1 Cri.Appeal No.199 of 2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 199 OF 2010 Hanmant Sadashiv Andhale, Age 38 years, occ. Labour, r/o Pimpala (Rui), Tq. Wadwani, District Beed ..APPELLANT (Ori. Accused No.1) VERSUS The State of Maharashtra ..RESPONDENT Smt. S. S. Jadhav, Advocate holding for Mr G.P. Shinde for the appellant; Mr N.R. Shaikh, Addl. Public Prosecutor for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 9th August, 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant, who stands convicted for an offence punishable under section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/-, by the Additional Sessions Judge, Nanded, by judgment dated 15.2.2010 in Sessions Case No.107 of 2008, by this appeal questions the correctness of his conviction and sentence. 2 Cri.Appeal No.199 of 2010 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.8 P.S.I. Sayed Saber Ahemad, who was attached to police station, Ardhapur as a P.S.I. received the report of P.W.7 Shankar, a Security Officer, working in Bhaurao Chavan Sugar Factory, Yelegaon informing P.W.8 P.S.I. Sayed about missing of one Kashibai, wife of the appellant. The aforesaid report is at Exh.35. The report further disclosed that P.W.1 Bhagwat had informed P.W.7 Shankar about finding of the dead body of Kashibai. The said report of P.W.7 Shankar is at Exh.35. On the basis of the said report, accidental death came to be registered and P.W.8 P.S.I. Ahmed proceeded to the scene of the offence which was at Yelegaon in the agricultural land owned by one Pandurang Jadhav. The inquest panchnama of the dead body of Kashibai was drawn at Exh. 21 in the presence of P.W.1 Bhagwat and another panch. The scene of the offence panchnama came to be drawn at Exh.23 in the presence of P.W.2 Nagorao and another panch. Since the dead body of deceased Kashibai was highly decomposed, a request was made to Medical Officer for performing the post mortem examination at the scene of the offence. Meanwhile, under the scene of the offence panchnama at Exh.23, a pair of slippers, a pot made of tin, a bottle of poison and blood stained mud and sample of ordinary mud came to be seized. Clothes on the person of deceased came to be seized under seizure memo at Exh.25 in the presence of P.W.3 Gangaram. The post mortem examination on the dead 3 Cri.Appeal No.199 of 2010 body of deceased Kashibai was performed by P.W.9 Dr. Sayed Asif Umar. P.W.9 Dr. Umar noticed the following external injuries :- 1) Bruises on the face as well as around the area of lips; 2) Bruises and abrasion on the nose; 3) Bruise on the hand on both right and left side; 4) Split on the pendulum of tongue and lips; 5) Bruise on the inside of teeth and gums; 6) There was the fracture of nasal septum and deviation of the nasal septum; 7) Bruise was present on chest on right side. On internal examination he noticed food particles in larynx and trachea and also noticed that lungs were congested and edematous. Heart was psystole and the cavity was filled with effect. Tongue showed bruises and food particle was also present in the oesophagus. He, therefore, opined that the probable cause of death was respiratory arrest as a result of asphyxia due to due to occlusion of external air passages (smothering). The post mortem report is at Exh.38. 3. Statements of witnesses including relatives of deceased came to be recorded and on the basis of the report of P.W.4 Ramesh, brother of deceased Kashibai, an offence vide Crime No.9 of 2008, under section 302 read with sec. 34 of the Indian Penal Code came to be registered. 4 Cri.Appeal No.199 of 2010 The seized property was referred to the Chemical Analyser and further to the completion of investigation a charge-sheet came to be filed against the accused. 4. On committal of the case to Court of Sessions, Trial Court vide Exh.6 framed charge against the appellants and four other accused for an offence punishable under section 302 read with sec. 34 of the Indian Penal Code and under section 201 read with sec. 34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined nine witnesses. The Trial Court principally relied upon the evidence of P.W.6 Ramrao Munde and convicted and sentenced the appellant for an offence punishable under section 302 of the Indian Penal Code while acquitting him of the offence punishable under section 201 of the Indian Penal Code. The other co- accused came to be acquitted of the offences with which they were charged. 5. In order to effectively deal with the submissions advanced before us by Smt. Sadhana Jadhav, learned Counsel for the appellant, it would be useful to refer to the evidence of the prosecution witnesses. P.W.1 Bhagwat, a maternal uncle of deceased Kashibai states about drawing of the inquest panchnama. In cross-examination he has admitted that he had received a message on 18th morning that Kashibai 5 Cri.Appeal No.199 of 2010 was missing. He has admitted that after receiving the message he along with others reached Yelegaon at night. He states that he had gone to the gate of the factory and had met the watchman and the security guard and met the appellant also in the factory and along with the appellant they had searched for Kashibai. He has admitted that in spite of a diligent search, no trace of Kashibai could be found. He states that on the next day he had noticed the dead body of deceased Kashibai in the sugarcane crop and, therefore, he had gone to the factory gate and had gone to the factory and had informed the security