Bombay High Court
Mankarnabai Shankar Patil vs State Of Maharashtra on 10 July, 2017
Bench: S.S. Shinde
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.327 OF 2001
Mankarnabai w/o Shankar Patil,
Age-28 years, Resident of:Moghan,
Tq. & Dist-Dhule.
...APPELLANT
VERSUS
The State of Maharashtra
...RESPONDENT
...
Mr. Bharat S. Deokar Advocate for Appellant.
Mr.S.D. Ghayal, A.P.P. for Respondent.
...
CORAM: S.S. SHINDE AND
S.M. GAVHANE, JJ.
DATE OF RESERVING JUDGMENT : 04TH JULY, 2017.
DATE OF PRONOUNCING JUDGMENT: 10TH JULY, 2017.
JUDGMENT [PER S.S. SHINDE, J.]:
1. This Appeal is directed against the
Judgment and order dated 26th June, 2001, passed by
the Sessions Judge, Dhule in Sessions Case No.121
of 1998 thereby convicting accused/ Appellant -
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Mankarnabai w/o Shankar Patil for the offence
punishable under Section 302 of the Indian Penal
Code (for short "I.P. Code") and sentencing her to
suffer imprisonment for life and to pay fine of
Rs.2000/-, and in default, to suffer further
rigorous imprisonment for three months.
2. The prosecution case, in brief, is as
under:-
A) Accused Mankarnabai and Mirabai w/o
Shankar Patil (PW-11) are real sisters. Mirabai
got married with Shankar Keshav Patil (PW-12).
Accused Mankarnabai, younger sister of Mirabai got
married with one Eknath Sukdeo Gangurde from
Ravalgaon. She took divorce from him. Since
Mirabai had no issue, with her consent the accused
got married with Shankar Keshav Patil about five
years prior to the incident. Both the sisters were
staying in the house of Shankar Keshav Patil. The
accused gave birth to two daughters namely Monali
and Swati. At the time of incident Monali was
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aged 3 years and Swati was aged 1 ½ years. Accused
was also pregnant of three months. Since she was
pregnant, she was staying at her home with her two
daughters and Shankar and Mirabai were going out
for agricultural work in the morning and were
returning to home in the late evening. Mankarnabai
and Mirabai some times used to quarrel, since
Mirabai had no issue. The accused Mankarnabai used
to neglect her daughters and was not taking proper
care of them as expected. She also used to leave
the house of her husband and used to go to her
parents' house without giving information.
B) On 28th August, 1998 as usual Shankar
(husband of accused Mankarnabai) and Mirabai (real
sister of accused) left their home at about 10.00
to 10.30 a.m., for agricultural field for doing
labour work. The accused had decided to kill her
two daughters. Therefore, she came out of her home
at about 11.30 to 12.00 noon along with her two
daughters. She locked her house and kept the key
with Shakirabai d/o Shaikh Abbas Manyar (PW-2),
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who happens to her neighbour. The accused told
Shakirabai that she was going to the field for
agricultural work.
C) The accused was carrying her daughter
Swati aged 1½ years in her arms, while her another
daughter Monali, aged 3 years, was walking along
with her by catching finger of her hand. Accused
took her path with her two daughters on Dhadare
road. Witness Anil Bapu Patil (PW-3) was grazing
his she buffaloes by the side of Moghan-Dhadare
road. He saw the accused going with her two
daughters towards Dhadare village. The accused
took her two daughters to the well situated in the
field of Zavaru Sonka Patil (PW-10). The said well
is common well of Zavaru Sonka Patil and Rajendra
Nimba Patil (PW-9). Since those were rainy days,
there was ample water in the well. The accused
threw her both daughters in the water of the well
with an intention that they would die by drowning.
Thereafter she hurriedly left the scene of the
offence and started going towards Dhadare village.
