Presently In Central Jail vs Court
2012 Latest Caselaw 516 Bom

                                    1

                                                        (Apeal 1095 of 2004)




                                                                      
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION




                                              
                 CRIMINAL APPEAL NO. 1095 OF 2004

    Pandurang Vinayak Deokar                      )




                                             
    Age 40 years, Occupation Agriculture,         )

    Resident of Shevate, Taluka Madha, )




                                   
    Dist. Solapur                                 )
                        
    (Presently in Central Jail, Solapur)          )..Appellant
                                                  (Org. Accused)
                       
               Versus

    State of Maharashtra                          )
       

    (Notice to be served to P.P., Hon'ble High)
    



    Court, Mumbai)                                ).. Respondent


                                 ****





    Mr.D.G. Khamar for Appellant.
    Mr. H.J. Dedhia -APP for the Respondent-State.
                                 ****

                         CORAM: V.M. KANADE &





                                P.D.KODE, JJ.

DATE: 19th November, 2012

ORAL JUDGMENT [PER : P.D. KODE J.]

1. By the present appeal, the Appellant has challenged the

judgment and order dated 20th August, 2004 passed by the III

(Apeal 1095 of 2004)

Additional Sessions Judge, Solapur convicting the Appellant

for committing the murder of his wife Nirmala and thus for the

offence punishable under section 302 of the Indian Penal

Code and sentencing him to suffer rigorous imprisonment for

life and to pay fine of Rs.500/- and, in default, to undergo S.I.

for one month.

2. The said prosecution has arisen out of a charge-sheet

submitted by Tembhurni Police Station as a result of

investigation of Crime No. 116 of 2003 registered with the said

police station on a complaint -Exhibit -23 lodged by the

mother of the deceased PW 5 Mandakini Mhaske. According

to the said complainant, her daughter Nirmala had married

the Appellant about 9 years prior to the date of lodging the

said complaint. The said marriage was out come of love affair

in between them. According to the Complainant, the

Appellant came across with Nirmala while she was working as

a Teacher with Kanya Prashala , Tembhurni. The Appellant

had entangled her in the love.

(Apeal 1095 of 2004)

3. According to the complainant, the Appellant met with an

motorcycle accident two years after the marriage. PW-5 then

incurred an expenditure of Rs.50,000/- to 60,000/-. The

Appellant was not doing any work and developed habit of

living lavishly. The Appellant after exhausting his money,

started misusing the money of deceased Nirmala and used to

demand

money from his wife by giving her threats. The

daughter of the complainant, with her funds and taking funds

from the Complainant, had purchased 17 acres of land at

Village Malegaon. She also borrowed money from the other

persons and was refunding it from her salary. As the

daughter of the Complainant was refusing to give money, the

Appellant, was obtaining loan from other persons. About 5 to

6 years passed in such manner. The Appellant thereafter

started harassing the daughter of the Complainant for selling

the land purchased by her and giving said amount to him for

refunding loans incurred by him. According to the

Complainant, her daughter used to inform her on phone

regarding the harassment made by the Appellant and she

used to also tell that the Appellant was a dangerous person

(Apeal 1095 of 2004)

and may cause danger to her life at any time. About 15 days,

prior to the lodging of the complaint, while the Complainant

was proceeding to Nashik, she went to Tembhurni and at that

time also the daughter informed her that she was feeling that

her husband would put her life in danger and it would had

been proper if she had not married him. She also told her

that she was afraid as the murders were committed by

engaging an hirelings, she was afraid.

4. It is the main case of the complainant that on 7th

September, 2003, early in the morning after receipt of the

information that her daughter was serious, she went to Barve

Mala along with her relatives and learnt that her daughter

was murdered. She then found injuries on the stomach,

chest, neck and hands of her daughter. By narrating such

matters, PW-5 lodged the complaint against the Appellant on

the basis of the information received from the persons from

the vicinity to the effect that the appellant harassing her

daughter due to her refusal to sell the land and give money to

him, had committed her murder. After effecting the necessary

(Apeal 1095 of 2004)

investigation upon the crime registered, which included

drawing the inquest panchnama, spot panchnama, and

seizure of the clothes of the deceased, arrest of the Appellant,

sending corpse for autopsy and so also articles sized during

the course of panchnama to Chemical Analyser, PW-9 PSI

Kadam charge-sheeted the Appellant for commission of the

offence of murder of wife.

