1 Appeal89-16.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.89 OF 2016
...
Dinesh s/o Ramchandra Thakare,
Aged about 38 years,
Occupation Teacher,
R/o Murmadi, Tahsil and
District Gadchiroli (In Nagpur Jail) .. APPELLANT
.. Versus ..
The State of Maharashtra,
Through Police Station Officer,
Police Station Saoli, Chandrapur. .. RESPONDENT
Mr. Avinash Gupta, Senior Advocate with Mr. Vishwajeet Singh
Uberoi, Advocate for Appellant.
Mr. N.R. Rode, Additional Public Prosecutor for Respondent.
....
CORAM : R.K. Deshpande & Manish Pitale, JJ.
RESERVED ON : September 04, 2017
PRONOUNCED ON : September 12, 2017.
JUDGMENT (per Manish Pitale, J. )
By this appeal, the appellant-accused no.1, has challenged the judgment and order dated 22.01.2016 passed by the Sessions Court, Chandrapur, in Special Case No.70 of 2014, whereby the appellant alone has been convicted and ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 2 Appeal89-16.odt sentenced under Sections 302, 201, 120-B and 203 of the Indian Penal Code (IPC), while the other three accused persons have been acquitted. The appellant has been sentenced to suffer life imprisonment for offence under Section 302 of the IPC and shorter sentences of imprisonment for the other offences, with the substantive sentences running concurrently. As there is no eyewitness to the incident, this is a case of circumstantial evidence.
2. The facts of the present case can be summarized as follows:-
(A) The appellant and his deceased wife Harsha were married in the year 2001. It was claimed by her father i.e. PW1 Patruji Bhoyar that the appellant and his wife were having disturbed marital life despite having two sons and they used to frequently quarrel on the alleged illicit relation of appellant with one Pushpa. It appears from the material on record that the appellant and his wife had left from Mokhala for Chandrapur on 05.01.2014 to visit a doctor leaving behind their two sons at the house of PW1 Patruji Bhoyar at Mokhala. The appellant was riding motorcycle while deceased Harsha was pillion rider. At about 12 in the noon, wife of the appellant ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 3 Appeal89-16.odt had called her father i.e. PW1 Patruji Bhoyar stating that she along with the appellant had reached the doctor at Chandrapur , who had advised her to get admitted in the hospital, but, as she had not brought any clothes, she was coming back. (B) Thereafter, the wife of the appellant again called her father PW1 at about 4 p.m. and stated that they were leaving Chandrapur. The appellant has also stated in his oral report dated 05.01.2014 that he and his wife were on their way back from Chandrapur on 05.01.2014 and to that extent the events narrated by PW1 Patruji Bhoyar and the appellant are similar. It has also come in the oral report of the appellant that when they were on their way back on the road, at about 10.30 p.m. a truck with bright headlights came from the front due to which he applied brakes and at that very moment a truck was coming from behind, due to which he panicked and the motorcycle slipped and fell. As a result, both he and his wife were thrown on the road and the truck coming from behind struck his wife Harsha on the head, due to which she suffered serious injuries and died on the spot.
(C) It is claimed by PW1 Patruji Bhoyar that when their daughter Harsha and the appellant did not return till about 8 ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 4 Appeal89-16.odt p.m. on 05.01.2014, he tried their mobile numbers. The mobile phone of Harsha was switched off and that of the appellant was engaged. It is further claimed by PW1 that, he and his son PW4 Ujwal Bhoyar went in search on the road and near a field at Chakpiranji, they saw the appellant showing the torch of his mobile where the motorcycle was lying and Harsha was lying dead wrapped in a blanket.
(D) The Police was informed and the appellant as well as deceased Harsha were taken to the hospital at Saoli where the appellant was treated for injury on his leg while the dead body of Harsha was kept in the mortuary.