guard - P.W.7 Shankar about noticing the dead body of deceased Kashibai. He states that he along with police had then gone to the agricultural land to see the dead body. 6. P.W.4 Ramesh, brother of deceased Kashibai and the first informant states that deceased Kashibai was married to the appellant sometime in the year 1991 and initially, after her marriage, she was treated well for about a year by her in-laws and thereafter Kashibai was harassed on account of the reason that she could not conceive. After about twelve years of being married to Kashibai, the appellant performed a second marriage with one Sangita from Chikhalbeed. Kashibai was harassed thereafter by appellant, his second wife and his other relatives and Kashibai was told not to reside in the house as she was not able to conceive. Kashibai, it appears, has lodged a report at Dharur police station about ten years ago. After lodging a complaint Kashibai was residing with P.W.4 Ramesh. The dispute between the appellant and 6 Cri.Appeal No.199 of 2010 Kashibai was ultimately settled and thereafter Kashibai went to reside with the appellant about two years prior to the incident. Initially for about six months she was treated well but thereafter the harassment resumed. The accused were insisting Kashibai to withdraw the case which she had filed against the appellant and were also insisting Kashibai to give divorce to the appellant as she could not conceive. About two months prior to the incident Kashibai along with her husband (appellant), father-in-law, Sangita; second wife of the appellant and other relatives had proceeded to the sugar factory for labour work. P.W.4 Ramesh states that he had received a telephone call from the sugar factory fifteen days prior to the incident and had accordingly gone to meet Kashibai. Kashibai informed him about the illtreatment by her in-laws who were insisting Kashibai to give divorce to the appellant and withdraw the case. On 18.1.2008 Ramesh received a telephone informing that Kashibai was missing since last two days. P.W.4 Ramesh states that such a message was received by P.W.1 Bhagwat, who in turn communicated the same to P.W.4. Ramesh, P.W.1 Bhagwat and P.W.5 Savitrabai together went in search of Kashibai to the Yelegaon sugar factory. According to P.W.4 they searched for Kashibai but could find no trace of her. On the next day, at about 7.30 a.m. the appellant came and informed them that dead body of Kashibai was found in the agricultural land of one Pandurang Jadhav. Ramesh states that they all went to said place and identified the dead body of Kashibai. Ramesh states that they had noticed a bottle of poison, a plastic pot and pair of chappals. P.W.4 Ramesh states that 7 Cri.Appeal No.199 of 2010 thereafter he had lodged his report at Exh.29. In cross-examination he has stated that he does not know whether the case filed by Kashibai was decided in 1995 and the accused were acquitted. He has further agreed that Kashibai was residing with the appellant and second wife of the appellant. He has also admitted that when they had gone to the factory the appellant was present in the sugar factory. He has also admitted that the appellant also joined the search party in tracing Kashibai. He has admitted that P.W.6 Ramrao was missing in the factory on that day. 7. P.W.5 Savitrabai, mother of deceased Kashibai also deposes on similar lines as that of P.W.4 Ramesh. In cross-examination Savitrabai has admitted that Kashibai was residing with the appellant at his house about a year prior to the incident. She has also admitted that she had not gone to the house of the appellant during that period. She has also admitted that Kashibai had accompanied the appellant to the sugar factory. She has also admitted that the appellant had telephoned and informed her that Kashibai was missing. 8. The star witness for the prosecution is P.W.6 Ramrao Munde, who states that he knew deceased Kashibai as well as the appellant. He states that initially he had taken treatment for spondylisis from Dr. Patwardhan at Aurangabad but despite the treatment he was experiencing pain and, therefore, he was advised to go for ayurvedic treatment. He states that he had accordingly gone to the Hospital of the 8 Cri.Appeal No.199 of 2010 Gurudwara trust at Nanded on 16.1.2008, but since he had reached at 5.00 p.m. he was informed that he could not be examined. He, therefore, returned to the Bus Stand and learnt that he could get the transport from the sugar factory and accordingly had gone to the sugar factory. While he was standing near the factory and was waiting for some conveyance, he noticed Kashibai and Kashibai had asked him as to where he had come from. Accordingly, P.W.6 Ramrao informed her that he had come for taking medicine. Kashibai was holding a metal pot in her hand. Kashibai invited him to join her for tea after she returned back. Two minutes thereafter the appellant accompanied by two unknown persons also came there and invited P.W.6 Ramrao for tea. Ramrao informed him about the direction in which Kashibai had gone and the appellant and two unknown persons also went in that direction. Ramrao states that he waited for some time but since neither the appellant nor Kashibai returned, and as a vehicle had been arranged, he returned back to his village. In cross-examination he has admitted that Kashibai was living with her husband after her marriage. He has further admitted that he learnt on 17.1.2008 that Kashibai was missing. He has admitted that he had not gone to the factory on 17th. He has denied the suggestion that he was a panch witness to the arrest of the appellant on 19.1.2008. He has, however, admitted that he had gone to the Ardhapur police station. He has also denied that he had signed as a panch for the seizure of clothes of Kashibai. He was confronted with the two panchnamas and his signature which he denied. He has admitted that his statement was 9 Cri.Appeal No.199 of 2010 recorded after about 20 days of the finding of dead body of Kashibai. He has admitted that on 19.1.2008 since the police did not question him he had not disclosed that he had seen the appellant and Kashibai on 16.1.2008. In further cross-examination he has admitted that he had gone to the police station two or three days after the funeral of Kashibai. 