1 Criminal Appeal No.298 of 2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.298 OF 2009 Nanla Sukhla Pawara, Age-30 years, Occu-Labourer, R/o.Village Gurhalpani, Tal. Shirpur, Dist. Dhule (At present in Nashik Road, Central Prison, Nashik, Convict Prisoner No.C/6443) APPELLANT VERSUS The State of Maharashtra RESPONDENT Mr.Anjali Dube, learned counsel for the appellant. (Appointed) Mrs.R.K.Ladda, learned A.P.P. for respondent State. (CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.) DATE : 11/01/2011 ORAL JUDGMENT : (Per A.V.Potdar, J.) 1. In the present appeal, the appellant has questioned the correctness and legality of his conviction u/s. 302 of The IPC, for which he was sentenced to suffer life imprisonment and to pay fine in the sum of Rs.5,000/-, in default to suffer further rigorous imprisonment for 6 months in Sessions Case No.38/2007 by judgment and order dated 01/08/2007 by Sessions Judge, Dhule. 2 Criminal Appeal No.298 of 2009 2. Such of the facts as are necessary for the decision in this appeal can be summarized as : Raimal Dhansing Pawara had seen Akkabai Nanla Pawara, lying in the injured condition in the field of one Raju, in village Gurhalpani, Tal.Shirpur, Dist. Dhule, and in turn he informed the same to Village Police Patil Vadrya Pawara. The said Police Patil visited the field and confirmed the information. Thereafter, with the help of relatives of Akkabai, initially she was taken to the hospital at Boradi, from where in the evening, she was shifted to hospital at Shirpur. As her condition was serious, as per medical advice, she was shifted to Civil Hospital, Dhule. Then he lodged the complaint in Shirur Police Station on 29/10/2006. On the basis of this complaint, CR No.249/2006 was registered against the appellant, initially for an offence punishable u/s. 326 of The IPC. Investigation in the said offence was entrusted to Ramesh Katthu (P.W.No.8). While under treatment, said Akkabai succumbed to injuries in the early hours of 30/10/2006. Hence the offence earlier registered u/s. 326 of The IPC was altered u/s. 302 of The IPC. Thereafter, Investigation Officer P.W.No.8 visited the scene of offence and in the presence of panch witnesses, drew spot panchnama Exh.14. From the spot, he had collected blood mixed soil and plain soil. He has also collected broken pieces of bangles and one stone, which were also attached under the spot panchnama Exh.14. In Civil Hospital, Dhule, after drawing the inquest panchnama Exh.7, the dead body of Akkabai was sent for post mortem. Dr.Ajit Gajanan Pathak (P.W.No. 3 Criminal Appeal No.298 of 2009 1) conducted the autopsy on the dead body of Akkabai. He had noticed following injuries on the dead body of Akkabai. 1. Abrasion over left cheek of size 2 cm x 2 cm. Brownish black. 2. Abrasion right cheek of size 2 cm x 2.3 cm. brownish black. 3. Abrasion present over right ear pinna upper part 1 cm.x 0.5cm. Brownish black. 4. Abrasion right face 3 cm. Lateral to injury no.2 near right ear pinna of size 1.5 cm x 1 cm. Brownish black. 5. Abrasion over right side of chest at the level of 10th rib of size 3 cm x 2 cm. Brownish black. 6. Abrasion over dorsum of right hand 1 cm x 1 cm. Brownish black. 7. Abrasion over dorsum of left wrist of size 0.25 cm x 0.25 cm. Brownish black. 8. Abrasion left elbow of size 0.5 cm x 0.25 cm. Brownish black. 9. Graze abrasion over left back below scapula, 3 cm x 2.5 cm. Brownish black. 10.Graze abrasion left thigh, posteriorly of size 6 cm x 4 cm. Brownish black. 11. Abrasion right back, scapula region linear of size 2 cm x 0.25 cm. Brownish black. 12.Abrasion right knee 3 cm x 2 cm. Brownish black. 13.Abrasion left lower leg below knee middle 1/3 laterally situated of size 1.5 cm. X 1 cm. Brownish black. 4 Criminal Appeal No.298 of 2009 According to him, all of these injuries were ante mortem injuries and 2 to 4 days old. On internal examination of the dead body, he noticed following injuries. Under scalp haematoma present over right frontal, parietal and and temporal region in the area of 13 cm. x 10 cm., dark brown in colour. On examination of brain, he found extradural hemorrhage present over right parietal and temporal region and sub arachnoid hemorrhage present over brain surface. According to him the internal injuries are corresponding to external injury no.1 to 3, which injuries were sufficient in ordinary course of nature to cause death of the victim. Accordingly, he had prepared post mortem notes at Exh.10. According to him, the external injuries were possible in a scuffle and assault with hard and blunt object and possible by assault with a stone. While conducting the post mortem, he had also collected the blood of the deceased for blood grouping and forwarded the same to Chemical Analyser alongwith letter at Exh.11. While conducting the post mortem, clothes on the person of the deceased were removed and seized under the panchnama Exh.16 drawn in the presence of witnesses. During the investigation, he had recorded statements of witnesses including the statement of one Pradhan (P.W.No.4) and one Master (P.W.No.7) and the statements of parents of deceased. On 04/11/2006, appellant was arrested under the arrest panchnama Exh.15. He also recovered the clothes of appellant in the presence of 5 Criminal Appeal No.298 of 2009 panch witnesses under the panchnama Exh.17. He also drew map of the scene of the offence (Exh.18). During the investigation, seized articles were forwarded to C.A. alongwith covering letter. After receipt of C.A. Report at Exh.33 and 34, and on completion of investigation, he had filed charge sheet against the appellant accused in the Court of J.M.F.C. Shirpur. J.M.F.C. Shirur, after passing necessary committal order, committed the trial to the Court of Sessions, Dhule. 