5. The prosecution examined in all 10 witnesses at trial for

establishing the various circumstances leading to the

inference of the guilt of the Appellant. Needless to add that

there was no eye witness to the said crime which was

committed in night in between 1.30 a.m. to 2.00 a.m. The

prosecution relied upon the circumstantial evidence collected

during investigation. The defence of the Appellant was that of

false implication. He claimed that he had been to Shevregaon

and had stayed at the said place in relevant night. He

received message in the morning. He was arrested by the

police on road and taken to the police station. He had no

knowledge regarding the incident which had occurred in

(Apeal 1095 of 2004)

Tembhurni.

6. The Trial Court after appreciating the prosecution

evidences, came to the conclusion that the prosecution has

established following circumstances stated in paragraph

No.21 of the judgment viz.

(i)

The motive for the offence;

(ii) The room in which this tragic and pathetic incident

took place was in exclusive possession and occupation of the

accused and deceased;

(iii) The incident had occurred in night at about 1.30

a.m. to 2.00 a.m. when nobody would had ingress into the

room where husband and wife were admittedly residing;

(iv) The position of the dead body lying in the room

belonging to the accused;

(v) The internal and external injuries found on the

dead body at the time of autopsy;

(vi) The positive opinion of Dr. Patil who conducted

autopsy on the dead body of the deceased, stating that death

was due to shock due to internal and external hemorrhage,

(Apeal 1095 of 2004)

due to multiple injuries mentioned in P.M. notes;

(vii) The spot panchnama was drawn in presence of two

panch witnesses, which clearly shows that dead body was

lying in Room No.2 of the house belonging to accused.

7. The Trial Court came to the conclusion that the said

circumstances lead to the sole inference that the Appellant

has committed the offences for which he was charged, The

Trial Court in consonance with such finding arrived convicted

and sentenced the Appellant as narrated earlier.

8. Mr. D.G. Khamkar, the learned counsel for the Appellant

by meticulously taking us through the prosecution evidence,

urged that prosecution evidence does not establish all said

circumstances as erroneously concluded by the Trial Court.

He further urged that even taking into consideration all the

circumstances, which can be said to have been established by

the prosecution evidence or even otherwise, the same within

themselves failed to lead to the sole inference of the case of

the Appellant. He, thus contended that the judgment and

(Apeal 1095 of 2004)

order of sentence passed by the Trial Court is not legally

sustainable and the same deserves to be quashed and set

aside. He vehemently contended that since other view was

possible upon the said circumstances, of culprit could be

somebody else, the Appellant was entitled for benefit of doubt.

It is one of his submissions that merely because the death had

occurred in the house of the Appellant, the same would not

lead to an inference as erroneously drawn by the Trial court,

in absence of any evidence establishing that in the relevant

time the Appellant was in the said house. He also contended

that the Trial court without any cogent reason and further

more, without any such evidence surfaced at the trial, bye-

passed the explanation given by the Appellant that in the

relevant night, he was at Shevergaon and not in the house at

Village Tembhurni.

9. Mr. H.J. Dedhia, the learned APP for the State, on the

other hand, supported the judgment and order of conviction

and sentence passed by the Trial Court. The learned APP

contended that the Trial Court has rightly taken into

(Apeal 1095 of 2004)

consideration the potential of the circumstances of the offence

in question having taken place in the house of the Appellant.

He further urged that the Trial court has given the cogent

reasons for accepting the evidence of the prosecution

witnesses. He thus, contended that there is no reason for

interfering with the judgment delivered by the Trial Court and

as such appeal may be dismissed.

10. We have heard the submissions made by both the

counsel and for ascertaining merits from the same carefully

considered the record and proceeding and particularly the

judgment delivered by the Trial Court.

11. At the first blush, it can be said that even on the part of

the Appellant it is not disputed that wife of the Appellant viz.

Nirmala had met homicidal death in night in between 1.30

a.m. to 2.00 a.m. in the house of the Appellant. Apart from

no dispute being made by the Appellant regarding said facet

the same is found established of the evidence of Inquest

Pancha Anil Barve and Inquest Panchnama - Exh. 14, the

(Apeal 1095 of 2004)

