Ramakant Chandrasen Jadhav And ... vs State Of Maharashtra
2017 Latest Caselaw 5581 Bom

                                                                   cria49.01
                                        1


                                        
      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                      CRIMINAL APPEAL NO.49 OF 2001


 1) Ramakant s/o Chandrasen Jadhav,
    Age-25 years, Occu-Agril.,
    R/o-Musalewadi, Tq. Renapur,
    Dist-Latur.

 2) Chabubai w/o Chandrasen Jadhav,
    Age-45 years, Occu-Household,
    R/o-As Above.
                                 ...APPELLANTS 
        VERSUS             

 The State of Maharashtra   
                                 ...RESPONDENT

                      ...
   Mr. Joydeep Chatterji, Advocate for Appellants. 
   Mr. A.R. Borulkar, A.P.P. for Respondent-State. 
                      ...

               CORAM:   S.S. SHINDE AND
                        S.M. GAVHANE, JJ.

DATE OF RESERVING JUDGMENT : 28TH JUNE, 2017.

DATE OF PRONOUNCING JUDGMENT: 4TH AUGUST, 2017.

JUDGMENT [PER S.S. SHINDE, J.]:

1. This Appeal is directed against the

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Judgment and order dated 6th January, 2001, passed

by the Additional Sessions Judge, Latur in

Sessions Trial No.59 of 1999 thereby convicting

accused No.1/Appellant No.1 - Ramakant s/o

Chandrasen Jadhav and accused No.4/Appellant No.2

- Chabubai w/o Chandrasen Jadhav for the offence

punishable under Section 302 read with 34 of the

Indian Penal Code (for short "I.P. Code") and

sentencing them to suffer imprisonment for life

and to pay fine of Rs.5000-/ each, and in default,

to suffer rigorous imprisonment for six months.

The trial Court also convicted accused No.1/

Appellant No.1 - Ramakant s/o Chandrasen Jadhav

and accused No.4/Appellant No.2 - Chabubai w/o

Chandrasen Jadhav for the offence punishable under

Section 201 read with Section 34 of the I.P. Code

and sentenced them to suffer rigorous imprisonment

for two years each and to pay a fine of Rs.2000/-

each, and in default, to suffer rigorous

imprisonment for two months. All the sentences

were directed to be run concurrently. Hence this

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Appeal is filed by both the Appellants challenging

the conviction and sentence.

2. Before the trial Court there were in all

five accused including Appellant No.1/ accused

No.1 - Ramakant s/o Chandrasen Jadhav, his brother

accused No.2 - Rajabhau s/o Chandrasen Jadhav, his

father, accused No.3 Chandrasen s/o Shankar

Jadhav, his mother Appellant No.2/ accused No.4

Chabubai w/o Chandrasen Jadhav and wife of his

brother accused No.5 Sunanda w/o Rajabhau Jadhav.

The trial Court acquitted accused Nos.2, 3 and 5

from the offence punishable under Sections 302,

201, 498-A read with 34 of the I.P. code, with

which they were charged. The trial Court also

acquitted Appellant No.1/accused No.1 - Ramakant

s/o Chandrasen Jadhav and Appellant No.2/ accused

No.4 - Chabubai w/o Chandrasen Jadhav from the

offence punishable under Section 498-A read with

Section 34 of the I.P. Code.

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3. The prosecution case, in brief, is as

under:-

A) Prosecution case is that victim Mrs.

Aruna Jadhav was legally wedded wife of accused

Ramakant Jadhav. Accused Rajabhau Jadhav is

brother of accused Ramakant. Accused Chandrasen

and Mrs. Chabubai Jadhav are their parents.

Accused Mrs. Sunanda Jadhav is the wife of Accused

Rajabhau Jadhav. Accused reside at village

Muslewadi, Tahsil Renapur, PW-1 Balasaheb Kadam is

the father of Mrs. Aruna Jadhav.

B) It is the case of prosecution that

marriage of Aruna was solemnized with accused

Ramakant Jadhav prior to four years. After

marriage Aruna started to cohabit with accused

Ramakant Jadhav at his matrimonial home at

Muslewadi. On 22nd December, 1998, an informant

PW-1 Balasaheb Vishwanath Kadam received

information that on the said date at 4.00 p.m. his

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daughter Aruna was burnt. When Balasaheb came to

the village Muslewadi and saw Mrs. Aruna, he found

that she was no more. On the strength of the said

report, P.S.O. Renapur Police Station registered

A.D. No. 40 of 1998 and started the investigation.

C) PW-7 Shri. A.D. Kshirsagar, P.S.I. of

Renapur Police Station investigated the A.D. No.

