the body. According to the medical officer injury Nos. 1 to 3 are antemortem. PW-4 Dr.Ingole has opined that the cause of death of deceased Venkat was due to suicidal hanging and not by homicidal hanging. 4. Learned counsel for the appellant urged that the trial court has committed an error while appreciating the medical evidence. However, careful perusal of the medical evidence, in respect of ligature mark indicates that the medical officer has positively asserted that in homicidal hanging ligature marks will be complete around the neck and there will be no gap. In the present case, the medical officer had noticed that ligature marks found on the dead body were incomplete and there was gap. It was further opined that no marks of resistance or violence were noticed on the drp {6} Cri. Appeal No.178/2011 dead body and hence it was opined that the death of deceased Venkat is suicidal. We do not find any reason to discard the opinion of the medical expert, in absence of any fault brought to our notice about the incompetency or lack of knowledge of the medical officer. 5. Learned counsel for the appellant further urged that evidence of PW-2 Ganesh is not properly appreciated by the trial court. According to learned counsel for the appellant, the circumstance, established in the evidence of PW-2 Ganesh, that in the previous night deceased and respondent No.1 had dinner together and they had also drank liquor, is totally ignored by the trial court. However, the medical officer falsifies this evidence, as according to the medical officer, no alcohol was found in the dead body of the deceased at the time of conducting the postmortem. In column No.21 of the postmortem it is clearly mentioned by the medical officer that there was no smelling of alcohol. It is further urged by learned counsel for the appellant that the evidence of PW-2 Ganesh on the point that he had witnessed the quarrel between the deceased and respondent No.1 at 2.30 a.m. on 07.07.2008 and at that time respondent No.1 had inflicted bleeding injury to the deceased with knife, is erroneously discarded by the trial court. However, statement of PW-2 Ganesh was recorded during the investigation before the Judicial Magistrate and in the said statement PW-2 Ganesh has not stated that he had seen respondent No.1 inflicting knife blow on the neck of the deceased drp {7} Cri. Appeal No.178/2011 but he states that when he witnessed the incident the deceased had already sustained the injury on his neck. In any event, the said injury is not the cause of death. Moreover, PW-2 Ganesh states that after the incident of 2.30 a.m. deceased went to sleep in his office and respondent No.1 also went to sleep and PW-2 Ganesh nowhere states that thereafter, deceased and respondent-accused were seen together. Furthermore, the roll attributed to respondent No.2 by PW-2 Ganesh is that respondent No.2 intervened and pacified the quarrel between the deceased and respondent No.1. PW-2 further states that in the morning, at 5.00 a.m. deceased had gone to answer the nature’s call, which clearly indicates that at 5.00 a.m. in the morning on 07.07.2008, deceased was very much alive and was not in the company of either of the accused. In view of this aspect, the trial court has rightly discarded the evidence of PW-2 Ganesh as PW-2 nowhere states that soon before the death, deceased was last seen together in the company of the accused. Thus, evidence of PW-2 is not sufficient on the point that the deceased was last seen together in the company of the accused and the accused have to explain the cause of death of the deceased. Other than evidence of PW-2 and the medical evidence, prosecution has relied on the evidence of recovery, which is not accepted by the trial court. 6. According to us, in the cases based on circumstantial evidence, prosecution must ensure that the circumstances, from which the inference of guilt is sought to be drawn, must be drp {8} Cri. Appeal No.178/2011 cogently and firmly established. The circumstances must unerringly point towards the guilt of the accused and when taken cumulatively, should form a chain, so complete, it must demonstrate in all probabilities that the crime was committed by the accused. The evidence, in our view, is not at all clinching, nor is sufficient to establish the complicity of the accused in the offence. The evidence on record is hopelessly inadequate to prove the charge of murder against the accused. There is huge gap when the deceased was last seen with the accused and recovery of dead body. 7. In the premise and considering the reasons recorded by the trial court while acquitting the accused, we are of the view that the view taken by the trial court is a probable view to be taken. We do not notice any perversity in the impugned judgment of acquittal. If the view taken by the trial court is a probable view and there is no perversity in the reasoning recorded by the trial court, the impugned judgment of acquittal needs no interference. 8. Consequently, the appeal, being sans merits, stands dismissed, confirming the acquittal. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/B11/criapel178-11