(E) On the basis of the oral report of the appellant recorded at about 11.30 p.m. on 05.01.2014, First Information Report (FIR) No. 1 of 2014 was registered in Police Station Saoli, district Chandrapur for offences under Sections 279, 336 and 304-A of the IPC against unknown persons. On 06.01.2014 post mortem on the body of the deceased was conducted by PW8 Dr. Smita Salve. In the post mortem report, the injuries recorded were as follows:-
"Laceration over left half of skull and skin over ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 5 Appeal89-16.odt face surrounding left ear i.e. flap of scalp skin is separated from cranium. Line of separation runs from posteriorly point is 5 cm anterior and 2 cm lateral to lambda on left sides, running vertically downwards upto junction of medial 1/3rd and lateral 2/3rd of eyebrown, running downwards and laterally through upper half of left eyelid and then running vertically downwards from lateral canthus of left eye upto 6 cm lateral to mentum on left side. So the expose part measuring approximately 20 x 20 cm exposing left parietal bone, left frontal bone, left temporal bone, upper half of mastoid bone and lateral 1/3rd of mandibular area including external auditory meatus. Flap is separated from underlying cranium and turn outward with scalp hair. Clotted blood seen over left angle of mouth, nose and right eye without underlying injury."
It was recorded in the post mortem that the cause of death was intra cranial and extra cranial haemorrhage resulting from head injury. It was also recorded in the post mortem that as per the police inquest, cause of death is head injury in road traffic accident on 05.01.2014 at 10.30 p.m. Thereafter on 09.01.2014, PW1 Patruji Bhoyar i.e. the father of the deceased Harsha submitted a written complaint before the said Police ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 6 Appeal89-16.odt Station claiming that on the next day of the incident, while discussing about the same, they developed suspicion and visited the place of the incident. It was claimed by PW1 that they found blood at the spot of the incident, a pair of black coloured spectacles, pieces of red bangles, some used condoms and blood stained bisleri bottle. It was further claimed by PW1 that when they were standing at the place of incident, one Narsingh (PW7) came there and gave the information that while he was travelling on the road he had seen at about 8.30 p.m. on the date of the incident i.e. 05.01.2014 that a matador was standing at the place of incident and that a person wearing a black coat was sitting on a motorcycle near the matador. It was further stated that PW7 Narsingh informed that while on his way back on the same road, the matador was standing at the place of incident and that a person was checking its tyre. On this basis PW1 suspected that there was a conspiracy to eliminate his daughter and therefore, on that basis the written complaint dated 09.01.2014 (Exh.22) was lodged with the Police Station. (F) On the basis of the said complaint, on 10.01.2014 at about 6 p.m. the police seized the aforesaid articles stated by PW1 in his complaint, from the spot of the incident. Some time ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 7 Appeal89-16.odt thereafter, the FIR pertaining to the incident was converted into offence under Section 302 of the IPC against the appellant and other three accused. On this basis, on 11.03.2014 the appellant was arrested at 5 p.m. The other three accused persons were also arrested between 11.03.2014 and 13.03.2014.
(G) It has come on record that between 13.03.2014 and 18.03.2014, the matador, motorcycle and clothes of the appellant were seized and on 16.03.2014 a memorandum under Section 27 of the Evidence Act was prepared, leading to seizure of a Sattur (Chopper). PW2 Chandrakant is a panch witness for seizure of all the aforesaid articles seized between 13.03.2014 and 18.03.2014.
(H) On 06.05.2014 a query (Exh.50) was sent to PW8 (Doctor) in respect of the aforesaid weapon i.e. Sattur (Chopper) inquiring whether the injury suffered by the deceased could have been caused by the said weapon. On the same day, PW8 (Doctor) sent a query report (Exh.48) giving an opinion that the injuries found on the deceased could be caused by the said weapon i.e. Sattur.
