Vilas S/O Janu Kirange (Presently ... vs The State Of Maharashtra, Through ...
2016 Latest Caselaw 930 Bom

                  apeal408.13.odt                                                                           1/10

                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          NAGPUR BENCH : NAGPUR.




                                                                                                          
                                                CRIMINAL APPEAL NO.408 OF 2013




                                                                              
                   APPELLANT:                        Vilas S/o Janu Kirange, Aged about 40
                                                     years, occ.: Labour, R/o Bajartoli, Tah.




                                                                             
                                                     Armori, Dist. Gadchiroli (Presently at
                                                     Central Prison, Nagpur)
                                                                               
                                                                 
                                                               -VERSUS-




                                                                    
                   RESPONDENT:
                                     ig              The State of Maharashtra through P.S.
                                                     O., P. S. Armori, Dist. Gadchiroli.
                                                                                                                           
                                   
                  Shri R. M. Daga, Advocate for the appellant.
                  Mrs. M. H. Deshmukh, Additional Public Prosecutor for respondent
                  State.
      
   



                                          CORAM: B.R. GAVAI AND A.S.CHANDURKAR,JJ.

DATED: 28TH MARCH, 2016.

ORAL JUDGMENT : (Per A. S. Chandurkar, J)

1. The appellant herein takes exception to his conviction

for the offence punishable under Section 302 of the Indian Penal

Code (for short, the Penal Code) and consequently having been

sentenced to suffer life imprisonment as per judgment dated 31-1-

2013 in Sessions Trial No.34/2012.

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2. The case of the prosecution as can be seen from the

material on record is that the appellant Vilas was married with

one Kantabai about 15 to 16 years prior to the incident dated 27-

11-2011. The brother of said Kantabai - Raju was informed by his

other sister that when she had been to the house of Vilas and his

wife, Vilas had poured Kerosene on the person of Kantabai. He had

also threatened her that he would kill her. After few days, Raju,

the brother-in-law of the appellant received a phone call that his

sister Kantabai had died on account of illness. He, therefore, went

to the house of Vilas on the next day. On the basis of the

postmortem report, he alleged that the appellant had killed his

sister. He, therefore, lodged a report. After due investigation, the

appellant was charge-sheeted for the offence punishable under

Section 302 read with Section 201 of the Penal Code. The case was

committed to the Sessions Court and at the conclusion of the trial,

the appellant was convicted in the manner stated herein above.

3. Shri R. M. Daga, learned Counsel for the appellant

submitted that the homicidal death of Kantabai had not been

proved. According to him, the learned Judge of the Sessions Court

wrongly shifted the burden on the appellant by relying upon the

provisions of Section 106 of the Evidence Act, 1872, despite the

fact that the initial burden of proving the presence of the appellant

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at the site was not discharged by the prosecution. It was submitted

that according to the prosecution, PW-4 Ashika who is the

daughter of the appellant was the only eye witness, but she was

not found fit to give answers considering her age. It was,

therefore, submitted that the case of the prosecution is based only

on circumstantial evidence and merely on the basis of surmises the

appellant had been convicted.

4. On the other hand, Smt. M. H. Deshmukh, learned

Additional Public Prosecutor supported the conviction of the

appellant. It was submitted that the deceased being the wife of

the appellant, it was for him to explain the circumstances under

which said Kantabai expired. Referring to the postmortem report

at Exhibit-27, it was submitted that the death was caused due to

strangulation and considering the fact that the appellant had at an

earlier point of time given a threat to his wife, it was clear that the

appellant alone was guilty of having committed said crime. It was,

therefore, submitted that considering the entire evidence on record

coupled with the absence of any explanation by the appellant, the

conviction was justified and there was no case made out to

interfere with the impugned judgment.

5. With the assistance of the learned Counsel for the

parties, we have gone through the entire record and we have also

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perused the impugned judgment. To prove the death of Kantabai,

the prosecution has examined PW-6 Dr. Yadav Morey below

Exhibit-24. According to this witness, the cause of death was likely

due to asphyxia due to strangulation that could be due to

throttling. He has proved the report at Exhibit-27. This witness

was cross-examined and he has admitted that he had not

mentioned whether the death was suicidal or homicidal.

Considering the cause of death, the prosecution has proved the

homicidal death of Kantabai.

6. To prove the guilt of the appellant, the prosecution has

examined Raju Kumre as PW-1 below Exhibit-14. He is the

brother-in-law of the appellant. He has deposed that the marriage

of his sister with the appellant took place prior to 15 to 16 years of

the incident. The death of Kantabai occurred on 27-11-2011. He

has stated that after receiving a phone call about the death of his

sister, he had reached the house of the appellant. He saw a black

coloured horizontal mark on the neck of his sister. He initially

lodged his report at Exhibit-15. After the postmortem was

conducted, his niece told him that there was a dispute between the

appellant and his wife and the appellant had threatened his wife

that he would kill her. He thereafter lodged another report at

Exhibit-16 naming the appellant.