40 of 1998. He recorded inquest panchnama of the

dead body of the deceased (Exhibit-15). He

recorded the spot panchnama (Exhibit-21). He sent

the dead body of Aruna to Medical Officer, Primary

Health Center, Renapur, for post-mortem. He

collected the post-mortem note of the dead body of

Aruna from the Medical Officer. He recorded the

statements of the witnesses.

of 1998, PW-1 Balasaheb Kadam lodged report

against the accused in the Police Station vide

Exhibit-18. In the said report, the informant

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stated that, in the marriage of Aruna, he was to

pay an amount of Rs.31,000/- as dowry and one tola

gold. But he paid amount of Rs.26,000/- as dowry

and one tola gold to accused Remakand Jadhav in

the marriage. He was to pay remaining amount of

Rs.5,000/- towards balance of dowry amount to the

accused Ramakant Jadhav. Aruna complained him

that all the accused started to give ill-treatment

to Aruna because the informant did not pay

remaining amount of dowry. On 16th December, 1998,

he paid remaining amount of dowry i.e. Rs. 5,000/-

to the accused, but the accused subjected Aruna to

cruelty on the ground that by this time the

remaining amount of Rs.5,000/- would be doubled.

He further stated in the report that on 22nd

December, 1998 at 4.00 p.m. two persons came on

motor-cycle and informed him that Aruna sustained

burn injuries because of bursting of stove and

died. Then the informant and other relatives came

to Muslewadi at 7.30 p.m. and found the dead body

of Aruna. The accused subjected Aruna to cruelty

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on the ground that the informant was to pay

remaining amount of Rs.5000/- towards balance of

dowry amount to them. He further stated in the

report that the accused committed murder of the

victim Aruna and thereafter they poured kerosene

on her body, and set her on fire with intention to

screen themselves from legal punishment.

E) On the strength of the said report, Shri

Bhagat, Police Head Constable of Renapur Police

Station registered the offence vide Crime No. 68

of 1998 against the accused and handed over the

papers of this offence to PW-7 Kshirsagar, P.S.I.

for further investigation.

F) Shri Kshirsagar, P.S.I. recorded the

statements of the witnesses, seized the articles

as per the seizure panchnama (Exhibit-31). He

seized the pillow from accused Ramakant vide

Exhibit-32. During investigation it was transpired

that on 22nd December, 1998 in the morning victim

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Aruna drunk milk. Hence, initially the quarrel

took place between accused Chabubai and Aruna.

Thereafter quarrel took place between Aruna and

accused Ramakant Jadhav. Accused Chabubai Jadhav

pushed Aruna on ground, then the accused Ramakant

Jadhav brought pillow and put the same on the

mouth and nose of victim Aruna and sat on the said

pillow. Accused Chabubai Jadhav caught hold the

legs of Aruna. Hence, Aruna died because of

smothering and suffocation. Accused Chabubai and

accused Ramakant thereafter poured kerosene on the

dead body of Aruna and set her on fire pretending

that victim Aruna was burnt because of flames of

stove and died. They committed the said act with

intention to screen themselves from the legal

punishment. After completion of investigation,

P.S.O., Renapur Police Station submitted charge-

sheet against the accused for the offence

punishable under Sections 498-A, 302 and 201, read

with Section 34 of the Indian Penal Code in the

court of learned Chief Judicial Magistrate, Latur,

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who committed the said case to the court of

Sessions, because the offence punishable under

Section 302 of the Indian Penal Code is

exclusively triable by the Court of Sessions.

G) A charge for an offence punishable under

Sections 498-A, 302, 201 read with Section 34 of

the I.P. Code was framed against the accused and

the same was explained to them. Accused pleaded

not guilty and claimed to be tried. The defence of

the accused is that, Aruna was accidentally burnt

because of the flames of stove when she was

preparing food. Their defence is that they were

not present on the spot when Aruna burnt and died.

4. After recording the evidence and

conducting full fledged trial, the trial Court

convicted accused accused No.1/Appellant No.1 -

Ramakant s/o Chandrasen Jadhav and accused

No.4/Appellant No.2 - Chabubai w/o Chandrasen

Jadhav for the offence punishable under Section

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302, 201 read with Section 34 of the I.P. Code and

sentenced them to suffer the imprisonment and to

pay fine, as afore-stated. Hence this Appeal is

preferred by the accused No.1/Appellant No.1 -

Ramakant s/o Chandrasen Jadhav and accused

No.4/Appellant No.2 - Chabubai w/o Chandrasen

Jadhav challenging the conviction and sentence.

5. Heard learned counsel appearing for the

Appellants and learned A.P.P. appearing for the

State, at length. With their able assistance, we

have carefully perused the entire notes of

evidence so as to find out whether the findings

recorded by the trial Court are in consonance with

the evidence brought on record or otherwise.

6. The prosecution examined PW-6 Dr. Ramrao

Narsing Pawar. He deposed that on 23rd December,

1998 he was attached to Primary Health Center,

Renapur. On that day he received dead body of Mrs.

Aruna Ramakant Jadhav for post-mortem. It was

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brought by Kande, police constable, Renapur police

station. He conducted post-mortem. He found ante-

mortem injuries on her dead body which are stated

in Column No.17 of the post-mortem report. The

said injuries are as follows:

"Body was found totally burnt, black scald without vesicles"

. PW-6 Dr. Ramrao Pawar further deposed

that on page No.7 of post-mortem notes he gave

probable cause of death of deceased is "due to

cardio respiratory arrest due to asphyxia due to

smothering or suffocation". Accordingly, he

prepared post-mortem note Exhibit-25.