::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 :::
8 Appeal89-16.odt (I) On the basis of such investigation and material on
record, the prosecution claimed that the appellant along with other accused had caused the death of Harsha by using the said weapon Sattur. On 02.02.2015 the appellant and the other accused were charged with offences under Sections 302, 201, 120-B read with 34, 203 and 498-A of the IPC. (J) The prosecution examined 12 witnesses in support of its case between 27.03.2015 and 07.11.2015 and the statement of the accused under Section 313 of Cr.P.C. was recorded on 02.12.2015. On 22.01.2016 the Sessions Court delivered its judgment holding that only the appellant was found guilty for the murder of Harsha, on the basis of incriminating circumstances that had come on record. It was held that there was no material found against the other accused and they were acquitted. The judgment of the Sessions Court does not spell out the chain of incriminating circumstances leading to the conclusion that the appellant was guilty. Each individual circumstance forming the chain is not discernible from the judgment of the Sessions Court, although it is found that the Sessions Court has rendered the findings that the death of Harsha was homicidal in nature, that the appellant had failed to explain as to what happened between 8 ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 9 Appeal89-16.odt p.m. and 10.30 p.m. on the fateful day, thereby falling foul of Section 106 of the Evidence Act that the appellant had intention to eliminate Harsha as he was fed up with her and that the appellant had failed to give explanation as to why was the body of the deceased Harsha wrapped in a blanket when they were found lying on the road by PW1 and PW4. These were the incriminating circumstances on the basis of which the Sessions Court concluded that the appellant deserved to be convicted for the murder of his wife Harsha. Aggrieved by the said judgment and order of the Sessions Court, the present appeal has been filed by the appellant.
3. Mr. A.V. Gupta, learned Senior Counsel appearing for the appellant submitted that the entire approach of the Sessions Court in the instant case was flawed because the basic requirement of deciding a case of circumstantial evidence was not followed by the Sessions Court. It was submitted that the chain of incriminating circumstances was required to be identified and it was the duty of the Sessions Court to have analysed the evidence on record to examine whether each such incriminating circumstance was proved by the prosecution and that such chain of circumstances pointed only towards the guilt of the accused. It was also submitted on ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 10 Appeal89-16.odt behalf of the appellant that Section 106 of the Evidence Act and the burden cast upon the appellant in the instant case was wrongly applied by the Sessions Court. The appellant had been medically examined on 11.03.2014 upon his arrest and the document pertaining to the same recorded that there were accident injury marks on his body, but, this vital document was suppressed by the prosecution. The learned counsel submitted that the appellant was ready to admit the said document, which clearly pointed towards the truthful nature of the oral report dated 05.01.2014 submitted by the appellant regarding the accident which led to the death of his wife Harsha. It was submitted that such suppression by the prosecution deserved an adverse inference. It was further submitted that the Sessions Court adopted a predetermined approach and, therefore, it looked at the material on record in a defective manner, only with the approach of some how finding the appellant guilty. In this process, it was submitted that even the statement of the appellant under Section 313 of the Cr.P.C. was also wrongly split and it was sought to be used as an admission against the appellant. It was also pointed out that the Sessions Court completely lost sight of the fact that no blood stains were found on Sattur (Chopper), the weapon allegedly used by the appellant to cause the death of Harsha. ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 :::
11 Appeal89-16.odt The learned Senior Counsel relied upon the judgments of the Hon'ble Supreme Court in the case of Hanuman Govind Nargundkar and another .vs. State of M.P. - A.I.R. 1952 S.C. 343; Dwarka Prasad .vs. State of Uttar Pradesh - 1993 (1) Crimes 1975 (SC); Manu Sao .vs. State of Bihar - (2010) 12 SCC 310 and the judgments of this Court in The State of Maharashtra .vs. Appasaheb - 2016 ALL MR (Cri) 575 and Janardhan Ramaji @ Ramrao Bannagare .vs. State of Mahaashtra- 2016 ALL MR (Cri) 1667.
4. Per contra, Mr. N.R.Rode, learned Additional Public Prosecutor , appearing on behalf of the respondent-State, submitted that the evidence and material on record had been correctly appreciated by the Sessions Court to cull out incriminating circumstances, while holding the appellant guilty. The learned APP relied upon the findings of the Sessions court and prayed for dismissal of the appeal.
