1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR, NAGPUR. CRIMINAL APPEAL NO: 430/2003 Prabhakar s/o Motiram Meshram Aged about 46 years, occu: Labour R/o Walni Dist. Chandrapur. (In Jail) .. APPELLANT v e r s u s State of Maharashtra Through PSO Ramnagar Chandrapur. .. RESPONDENT ------------------------------------------------------------------------------------------- Mr R M Daga, Advocate for the appellant Mr. A S Sonare, APP for the Respondent CORAM: D.D.SINHA & A.P.BHANGALE , J J . DATE OF RESERVING: 15th OCTOBER, 2008 DATE OF PRONOUNCEMENT: 23rd OCTOBER,2008 JUDGMENT : (Per A.P. Bhangale,J.) By this appeal, the appellant has challenged the judgment and order dated 5th May, 2003 passed by the learned 3rd Additional Sessions Judge, Chandrapur in Sessions Case No. 104/2002 whereby, the appellant was held guilty for murdering his wife and convicted and sentenced to suffer RI for life and to pay a fine in the sum of Rs. 1,000/- in default, to suffer simple imprisonment 2 for one month. 2. The facts leading to prosecution of the appellant, are as under : Rekha (deceased ) was the wife of appellant. On 19.5.2002, a report (Exh.37) was lodged by Archana Sidam (PW 14), niece of appellant-Prabhakar, that her uncle had killed her aunt (deceased Rekha). It was recorded by PSI Baba Shaikh (PW 15) at Ramnagar Police Station, Chandrapur. Investigation followed inquest over dead body of Rekha at (Exh.17); spot panchnama was drawn (Exh.16). Certain articles, such as, broken pieces of bangles; ladder, nylon rope etc. were seized under Panchnama (Exh.18). The appellant was arrested and his clothes were seized. Dead body of Rekha was sent for post- mortem examination. Report was received in the course of investigation. Clothes of deceased Rekha (brought from Hospital) were also recovered under Panchnama (Exh.22). The appellant was sent for medical examination for collecting his blood samples and nails which were collected under seizure memo (Exh.23). The articles were sent to Chemical Analyser and report from CA was 3 received. 3. Upon completion of investigation, charge-sheet was submitted before the Court of Chief Judicial Magistrate Chandrapur, who, committed the case to the court of Sessions, Chandrapur on 12.8.2002, being Sessions Case No.104/2002. 4. The charge (Exh.4) dated 3.12.2002 was framed against the appellant for offence punishable under section 302 of the Indian Penal Code, by the learned 3rd Addl. Sessions Judge, Chandrapur. The appellant pleaded not guilty and claimed to be tried. 5. At the trial, the prosecution examined as many as 16 witnesses. The case of the prosecution rested on circumstantial evidence. The trial Court found the circumstantial evidence acceptable against the accused thereby concluded that he was the only person who had a reason to kill Rekha, by pressing her neck, and, as such, convicted and sentenced the appellant, as aforesaid. 6. We have heard Shri R.M. Daga, the learned counsel for the appellant and Shri A.S. Sonare, learned APP for the Respondent- State. 7. The prosecution has relied upon medico-legal evidence 4 as deposed by Dr. A K Hazarey, Medical Officer, who conducted autopsy on the dead body of Rekha and found external injuries which are as under : (a) Pressure abrasion over right side of neck of size 2 cm x 2 cm. (b) Abrasion over right elbow of size 2 cm x 2 cm. According to the Doctor, both injuries were caused by hard and blunt object before six hours of death approximately. He also found food particles in larynx and trachea. The Doctor found found fracture of horn of hyoid bone and all internal organs were congested. Dr. Hazarey opined that death of Rekha was caused by “asphyxia due to throttling” and that injury No.1 described in Column No.17 of PM Notes (Exh.35) is possible by pressing of neck by fingers and injuries were ante-mortem. The Doctor agreed with alternative possibility that fracture of hyoid bone may be possible by accidental fall on a tied rope with force. 