spb/- 1 J-apeal255-2004.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 255 OF 2004 Hanma @ Hanmanta Ishvarappa Budane, Koli ... Appellant Age 39 years, R/0. Ramnagar, Kasbe Digraj, (Org. Accused) Dist. Sangli, (presently languishing in Kalamba Jail, Kolhapur) V/s. The State of Maharashtra ... Respondent. Through T.N. Koli, PCB No.996 of (Org.Complainant) Sangli Rural Police Station at Sangli. ­­­­­ Mr. Chetan S. Damre i/by D.N.Salvi for the Appellant. Mr. J.P. Yagnik, APP for the Respondent­State. ­­­­­ CORAM : P. V. HARDAS & M.N.GILANI,JJ. DATE : 03RD MAY, 2011 ORAL JUDGMENT : ( PER P.V. HARDAS, J.) 1 The appellant has been convicted for the offence punishable under section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs. 300/­ and to undergo further R.I. for one month, in the event of non­ payment of fine by the 1st Adhoc Additional Sessions Judge, Sangli by the judgment dated 30.12.2003 in Sessions Case no. 161 of 2002. The appellant, by this Appeal, questions the correctness of his conviction and sentence. spb/- 2 J-apeal255-2004.sxw 2 Such of the facts as are necessary for the decision of this appeal may briefly be stated thus : On the date of the incident, i.e. on 15.08.2002 at about 11.20 a.m., two unknown persons came and contacted PW­1 Tanaji, Police Head Constable, who was standing outside the Grampanchayat Office, where Gramsabha was being held. The aforesaid two unknown persons, who had come on M­80 Motorcycle, disclosed to PW­1 Tanaji that one person had killed his wife. On receipt of the aforesaid information, PW­1 Tanaji immediately proceeded to the scene of the offence. On reaching the scene of the offence, he noticed that the body of a lady was lying in a pool of blood and one person, standing near the injured body, was holding an axe. The said person was identified by PW­1 Tanaji in his evidence as an appellant. The appellant ­accused came to be arrested at the scene of the offence under arrest panchanama at Exh. 11 in the presence of PW­2 Balwant. The injured lady was referred to the Civil Hospital at Sangli and thereafter the accused was brought to the police station and produced before the PSI. The injured lady who was identified as Rukmini, the wife of the appellant, succumbed to her injuries at 5.30 p.m. on the next date i.e. on 16.08.2002 in the Civil Hospital. On 15.08.2002 PW­1 Tanaji had gone to the scene of the offence alongwith the PW­8 PI­Kalekar and thereafter, scene of the offence panchanama came to be drawn and from the scene of the offence, mud stained with blood and ordinary mud came to be seized. Clothes of the deceased Rukmini came to be seized in the presence of the witnesses. A report at the behest of the PW­1 Tanaji came to be lodged on the basis of which an offence under section 302 came to be registered against the appellant accused. The investigation spb/- 3 J-apeal255-2004.sxw was entrusted to PW­8 PI­Kalekar. The statements of the witnesses came to be recorded on 16.08.2002. Inquest panchanama at Exh. 17 came to be drawn in the presence of the witnesses. Subsequently, the statements of other witnesses came to be recorded and seized property was thereafter referred to the Chemical Analyser. The report of the Chemical Analyser is at Exh. 26. 3 On committal of the case to the court of Sessions, the trial court vide Exh. 4 framed charge against the appellant for the offence punishable under section 302 of the IPC. The appellant denied his guilt and claimed to be tried. The prosecution in support of its case examined 8 witnesses. 4 The trial court accepted the evidence of the prosecution witnesses and convicted and sentenced the appellant as aforestated. The entire prosecution case revolves around the testimony of PW­1 Tanaji, PW­3 Arun, PW­6 Mutappa and PW­7 Rukmini. As pointed out by us, PW­1 Tanaji only speaks about the presence of the appellant near the injured body of his wife, holding an axe in his hand at that time. The axe and the clothes on the persons of the appellant came to be seized by the police and the report of the Chemical Analyser indicates that the axe and the clothes were stained with the blood and that was matching with the blood group of the deceased Rukmini. PW­3 Arun has deposed to state that the appellant­ accused had confessed before him that as his wife had not served food to him, in anger he had killed his wife with an axe. In the cross­examination PW­3 Arun, admitted that the