. During the course of cross-examination,

PW-6 Dr. Ramrao Pawar stated that he issued

provisional post-mortem report Exhibit-26 with

cause of death. It was issued soon after

completion of autopsy. Referring column No.18-A of

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post-mortem report he was unable to say definitely

as to whether the injuries mentioned in the said

Column are ante-mortem or post-mortem. He did not

notice any injury on any part of dead body. He did

not notice any injuries over the lip by pressure

of teeth. He did not notice any contusion over the

gum. Burn injuries are possible, if a person is in

standing position or in rolling position. He

further stated that suffocation means blockages of

the air-way. It is possible that burn flames can

suffocate. If flames enter in mouth then larynges

spasm could be possible. He agrees with the

opinion given by Dr. Parikh in his medical

jurisprudence page No.376 Vth Edition that death

may occur without inhaling smoke due to rapid

consumption of Oxygen by intense fire. If

larynges spasm is found then black suit may not be

there. He admits that in the present case cause of

death may be possible due to hot flames causing

suffocation. Congestion is common symptoms of

asphyxiate death. Finding of symptom is

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asphyxiate death. In Column No.16 he mentioned

that lower limbs and upper limbs were flexed from

elbow and limbs. He found both the hands were

flexed towards outside the shoulder. The same

thing was found in case lower limb. This position

shows that it is protective attitude. He again

said that about upper limb it is protective

attitude. Smothering is pressure from outside. In

suffocation there may not be smothering from

outside. In cases of smothering application from

outside, then injuries over the lip, gum and face

part are found.

7. The prosecution examined PW-1 Balasaheb

Vishwanath Kadam. He deposed that he has three

daughters and one son. Deceased Aruna was his

daughter. Her marriage was solemnized prior to

four years from the date of recording his

evidence. Her marriage was solemnized at

Muslewadi. He paid an amount of Rs.31,000/- as

dowry and one Tola gold in marriage. He paid an

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amount of Rs.26,000/- and gold in marriage. The

remaining amount of Rs.5,000/- was to be paid by

him in next year. After marriage Aruna started to

cohabit with the accused Ramakant at Muslewadi.

She was treated nicely for six months after

marriage. Thereafter the accused were asking her

to bring remaining amount of dowry. He went to

Muslewadi and told the accused that he was unable

to pay the amount and he will pay the said amount

after some days. He paid remaining amount of

Rs.5000/- to the accused on 16th December, 1998.

The accused told him that upto that date the

amount would have been doubled. After 5-7 days he

received message about demise of Aruna from the

accused. He along-with his relatives, went to

Muslewadi. At Muslewadi, he saw the dead body of

Aruna. It was burnt. Then he went to the police

station and lodged report Exhibit-17. Thereafter

police came to Muslewadi and dead body of Aruna

was sent to Primary Health Center, Renapur. After

the post-mortem, he brought the dead body of Aruna

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at Muslewadi and cremated the same.

. During the course of cross-examination,

PW-1 Balasaheb stated that accused Rajabhau is

serving as lecturer in the college at Renapur.

Accused Ramakant, Chandrasen, Chabubai are

agriculturists. Accused Ramakant is illiterate and

Aruna was also illiterate. His family is

agriculturist. He is having five acres of land and

the same is irrigated. He further stated that name

of accused Ramakant was suggested by Narayan and

Ashok. Uttam Jadhav of Muslewadi had also

suggested the name of accused Ramakant. Uttam and

Narayan are sons of his maternal aunt. He further

stated that incident happened on 22nd December,

1998. Dashrath Jadhav and Dnyanoba Jadhav came to

him at 4.00 p.m. and they gave him the message

that Aruna burnt because of bursting of stove and

died. Then he along with his wife and other

persons came to Muslewadi by jeep at about 7.00

p.m. He did not enquire with his relatives about

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the demise of Aruna. Accused paid marriage

expenses of Aruna. After one year of the marriage

of Aruna, marriage of Rajabhau was solemnized in

the month of May, 1998. He further stated that in

June, 1998 he brought Aruna at his house for

delivery. Aruna delivered a female child on 24th

July, 1998. At the end of October, 1998 accused

Chandrasen came to him and had taken Aruna and her

daughter with him at Muslewadi. He further stated

that he has not stated in the report Exhibit-17

that he was to pay remaining amount of Rs.5,000/-

in next year and that on 16th December, 1998 he

paid Rs.5000/- to the accused and the accused told

that during the said period the amount would have

been doubled. He further stated that Aruna's

daughter Pooja is with the accused. He denied that

firstly he gave in writing that he did not want to

lodge report against the accused and thereafter

his villagers told him to take amount of

Rs.1,00,000/- from the accused and hence he filed

false report against the accused.

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8. The prosecution examined PW-2 Ashok

Tatyarao Bhise. He deposed that he knows informant

Balasaheb Kadam, residing at Gadwad. House of

Balasaheb is near his house. He was knowing Aruna,

the daughter of Balasaheb. He was present to

settle marriage of Aruna. An amount of Rs.31,000/-

and one Tola gold was to be given in the marriage.

Balasaheb paid Rs.26,000/- as dowry amount in

marriage and an amount of Rs.5,000/- was to be

paid afterwards. After one and half year of

marriage, Aruna complained about ill-treatment on

account of non-payment of Rs.5,000/-. He along

with Balasaheb had been to Muslewadi. He told the

parents of accused Ramakant not to ill-treat

Aruna. But the ill-treatment was continued.