evidence of Spot Pancha- Nagnath P. Nimbalkar and Spot

Panchnama -Exh.17 and Panch to seizure of clothes of the

deceased PW-3 Mahadeo Dgambar Ghadge and the relevant

part of the evidence of the Investigating Officer PW-9,

establishing the circumstances in which the corpse of the

deceased were found in the house of the Appellant. Even on

the basis of the said evidence, the finding that the Nirmala

having met the homicidal death, can be arrived. Apart from

the same, the prosecution has also adduced the evidence of

Dr. Avinash Pandharinath Patil, PW-6 who had performed the

Postmortem examination of the corpse of the Nirmala at Civil

Hospital, Primary Health Central, Tembhurni, Tal. Madha,

Dist. Solapur between 7.00 a.m. to 9.00 a.m. His evidence is

duly corroborated by Postmortem notes Exhibit -26 prepared

by him. PW-6 has given the cause of the death of Nirmala as

"death due to the shock due to internal and external

hemorrhage due to multiple injuries mentioned by him in

Exhibit 26". He further deposed that the said injuries were

possible by means of sharp and cutting weapon like Article

11 shown to him. The record does not reveal that said part of

(Apeal 1095 of 2004)

the evidence or even other evidence given by PW-6 was

challenged on the part the Appellant for any meaningful

purpose. Thus, considering all said evidence, it is difficult to

find any fault in the finding arrived by the Trial Court that the

Nirmala having met with homicidal death.

12. Now considering the evidence of PW-5, Mandakini,

mother of the deceased, perusal of her evidence reveals that

she had given evidence in consonance with the matter

naratted by her while lodging the complaint Exhibit 26. The

perusal of the cross examination of PW 5 reveals that no civil

or criminal dispute was pending between them, or there was

exchange of any notices between them and children of Nirmala

were aged about 7 and 6 years and they were residing with

Nirmala on the date of incident. PW 5, during her cross-

examination further admitted that due to the accident, the

Appellant became physically handicapped. Thus considering

the evidence of PW 5 as a whole, it is clear that strained

relationship between the said couple as deposed by her has

remained unshattered. In view of the same, we are unable to

(Apeal 1095 of 2004)

find any fault in the finding arrived by the Trial Court that the

Appellant was having the motive for commission of the

offence.

13. Now carefully considering the circumstances, pointed out

by the Trial Court, as recorded hereinabove, the same relates

only aspect that the Appellant having motive for commission

of the offence and incident in question had taken place in a

room which was exclusive in possession and occupation of the

Appellant and the deceased having met with homicidal death.

In addition to the same, the Trial Court also concluded that

nobody else had an ingress in the room where the husband

and wife were residing.

14. In the light of the discussions made hereinabove, except

the said last facet, all the other circumstances are apparently

established by the prosecution through the evidence of

witnesses examined by the prosecution. However, we are

unable to agree with the finding arrived by the Trial Court

that nobody else could had ingress to the said room. As a

(Apeal 1095 of 2004)

matter of fact, even after the careful scrutiny of the entire

evidence of record, we are unable to find any evidence driving

to the such a conclusion, and as such the finding of such a

fact recorded by the Trial Court being not based upon

evidence surfaced, cannot be legally sustained.

15. Now considering the prosecution evidence as a whole, i.e.

of PW 1 the same is confined to the point of drawing inquest

panchnama and an additional fact that the Appellant was

residing in the said room. Similarly the evidence of PW 2 -

Panch of spot panchanama, PW-3 regarding the Panch to the

seizure panchanama of clothes of deceased and that of mother

PW 5 discussed hereinabove, and of PW-9 Bhujang Dattatray

Kadam, Investigating Officer and PW-10 Police Constable who

had carried muddemal articles to the Chemical Analyser

being confined to such aspect only, we do not find the said

evidence being useful to the prosecution for establishing the

nexus of the Appellant with the incident which had occurred

in the said night in the said room. Such a conclusion is

inevitable as none of these witnesses had thrown any light

(Apeal 1095 of 2004)

upon the aspect of the Appellant being in the said room in the

relevant night. PW 5 admittedly was not residing in the said

room and had arrived after the crime was committed; her

evidence is also not useful to the prosecution to establish the

said offence.

16. After careful perusal of the impugned judgment and

more particularly the reasoning recorded by the Trial Court,

we find that the Trial Court has inferred the nexus of the

Appellant with the crime in question, only on the basis of the

said room being in the occupation of the Appellant and the

deceased, since the same was their matrimonial house.

17. In the said context, we find that the Appellant during his

examination under section 313 of the Code of Criminal

Procedure had taken a positive stand that at the relevant

time he was at Shevregaon and not at the place where the

incident had occurred. After careful perusal of the evidence

of all the prosecution witnesses, we do not find any evidence

surfaced negativing the said stand taken by the Appellant. As

(Apeal 1095 of 2004)

a matter of fact, none of the witnesses had thrown any light

upon the said aspect or upon any aspect of connecting

Appellant with the incident.