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She was wearing nine yard red coloured sari. While
she was going speedily on the road, her movements
were fast and she was looking forward and backward
to take precaution that nobody would see her
committing the offence. Witness Pandurang
Kashinath Gavali (PW-4) was cutting the grass in
the fields, which were adjoining Dhadare road. He
saw the accused alone going towards Dhadare
village. He had also noticed that the accused was
uneasy and her movements were fast. Similarly,
witness Ashok Hiraman Bhil (PW-5) also saw the
accused going alone on the road towards Dhadare
village. At that time he was spreading insecticide
on the cotton crop in the fields of Ashok Gobji
Patil. The fields are adjoining to Moghan-Dhadare
road. This witness had observed that the accused
was going speedily on the road looking forward and
backward and she was wearing nine yard red
coloured sari.
D) At about 5.00 p.m. witness Daga Narayan
Mali (PW-8) was going from the Bandh of the field
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of Zavaru Sonka Patil and saw the dead bodies of
two girls floating on the water of the well. He
got afraid and therefore informed about the same
to the owners of the well - Zavaru Sonka Patil and
Rajendra Nimba Patil. The said fact was
communicated to Police Patil of the village Ramrao
Pundalik Patil (PW-7). All the villagers assembled
near the well.
E) As usual Shankar Keshav, husband of
accused and Mirabai came to their home in the late
evening at about 7.30 to 8.00 p.m. They found that
the accused Mankarnabai and her two daughters were
not at home and the house was locked. They thought
that the accused might have gone to her parents.
On an enquiry with neighbour, they got the keys of
the house from Shakirabi. They came to know that
at about 11.00 a.m. the accused had left the house
with her two daughters Monali and Swati. They also
made local enquiry in the village. At night time
the Police Patil came to their home and told to
Shankar that the dead bodies of his two daughters
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were lying in the well of Zavaru Sonka Patil.
Therefore, Shankar immediately went to the scene
of the offence. He identified the dead bodies of
his daughters Monali and Swati. The accused was
absconding.
F) On that night of 28th August, 1998 Sanjay
Shukla, Police Sub-Inspector (PW-13) was working
in the police station. At about 23.35 hours he was
informed on telephone by Ramrao Pundalik Patil,
Police Patil of village Moghan that two dead
bodies were found in the well of Zavaru Sonka
Patil. On the said information he registered
accidental death in the police station under A.D.
No.22 of 1998 under Section 174 of the Code of
Criminal Procedure.
G) P.S.I. Shukla immediately started
investigation in the matter and he went to the
scene of offence. Two dead bodies of the girls
were taken out from the well with the help of the
villagers. The dead bodies were identified and the
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same were sent to civil hospital, Dhule for
postmortem. Spot panchnama was drawn in presence
of two panch witnesses. Inquest panchnamas' on the
two dead bodies were drawn in presence of panch
witnesses. Then the Investigating Officer recorded
statements of witnesses. While recording
statements of witnesses, it was revealed that an
offence under Section 302 of the I.P. Code had
been committed by the accused and therefore PSI
Shukla filed F.I.R. on behalf of the State in
Mohadi Nagar Police Station and on the basis of
said report, crime under C.R. No.75 of 1998 was
registered. The investigating officer carried out
further investigation in the crime. Accused was
absconding. On 28th October, 1998 accused was
arrested from the house of her relatives at
Shegaon. Further investigation was carried out.
After completion of the investigation, the charge-
sheet was filed against the accused and case was
committed to Sessions Court as offence under
Section 302 of the I.P. Code was triable by the
Sessions Court.
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H) A charge for an offence punishable under
Section 302 of the I.P. Code was framed against
the accused and the same was explained to her. The
accused pleaded not guilty and claimed to be
tried. The defence of accused is of total denial.
3. After recording the evidence and
conducting full fledged trial, the trial Court
convicted accused for the offence punishable under
Section 302 of the I.P. Code and sentenced her to
suffer imprisonment for life and to pay a fine, as
afore-stated. Hence this Appeal by the accused.