8. Learned counsel for the appellant nevertheless did not seriously dispute the finding of the trial Court that the death of Rekha was homicidal. Learned counsel for the appellant submitted that the appellant had married with Rekha ( deceased ) 5 since 20 years prior to her death. He submitted that the prosecution witnesses PW 1 Ziblabi, PW 2 Dadaji, PW 7 Vandana, had deposed about alleged ill-treatment given to Rekha at the hands of the appellant, although the appellant was not charged with offence punishable under section 498A of the IPC. According to Mr. Daga learned counsel for the appellant, Dadaji (PW 2), husband of PW 1- Ziblabai, was disbelieved by the trial Court by observing thus in para 11 of the judgment “11. .......... Although the witness Dadaji Kove has given two instances of ill-treatment, one of assault by axe by accused and another of driving Rekha out of the house by accused by taking out her clothes, however, both these instances were not told by him when his statement was recorded by the Police. It appears that evidence of this witness in respect of these two instances is of exaggerated nature”. 9. Learned counsel Shri R M Daga pointed out that PW 3- Sulochana and PW4-Kaushlaya, were disowned by the prosecution as they turned hostile. PW 7-Vandana deposed about alleged ill-treatment of Rekha by the appellant. While appreciating evidence about alleged ill-treatment, the trial Court observed 6 further that : ”............ Looking to these facts of the case, the version of the prosecution appears probable that on the date of incident also he had quarelled with deceased Rekha and hence accused Prabhakar had reason to kill her.” The trial Court proceeded further to conclude in Para 12 of the judgment as under : “ Thus from evidence of these witnesses it has become clear that the accused was generally giving ill-treatment to Rekha and was assaulting her under the influence of liquor. Hence, the possibility of committing murder by Prabhakar of deceased Rekha cannot be ruled out. As he was giving ill- treatment to Rekha he had reason to kill her.” 10. Mr. Daga, learned counsel for appellant, submitted that finding as to unnatural death by itself cannot be considered as a circumstance against the appellant, particularly when charge under section 498A IPC was not framed. 11. We have carefully considered the evidence adduced by the prosecution, contentions canvassed by the learned counsel 7 for the appellant as well as the learned APP. The present case is based on circumstantial evidence and it is well-settled that unless evidence adduced by the prosecution forms the complete chain of such circumstances which excludes any hypothesis of innocence of the accused, the conclusion which can be drawn on the basis thereof must be of the guilt of the accused. 12. From the evidence led by the prosecution, we find the following circumstances brought on record:- (i) PW 1-Ziblabai deposed about the quarrel between appellant/accused and his wife Rekha. According to her, the accused was quarreling with Rekha under the influence of liquor. PW 1 is the sister of deceased Rekha. (ii) PW 2 Dadaji is brother-in- law ( sister's husband) of deceased Rekha. His evidence is hearsay as, according to him, the persons present along with him, told that Rekha had received injury on the neck by nails of hands. He is admittedly blind since 22 years prior to his evidence. (iii) PW 3-Sulochana and PW 4-Kaulshalyabai are hostile witnesses and did not support the case of the prosecution. (iv) PW-5 Sitabai deposed that the accused used to 8 quarrel with Rekha under the influence of liquor. According to her, under the influence of liquor, once he came to her house and asked her to allow him to have sexual intercourse with her. She refused to oblige him, and drove him out of the house. However, admittedly no complaint was lodged about such incident. (v) PW 6-Indarshaha Meshram deposed that he was told by Khemdeo Todase and Vijay Meshram that accused Prabhakar had killed his wife. His evidence is hearsay in nature and inadmissible. The circumstance that he had seen the dead body of Rekha and injury on her neck when he visited the house of Prabhakar, does not improve the case of prosecution. (vi) PW 7 Vandana gave evidence that accused generally used to quarrel with Rekha and assault her under the influence of liquor. She had heard shouts and weeping sound from the house of Prabhakar and had seen the dead body of Rekha kept on the cot, with nail marks on her neck. But she has not stated about incident of assault on Rekha by the accused. (viii) PW 8 Anandrao was examined to prove recovery of 9 ladder, broken bangles, scattered soil from the spot under Panchnama (Exh.16); as also the Inquest Panchnama (Exh.17) ; and Seizure memo (Exh. 18). (ix) PW 9 Manik was examined to prove seizure memo in respect of recovery of clothes of the deceased (Exh.22) ; recovery of clothes of the accused (Exh.21); nail clippings recovery as per Exh.23 and arrest Panchnama (Exh.24 ). (x) PW 10 Sashikala, a Lady Head Constable, deposed that she had taken the report of Archana