appellant had arrived at the scene of the offence before he reached the scene of the spb/- 4 J-apeal255-2004.sxw offence. This extra judicial confession, therefore, according to us cannot be relied upon for the reason that none of the prosecution witnesses who were present at the scene of the offence depose about such an extra judicial confession if made and consequently, if the aforesaid extra judicial confession had been made, it is a confession in the presence of the police. The aforesaid confession, therefore, would be inadmissible in evidence being contrary to the mandate of section 25 of the Indian Evidence Act. We, therefore, find that no reliance can be placed on the testimony of PW­3 Arun. 5 The prosecution has examined PW­6 Mutappa who also claims to have gone to the scene of the offence as he was contacted by the person who had informed PW­1 Tajani. Mutappa does not implicate the accused at all. In fact, Mutappa states that when he had gone to the scene of offence, the accused was near the body of his wife and was weeping. Mutappa further states that in a sorrow, the accused was dashing his head on the ground on account of which the accused had sustained bleeding injuries. PW­6 Mutappa was not declared hostile by the prosecution and therefore, was not cross­examined. The prosecution, therefore, cannot wish away the evidence of PW­6 Mutappa. Mutappa also does not speak about any oral extra judicial confession being made by the accused to any one. Mutappa further states that he was not aware that the relations between the appellant­accused and his wife were strained. 6 PW­7 Rukmini, who is the landlady of the accused, did not support the prosecution case and was declared hostile. Nothing of importance spb/- 5 J-apeal255-2004.sxw has been elicited from the evidence of Rukmini to assist either to the prosecution or the accused. The case, therefore, against the accused rests upon circumstantial evidence. The circumstances in evidence appeared against the accused are : i that the appellant­accused was standing near his injured wife, holding an axe which was found to be stained with the blood group matching with the deceased. ii the appellant ­accused had confessed his guilt to PW­3 Arun. iii the relations between the appellant and his wife were strained. iv the clothes of the appellant accused were stained with the blood matching that of the deceased. 7 We have already pointed out that the appellant­ accused standing near his wife, who had sustained injuries, by itself would not indicate anything much less; would it assists the court in drawing an inference that it was the appellant­accused who had inflicted the injuries. The evidence of PW­6 Mutappa clearly explains the presence of the blood on the clothes of the appellant accused. There is no evidence whatsoever that the relations between the appellant and his wife were strained. We have already dealt with the circumstance regarding the alleged extra judicial confession and therefore, we do not think that any reliance at all can be placed upon PW­3 Arun. It is well settled principle that the cases resting on circumstantial evidence, the prosecution has to prove each and every circumstance on which the prosecution relies. The aforesaid spb/- 6 J-apeal255-2004.sxw circumstance should be of a conclusive nature and must have a definite tendency of incriminating the accused. The circumstance so proved should form a complete chain which should exclude every hypothesis of the innocence of the accused and should unerringly point to the guilt of the accused. The circumstance, therefore, proved should be capable of drawing an inference that the accused and the accused alone has committed the offence. A reference in this behalf could usefully be made to the decision of the Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra (AIR 1984 Supreme Court 1622). The circumstances which we have adverted to above and the evidence led by the prosecution in support of the aforesaid circumstances is incapable of inference to be drawn that it is the accused and the accused alone who had killed his wife. In these premises, therefore, according to us the appellant accused would be entitled to be given the benefit of doubt. 7 Accordingly, this Criminal Appeal is allowed and the 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 any, 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. [M.N.GILANI,J.] [P.V. HARDAS, J.]