4. Mr. Deokar, learned counsel appearing for
the accused/ Appellant submits that there was no
eye witness to the incident and the case of the
prosecution is based on the circumstantial
evidence only. There is no direct evidence against
the accused. He further submits that the chain of
circumstances on which reliance was placed by the
prosecution, has not been established beyond
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reasonable doubt by the prosecution. He further
submits that there are several contradictions,
omissions, discrepancies and improvements in the
evidence of the prosecution witnesses in respect
of various circumstances and therefore reliance
could not be placed on the oral testimony of said
witnesses. He further submits that according to
the prosecution case, on 28th August, 1998 in
between 11.00 a.m. to 1.00 p.m. accused committed
murder of her two minor daughters i.e. Monali -
aged about 3 years and Swati - aged about 1½
years, by throwing them in a well. It is the case
of the prosecution that on the same day at about
5.00 p.m. PW-8 Daga Narayan noticed that dead
bodies of said two minor girls were floating on
the water of well. Learned counsel, referring to
Modi's Medical Jurisprudence and Toxicology,
submits that the entire prosecution case is
unbelievable because normally it takes at least 24
hours time to float the dead body on the surface
of water, in case the body thrown in the water. He
further submits that Monali and Swati were the
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daughters of the accused Mankarnabai and there was
no motive for her to commit murder of her own
daughters. He further submitted that the trial
Court has not properly appreciated the evidence
brought on record and came to the wrong
conclusion.
5. Mr. Deokar, learned counsel appearing for
the accused, submits that there is no direct
evidence to connect accused with crime and there
was no enmity between accused and deceased and
therefore the sole circumstance that deceased were
last seen in the company of accused, is not
sufficient to convict accused. In support of his
submissions, he placed reliance on the exposition
of law in the case of Inderjit Singh and another
vs. State of Punjab1. In support of his submissions
regarding appreciation of evidence when the case
is based on the circumstantial evidence, Mr.
Deokar, learned counsel also placed reliance on
the case of Niranjan Panja vs. State of West
1 A.I.R. 1991 S.C. 1674
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Bengal2. The learned counsel, therefore submits
that the Appeal may be allowed.
6. The learned A.P.P. appearing for the
State submits that the case of the prosecution is
based on the circumstantial evidence and the
chain of circumstances on which reliance was
placed by the prosecution has been established
beyond reasonable doubt. He further submits that
after considering the entire evidence on record
the trial Court has convicted the accused and the
findings recorded are in consonance with the
evidence brought on record. He, therefore submits
that the Appeal may be dismissed.
7. The prosecution examined PW-1 Dr. Avinash
Shamrao Ruikar. He deposed that he alongwith Dr.
S.D. Pagar carried out postmortem on the dead
bodies of Monali and Swati. Regarding the post-
mortem on the dead body of Monali, he deposed that
a rigor mortis was passed of. Postmortem lividity
2 2010(4) Mh.L.J.(Cri.) 102
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was seen on back and it was fixed. There was
whitish blood stained froth coming from mouth and
nostrils. About the external injuries noticed by
him, he deposed that part of right upper limb
medically, lips, both eye lids, left buttock eaten
by aquatic animals partly. On internal
examination, he noticed injuries as mentioned in
Column No.19. her brain was congested, both lungs
were congested, oedemotus and loaded with water,
surface were showing rib marks. In the stomach
about 200 cc. semi-digested food was found,
without any peculiar smell. Mucosa healthy. Her
liver, spleen and kidneys were congested. As per
his opinion, cause of death was asphyxia following
drowning. However, viscera was preserved for C.A.
Viscera report is negative.
. He further deposed that thereafter he
conducted postmortem on the dead body of Swati. On
the external examination he noticed that, rigor
mortis was passed off. Postmortem lividity seen on
back fixed. There was whitish blood stain forth
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coming out of nostrils and mouth. About the
external injuries, he deposed that, part of both
ears, nose lips, right cubital fosa were eaten by
aquatic animal. On internal examination, he found
her brain was congested, both lungs were congested
oedematous and loaded with water. Surfaces were
showing rib marks. In stomach about 100 cc. semi-
digested food without peculiar smell was found,
mucosa was found healthy. Her liver, spleen,
kidneys were congested. Her viscera was preserved
for C.A. Report of C.A. is negative. In his
opinion, the cause of death was asphyxia following
drowning.