5. We have heard the learned counsel for the appellant and the respondent and we have perused the appeal paper book along with the record. The present case is one of circumstantial evidence and there are rival versions of the ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 12 Appeal89-16.odt same incident. On the one hand is the version of the appellant wherein it is claimed that a road accident occurred on 05.01.2014 at about 10.30 p.m. leading to the death of the wife of the appellant. On the other hand, is the version of the prosecution that the appellant used a weapon, Sattur (Chopper), to kill his wife Harsha, being fed up with her and that he gave it a colour of accidental death. The evidence and material on record has to be analysed to find out as to whether the version of the prosecution is proved beyond reasonable doubt, in order to sustain the conviction and sentence imposed by the Sessions Court by the impugned judgment and order.
6. Before we proceed to do so, it would be beneficial to take into account the principles laid down by the Hon'ble Supreme Court while dealing with cases concerning circumstantial evidence. In the case of Sharad Birdhichand Sarda .vs. State of Maharashtra - (1984) 4 Supreme Court Cases 116, the Hon'ble Supreme Court has laid down classic principles in this context, which have been followed consistently. These five principles are embodied in paragraph 153 of the aforesaid judgment, which reads as follows:
"153. A close analysis of this decision would ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 13 Appeal89-16.odt show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra ((1973) 2 SCC 793), where the following observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(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 ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 14 Appeal89-16.odt 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 (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."
7. The Hon'ble Supreme Court has held in the case Sujit Biswas .vs. State of Assam - (2013) 12 Supreme Court Cases 406 that suspicion, however, grave, cannot take place of proof and that the Court must dispassionately scrutinize the evidence on record, so as to ensure that its findings regarding guilt of a person are not based on conjectures or suspicion. In the said judgment, in paragraph 13, it has been held as follows:-
"13. Suspicion, however grave it may be, ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 15 Appeal89-16.odt cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 16 Appeal89-16.odt given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343; State v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., (2012)5 SCC 777. "
8. In this context, it would be apposite to refer to the judgment of the Hon'ble Supreme Court in the case of Hanuman Govind, Nargundkar .vs. State of M.P. (supra) strongly relied upon by the learned Senior Counsel appearing for the appellant, wherein it has been stated that in cases of circumstantial evidence, there is always a danger that a conjecture or suspicion may take the place of legal proof. In paragraph 10 of the said judgment, the Hon'ble Supreme Court has held as follows:-
"10. Assuming that the accused Nargundkar had taken the tenders to his house, the prosecution, in order to bring the guilt home to the accused, has yet to prove the other facts referred to above. No direct evidence was adduced in proof of those facts. Reliance was placed by the prosecution and by the courts ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 17 Appeal89-16.odt below on certain circumstances, and intrinsic evidence contained in the impugned document, Exhibit P-3A. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore ,it is right to recall the warning addressed by Baron Alderson, to the jury in Reg v. Hodge ((1838) 2 Lewin 227), where he said :-
"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to from parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead ,itself to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 18 Appeal89-16.odt nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned Advocate-General on behalf of the State we have not been able to discover any such evidence either intrinsic within Exhibit P- 3A or outside and we are constrained to observe that the courts below have just fallen into the error against which, warning was uttered by Baron Alderson in the above mentioned case. "
9. Keeping the said principles in mind, when the impugned judgment and order passed by the Sessions Court is perused, it becomes clear that there has been a failure on the part of Sessions court to even identify incriminating circumstances forming a chain, which point towards the guilt of the appellant. As the incriminating circumstances have not been clearly identified, there is no chain of circumstances evident from the impugned judgment and order, which can be ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 19 Appeal89-16.odt discerned and appreciated, for analysing its correctness or otherwise.
10. The learned APP appearing for the respondent-State was unable to demonstrate any such chain of incriminating circumstances discernible from the judgment of the Sessions Court. Even otherwise, on the basis of the evidence and material on record, the learned APP was unable to identify and establish any such chain of incriminating circumstances pointing towards the guilt of the appellant. The learned Senior Counsel appearing for the appellant vehemently contended that this was a fundamental flaw in the impugned judgment and order of the Sessions Court and that only on this count it deserves to be set aside. But, he further contended that if at all any incriminating circumstances could be culled out from the impugned judgment and order of the Sessions Court, they were not proved beyond reasonable doubt and in any case, they do not form a chain of circumstances pointing only towards the guilt of the appellant.