Sidam as per Exh. 26 and made entry in the Station Diary accordingly. (xi) PW 11-Deonath deposed about medical examination of the accused (Exh.29). (xii) PW 12-Dr. Anant Hazarey deposed about two external injuries on the person of the dead body of Rekha. They are, pressure abrasion over right side of neck of size 2 cm x 2 cm.; and abrasion over right elbow of size 2 cm x 2cm. which according to him, was possible by pressing of neck by fingers of the palm while the fracture of hyoid bone noticed by him was possible by accidental fall on a tied rope with force. (xiii) PW 14- Archana, who is niece of the accused 10 Prabhakar, gave evidence that she visited house of Prabhakar as she wanted to collect clothes of her daughter which were kept at the house of Prabhakar. She saw Prabhakar gave call to Rekha by her name. Prabhakar told her that Rekha had fell down and she is not talking PW 14 is disowned by the prosecution and cross-examined. Her evidence appears to be uncertain. (xiv) PW 15 Baba Sheikh deposed about investigation while PW 16 Dr. Sadanand Gandhe deposed about simple injuries which he found on the person of the accused Prabhakar, i.e. (1) contusion on right side face on temporal region size 1 x ½ inch. (2) single abrasion on anterior aspect of right leg on middle portion, size ½ x ¼ inch. This witness deposed that injury no.1 was possible by blow by stick and injury no.2 was possible if one falls down on the ground and pulled on the ground. There was no positive indication to fix guilt upon accused notwithstanding presence of above injuries on his person. (xv) Exh.52 is the CA's report which indicate that no blood was detected on Exhs. 1,2,3,4,6,7,8,9,10 & 12 and, therefore, it 11 has very little evidentiary value and does not improve the case of the prosecution. The circumstances narrated herein-above from the entire evidence in our opinion, were inadequate to lead us to a safe and sure conclusion that the appellant/ accused was responsible for murder of his wife deceased Rekha. The evidence as regards ill-treatment was of no avail to the prosecution as no charge was framed u/s 498-A IPC against the appellant/accused. The circumstances collectively considered were too inadequate and could not form a complete chain so as to unerringly point out towards the guilt of the appellant. 12. The conviction cannot be based upon strong suspicion against accused, based upon probability that accused may have committed crime. It is well-settled by now that when two views were possible on evidence, one pointing towards innocence and another pointing towards guilt of the accused, the conviction cannot be based upon probability that accused may be guilty. Shri Daga, in this regard, rightly made reference to the ruling in Manjunath C. Madalli vs. State of Karnataka reported in 2007 All MR (Cri) 1123 (SC) in which the Apex Court 12 considered onus upon prosecution in cases based upon circumstantial evidence and observed in para 14 as under :- 14..................The mere fact that the deceased had died an unnatural death cannot by itself be a circumstance against the accused particularly when Section 498A has been held to be inapplicable.” The Apex Court also made a reference to the judgment in Sharad Birdhichand Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622. Five conditions precedent before conviction can be based upon circumstantial evidence, are stated thus: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' 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 13 (5) there must be a chain of evidence so complete as not to leave any reasonable ground for 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.” 13. Applying these tests to the circumstances established in this case and in the absence of charge u/s 498-A of the IPC, the evidence as regards alleged ill-treatment loses its efficacy. We are of the considered view that the prosecution has failed to establish guilt of the appellant beyond reasonable doubt. The reasoning of the trial Court is based on mere presumption, probability and suspicion which cannot be the basis for conviction. There was no sufficient and reliable evidence to form a chain which would exclude any hypothesis of innocence and would bring home the guilt of the appellant for the offence of murder. 14. In the result, the Appeal is allowed. The conviction recorded by the trial Court is set aside. The appellant is acquitted and shall be set at liberty forthwith, if his detention is not required in any other criminal case. JUDGE JUDGE sahare