18. Apart from the said witnesses not having deposed about

the presence of the Appellant, even the evidence of PW 4

Panch to arrest panchanama of the Appellant is not of much

assistance to the prosecution, in view of the said witness

having not supported the prosecution. The reference to the

evidence of PW 9, in said respect runs as under:

"I along with PSI Pawar went to spot of

incident. On the spot of incident outside the room

Pandurang Deokar was standing. He told me that

dacoits came to his house and committed murder

of his wife. We tried to take search whether really

decoits came on the spot......."

Thus, the said evidence also reveals that the Appellant in

addition to the earlier defence taken by him, had taken a

stand that he was not perpetrator of the crime and the crime

(Apeal 1095 of 2004)

had occurred at the hands of the dacoits. Support to the said

version is also found from the evidence of the PW 7, who

deposed in paragraph 2 as under:

"On the date of incident I was present in my house.

On that day the owner of the building came and

told us that thieves came in the building. The

landlord also told us that the thieves assaulted wife

of Pandurang Deokar. We went there and saw the

dead body by outside. There were injuries on her

person I had not entered the room."

It is true that the said witness was declared hostile by the

prosecution. However, after carefully going through the

answer given in the cross examination, we are unable to find

that said part of testimony of PW-7 was shaken or discredited

in any manner by the prosecution through cross-examination

effected.

19. In the context of the nexus of the Appellant with the

incident occurred in the said room, the learned APP by

inviting our attention to the relevant part of the evidence of

(Apeal 1095 of 2004)

the I.O. - PW 9 - PSI Kadam, and PW 10 - Mohammad

Naikwadi, who had taken the relevant articles to the C. A.,

and the C.A. Reports Exhibit 42, 43, 44 received regarding

the said articles, urged that the evidence of Investigating

Officer reveals that as the sequel to the statement leading to

memorandum statement made by the Appellant on 9.9.2003

and his further leading to agricultural land adjacent to the

house, a knife and underwear were recovered under recovery

and memorandum panchnama Exhibits 36 and 37. It was

urged that CA report reveals that blood group upon said

articles matched with the blood group of the deceased. It was

contended that the presence of blood similar to that of

deceased upon the banian of the Appellant, and so also upon

the weapon connects the Appellant with the crime in question.

Though the said submission is apparently attractive, do not

stand to the said reason because the said entire evidence is

that of an Investigating Officer and no support and/or

corroboration to the same is found from the evidence of panch

witness since they have not supported to the prosecution.

Apart from the same, considering the place from which the

(Apeal 1095 of 2004)

said recovery is said to have been made i.e. an open place, it is

difficult to give any much value to the same. Furthermore,

the Appellant having returned to his house, merely because

blood stains of his wife were found on his banian, cannot be

said to be a circumstance of grave incriminating nature,

establishing his presence in the room in question.

20. As a net result of the aforesaid discussions, it is crystal

clear that hardly any evidence has surfaced on record for

establishing the presence of the Appellant in the room at the

relevant time. Having regard to the same, the remaining

circumstances which can be said to have been established by

the prosecution witnesses, cannot be said to be leading to the

sole inference of the Appellant being perpetrator of the said

crime. Needless to state that in the absence of such evidence

regarding the presence of the Appellant in the said room in the

night, takes away potential, if any, in the circumstances of the

incident occurred in the room of the Appellant. Since finding

of guilt it is based on the circumstantial evidence, the

circumstances established by the prosecution must form of

(Apeal 1095 of 2004)

chain of circumstances leading to sole inference of guilt of the

Appellant i.e. thereby excluding every reasonable possibility

of the perpetrator of crime being somebody else. Since, such

chain of circumstances in the instant case is not established

by the prosecution evidence, we are unable to sustain the

finding of guilt arrived by the Trial Court.

21. In the premises aforesaid, we quash and set aside the

order of conviction and sentence imposed by the Trial Court

by allowing this appeal. Hence, the following order.

                                   ORDER
          


    .       Appeal is allowed.
       



    (i)     The Judgment and order of the trial Court is set aside
            and    Appellant/Accused is acquitted of the offence

punishable under Section 302 of the Indian Penal Code. The fine amount, if paid, be refunded to the Appellant/Accused.

(ii) Appellant/Accused be released forth with, unless he is required in any other case.

. Appeal is disposed of in the aforesaid terms.

    (P.D. KODE J.)                           (V.M. KANADE J.)

    V.A. Tikam