1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPEAL NO.76 OF 2008 Subhash s/o Kisan Jamdhade, Aged : 53 years, Occ. Business, R/o Laxmi Nagar, Paithan, Tq. Paithan, Dist. Aurangabad ..APPELLANT VERSUS State of Maharashtra ..RESPONDENT Mr S.R. Chaukidar, Advocate for the appellant; Mr S.D. Kaldate, A.P.P. for the respondent. CORAM : P.V. HARDAS AND SHRIHARI P. DAVARE, JJ. DATE : 2nd February, 2010 ORAL JUDGMENT (PER P.V. HARDAS, J.) The appellant who stands convicted for an offence punishable under section 302 of the Indian Penal Code by the Ad hoc Additional Sessions Judge-3, Aurangabad, dated 30.1.2008 and sentenced to imprisonment for life and to pay a fine of Rs.2,000/-, with a default 2 condition of undergoing further R.I. for two months, in Sessions Case No. 54 of 2007 and 154 of 2007, by this appeal questions the correctness of his conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.8 A.P.I. Manohar Dabhade, who was attached to the Paithan police station recorded the first information report of P.W.1 Rajendra at Exh.91. On the basis of the said complaint P.W.8 A.P.I. Dabhade registered an offence vide Crime No.8 of 2006 under section 302 read with sec. 34 of the Indian Penal Code. On the next day he visited the scene of the offence and drew the scene of the offence panchnama in the presence of P.W.4 Madhukar at Exh.18. From the scene of the offence one stick and a stone roller which was found stained with blood came to be attached under the said panchnama. Ordinary soil and blood mixed soil also came to be attached under the said panchnama. The dead body of deceased Manjitrao, which was found lying in the kitchen of the hotel of the appellant came to be forwarded for post mortem examination. Prior to referring the dead body for post mortem, the inquest panchnama came to be drawn at Exh.9 in the presence of witnesses. Post mortem on the dead body of deceased Manjitrao was carried out by P.W.3 Dr. Ramesh Khobre. He noticed the following external injuries on the dead body of deceased Manjitrao :- 3 1) Evidence of crushed injury on left side of face extending from ear to chin with evidence of deviation of face towards right side. On dissection of the injury there was evidence of distorted muscles with multiple fractures maxilla of mandible bone and nasal bone of left side. There was also evidence of sub conjecture haemorrhage of left eye. 2) Contused lacerated wound over left ear of size 6 c.m. x 1/2 c.m. Bone deep tearing the ear completely from middle horizontally. 3) Contused lacerated wound left forehead above eye brow lateral of size 1/;2 x 1/2 x 1/2 c.m. 4) Contusion left shoulder laterally of size 3 c.m. x 4 c.m. 5) Contusion left arm upper, 1/3rd laterally size 3 x 1/2 c.m. Vertical and slightly oblique. 6) Contused lacerated wound right index finger over middle phalynx medially of size 3 x 1/4 x 1/4 c.m. He opined that all the injuries were ante mortem in nature and on dissection of head, neck and face he noticed fracture of the temporal bone on the left side with fracture of the base of the skull. He also 4 noticed evidence of contusion on the left temporal lobe of the brain with sub dural haematoma. He, therefore, opined that cause of death was crush injury to the face with contusion to the left temporal lobe of brain with multiple fracture with sub dural haematoma on left temporal region. 3. The blood stained clothes of deceased came to be seized under panchnama at Exh.22. Statements of witnesses came to be recorded and the seized property was forwarded to the Chemical Analyser along with the requisition at Exh.34. It appears that the accused was absconding and evading arrest and was accordingly residing under an assumed name at Pune. Accordingly the accused came to be arrested by P.W.7 Sk. Naim on 2.6.2007. Further to the completion of investigation a charge-sheet against the accused came to be filed. 4. On committal of the case to Court of Sessions, Trial Court vide Exh.5 framed charge against the appellant and another accused for offence punishable under section 302 read with sec. 34 of the Indian Penal Code. The appellant and the other accused denied their guilt and claimed to be tried. Prosecution in support of its case examined eight witnesses while the defence of the accused was of denial. The Trial Court upon consideration of the evidence of the prosecution convicted and sentenced the appellant as aforestated while acquitting the other accused. 