11. We have given our thoughtful consideration to the contentions raised on behalf of the appellant as well as the respondent-State. We find that considering the manner in ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 20 Appeal89-16.odt which the judgment and order of the Sessions Court has been delivered, we are called upon to analyse the entire evidence and material on record to find whether there is any chain of circumstances that emerges and whether it proves the guilt of the appellant beyond reasonable doubt.
12. It would be necessary to consider the oral and documentary evidence on record to appreciate as to whether the prosecution has been able to prove its case. An analysis of the evidence of 12 prosecution witnesses would be necessary. PW1 Patruji Bhoyar and PW4 Ujwal Bhoyar are the father and brother of the deceased. Their evidence shows that on the date of the incident, when they reached the spot they found the appellant and the deceased lying on the road with the appellant in injured condition and the body of the deceased lying nearby. It is also admitted by them that the Police took the appellant for treatment to the hospital. On the basis of the oral report dated 05.01.2014 submitted by the appellant, the FIR concerning the accident was registered. Thereafter, the conversion of the offences to that of Section 302 of the IPC against the appellant is entirely based on the complaint dated 09.01.2014 submitted by PW1. In this complaint the allegation that the appellant had caused the death of the deceased ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 21 Appeal89-16.odt Harsha, is based solely on the facts communicated to PW1 by PW7 Narsingh, who claimed to have passed the spot of the incident thrice between 8 p.m. and 11 p.m. on the fateful night.
13. Thus, the complexion of the prosecution case changed dramatically on the basis of the claims made by PW7 Narsingh. The Sessions Court also found the said PW7 to be the only link for the allegation of murder to be sustained against the appellant and, therefore, in paragraph 18 of the impugned judgment, the Sessions Court has stated that PW7 Narsingh is "star witness" to the prosecution. In this situation a threadbare analysis of the evidence of PW7 Narsingh becomes necessary. A perusal of the examination-in-chief and the cross- examination of the said witness, which runs into only five paragraphs, shows that the following facts emerged:-
(i) PW7 saw a matador at the spot of the incident at about 8 p.m. when he was proceeding from Vyahad to Mul on his motorcycle;
(ii) PW7 again saw the said matador standing near the spot of the incident at about 9 p.m. when he was proceeding in his car from his house towards Gadchiroli. He ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 22 Appeal89-16.odt also saw a person sitting on a motorcycle near the matador and that another person was watching the wheel of the matador;
(iii) PW7 was on his way back from Gadchiroli to Mul at about 11 to 11.30 p.m. when he did not see any vehicle near the spot of the incident.
14. PW7 claimed that when the Police told that an accident had taken place at the spot, he stated that he did not feel that any accident had taken place because the matador and the motorcycle were standing at the spot at the relevant time. Apart from the aforesaid facts that emerge from the evidence of PW7 Narsingh, there is nothing else that comes on record and we fail to understand how the said evidence of PW7 Narsingh shows any incriminating circumstances pointing towards the guilt of the appellant for the murder of his wife Harsha.
15. In this situation, it becomes necessary to consider as to what factors persuaded the Sessions Court to hold that the appellant was guilty and that he was responsible for the murder of his wife Harsha. As we have observed hereinabove, the incriminating factors found by the Sessions Court in the ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 23 Appeal89-16.odt impugned judgment against the appellant are homicidal death of Harsha, as opposed to accidental death claimed by the appellant, the failure of the appellant to explain as to what happened between 8 p.m. and 10.30 p.m. on the fateful night, evidence on record that the appellant was "fed up" with his wife Harsha and that he had intention to eliminate her and his failure to explain as to why the body of deceased Harsha was found wrapped in a blanket at the spot of the incident when PW1 and PW4 reached the spot.