. Upon careful perusal of the evidence of
PW-1 Dr.Avinash, it is clear that this witness has
not given the opinion about the exact time of
death of both the girls.
8. Prosecution examined PW-2 Shakirabi d/o
Shaikh Abbas. She deposed that house of accused is
adjoining to her house. She deposed that on the
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day of incident, she was in her house. The time
was 12.00 noon. The accused handed over the keys
of her house. The accused was in her possession
her two daughters by name Monali and Swati. The
accused left the house.
9. The prosecution examined PW-3 Anil Bapu
Patil. He deposed that he knows the accused
Mankarnabai. The incident took place on 28th
August, 1998. In the morning at about 10.00 a.m.
he was grazing his she-buffaloes on the road
leading from Moghan to Dhadare. At that time the
accused Mankarnabai was going for her work with
her two daughters. One daughter was walking with
her and another was on her waist. She was going
towards Dhadare village. Thereafter he came to
know that two daughters of the accused were found
in the well of Bhavadu Sonka Patil.
. Thus if the evidence of this witness PW-3
Anil is compared with the evidence of PW-2
Shakirabi, their version is not consistent and the
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same is contradictory to each other. PW-2
Shakirabi deposed that accused left the house with
her two minor daughters at about 12.00 noon, while
PW-3 Anil deposed that in the morning at about
10.00 a.m. when he was grazing his she-buffaloes
on the road leading from Moghan to Dhadare, at
that time he saw that accused Mankarnabai was
going towards Dhadare village, with her two
daughters.
10. The prosecution examined PW-4 Pandurang
Kashinath Gavali. He deposed that he knows the
accused. On the day of incident at about 12.00
noon he was cutting the grass in the fields
adjoining to Dhadare road. He saw the accused
alone going on the Dhadare road. Her movements
were showing that she was uneasy. Her movements
were fast.
. Thus if the evidence of this prosecution
witness PW-4 Pandurang is perused, he deposed that
On the day of incident at about 12.00 noon when he
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was cutting the grass in the fields adjoining to
Dhadare road, he saw the accused alone going on
the Dhadare road. Thus, as per the version of this
witness PW-4 Pandurang, at 12.00 noon the alleged
offence was already committed and thereafter
accused was going alone on Dhadare road.
11. The prosecution examined PW-5 Ashok
Hiraman Bhil. He deposed that on the day of
incident he was spraying insecticide on the cotton
crop in the fields on the road Moghan to Dhadare.
That time he saw the accused going speedily on the
road looking backward and forward on the road. She
was going on the road alone. That time was about
12.30 noon. The accused had worn 9 yard sari of
red colour.
. Thus all these four prosecution witnesses
i.e. PW-2, PW-3, PW-4 and PW-5, who are the star
witnesses of the prosecution, are not
corroborating with each other and the time of the
alleged incident as given by these three witnesses
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is not at all matching. As per the version of PW-2
Shakirabi, on the day of incident, accused left
her home with her two daughters at 12.00 noon and
if the same is believed to be true, then it was
impossible that PW-3 Anil had seen accused along
with her daughters at 10.00 a.m. on the road
leading from Moghan to Dhadare. Further it is
unbelievable that PW-4 Pandurang had noticed
accused going alone on Dhadare road at 12.00 noon.
Likewise the testimony of PW-5 Ashok is also not
reliable that he has noticed accused alone going
on Moghan to Dhadare road at 12.30 noon.
12. The prosecution examined PW-6 Shankar
Vanaji Gavali. He deposed that his fields are
adjoining to the fields of Zavaru Sonka Patil, in
whose field the well is situated. On the southern
side of his fields, there is a road from Dhadare
to Moghan. Those were rainy days and there was
ample water in the well. The well in question was
constructed well. Thus this witness has given the
description of the well where the incident
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occurred and nothing more than that.