Balasaheb and he himself had been to the accused

to pay an amount of Rs.5,000/- to parents of

Ramakant. Soon thereafter there was demise of

Aruna. He had been to Muslewadi. He saw dead body

of Aruna.

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. During the course of cross-examination,

PW-2 Ashok stated that Balasaheb is his distant

Bhauband. He did not remember how many days before

the marriage the settlement took place. He did not

remember the date on which Saksh-Gandh took place.

He was present at the time of post-mortem

conducted on the dead body of Aruna. He came to

know the cause of death after post-mortem, that

due to suffocation Aruna died. He received

information that Aruna died because of flames of

stove. In the statement recorded by the police he

stated before the police that he had been to the

accused with Balasaheb to pay an amount of

Rs.5,000/- before demise of Aruna. He was unable

to assign any reason as to why the police has not

mentioned the said fact in his statement. He has

not stated before the police in his statement that

Balasaheb alone went to Muslewadi with amount of

Rs.5,000/- and he came to know about the said fact

when Balasaheb met him in the village. He had

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stated before the police in his statement that

Balasaheb was to pay an amount of Rs.5,000/-. He

was unable to assign any reason as to why the said

fact is not mentioned in his statement. He denied

the various suggestions put to him by the defence.

9. The prosecution examined PW-3 Jyotiram

Madhav Jadhav. He deposed that on 23rd

December,1998 he was called by police to act as a

Panch. Police recorded spot panchnama Exhibit-21

in his presence. Another panch Parshuram was

present with him.

. During the course of his cross-

examination, he stated that house of Ramakant is

situated in thick locality. House of Ramakant

consists of three rooms. Kitchen is to the North.

There is one room and thereafter another room to

the South of the kitchen. There are two doors in

the rooms adjoining to the kitchen, one is for the

kitchen and another for exit. There are two doors

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fixed in the kitchen, one is towards bathroom and

another towards courtyard, facing East and North.

Police recorded inquest panchnama of dead body of

Aruna. Dead body of Aruna was lying in the

kitchen. They did not receive kerosene smell in

kitchen or of dead body. There was aluminum pot

lying by the side of the dead body. Other articles

like stove, pin and utensils were lying in the

kitchen. Police had not broke open the lock or

seized the same. Oily spot found on the spot,

where food was prepared. Burnt pieces of polyster

sari were lying on the spot. There was Parat, tin

of Jawar flour. He further stated that there is a

field of Ramakant in Muslewadi admeasuring 8-9

acres and the accused are cultivating the same

personally. He went to the spot after the incident

at about 11.30 a.m. to 12.00 noon. He knows that

Baburao Shankar Jadhav, Hanumant Jadhav, Dhondabai

Shankar Jadhav were extinguishing the fire. None

of the accused were present on the spot when they

went there. Pooja, daughter of Aruna, was sleeping

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in another room. They sent Ashok Jadhav and

Shankar Jadhav to call accused Ramakant and his

mother Chabubai from field. Accused Ramakant, his

mother and others returned from field. They sent

Nanasaheb and Shankar on motorcycle to call

accused Chandrasen to Dharmapuri. Accused Sunanda,

wife of Rajabhau was called from Patoda by sending

a message of demise of Aruna. Kondiba sent message

to Renapur to accused Rajabhau who came at about

3.30 p.m. All the accused were present at the time

of cremation of dead body of Aruna. Whole body of

Aruna was burnt. Her both hands were turned

towards head.

10. The prosecution examined PW-4 Shagunabai

Mohan Kadam. She deposed that deceased Aruna was

her niece. Marriage of Aruna was solemnized with

accused Ramakant. An amount of Rs.31,000/- was to

be paid as dowry and one Tola gold was to be given

in marriage. An amount of Rs.26,000/- was paid and

it was decided that remaining amount of Rs.5,000/-

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would be paid afterwards. Aruna was treated nicely

for six months and thereafter accused started ill-

treating Aruna. Aruna used to tell her the said

facts. Aruna stated her that accused were ill-

treating her due to non-payment of Rs.5,000/-.

Thereafter her husband and father of Aruna went to

the village of accused for settlement. After eight

days Ashok Bhise and Balasaheb went to the accused

and paid remaining amount. After eight days, two

persons came to her village on motor-cycle and

told that Aruna died. They all went to Muslewadi.

She saw that Aruna was burnt and her dead body was

lying in the kitchen.

. During the course of cross-examination,

PW-4 Shagunabai stated that a person came on

motor-cycle told that Aruna sustained burn injury

because of burst of stove. She denied that sari on

the person of Aruna was burnt because of flames of

stove and her mother extinguished the fire. She

denied that amount of Rs.5,000/- was remained to

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be paid and the same was not paid thereafter. She

denied that Aruna was suffering from Typhoid at

the time of Diwali. Chabubai, the accused is

crippled by one hand.

11. The prosecution examined PW-5 Haribhau

Mukind Shitole. He deposed that Aruna was his

sister's daughter. He deposed about the settlement

of marriage of Aruna with accused Ramakant and

that an amount of Rs.5,000/- towards dowry was

remained to be paid. He further deposed about the

ill-treatment given to Aruna by the accused

persons.

