Sunil S/O Latari Khuje (In Jail) vs The State Of Maharshtra, Through ...
2016 Latest Caselaw 920 Bom

    Cri.Appeal-592-13                                                                                1/9


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                             
                             NAGPUR BENCH, NAGPUR.

                               CRIMINAL APPEAL NO.592 OF 2013




                                                                     
    Sunil s/o Latari Khuje 
    Aged about 37 years, Occ. Driver, 




                                                                    
    R/o Motghare Plot, Fule Square, 
    Babupeth Chandrapur, 
    Tahsil and District Chandrapur.                                     ... Appellant. 

    -vs-




                                                      
    The State of Maharashtra,          
    Through the P.S.O. 
    Police Station Chandrapur City,
    Tahsil and District. Chandrapur.                                    ...  Respondent. 

Shri R. M. Daga, Advocate for appellant.

Shri S. M. Ghodeswar, Additional Public Prosecutor for respondent/State.

CORAM : B. R. GAVAI &

A.S.CHANDURKAR JJ.

DATE : MARCH 28, 2016

Oral Judgment : (Per A. S. Chandurkar, J.)

The appellant who has been convicted for the offence punishable

under Section 302 read with Section 201 of the Indian Penal Code (for short,

the Penal Code) has challenged judgment dated 31/07/2013 passed by the

learned Additional Sessions Judge, Chandrapur in Sessions Case No.82 of

2012.

The case of the prosecution as can be gathered from the material

on record is that on 08/05/2012 a call was received by the City Police

Station, Chandrapur that a foul smell was coming from a house owned by

Cri.Appeal-592-13 2/9

one Harishchandra Chamate. The appellant along with his family was

residing therein. Said Harishchandra came on the spot after which the lock

of the door was broken by the police. There the dead body of one

Panchafula, the sister of Harishchandra was found. On that basis, said

Harishchandra lodged his report on 08/05/2012.

2. After the report was registered, investigation was carried out. A

charge-sheet was duly filed in which the appellant was arrayed as an accused

for the offence punishable under Section 302 of the Penal Code. The case

was committed to the Sessions Court and as the appellant did not plead

guilty, he was tried for aforesaid offence. At the conclusion of the trial, the

appellant was convicted as stated herein above.

3. Shri R. M. Daga, the learned counsel for the appellant submitted

that the appellant had been wrongly convicted by the Sessions Court.

According to him, there was no eye witness to the incident and that merely

on the basis of surmises, the appellant had been convicted. It was submitted

that the presence of the appellant was not shown in the house at any time

proximate to the incident. In absence of presence of the appellant being

proved, it was not permissible for the prosecution to rely upon the provisions

of Section 106 of the Evidence Act for convicting the appellant. It was then

submitted that the appellant was married in the year 2001 and there was no

Cri.Appeal-592-13 3/9

earlier report with regard to ill treatment of the deceased at his instance.

There were various contradictions in the version of PW-1 who was the

brother of the deceased as well as PW-5 who was the daughter of the

appellant. It was further submitted that even the time of death of

Panchafula was not brought on record and therefore in absence of such

evidence, it would not be safe to convict the appellant for the aforesaid

offence.

In support of aforesaid submissions, the learned counsel placed

reliance on the judgments of the Division Bench in Sharad s/o Kondiba

Walke vs. State of Maharashtra 2010 ALL MR (Cri) 899 and Subhash

Gorakh Khankal vs. The State of Maharashtra 2015 ALL MR (Cri) 2481.

4. On the other hand Shri S. M. Ghodeswar, learned Additional

Public Prosecutor supported the judgment of the Sessions Court. It was

submitted that the appellant being the husband of the deceased, it was for

him to explain the manner in which the deceased received fatal injuries. He

submitted that the appellant had left his daughter at house of PW-1 with the

clear intention of doing way with his wife. It was urged that as the appellant

was the husband and the couple was residing together, it was for the

appellant to explain the aforesaid under Section 106 of the Evidence Act. No

such explanation was forthcoming from the appellant. It was further

submitted that PW-3 had deposed about the demand of dowry by the

Cri.Appeal-592-13 4/9

appellant which was another circumstance against the appellant. It was

therefore submitted that the learned Judge of the Sessions Court was fully

justified in convicting the appellant.

5. With the assistance of the learned counsel for the parties we have

gone through the entire records and we have given due consideration to their

respective submissions. The homicidal death of Panchafula is sought to be

proved by relying upon the Post Mortem Report. PW-8 Dr Shital Todase was

examined vide Exhibit-37. According to her, Panchafula died due to head

injury with fracture on right temporal and frontal bone with extra dural and

intracranial haemorrage with asphyxia due to strangulation. The Post

Mortem report is at Exhibit-38. There is no serious challenge to the aforesaid

report in the cross examination of said witness. Accordingly, it is held that

the prosecution has succeeded in proving the homicidal death of said

Panchafula.

6. To bring home the guilt of the appellant, the prosecution has

examined PW-1 Harishchandra below Exhibit-17. He was the brother of

Panchafulabai. According to him, on 05/05/2012 he had brought the

daughter of the appellant from the boutique of her mother to his house. On

the same day, in the evening, he along with his family members went to

Warora for attending a marriage. He returned back on 08/05/2012, after

Cri.Appeal-592-13 5/9

which he received a phone call that there was some bad smell coming from

his house. He got knowledge of the incident on that basis. In his cross-

examination, he has denied that he had not visited the work place of his

sister on 05/12/2012.