13. PW-7 Ramrao Pundalik Patil is a police
patil of village Moghan. He deposed that the
incident took place on 28th August, 1998. One Daga
Narayan Mali had come to him in the evening time
at about 5.00 to 6.00 p.m. and told him that two
girls had fallen in the well of Zavaru Sonka
Patil. He took 3-4 persons and went to the well of
Zavaru Sonka Patil and noticed that two dead
bodies of girls were floating on the water. Those
were the daughters of accused. He came to home and
gave information to Mohadi Police Station on
telephone. He cannot say how the two girls had
fallen in the well. Thus this witness has deposed
that he has reported the matter to the police, on
telephone.
14. PW-8 Daga Narayan Mali deposed that on
the day of incident, in the evening at about 5.00
p.m. he was in his fields. When he was going from
the Bandh of Zavaru Sonka Patil, the two girls
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were noticed floating on the water of well. Those
girls were dead. He got afraid and informed the
fact to the owner of the well. He does not know
how the girls had fallen in the well. Thus this
witness is examined on the point that he noticed
dead bodies of two girls in the concerned well.
15. PW-9 Rajendra Nimba Patil deposed that
the incident had taken place two years back from
recording of his evidence. He was in his fields.
Zavaru Sonka Patil is his uncle. The well is
common belonging to him and Zavaru Sonka. Daga
Narayan Mali had met him and told him that two
dead bodies of the girls were floating in his
well. The same was informed to the police patil by
his uncle. His uncle had gone to the police patil
for giving information. Thus, this witness is co-
owner of the concerned well.
16. PW-10 Zavaru Sonka Patil deposed that his
fields are situated on Moghan-Dhadare road and
there is a common well in his field. At that time
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there was ample water in the well. The incident
took place about three years back. In the evening
he came to know that two girls had fallen in his
well. Those girls were the daughters of Shankar
Keshav. He cannot say how the girls had fallen in
the water of the well. This witness is also co-
owner of the concerned common well.
17. The prosecution examined PW-11 Mirabai
w/o Shankar Patil. She deposed that Shankar Keshav
Patil is her husband. Accused Mankarnabai is her
sister. She deposed that she had no issue for last
20 years after the marriage. The first marriage of
the accused was solemnized with a person from
village Ravalgaon. Accused took divorce from him
and then she married with Shankar, husband of this
witness. Both the sisters i.e. she herself and
accused were staying in the house of Shankar. At
the relevant time the accused had two daughters,
namely Monali and Swati. They were in the age
group of three years and one year. Accused got
married with Shankar about five years back. At the
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relevant time, the accused was pregnant and
therefore accused used to stay at home and the
witness was going to fields for labour work. The
incident took place three years back. As usual on
that morning she had gone to agricultural fields
for doing labour work alongwith her husband
Shankar. The accused stayed at home with her two
daughters. The witness and her husband came home
at night about 8.00 p.m. They noticed lock to
their residence. One Shaikh Abbas was our
neighbour. The name of his daughter is Shakirabi.
Shakirabi handed over the keys of the house and
told them that the accused had gone to fields
alongwith her daughters. She thought that the
accused might had gone to her parents place and
therefore they made inquiries. At night time at
about 10.00 p.m. the police patil came and
informed them about the incident. She further
deposed that she had no quarrel with the accused.
Accused did not turn home for about two months
after the incident.