. During the course of cross-examination,

PW-5 Haribhau stated that he did not inquire with

his relatives Ashok and Narayan at Muslewadi about

death of Aruna. Khuntephal is at the distance of 4

to 5 Kms. from Gadwad. He did not know the name of

the persons who had been to Muslewadi and paid the

amount of dowry at the time of marriage.

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12. PW-7 Ashokkumar Dagadu Kshirsagar, P.S.I.

attached to Renapur police station, was the

Investigating Officer. He deposed about the manner

in which he has carried out the investigation in

the crime.

13. The defence examined DW-1 Bhagwat Baliram

Shinde. He deposed that he is serving as clerk in

Shivaji Mahavidyalaya, Renapur since 1993. He

brought original record of their college. The said

record pertaining to the Muster Roll of teaching

staff, notice, certificate issued to accused

Rajabhau and time table. The copies of the said

record are filed at Exhibit-44 to 47. Accused No.2

Rajabhau is serving as Lecturer in their college

in the year 1998. In the year 1998, Shri Borade

was the Principal of the college. Nick name of the

accused Rajabhau is Raja. He further deposed that

college timings in the year 1998 were from 8.10

a.m. to 2.15 p.m. On 24th September, 1998 he

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circulated the notice to the teaching staff of

their college, signed by Principal. He has also

signed the said notice. He obtained signatures of

the Lecturers after circulating the notice. The

notice bears the signature of accused Rajabhau. He

further deposed that on 22nd December, 1998 he was

in the office. After perusing the Muster Roll of

22nd December, 1998 he stated that there is

signature of accused Rajabhau in the Muster Roll

of the said date. Lecturers used to sign in the

Muster Roll in his presence. Accordingly accused

Rajabhau signed the muster roll on the said date.

He further deposed that on 22nd December, 1998,

Principal of their college received police message

from Muslewadi, at about 2.00 p.m. Principal

called him in the cabin and told him to inform

accused Rajaram that wife of his brother was burnt

due to flames of stove. Then he went to the class

of accused Rajaram where he was teaching. He told

the said message to Rajaram and returned to his

office. On 24th December, 1998 accused Rajaram was

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in the college from 8.00 a.m. to 2.00 p.m.

Certificate to that effect was issued to Rajaram

on 28th December, 1998. The said certificate bears

his signature and signature of Principal. As per

time table accused Rajaram had taken four periods

in the college, on that day. Accused resides at

Renapur since prior to the incident.

. During the course of his cross-

examination by the prosecution, DW-1 Bhagwat

stated that the college maintains the register

about receiving of phones. He has not produced the

said register. Rajaram was taking English class in

Room No.2 of B.A. first year. Lecturers used to

sign in muster roll immediately after their

arrival at 8.00 a.m. He used to keep the said

muster roll in the cupboard after Lecturers signed

the same. Muslewadi is 30 Kms. away from Renapur.

14. The defence examined DW-2 Prabhakar

Rangrao Borade. In the year 1998 he was serving as

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Principal of Shivaji Mahavidyalaya, Renapur. He

has corroborated the version of DW-1 Bhagwat. He

deposed that accused Rajaram was present in the

college on 22nd December, 1998. He deposed that he

circulated the notice dated 14th September, 1998

to the Lecturers of the college, stating therein

that all the Lecturers should come to the college

before 8.00 a.m. and should not leave the college

till 3.30 p.m. Certificate Exhibit-46 was issued

by him stating therein that on 22nd December, 1998

accused Rajaram was present in the college

from 8.10 a.m. to 2.10 p.m. Accused Rajaram had

taken the periods on 22nd December, 1998 as per

the time table. He personally saw that accused

Rajaram had taken period on the said day. He

further deposed that on 22nd December, 1998 he

received telephonic message from Muslewadi

informing him that wife of brother of accused

Rajaram received burn injuries due to flames of

stove. He was cross-examined by the prosecution.

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15. The defence examined DW-3 Dnyanoba

Nivruti Jadhav. He deposed that he knows all the

accused who reside at Muslewadi. Wife of accused

Ramakant is dead. The incident happened about two

years from the date of recording his evidence. He

was in the village. The incident happened at about

11.30 a.m. Wife of Ramakant sustained injuries

because of flames of stove. He heard noise, and

went to the spot. He saw that Dhonidba, Baburao,

Hanumant were on the spot. They extinguished the

fire. He also started to extinguish the fire. He

personally extinguished the flames of stove.

Narayan, Ashok, Jyotiram, Parasram, Shobha,

Pratibha and many females assembled on the spot.

He saw brass Parat, one Patile, a tin, a pin of

stove and a pot containing of water in the

kitchen. Nobody from family of Ramakant was

present on the spot. Shankar and Ashok went to

accused Ramakant on motor-cycle and brought

Ramakant. Mother of Ramakant came on the spot few

minutes after arrival of Ramakant. Ramakant was

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brought from field. Shankar and Nanasaheb went to

Dharmapuri on motor-cycle to bring Chandrasen who

had gone there to sell the cotton. Thereafter,

they went to Patoda to inform the incident to

Sunanda, to inform about the incident. He along

with Dashrath went to Gadwad on motor-cycle to

inform the incident to father-in-law of Ramakant.