5 5. Before we advert to the submissions advanced before us by Shri S.R. Chaukidar, learned Counsel for the appellant and the learned A.P.P. for the State, it would be useful to refer to the prosecution evidence. Prosecution has relied upon the testimonies of P.W.2 Firoz Pathan and P.W.6 Sachin Harnor as eye-witnesses. P.W.2 Sachin states that he was serving in the office of Shrinath Auto Finance at Paithan, which was situated adjoining the hotel of the accused. He states that on the day of the incident i.e. on 29.1.2006, at about 5.30 p.m., he had heard the noise of a quarrel and, therefore, he had come out of his office and had seen the dead body of Manjitrao lying near the back door of the hotel of accused. He further states that accused no.2, her daughter-in-law and her daughter were shouting loudly. In cross-examination he states that on the day of the incident accused no.3 had gone out of station for giving marriage invitation card to the relatives. He then states that even on the date of the incident accused no.1 had gone out of station. He further states that when he had come out of the house at that time he had not seen accused nos.1 & 3 at the spot of the incident. According to us, no reliance whatsoever can be placed on the testimony of this witness in order to establish that it was the appellant and the appellant alone who had killed deceased Manjitrao. This witness admits that he had not seen the accused at the scene of the offence and has also stated that accused no.1 and accused no.3 had gone out of station. 6 6. Prosecution has also examined P.W.6 Sachin, a child witness, who did not support the prosecution and was declared hostile. Since neither of the eye-witnesses supported the prosecution case, the prosecution was bereft of the evidence of the eye-witnesses. Apart from the evidence of the eye-witnesses, there is no other evidence to indicate that it was the appellant who had committed murder of deceased Manjitrao. Prosecution has placed reliance on the testimony of P.W.7 Sk. Naim, who claims that the accused was residing under an assumed name in the Katraj area of Pune city. He states to have arrested the accused on 2.6.2007. However, prosecution has not been able to establish that the accused was indeed residing under an assumed name or that the accused was residing in the Katraj area in order to avoid arrest. Prosecution, therefore, has placed reliance on the factum of the accused absconding for practically a year and half. Learned Counsel for the appellant has relied upon the judgment of Supreme Court in Shamu Balu Chaugule vs. State of Maharashtra, AIR 1976 S.C. 557. The Supreme Court has held that abscondance as a circumstance was indeed a weak link in the chain of circumstantial evidence. Any innocent person if confronted with accusations would also take to his heels. In the present case, flight is no evidence of guilt. Merely because the accused has absconded would not be a pointer towards his guilt. 7. Another circumstance on which the prosecution has relied upon is the fact of finding of dead body of deceased Manjitrao in the kitchen of 7 the hotel of the accused. Evidence of P.W.2 Firoz indicates that the appellant had gone out of station and was not available in Paithan when the dead body of deceased Manjitrao was noticed. If that be the case, according to us mere finding of the dead body of deceased Manjitrao in the kitchen of the hotel of the appellant would not link to an irresistible conclusion that it was the appellant who had killed deceased Manjitrao. 8. We have given our anxious consideration to the evidence of the prosecution and upon such perusal, according to us prosecution has miserably failed to establish the offence against the appellant beyond reasonable doubt. The appellant is, therefore, entitled to be given the benefit of doubt. 9. Accordingly, Criminal Appeal No.76 of 2008 is allowed and conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offences with which he was charged and convicted. Fine if 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. ( SHRIHARI P. DAVARE, J.) ( P.V.HARDAS, J.) amj/cria76.08