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18. The prosecution has examined PW-12
Shankar Keshav Patil. He is father of deceased two
girls. He deposed that he had two wives, namely
Mirabai and Mankarnabai (accused). Mirabai had no
issue. At the time of incident the accused had two
daughters by name Monali and Swati, aged about
three years and two years, respectively. They all
were staying together in one house. One Abbas
Shaikh is his neighbour. Mankarnabai and Mirabai
are real sisters. Mankarnabai had a first marriage
with a man from Ravalgaon. Monali and Swati were
his daughters. Accused got divorce from her first
husband. Mankarnabai and Mirabai were staying
happily in the house. Mankarnabai was giving good
treatment to her two daughters. The incident took
place 2-3 years back. On that morning he left home
with Mirabai and had gone to another agricultural
fields for doing labour work. They left home at
about 10.00 to 10.30 a.m. The accused and her
daughters were at home. In the evening at about
7.30 p.m. he himself and Mirabai came home. They
noticed lock to the house. On enquiry with
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neighbour they got keys of the house from the
daughter of Shaikh Abbas. She told him tht accused
Mankarnabai left home with her two daughters at
about 11.00 a.m. soon after they had left home.
They made local inquiry about the accused and her
daughters, in the village, however they were not
traced. The police patil came at night time and
told him that his two daughters were found dead in
the well water of Zavaru Sonka. Therefore he went
to the well of Zavaru Sonka and identified the
dead bodies of her daughters. Thereafter accused
came to his home after a gap of 1½ month. During
the said period, he had tried to trace her but his
attempts failed. He denied that Mirabai and
Mankarnabai had quarrels in the house.
. As this witness PW-12 Shankar has not
supported the prosecution case, the prosecution
declared him hostile and he was cross-examined by
the prosecution. During the course of cross-
examination, he stated that police had recorded
his statement. He stated that he has not told to
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the police that Mankarnabai and Mirabai had
quarrels on trifle grounds and similarly he has
not told before police that accused Mankarnabai
was ill-treating to her daughters by beating them.
He denied that Mankarnabai (accused) was not
taking care of her children. His attention was
drawn to portion marked "A" of his statement
before the police. He denied that he has stated
the said portion before police. He further stated
that he himself, Mankarnabai and Mirabai came
together in the Court on that day. He stated that
the accused is staying with him from the day when
she returned after the incident. He stated that
the accused had one son and one daughter from him.
He denied that the accused is a hot tempered lady
and she had a dispute with Mirabai and therefore
she dropped the girls in the water of the well.
19. PW-13 Sanjay Shivdas Shukla is the
investigating officer in this crime. He deposed
about the manner in which he has carried out the
investigation of the crime.
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20. PW-14 Kalidas Anandrao Potdar is a police
constable. He deposed that On 28th October, 1998
he was attached to Local Crime Branch, Dhule. He
deposed that Shri Rathod, police inspector of
Local Crime Branch had information that the
accused Mankarnabai was absconding since the
commission of the offence and she had taken
shelter with her relatives at Shegaon. He further
deposed that he along with police party went to
Shegaon and arrested the accused. He further
deposed that on inquiry it was revealed that the
accused had came to Shegaon prior to fifteen days.
. During the course of cross-examination,
PW-14 Kalidas was unable to state when and what
day Mohali police station informed L.C.B. office
that the accused was absconding since the date of
commission of the offence. He was unable to say on
27th October, 1998, as to when Shri Rathod, police
inspector told them about the information that the
accused was hiding herself at Shegaon. He was
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unable to tell the distance between Dhule to
Shegaon. He stated that he had not contacted the
local police of Shegaon because they had the
address of the accused. He was unable to tell the
name of area of Shegaon where accused was found.
He was unable to tell the name of the relative of
the accused in whose house she was found. He was
unable to tell the make and registration number of
the vehicle in which he travelled from Dhule to
Shegaon. He was unable to tell the full name of
the driver of the vehicle. He has not recorded any
statements of the persons from Shegaon.
21. Thus from the perusal of the evidence of
PW-14 Kalidas, it is clear that his version is not
at all believable that he arrested the accused
from Shegaon and therefore reliance cannot be
placed upon his oral testimony.
22. The prosecution examined PW-15 Rohit
Kashiram Rathod, police inspector attached to
L.C.B. Dhule. According to the prosecution this
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witness received the information that after the
commission of alleged offence, accused was hiding
herself at Shegaon and this witness directed PW-14
Kalidas to go to Shegaon and arrest the accused.
However upon careful perusal of the cross-
examination of this witness, it appears that his
version is also not believable and reliance cannot
be placed upon his evidence.