He told father-in-law of Ramakant that wife of

Ramakant sustained burn injuries because of flames

of stove. He informed about the incident to

relatives of Narayan. The guest of Gadwad inquired

about the incident. They went to police station,

Renapur and afterwards returned to Muslewadi from

police station and resided at Muslewadi at night.

Accused were at Muslewadi during night. On next

day police came to Muslewadi and recorded

panchnama. Then police recorded their statements.

He was present when dead body of deceased was

cremated. Narayan and Ashok are his cousin

brothers. Shobha is wife of Narayan. Relatives

from Gadwad demanded Rs.1,00,000/- to Chandrasen

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and others. Accused refused to pay the amount.

. During the course of his cross-

examination by the prosecution, DW-3 Dnyanoba

stated that accused Chandrasen and Ramakant are

his Bhau-band. Kitchen room was closed when he

went on the spot. Dhondubai pushed the door and

the kitchen was opened. Dhondubai and Hanmant were

at the house of Ramakant before his arrival. They

went on the spot five minutes before his arrival.

Dhondubai and Hanmant were found in kitchen.

Clothes on the person of victim and other clothes

were burning. When he went to the spot, the victim

died. The victim was burning for about 10 to 15

minutes before his arrival. He extinguished the

fire of stove and Dhonubai extinguished the fire

of dead body. He heard the cry of Dhonubai and

Hanmant and went to the spot. He stated that

accused Chandrasen was going to Dharmapuri and he

saw Chandrasen when he was going to Dharmapuri.

Wife of Chandrasen and accused Ramakant did not

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tell him that Ramakant and wife of Chandrasen were

going to field but he knows that Ramakant and wife

of Chandrasen were going to field. Firstly

Ramakant went to the field at about 8.00 a.m. and

his mother went to the field at about 8.30 a.m. to

9.00 a.m. He was standing on the road. He was in

the chowk. He was present when Ramakant and his

mother returned home. He had not seen from where

Ramakant was brought by Dattu. He denied that

Ramakant and his mother set wife of Ramakant on

fire and went outside the house.

16. We have discussed in detail, the entire

evidence brought on record by the prosecution and

defence. In all five accused were tried in the

trial Court, however, the trial Court acquitted

accused No.2 - Rajabhau Jadhav, accused No.3 -

Chandrasen Jadhav and accused No.5 - Sunanda

Jadhav from all charges levelled against them.

Even the present Appellants are acquitted from the

offence punishable under Section 498-A read with

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34 of the I.P. Code. Therefore, there is

considerable force in the submission of the

counsel appearing for the Appellants that in view

of acquittal of all the accused from the offence

punishable under Section 498-A of the I.P. Code,

there was no any motive for commission of an

offence and the motive assumes much importance in

the case based upon the circumstantial evidence.

17. In order to prove the prosecution case,

the prosecution placed reliance upon the

circumstances mentioned by the trial Court in

Para-62 of the impugned Judgment. The trial Court,

in relation to those circumstances, has

appreciated the evidence brought on record and

convicted the Appellants for the offence

punishable under Section 302 of the I.P. Code.

Those circumstances are reproduced herein below:

"1) The place where the tragic incident is happened is in possession and in

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occupation of the accused.

2) Positive opinion of the Doctor that the death was not due to asphyxia as well as apart from 100% burns. If it would have been pure case of burning, there must be evidence of vomiting.

3) No stove was found on the spot. Nothing has stated in the spot panchnama about the stove or stove-pin.

4) There was total absence of any shouts or cries of the victim when she was burning.

5) Blood in heart was not found clotted.

6) DW-3 Dnyanoba Jadhav found that the accused Ramakant and accused Mrs. Chabubai were going to the field and immediately after some time he came on the spot and found that the deceased was burning.

7) At the time of incident accused

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Ramakant and Chabubai were found in the village and other accused were not in the village.

8) The latch of the house of the accused was found bent, and the lock was found broken.

9) In burn, brain is usually shrunken and firm. But in this case the brain was simply found congested.

10) The accused did not inform about the death of victim to the police station, though there was ample time for them to inform about it."

18. So far as the first circumstance is

concerned, it is not in dispute that the place

where the tragic incident is happened is in

possession and in occupation of the accused.

Therefore that circumstance has been proved by the

prosecution.

19. Second circumstance is, positive opinion

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of the Doctor that death was not due to asphyxia

as apart from 100% burns and if it would have been

pure case of burning, there must be evidence of

vomiting. In order to find out the correctness of

the findings recorded by the trial Court that

medical evidence fully supports the prosecution

case, it would be necessary to refer the evidence

of PW-6 Dr. Ramrao. We have already discussed the

evidence of PW-6 Dr. Ramrao. The medical officer

in his cross-examination stated that referring

column No.18-A of post-mortem report he cannot say

definitely as to whether the injuries mentioned in

the said Column are ante-mortem or post-mortem. He

did not notice any injury on any part of dead

body. He did not notice any injuries over the lip

by pressure of teeth. He further stated that

suffocation means blockages of the air-way. He

further stated that it is possible that burn

flames can suffocate. The medical officer agrees

with the opinion given by Dr. Parikh in his

medical jurisprudence page No.376 Vth Edition that

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death may occur without inhaling smoke due to

rapid consumption of Oxygen by intense fire. The

medical officer further admitted that in the

present case cause of death may be possible due to

hot flames causing suffocation. He further stated

that smothering is pressure from outside and in

suffocation there may not be smothering from

outside.