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In his cross-examination, this witness has admitted

that the appellant and Kantabai were living a satisfied life. The

appellant was bearing the expenses of education of his two

daughters. He has admitted that the daughter of the appellant did

not tell him anything about the incident prior to the postmortem.

7. PW-2 Bhaskar Usendi was examined below Exhibit-18.

He was the witness when the spot panchanama was prepared. He

has stated that in the house of the appellant, there were two

rooms. In one room, a rope was hanging which was about 2 ft. in

length. There was also a hook on the slab of said room. The spot

panchanama is at exhibit-19. This witness, however, in his cross-

examination stated that the panchanama was written in the police

station and that he had also signed the panchanama in the police

station. The same was not read over to him.

Another witness examined was one Usha Alone below

Exhibit-20. She was present when the panchanama at Exhibit-21

was prepared but in her cross examination, she has stated that the

contents of the panchanama were not read over and her signature

was taken after it was written.

8. The daughter of the appellant - Ashika was sought to

be examined as PW-4, but as she was unable to answer certain

general questions asked to her, the learned Sessions Judge did not

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find it fit to permit her further examination. The sister of Kantabai,

Subhadra was examined as PW-5 below Exhibit-23. This witness

has stated that about eight days prior to her sister's death, she had

gone to her house. At that time the appellant had come home in

the evening in a drunken state. She saw that the appellant had

poured kerosene on the person of Kantabai and had threatened

her. She had scolded the appellant as to how he was doing such a

thing. In her cross-examination, she stated that she had not told

the police that the appellant had given threats of killing Kantabai.

9. PW-7 Suresh was examined below Exhibit-34. He was

working as Station Diary incharge and he had prepared the

accidental death report. He admitted that in the accidental death

report, it was mentioned that Kantabai died due to hanging.

The Medical Officer has opined vide communication

dated 15-12-2011 Exhibit-30 that it was likely that the death

occurred due to strangulation. Similarly, the provisional death

certificate at Exhibit-33 also refers to death on account of

strangulation.

10. The seizure effected on the basis of memorandum

under Section 27 of the Evidence Act is at Exhibit-38. The same

indicates that the shirt of the accused was discovered under a

stone near a tree which was near to the house of the accused.

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11. The case of the prosecution is based on circumstantial

evidence. It would, therefore, be necessary to consider whether

the prosecution has succeeded in proving the entire chain of events

which could lead to the only conclusion as to the guilt of the

appellant and to no other conclusion. The first aspect that is of

material importance is about the presence of the appellant near

the scene of the incident. Though the incident occurred in the

house of the appellant, it was necessary for the prosecution to have

brought some evidence on record to indicate the presence of the

appellant at his house at some time proximate to the finding of the

dead body of Kantabai. There is no evidence whatsoever in that

regard. Even the Investigating Officer was examined as PW-10

does not state that he had made any enquiries as regards the

presence of the appellant at his house on 27-11-2011. If the

prosecution would have brought on record some evidence with

regard to the presence of the appellant at his house, then the

question of applying provisions of Section 106 of the Evidence Act,

1872 would have arisen. It is well settled that the provisions of

Section 106 of the Evidence Act, 1872 do 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

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knowledge of the accused could be shifted on the accused for

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

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

State of Punjab 2006 (12) SCC 306. Therefore, once it is found that

the prosecution has failed to show the presence of the appellant at

his house at some time proximate to the occurrence of the crime,

the conviction cannot be sought to be supported by relying upon

the provisions of Section 106 of the Evidence Act, 1872.

ig Another factor that has some bearing is that initially

on 28-11-2011 the first informant had lodged the report at Exhibit-

15 expressing doubt about the manner of the death of Kantabai.

After the postmortem report, another report was lodged on the

same day as Exhibit 16 in which the appellant was named as being

responsible for the offence. The evidence on record indicates that

the informant in his cross-examination had clearly admitted that

the appellant and his wife were living a satisfied life and that the

appellant was taking care of the education of his daughters and

that the expenses were borne by him. Similarly, absence of any

steps being taken by the sister of Kantabai - Subhadra despite her

statement that the appellant had threatened Kantabai in her

presence prior to eight days of her death is also relevant. Though

in a case based on circumstantial evidence, the motive for the

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crime may not clearly come on record, the admitted position that

the appellant and Kantabai had been married for more than 16

years and that their relations were cordial without any previous

complaint is a relevant factor which cannot be ignored.

13. The manner in which Kantabai died is also not clear.

There is no clear evidence to indicate as to whether the death had

been caused due to strangulation or on account of she being

hanged. The medical evidence in that regard is also not clear

especially in absence of any specific opinion being expressed by

the medical officer.

14. In the light of the aforesaid material on record, it

cannot be said that the prosecution has proved its case beyond

reasonable doubt. 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 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

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evidence on record is not sufficient to sustain the conviction of the

appellant. He would therefore be entitled for the benefit of doubt.

15. In view of aforesaid, the appeal is allowed. The

judgment of conviction in Sessions Trial No.34 of 2012 dated

31-01-2013 is quashed and set aside.

The appellant be set at liberty forthwith, if not

required in any other case.

                                        JUDGE                                               JUDGE 
                  //MULEY//