The Bombay High Court allowed an appeal filed against the judgment and order passed by the learned Additional Sessions Judge, holding the appellant guilty for the offence punishable under Section 302 of the Indian Penal Code (IPC) and sentencing him to suffer imprisonment for life and to pay a fine of Rs.2,000/-.
The Court observed that unless it is demonstrated that the accused was the only person in the company of the deceased, it cannot be said that he is responsible for the homicidal strangulation.
Brief Facts:
Deceased Rupali was married to appellant Kailas in 2005. Four months prior to the death of Rupali, she had returned to her maternal house alleging beating by the accused on the chest. After 15 days, on assurance of good treatment, she went back to cohabit with the accused and they started residing in a rented room owned by PW3 Dilip Chormale. On 17-12-2012, the informant's brother received a telephonic message that some untoward incident has taken place in the house of his sister and so he rushed to her house and found dead-body of his sister. The accused was not present there. The crime was registered for the offence punishable under Sections 302 and 498-A of the Indian Penal Code (IPC).
After completion of the investigation and after being charge-sheeted, the trial commenced, and on its conclusion after hearing both sides, the learned trial Judge reached a finding that the prosecution had established that the death of Rupali was homicidal. That the accused strangulated her and intentionally committed her murder and hence, he was convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs.2,000/-. Hence, the present appeal.
Contentions of the Appellant:
The learned counsel for the Appellant submitted that informant has hearsay information which is allegedly received from the landlord. However, even the landlord was out of the house for night duty and therefore, he is unaware of the events which took place in the house of the accused. Therefore, his evidence ought not to have been relied upon and accepted by the learned trial Judge. He contended that the case is not proved beyond a reasonable doubt.
Contentions of the Respondent:
The learned counsel for the state submitted that there is clear and clinching evidence about the mal-treatment of the deceased on account of suspicion of her character. Brother, parents, and relatives of the deceased are unequivocal about such treatment meted out to the deceased. Since the accused was the only person in the company of the deceased, he ought to have discharged the burden of establishing the circumstances which led to the unnatural death of his wife.
Observations of the Court:
The Court noted that witness PW3 has improved his version or trying to build up a story. His answers create serious doubt about his seeing the accused at around 10:45 p.m. on 16-10-2012. The Court said that it cannot be said with certainty that the accused was there and he was in the company of the deceased at the time of the incident. The Doctor admitted that injuries on the person of the deceased are possible during the sexual assault. Therefore, Court found substance in the argument of the learned Advocate for the appellant that the possibility of another person entering the house, cannot be ruled out.
The Court conceded that the accused, being husband, can be held accountable for the said death by virtue of Section 106 of the Evidence Act; but, the Court observed, unless it is demonstrated that the accused was the only person in the company of deceased, it cannot be said that he is responsible for the homicidal strangulation. Mere failure on his part to deny such material while answering questions under Section 313 of the Code of Criminal Procedure (Cr.P.C.) itself is not sufficient to infer that he has failed to give a plausible explanation and hence, he is guilty. Non-explanation or falsity in explanation to be given under Section 106 of the Evidence Act by itself cannot be a ground for conviction.
The decision of the Court:
The Bombay High Court, allowing the appeal, held that the conviction awarded to the appellant by the learned Additional Sessions Judge for the offence punishable under Section 302 of the Indian Penal Code stands set aside, and the appellant stands acquitted.
Case Title: Kailas @ Kalyan Badrinath Pawar vs The State of Maharashtra
Coram: Hon’ble Justice Vibha Kankanwadi and Hon’ble Justice Abhay S. Waghwase
Case no.: CRIMINAL APPEAL NO. 268 OF 2016
Advocate for the Appellant: Mr. Nilesh S. Ghanekar
Advocate for the Respondent: S. J. Salgare
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