7. The mother of the deceased, Shakuntala was also examined as

PW-3 below Exhibit-26. He has stated that on 05/05/2012, between 7 p.m.

to 7.30 p.m. the appellant along with his mother had come to their house

and demanded a sum of Rs.2,00,000/-. After some time both of them left the

place. In her cross-examination, this witness admitted that she had not

informed either her son or her husband about the demand made by the

appellant. She has further denied suggestion that on 05/05/2012 at about 11

a.m. Harishchandra had brought the daughter of the deceased to their house.

8. The prosecution has also examined the daughter of the appellant

as PW-5 below Exhibit-28. She stated that on 05/05/2012 at about 2.30

p.m., Harishchandra had taken her to his house. She has further stated that

on the same day between 7 p.m. to 7.30 p.m. the appellant and his mother

had visited her grand mother's place.

In her cross-examination, certain omissions as found in her police

statement were put to her. She has denied that on 05/05/2012 in the

evening her father had left the house for attending a marriage.

Cri.Appeal-592-13 6/9

9. It would first be necessary to consider as to whether the

prosecution has brought on record the time of death of Panchafula. The

house in question from where the body of Panchafula was found was locked.

Said lock was broken in presence of the informant and the witnesses on 8-5-

2012. PW-8 Dr. Shital Todase in her deposition stated that the exact time of

her death before 4 pm on 08/05/2012 could not be stated. She further

stated that in the month of May, the process of decomposition of the dead

body would be faster. Rigor mortis could be well developed within 48 hours

in the summer season. The Post Mortem report at Exhibit-38 states that the

body was totally decomposed and rigor mortis was well marked in all the

limbs. Thus, there is no material on record to indicate the probable time of

death of Panchafula.

10. It would then be necessary to consider as to whether the

prosecution has proved the presence of the appellant at the place where dead

body of Panchafula was found. Though it is a fact that the appellant was the

husband of Panchafula and they were residing together, in absence of any

cogent evidence indicating the proximate time of death coupled with fact

that the same is likely to have taken place between 05/05/2012 and

08/05/2012, it would be necessary for the prosecution to prove the presence

of the appellant during said period at the site of the crime. PW-12 who had

carried out the investigation on receiving the phone call regarding foul smell

Cri.Appeal-592-13 7/9

emanating from the premises admitted in his cross-examination that during

his investigation, he found that the deceased was alive till about 2.30p.m. on

05/05/2012. He further admitted that during his investigation, the appellant

was not found on the spot or at a place nearby between 2 p.m. on

05/05/2012 till he arrived at the spot on 08/05/2012. He further admitted

that he had not recorded the statement of the owner or servants working in

the boutique where Panchafula used to go.

No other witness examined by the prosecution has deposed about

the presence of the appellant at the spot of the incident between 2.30p.m. on

05/05/2012 till 08/05/2012 when the body of Panchafula was found. It will

thus, have to be held that the prosecution has failed to prove the presence of

the appellant near the site of the incident during the relevant time.

11. It would now be necessary to consider provisions of Section 106

of the Evidence Act, 1872. As per Section 106 of the Evidence Act, 1872,

when any fact is especially within the knowledge of any person, then the

burden of proving that fact is upon the said person. It is well settled that

Section 106 of the Evidence Act, 1872 does not relieve the prosecution of the

burden of proving its case beyond all reasonable doubt. It is only when the

prosecution case has been proved that the burden with regard to such facts

which are within the special knowledge of the accused could be shifted on

the accused for explaining the same. Reference in this regard can be made to

Cri.Appeal-592-13 8/9

the judgment of the Hon'ble Supreme Court in Vikramjit Singh Vs. State of

Punjab 2006 (12) SCC 306.

In Sharad Kondiba Walke (supra), the Division Bench while

considering aforesaid provisions held that if the initial presence of the

accused has not been established by the prosecution, the question of invoking

the provisions of Section 106 of the Evidence Act, 1872 would not arise. It is

only after initial burden of establishing the presence of the accused at the site

of the crime is discharged that the provisions of Section 106 of the Evidence

Act, 1872 could be applied. Similar view has been taken by the Division

Bench in Subhash Gorakh Khankal (supra).

12. Thus, from the aforesaid, once it is found that the prosecution has

failed to show the presence of the appellant at some time proximate to the

occurrence of the crime, the provisions of Section 106 of the Evidence Act,

1872 cannot be applied. Moreover, the present case being based on

circumstantial evidence, each circumstance leading to the guilt of the

appellant is required to be proved independently and beyond reasonable

doubt. The presence of the appellant near the scene of the incident having

not been satisfactorily proved and the same being one of the major links in

the chain of circumstances, it will have to be held that the prosecution has

failed in proving the guilt of the appellant. The evidence on record is not

sufficient to sustain the conviction of the appellant. He would be entitled for

Cri.Appeal-592-13 9/9

benefit of doubt.

13. In view of aforesaid, the impugned judgment convicting the

appellant cannot be sustained. Accordingly the following order is passed :

(i) The appeal is allowed. The judgment of conviction in Sessions

Trial No.82 of 2012 dated 31/07/2013 is quashed and set aside.

(ii) Appellant be set at liberty forthwith, if not required in any other

case.

                                                                    JUDGE                            JUDGE
               
            






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