. Thus, it is clear from the evidence of

medical officer PW-6 Ramrao that he has not

expressed the clear opinion that death of Aruna

had occurred due to smothering and thereafter body

of Aruna was burnt by the accused so as to cause

disappearance of the evidence. The medical officer

has admitted that in the present case cause of

death may be possible due to hot flames causing

suffocation. Therefore, it cannot be said that the

medical opinion expressed by the medical officer

completely supports the case of the prosecution.

On the contrary, the admissions given by him in

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the cross-examination makes the prosecution case

doubtful.

20. Coming to the third circumstance that, no

stove was found on the spot and nothing has stated

in the spot panchnama about the stove or stove-

pin, in this respect the evidence of PW-3

Jyotiram, who acted as panch to the spot

panchnama, is material. We have already discussed

his evidence in detail. PW-3 Jyotiram admitted in

his cross-examination that there was aluminum pot

lying by the side of dead body. He further stated

that other articles like stove, pin and utensils

were lying in the kitchen. It appears that the

trial Court did not appreciate the evidence of

PW-3 Jyotiram in its entirety and only proceeded

to conclude that no stove or stove-pin was found

on the spot after perusal of spot panchnama. It is

not correct appreciation of evidence by the trial

Court. Therefore, that circumstance is not proved

by the prosecution. In fact, whether three

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circumstances discussed above are incriminating or

otherwise, has also not been discussed by the

trial Court. it is only the incriminating

circumstances are required to be taken into

consideration while appreciating the

circumstantial evidence brought on record by the

prosecution.

21. The fourth circumstance is that there was

total absence of any shouts or cries of the victim

when she was burning. In that respect, evidence of

DW-3 Bhagwat is important. During the course of

recording his evidence, PW-3 Bhagwat stated that

the incident occurred at about 11.30 a.m. wherein

wife of Ramakant sustained burn injuries due to

flames of stove. He stated that he heard noise and

immediately he went to the spot and tried to

extinguish the fire. Thus, the fourth circumstance

is not proved by the prosecution.

22. The fifth circumstance is that, blood in

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heart was not found clotted. In fact it was for

the concerned medical officer to elaborate on the

said aspect during the course of recording his

evidence, however, it appears that the medical

officer has not highlighted the said aspect during

his deposition.

23. The sixth circumstance is that DW-3

Dnyanoba found that accused Ramakant and accused

Chabubai were going to the field and immediately

after some time he came on the spot and found that

the deceased was burning. DW-3 Dnyanoba deposed in

his examination-in-chief that incident took place

at 11.30 a.m., and during his cross-examination he

categorically stated that Appellant No.1 Ramakant

went to the field at about 8.00 a.m. and his

mother i.e. Appellant No.2 Chabubai went to the

field at about 8.30 a.m. to 9.00 p.m. PW-3

Jyotiram and other prosecution witnesses and also

DW-3 Bhagwat have stated in their evidence that at

the relevant time both the Appellants were in

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their agricultural field. The said field is 2

and 1/2 Kms. away from the house and after the

incident message was sent to them and then

Appellant No.1 along with other accused arrived at

the spot of the incident.

24. Coming to the seventh circumstance that

at the time of incident accused Ramakant and

Chabubai were found in the village and other

accused were not in the village, that circumstance

would support the case of the Appellants and other

co-accused, in as much as, it is their contention

that Aruna died in accidental burns while cooking

food at about 11.00 to 11.30 a.m. It is also

relevant to mention that the medical officer has

stated in his evidence that semi-digested food was

found in the stomach of Aruna. It means before the

said incident which took place in between 11.00 to

11.30 a.m., prior to that in between 8.00 to 9.00

a.m. deceased had break-fast. Apart from this,

medical officer has not mentioned exact/proximate

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time of death of Aruna. Thus, in the present

case, the prosecution has not brought on record

the exact time when the death of Aruna took place.

25. So far as 8th circumstance that the latch

of the house of the accused was found bent and the

lock was found broken, in this respect the

prosecution has not brought on record cogent and

clinching evidence to prove said circumstance.

26. The 9th circumstance is that, in burn,

brain is usually shrunken and firm but in this

case the brain was simply found congested. In that

respect, it appears that the trial Court on its

own referred to the passage on page Nos.237 and

238 of the book, namely, "The Essentials of

Forensic Medicine and Toxicology" of Dr. K.S.

Narayan Reddy, without confronting said passage to

the medical officer. The parties were also not

aware that the trial Court is going to place

reliance upon the said passage from the said book.

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27. The last circumstance is that the accused

did not inform about the death of victim to the

police station, though there was ample time for

them to inform about it. It cannot be taken as

incriminating circumstance and therefore no

reliance can be placed on such circumstance when

the prosecution is not able to establish the chain

of circumstance brought on record.