3. Record and proceeding shows that learned Sessions Judge, Dhule framed the charge at Exh.3 against the appellant, to which appellant pleaded not guilty and claimed to be tried. During the trial, to substantiate the charge lavelled against the appellant, prosecution has examined in all 8 witnesses including Dr.Ajit Gajanan Pathak, P.W.No.1 Medical Officer attached to Civil Hospital, Dhule, who conducted autopsy on the dead body of Akkabai, Vadarya Yesta Pawara, P.W.No.2, the complainant on whose report, FIR was registered against the appellant, Gajmal Faujya Pawara, P.W.No.3 father of the deceased, Pradhansing Bahadur Pawara P.W.No.4, Master Sheltya Pawara P.W.No.7, who have witnessed the quarrel between the appellant and deceased in the night of 27/10/2006, Sahebrao Rohidas Salunkhe, Police Constable attached to Shirpur Police Station who carried the muddemal articles to Chemical Analyser, Nasik alongwith covering letter, Amarsing Guman Pawara P.W.No.6, the interpreter, whose services were utilized during the trial 6 Criminal Appeal No.298 of 2009 while recording the evidence of prosecution witnesses and the Investigation Officer Ramesh Katthu Savale. It appears that the case against the appellant rests on circumstantial evidence. On appreciation of the evidence of the prosecution witnesses, learned Trial Court was pleased to hold the appellant accused guilty for the offence, for which he was charge sheeted and convicted the appellant for the offence punishable u/s. 302 of The IPC, which judgment is impugned in the present appeal. Defence of the appellant is of total denial and that he is falsely implicated in this case. 4. For the better appreciation of the submissions of learned counsel for appellant and of learned A.P.P. for State, it is necessary to advert to the evidence of material prosecution witnesses examined during the trial. 5. It is in the evidence of Vadarya Yesta Pawara, prosecution witness no.2 that he is working as a Police Patil of village Gurhalpani. He knew deceased as well as the appellant. On 27/10/2006, there was celebration of ‘Dipawali’ festival in the said village. All the villagers have participated in the said festival and as per the custom of the community, the villagers as well as the appellant consumed alcohol and were dancing in the festival in that evening. In the evening itself, some quarrel took place between the appellant and his wife, which was pacified by his nephew Pradhan and Master. At that time, appellant has threatened the deceased that he would kill her. 7 Criminal Appeal No.298 of 2009 On the next day morning, one Raimal Dhansing Pawara informed him that Akkabai was found lying in injured condition in the field of one Raju and she is in un-conscious condition. He visited the spot, and verified the situation. Relatives of Akkabai brought Akkabai to her residence, then shifted to hospital at Boradi from where Akkabai was shifted to Shirpur and after initially treatment was provided to her and as condition of Akkabai was serious, she was shifted to Civil Hospital, Dhule. Then he lodged complaint in Shirpur Police Station. Later on Akkabai succumbed to injuries and his supplementary statement was recorded. He has admitted in his cross examination that this festival is the biggest festival amongst the Adivasis and as per tradition, all the people including male and female consumed liquor. All the people were dancing till late night. He was also present during the festival. The dance programme was going on till next day morning. Appellant was beating drums in the said festival till late night. Master and Pradhan are the next door neighbourers of appellant and they have also participated in the said festival, and were dancing till late night. He has further admitted in his cross examination that the place where Akkabai was found lying in an injured condition was at the distance of 1 km. 6. It is in the evidence of Pradhansing Bahadur Pawara (P.W.No.4) that at the relevant time, he was studying in S.P.D.M.College, Shirpur and had visited the village for ‘Dipawali’ festival. House of the appellant is situated at some distance from his house. Appellant was 8 Criminal Appeal No.298 of 2009 beating drums on 27/10/2006 till 7.30 p.m. He heard some shouts from the house of appellant, hence he and Master went to the house of appellant. The door of the house of appellant was closed from inside. When they knocked the door of the house of appellant, they received no response from inside, hence they kicked and opened the door. They saw that appellant was beating his wife Akkabai. They pacified the situation. On their questioning, Akkabai told them that appellant was beating her as she had objected about habit of appellant to consume liquor. She also informed that appellant is suspecting about her chastity. They pacified the situation and thereafter returned to their respective residential houses. On the next day morning, Raimal Dhansing Pawara informed them that Akkabai was found lying in unconscious and injured condition in the field of Raju. He visited that place alongwith Police Patil. He assisted