9. The Investigating Officer P.W.8 P.S.I. Ahemad has admitted that he had recorded the statement of P.W.6 Ramrao on 6.2.2008. He has also admitted that P.W.6 Ramrao has signed a panch on the arrest panchnama on 19.1.2008. He has admitted that he had not met Ramrao till 6.2.2008 after the drawing of the panchnamas. He has also admitted that P.W.4 Ramesh was present at the time of drawing of the scene of the offence panchnama and had not made any complaint then. P.W.8 P.S.I. Sayed Saber has admitted in cross-examination that the appellant was amongst the persons who were searching for deceased Kashibai. He has also admitted that appellant was present in the sugar factory from 16th of January till 18th of January and in the midnight of 18th of January the appellant had gone to his village and had returned back on 19th morning. According to the Medical Officer, deceased must have died between 12 to 24 hours prior to the commencement of the post mortem examination. 10. Smt. Sadhana Jadhav, learned Counsel for the appellant has urged before us that no reliance whatsoever can be placed on the 10 Cri.Appeal No.199 of 2010 testimony of P.W.6 Ramrao. P.W.6 Ramrao was associated as a panch witness to the arrest panchnama of the accused and the seizure memo of clothes of deceased, and yet P.W.6 Ramrao did not disclose that he had seen deceased Kashibai and the appellant on 16th of January, i.e. the day on which Kashibai disappeared. Smt. Jadhav, learned Counsel for the appellant has further urged before us that statement of P.W.6 Ramrao was recorded on 6.2.2008, i.e. practically after twenty days of finding of the dead body. It is also urged that P.W.6 Ramrao has admitted that his relations with P.W.4 Ramesh are cordial. In such circumstances, therefore, it is urged before us that no reliance at all can be placed on the evidence of P.W.6 Ramrao and the appellant, therefore, to be acquitted. The learned Addl. Public Prosecutor has supported the findings arrived at by the Trial Court. 11. In the light of the evidence of P.W.8 P.S.I. Sayed, it is clear that P.W.6 Ramrao was a panch to the arrest of the accused and to the seizure of clothes of deceased Kashibai on 19.1.2008. P.W.6 Ramrao has further admitted that on 17th he had learnt that Kashibai was missing. We find that no reliance can be placed on the evidence of P.W.6 Ramrao as P.W.6 Ramrao had not disclosed to the police about seeing Kashibai and the appellant on 16.1.2008 in the evening, for a period of twenty days from the finding of dead body of deceased Kashibai. Moreover, even if the evidence of P.W.6 Ramrao is accepted at its face value, all that it discloses is that the appellant had gone in the same 11 Cri.Appeal No.199 of 2010 direction in which Kashibai had gone. There is no evidence that the appellant was seen near the vicinity of the place where the dead body of Kashibai was found or that Kashibai was last seen alive in the company of the appellant. In the absence of any cogent and reliable evidence, the conviction of the appellant solely on the basis of testimony of P.W.6 Ramrao cannot be sustained. In cases resting on circumstantial evidence, the prosecution is required to prove not only each and every circumstance, but is also required to prove that the circumstances which form a chain should exclude every hypothesis of the innocence of the accused and should unerringly point to the guilt of the accused. In other words, the prosecution must prove that it is the accused and the accused alone who has committed the offence. After evaluating the evidence of P.W.6 Ramrao, according to us, such a finding cannot be recorded that it was the appellant and the appellant alone who had committed murder of deceased Kashibai. There is no other evidence which would connect the appellant with the commission of the offence. In such circumstances, therefore, according to us, the appellant is entitled to be given the benefit of doubt. Coupled with this, we find that the appellant had himself participated in tracing the whereabouts of deceased Kashibai. The appellant himself had telephoned and informed P.W.5 Savitrabai that Kashibai was missing since 16th. The conduct of the appellant also is not suggestive nor can any inference of guilt be drawn on the basis of the conduct of the appellant. We further find that there is no report of the Chemical Analyser which would in any manner connect the appellant with 12 Cri.Appeal No.199 of 2010 the commission of the offence. The appellant, therefore, would be entitled to be acquitted. 12. Accordingly, Criminal appeal No.199 of 2010 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. (A.V. POTDAR, J.) ( P.V. HARDAS, J.) amj/cria199.10