28. There are also other reasons why the

benefit of doubt deserves to be extended in favour

of the Appellants. It is the case of the

prosecution that accused Chabubai Jadhav pushed

Aruna on the ground, then the accused Ramakant

Jadhav brought pillow and put the same on the

mouth and nose of victim Aruna and set on the said

pillow, accused Chabubai Jadhav caught hold the

legs of Aruna, and Aruna died due to smothering

and suffocation. However, PW-4 Shagunabai admitted

in her cross-examination that Chabubai, the

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accused is crippled by one hand. Therefore, the

prosecution case becomes doubtful as the defence

has brought on record that Appellant No.2 Chabubai

is crippled by one hand and is not physically so

fit. Secondly, the First Information Report was

lodged belatedly with delay of one day, without

any explanation. Therefore, it strengthens the

defence of the Appellants that the informant and

his relatives were asking for an amount of

Rs.1,00,000/- to settle the matter and as they

refused to pay the said amount, the First

Information was lodged with ulterior motive.

29. Admittedly, in the present case there is

no eye witness to the prosecutions case and the

prosecution case is entirely based upon the

circumstantial evidence. So far as the

appreciation of the circumstantial evidence is

concerned, the law is well settled. The Supreme

Court in the case of Hanuman Govind Nargundkar and

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another Vs. State of M.P.1, held thus:

"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 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.

30. The Supreme Court in the case of Sharad

Birdhichand Sarda Vs. State of Maharashtra2 has

held that, the prosecution must stand or fall on

its own legs and it cannot derive any strength

1 AIR 1952 SC 343 2 (1984) 4 SCC 166

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from the weakness of the defence. It is not the

law that where there is any infirmity or lacuna in

the prosecution case, the same could be cured or

supplied by a false defence or a plea which is not

accepted by a Court. It is also to be borne in

mind that the case in hand is a case of

circumstantial evidence and if two views are

possible on the evidence on record, one pointing

to the guilt of the accused and other their

innocence, the accused are entitled to have the

benefit of one which is favourable to them.

31. The Supreme Court in the case of

Shankarala Gyarasilal Dixit Vs. State of

Maharashtra3 in para 13 held thus :

"13. Since this is a case of circumstantial

evidence, it is necessary to find whether

the circumstances on which the prosecution

relies are established by satisfactory

3 AIR 1981 SC 765

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evidence, often described as `clear and

cogent' and secondly, whether the

circumstances are of such a nature as to

exclude every other hypothesis save the one

that the appellant is guilty of the

offences of which he is charged. In other

words, the circumstances have to be of such

a nature as to be consistent with the sole

hypothesis that the accused is guilty of

the crime imputed to him."

. After discussing the circumstances

brought on record and the evidence available

therein, in the case of Shankarala Gyarasilal

Dixit (supra), the Supreme Court observed that

though 12 circumstances have been relied upon by

the prosecution, the important circumstance is

that the appellant therein was present in the

house, was not proved by the prosecution.

Therefore, in the facts of that case, Supreme

Court held in Para-26 of the Judgment that the

crucial link in the chain of circumstances is the

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presence of the appellant in his house at the time

when the dead body of Sunita was discovered. Once

that link snaps, the entire case would have to

rest on slender tit-bits here and there. This

discussion disposes of the second part of the 4th

circumstance, part of 5th circumstance and

circumstances (6) and (7). The Supreme Court

acquitted the appellant therein. In the present

case also the chain of circumstances on which

reliance was placed by the prosecution has not

been established beyond reasonable doubt by the

prosecution. Therefore, benefit of doubt in favour

of the Appellants deserves to be extended.

32. In the light of discussion in foregoing

paragraphs, we are of the considered view that

the entire prosecution case rests upon the

circumstantial evidence and the evidence brought

on record by the prosecution is not cogent,

sufficient and convincing so as to prove the

offence against the Appellants beyond reasonable

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doubt. Therefore, an inevitable conclusion is

that the Appellants are entitled for the benefit

of doubt. Hence we pass the following order:

O R D E R

(I) The Criminal Appeal is allowed.

(II) The impugned Judgment and order dated 6th January, 2001, passed by the Additional Sessions Judge, Latur in Sessions Trial No.59 of 1999 convicting and sentencing Appellant No.1 - Ramakant s/o Chandrasen Jadhav and Appellant No.2 - Chabubai w/o Chandrasen Jadhav for the offence punishable under Section 302, Section 201 read with Section 34 of the Indian Penal Code, is quashed and set aside.

(III) Appellant No.1 - Ramakant s/o Chandrasen Jadhav and Appellant No.2 - Chabubai w/o Chandrasen Jadhav are acquitted of the offence punishable under Section 302, Section 201 read with Section 34 of the Indian Penal

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Code. Fine amount, if deposited as per the impugned Judgment and order, be refunded to the Appellants.

(IV) The Appellants are released on bail during the pendency of this Appeal. The bail bond of the Appellants shall stand cancelled.

(V) Appellant No.1 - Ramakant s/o Chandrasen Jadhav and Appellant No.2 - Chabubai w/o Chandrasen Jadhav shall furnish the fresh personal bonds of Rs.15,000/- each and surety of like amount each under Section 437-A of the Code of Criminal Procedure, before the concerned trial Court at Latur.

[S.M. GAVHANE, J.] [S.S. SHINDE, J.] asb/JUL17