others to bring Akkabai to her house. At that time, appellant was present at his residence. P.W.No.4 admitted in his cross examination that his house is situated at the distance after about 5 houses of the house of appellant. He further admitted that most of the people in the village consumed liquor during the festival and they were dancing on the tune of beating of drums. As they have participated in the dancing programme celebrated by the villagers, he was also present and participated in the said festival. Appellant was also present in the festival. He was present in the programme till 8.00 p.m. He had further admitted in his cross examination that he heard the shouts from the house of appellant 9 Criminal Appeal No.298 of 2009 while he had participated in the programme. He has further admitted that when he heard the shouts from the house of appellant, about 50 persons were present in the festival. Omission was proved in his further cross examination that he had not stated in his statement before police that he had seen one stone lying near the body of Akkabai and the stone was stained with blood. 7. Evidence of Master Pawara, P.W.No.7 is on the similar line like the evidence of witness Pradhan, hence need not to be discussed separately. He had admitted in his cross examination that dance programme was going on till mid-night about 1.00 a.m. or so. He was present at the place where the dance programme was going on. Drums were beaten during the said programme. An admission was given by him in his further cross examination that deceased was not present at the time of village festival. He has further admitted in his cross examination that he has not visited the spot where the deceased was found in injured condition. 8. Heard learned counsel for appellant and learned A.P.P. for State in the backdrop of this evidence. During the course of submissions across the bar, learned A.P.P. appearing for the State supports the reasoning given by the learned Trial Court in support of judgment of conviction against the appellant. 9. During the course of submissions across the bar, our attention 10 Criminal Appeal No.298 of 2009 is rightly drawn by learned counsel appointed for the appellant that the case of prosecution is totally rests on the circumstances, and from the evidence on record, these circumstances were not proved. The circumstances which were formulated by the Trial Court were : 1) In the previous night, there was quarrel between the deceased and appellant, 2) Deceased was found lying in injured condition on the next day morning in the field of one Raju and it was opined by the Medical Officer Dr.Pathak that the death of the deceased is a homicidal death. 3) Appellant was absconding after the alleged incident. It is urged across the bar on behalf of the appellant that even though the first circumstance about the quarrel between the appellant and deceased may not be taken as a circumstance leading to infer that because of this quarrel, appellant/accused beat his wife Akkabai, which resulted in her death. It is also urged that so far as the dance programme is concerned, as per the evidence of Pradhan P.W.No.4 and Master P.W.No.7, till late mid-night about 1.00 a.m. or so, the dance programme was going on. During this period, nobody has seen that appellant had taken deceased to the field of Raju, which is situated at the distance of about 1 km. from village Gurhalpani. It is also urged that merely because after the alleged incident, appellant was not found present in his house, which action was termed as appellant was absconding, can not be taken as the circumstance against the appellant. It is also urged that appellant was apprehended after 5 days. But thereafter nothing incriminating was recovered at his instance. It is also urged that no blood was 11 Criminal Appeal No.298 of 2009 found on the clothes of the appellant at the time of his arrest, even though there is some reference in the seizure panchnama of the clothes that appellant made disclosure statement that he will produce the clothes on his person at the time of commission of an offence. It is also urged that no blood was found on the stone which was allegedly recovered from the spot. In the premise, in absence of any recovery, and in absence of any witness coming before the Court, who had lastly seen the appellant with the deceased, the accused may be acquitted. In the premise, according to her, chain of circumstances was not complete, and if the chain of circumstances was not complete, then the circumstantial evidence may not be believed. According to her, the alleged motive behind the said crime that deceased was pursuing the appellant from his habit of consumption of alcohol and appellant was suspecting her chastity is not supported by any witness other than the bare words of witness no.4 Pradhan and witness no.7 Master. 10. In support of her submissions, reliance was placed by the learned counsel appearing for the appellant about the observations of the Apex Court in the matter of Paramjeet Singh alias Pamma versus State of Uttarakhand(2010) 10 Supreme Court Cases 439 on two aspects about the standard of proof in the cases based on circumstantial evidence, and the effect of abscondance of accused. At this juncture, it is useful to give the reference about those observations, which read as follows : 12 Criminal Appeal No.298 of 2009 10. A criminal trial is not a fairy tale wherein one is free to give flight to one’s imagination and fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Ever case, in the final analysis, would have to depend upon its own facts. The court must bear in mind that “human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions”. Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the court to punish the accused on the basis of a moral conviction or suspicion alone. “The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.” In fact, it is a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof required, since a higher degree of assurance is required to convict the accused. The fact that the offence was committed in a very cruel and revolting manner may in itself be a reason for scrutinizing the evidence more closely, lest the shocking nature of the crime induces an instinctive 13 Criminal Appeal No.298 of 2009 reaction against dispassionate judicial scrutiny of the facts and law. (Vide Kashmira Singh V. State of M.P., State of Punjab V. Jagir Singh, Shankarlal Gyarasilal Dixit V. State of Maharashtra, Mousam Singha Roy V. State of W.B. And Aloke Nath Dutta V. State of W.B. ) 11. In Sarwan Singh Rattan Singh V. State of Punjab this Court observed : (AIR P. 645, para 12) “12........ considered as a whole the prosecution story may be true; but between ‘may be true’ and ‘must be true’ there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence (before an accused can be convicted.” 12. Thus, the law on the point may be summarised to the effect that in a criminal trial involving a serious offence of a brutal nature, the Court should be wary of the fact that it is human instinct to react adversely to the commission of the offence and make an effort to see that such an instinctive reaction does not prejudice the accused in any way. IN a case where the offence alleged to have been committed is a serious one, the prosecution must provide greater assurance to the Court that its case has been proved beyond reasonable doubt. 13. Though a conviction may be based solely on circumstantial evidence, this is something that the court 14 Criminal Appeal No.298 of 2009 must bear in mind while deciding a case involving the commission of a serious offence in a gruesome manner. In Sharad Birdhichand Sarda Versus State of Maharashtra, this Court observed that it is well settled that the prosecution’s case must stand or fall on its own legs and can not derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the Court where various links in the chain of circumstantial evidence are in themselves complete. This Court also discussed the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone and held as under (SCC P.185 para 153) “1. The circumstances from which the conclusion of guilt is to be drawn should be fully established, 2. the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, 3. the circumstances should be of a conclusive nature and tendency, 4. they should exclude every possible hypothesis except the one to be proved, and 5. there must be a chain of evidence so complete as not to leave any reasonable ground for 15 Criminal Appeal No.298 of 2009 the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” 31. In Matru V. State of U.P., this Court repelled the submissions made by the State that as after commission of the offence the accused had been absconding, therefore, the inference can be drawn that he was a guilty person, observing as under: (SCC P.84, para 19) “19. the appellant’s conduct in absconding was also relied upon. Now, mere abscondence by itself does not necessarily lead to a firm conclusion of builty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no doubt relevant piece of evidence to be considered alongwith other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of 16 Criminal Appeal No.298 of 2009 the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence.” 32. A similar view has been reiterated by this Court in Rahman V. State of U.P., State of M.P. V. Paltan Mallah, and Bipin Kuman Mondal V. State of W.B. 33. Abscondence by a person against whom FIR has been lodged, having an apprehension of being apprehended by the police, can not be said to be unnatural. Thus, mere abscondence by the appellant after commission of the crime and remaining untraceable for a period of six days itself can not establish his guilt. Absconding by itself is not conclusive proof of either guilt or of a guilty conscience. 11. Considering these submissions across the bar, according to us, even though prosecution was able to establish the fact of first circumstance about the quarrel in the previous night, between the appellant and deceased, the motive behind this quarrel was not established. No cogent evidence has come before the Court that appellant was suspecting about the chastity of the deceased. In this trial, prosecution has examined father of the deceased. Marriage of 17 Criminal Appeal No.298 of 2009 deceased with the appellant is not under dispute. It is but natural that if the appellant is suspecting about the chastity of the deceased wife, she might have disclosed this fact to somebody or to her parents, but no such evidence is coming before the Court. Then about the allegation of consumption of liquor. It is not under dispute that deceased and appellant are triables. It transpired in the evidence of all the prosecution witnesses including the complainant Pradhan, who is a student, and Master who is the neighbourer that Diwali is