16. We proceed to evaluate each of these circumstances or factors that led the Sessions Court to hold the appellant guilty. The Sessions Court reached the finding that the death of Harsha was homicidal mainly on the basis that the evidence of the Doctor i.e. PW8 showed that the death of Harsha was caused by blow of Sattur as the blow resulted in cut skin of skull and fracture of left parietal bone. The Sessions Court reached the said finding of homicidal death also on the basis that if Harsha had fallen on the road and the truck coming from behind had caused the injury, the tyre of the truck would have injured her head and further that there was no corresponding injury to other parts of the body of Harsha. We find that both these factors relied upon by the Sessions Court are untenable ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 24 Appeal89-16.odt because a perusal of the evidence of the Doctor (PW8) shows that all that she has stated is that the Sattur (Chopper) is capable of causing the injuries found on the body of the deceased. But, it is also admitted by PW8 in her cross- examination that there were no blood stains on the chopper and further that the injuries suffered by the deceased could be caused due to dash and being run over by speeding vehicle. It was also clearly stated by PW8 that intra cranial and extra cranial haemorrhage suffered by the deceased could be caused in a motor accident. Thus, there is nothing in the evidence of PW8 to connect the Sattur (Chopper) with the death of the deceased Harsha and in fact there is enough material in the evidence of PW8 to show that the death could be attributed to a motor accident. Therefore, it is evident that the Sessions Court has completely misread the evidence of the Doctor (PW8). The Sessions Court has also erred in holding that it could not be accidental death because injury by tyre of the truck would have been caused because the deceased Harsha had fallen on the road. There is no evidence on record in support of this finding. We cannot appreciate this approach of the Sessions Court in holding that the death of Harsha was not accidental and that it was homicidal.
::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 :::
25 Appeal89-16.odt
17. The Sessions Court has also erred in applying Section 106 of the Evidence Act and holding that the appellant had failed to discharge the burden of giving a reasonable explanation as to what happened on the fateful night between 8 to 10.30 p.m. We find that the appellant had stated in his oral report about the manner in which the accident took place at about 10.30 p.m. in the night of 05.01.2014 to the Police, on the basis of which the first information was initially registered on 05.01.2014 under Sections 279, 336 and 304-A of the IPC against unknown persons. The evidence of PW1 (father of the deceased) and PW4 (brother of the deceased) also shows that they found the appellant in an injured condition lying on the road, that the motorcycle and the dead body of his wife Harsha were also lying on the side of the road. Apart from this, in his statement under Section 313 of the Cr.P.C., the appellant had clearly given the details and the manner in which the accident took place on the fateful night and that his father-in-law (PW1) reached the spot and the Police admitted him to the hospital. But, the Sessions Court has read the statement of the appellant under Section 313 of the Cr.P.C. against him on the ground that when he claimed that he and his deceased wife Harsha had fallen on the road and that truck had given the dash on the head of deceased Harsha, the injury ought to have been ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 26 Appeal89-16.odt caused by the tyre of the truck, as they were lying on the road and the deceased was not in sitting or standing position. In other words, the Sessions Court did not take into account the explanation of accident given in the statement under Section 313 of the Cr.P.C. and only chose to misinterpret the part of the statement about the appellant and the deceased having fallen on the road, to conclude that the explanation given by the appellant was not believable.
18. Such part rejection and splitting of the statement of the accused under Section 313 of the Cr.P.C. cannot be permitted, as laid down by the Hon'ble Supreme Court in the case of Dwarka Prasad .vs. State of Uttar Pradesh (supra). In fact, in the judgment in the case of Manu Sao .vs. State of Bihar (supra), the Hon'ble Supreme Court has held that even if the Courts rely upon a portion of the statement of the accused under Section 313 of the Cr.P.C. , it cannot be used to hold the accused guilty without considering the entire evidence in conjunction with such portion of statement and that such portion should not be considered in isolation. Applying the aforesaid principles, it is evident that the finding of the Sessions Court in this regard against the appellant is wholly erroneous and unsustainable.