23. We have discussed the evidence of
prosecution witnesses in detail. The prosecution
has relied upon the circumstance that both the
girls (deceased) were lastly seen in the company
of the accused. The evidence of PW-2, PW-3, PW-4
and PW-5 does not corroborate with each others,
since they have stated the different timings. The
prosecution has not proved beyond reasonable doubt
the circumstance of 'last seen together'. Assuming
that even if the prosecution has proved the
circumstance of 'last seen together', that itself
is not sufficient to base the conviction. The
Supreme Court in the case Rambraksh alias Jalim
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vs. State of Chhatisgarh3 held that, it is trite
law that a conviction cannot be recorded against
the accused merely on the ground that the accused
was last seen with the deceased. In other words, a
conviction cannot be based on the only
circumstance of last seen together. Normally, last
seen theory comes into play where the time gap,
between the point of time when the accused and the
deceased were seen last alive and when the
deceased is found dead, is so small that
possibility of any person other than the accused
being the perpetrator of the crime becomes
impossible. To record a conviction, the last seen
together itself would not be sufficient and the
prosecution has to complete the chain of
circumstances to bring home the guilt of the
accused.
24. The Supreme Court in the case of Inderjit
Singh and another vs. State of Punjab, supra, in
Para-2 of the Judgment held that:-
3 A.I.R. 2016 S.C. 2381
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"2. After giving our careful consideration,
we are unable to agree with the Courts
below. These circumstances are not
sufficient to establish guilt of the
accused. It is well settled that in a case
pending on circumstantial evidence, the
prosecution must establish all the
circumstances by independent evidence and
the circumstances so established must form
a complete chain in proof of guilt of the
accused beyond all reasonable doubts. The
circumstances so proved must also be
consistent only with the guilt of the
accused. Among the circumstances relied
upon by the prosecution, in the light of
these principles we find that except the
circumstance No.1, the other circumstances
are not incriminating. In number of cases
it has been held that the only circumstance
namely that the deceased was last seen in
the company of the accused by itself is not
sufficient to establish the guilt of the
accused. It is no doubt true that
deceased's death was homicidal but since
there is no direct witness connecting any
of the appellants with the crime we should
fall back on the circumstantial evidence
and we are of the view that circumstances
relied upon by the prosecution are hardly
sufficient to establish the guilt of the
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accused. The circumstance, i.e. the accused
also had no enmity between the accused and
the deceased and the witness would also
show that the accused also had no enmity
against the deceased. Therefore, this
circumstance is neutral. However, now
coming to the recovery of the gun, the High
Court has acquitted him of that charge. The
only relevant circumstance as pointed above
is that the appellants and the deceased
left the house together in a friendly
manner for bird-shooting. It is needless to
say that no conviction can be passed on
this sole circumstance. In the result, the
convictions and sentences awarded by the
Courts below are set aside. The appeal is
allowed. The appellants be set at liberty."
25. It is to be noted here that the probable
defence taken by accused Mankarnabai cannot be
lost sight of. In her statement recorded under
Section 313 of the Code of Criminal Procedure, the
accused stated that her two daughters had already
gone to the fields with Mirabai and they were
missing. She further stated that she had gone to
Mohadi police station at about 12.00 noon with her
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brother Sharad, who is a auto rickshaw driver, to
lodge a report about missing of her daughters, but
the police present in the police station told her
to come afterwards and so she came back to Dhule
and thereafter she did not go to the police
station. She further stated that she herself and
her brother made attempt to trace her daughters
but she could not trace them and therefore her
younger brother Sharad brought her to Dhule. She
stated that she was arrested at Dhule only and not
at Shegaon.
26. In the present case, the prosecution has
not brought on record the exact time when the
death of two girls took place. The Division Bench
of this Court in the case of Suresh Vithal Parkar
vs. State of Maharashtra4, observed in Paragraph
Nos.12 to 14 as under:
"12. The prosecution, therefore, relies
upon the following circumstances:-
4 2015 ALL M.R.(Cri) 1287
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(a) The homicidal death of deceased Asha in
the house which was occupied by the
appellant and deceased Asha.