::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 :::
27 Appeal89-16.odt
19. The circumstances regarding appellant being "fed up" with his wife and having intention to eliminate her are also not forthcoming from the evidence on record. The Sessions Court has relied on the evidence of PW11 Dinesh to hold against the appellant in this regard. But a perusal of the evidence of the said witness, at worst, shows that the appellant intended to divorce his wife Harsha and that PW11 Dinesh tried to dissuade him from doing so. Thus, the finding of the Sessions Court on this score is also not sustainable.
20. The only remaining incriminating circumstance held by the Sessions Court against the appellant is his failure to explain as to why the body of deceased Harsha was found wrapped in a blanket at the spot of the incident. We fail to understand as to how merely because the body of the deceased Harsha was found wrapped in a blanket, could be a circumstance to conclusively hold against the appellant for the death of his wife Harsha. Only this circumstance in isolation cannot be said to be enough to point towards the guilt of the appellant.
21. Apart from the aforesaid incriminating circumstances ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 28 Appeal89-16.odt or factors as enumerated in the judgment of the Sessions Court being unsustainable, we have also analysed the evidence of other witnesses and the material on record. An analysis of the same shows that PW6 Tulshidas has turned hostile. He was the witness produced by the prosecution to prove the alleged illicit relation between the appellant and one Pushpa, which was one of the factors that allegedly led to the appellant having an intention to eliminate his wife Harsha. We find that PW2 Chandrakant has been a panch witness for all the panchanamas i.e. the spot panchanama and the seizure panchanamas executed between January 2014 and March 2014. The recovery of the weapon Sattur (Chopper), allegedly used by the appellant, vide Exhs. 33 and 34 is also not of much consequence because there is no material on record to connect the said weapon with the injuries suffered by the deceased. The absence of blood stains and the failure on the part of the prosecution to send the said Sattur (Chopper) for chemical analysis shows that there is nothing on record to link the said weapon with the injuries found on the person of the deceased.
22. The evidence of PW3 (the owner of the matador), PW9 (Police Official who conducted initial investigation into the accident), PW10 (Photographer) and PW11 (the person to ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 29 Appeal89-16.odt whom appellant allegedly confided about desire to seek divorce) is also not of any consequence because their evidence does not bring on record any incriminating circumstances pointing towards the guilt of the appellant.
23. The evidence of PW12 (the investigating officer) also does not advance the case of the prosecution. The evidence and material on record, therefore, completely falls short of bringing home the guilt of the accused. In fact, the Sessions Court has acquitted the other three accused by simply stating in paragraph 38 of the impugned judgment that the prosecution has not brought any incriminating evidence to show that the other three accused were part of any conspiracy to commit the murder of Harsha.
24. We are of the opinion that in cases of circumstantial evidence, the golden principles laid down by the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda (supra) have not been taken into consideration at all by the Sessions Court while delivering the impugned judgment and order. The warning against conjecture or suspicion taking the place of legal proof, indicated in the judgment of the Hon'ble Supreme Court in the case Hanuman Govind Nargundkar ::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 ::: 30 Appeal89-16.odt (supra) has not been heeded to by the Sessions Court. There has been no attempt to systematically analyse the evidence and material on record to cull out incriminating circumstances and to see whether a chain is formed by such circumstances pointing towards the guilt of the appellant. The Sessions Court has reached findings in an abrupt manner, on the basis of misreading of the evidence and material on record and by giving a complete go by to the principles on the basis of which the cases of circumstantial evidence are to be decided. Hence, we find that the impugned judgment and order, convicting and sentencing the appellant under Sections 302, 201, 120-B and 203 of the IPC, is wholly unsustainable and deserves to be set aside.
25. Accordingly, we allow this appeal and set aside the judgment and order of the Sessions Court dated 22.01.2016 and we acquit the appellant of the charges levelled against him. The appellant be released from custody forthwith if not required in any other case. The amount of fine, if any paid, be refunded to the appellant.
(Manish Pitale, J. ) (R.K. Deshpande, J.) ...
halwai/p.s.
::: Uploaded on - 12/09/2017 ::: Downloaded on - 13/09/2017 01:58:47 :::