(b) Failure of the appellant to explain
under Section 106 of the Indian Evidence
Act about the manner in which deceased Asha
had died, and
(c) Deceased Asha being last seen alive in
the company of the appellant.
"13. As far as the first circumstance is
concerned, it cannot be taken as an
incriminating circumstance. In respect of
the second circumstance i.e. failure of the
appellant to offer any explanation, a
reference at this juncture may usefully be
made to the judgment of the Supreme Court
in Shambu Nath Mehra vs. State of Ajmer5.
The Supreme Court in the aforesaid judgment
has held that Section 106 of the Indian
Evidence Act is not a substitute for the
burden of proof which rests on the
prosecution. In the present case, the
prosecution has not been able to establish
the exact time of death nor has the
prosecution been able to establish the
presence of the appellant in the house at
about the time when the offence was
5 A.I.R. 1956 S.C. 404
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committed. In the absence of such evidence,
the failure of the appellant to offer any
explanation under Section 106 of the Indian
Evidence Act cannot be used as a
circumstance against the appellant nor can
a presumption of guilt be drawn on the
failure of the appellant.
14. The only circumstance, therefore,
against the appellant is the third
circumstance that PW 2 - Umesh, when he had
gone for attending his duty, had seen the
appellant and deceased Asha in the house.
Admittedly, the appellant was residing in
the house and, therefore, his presence in
the house by itself is not suspicious. As
pointed out by us above, the prosecution
has not been able to establish the exact
time of death of deceased Asha and,
therefore, the circumstance that the
appellant and deceased Asha were seen
together by PW 2 - Umesh cannot be said to
be an incriminating circumstance which
would prove the offence against the
appellant beyond reasonable doubt."
27. It is clear from the facts of the present
case that the prosecution case is entirely based
upon the circumstantial evidence. Learned counsel
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appearing for the Appellant rightly placed
reliance on the exposition of law by the Supreme
Court in the case of Vijay Shankar vs. State of
Haryana6. In Para-8 of the Judgment, the Supreme
Court held that:-
"8. There is no eye witness to the
occurrence and the entire case is based
upon circumstantial evidence. The normal
principle is that in a case based on
circumstantial evidence the circumstances
from which an inference of guilt is sought
to be drawn must be cogently and firmly
established; that these circumstances
should be of a definite tendency unerringly
pointing towards the guilt of the accused;
that the circumstances taken cumulatively
should form a chain so complete that there
is no escape from the conclusion that
within all human probability the crime was
committed by the accused and they should be
incapable of explanation of any hypothesis
other than that of the guilt of the accused
and inconsistent with their innocence vide
Sharad Birdhichand Sarda v. State of
Maharashtra7. The same view was reiterated
6 (2015) 12 S.C.C. 644
7 (1984) 4 S.C.C. 116
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in Bablu v. State of Rajasthan8."
28. Upon careful scrutiny of the evidence on
record, the prosecution has not promptly
established the motive for alleged commission of
offence by the Appellant. The quarrel between the
Appellant and Mirabai, the sister of the Appellant
can hardly be the ground for commission of alleged
offence. PW-12 Shankar, husband of the Appellant
did not support the prosecution case and his
evidence shows that the Appellant was taking
proper care of both the daughters. There is also
force in the argument of the counsel appearing for
the Appellant that the entire prosecution case is
unbelievable because as per the opinion given on
Page No.134 in Modi's Book of Medical
Jurisprudence and Toxicology (Twentieth Edition),
generally, time of 24 hours is required for
appearance of dead body on surface of water after
drowning.
8 (2006) 13 S.C.C. 116
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29. 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 Appellant beyond reasonable
doubt. The Supreme Court in the case of Sharad
Birdhichand Sarda Vs. State of Maharashtra9 has
held that, the prosecution must stand or fall on
its own legs and it cannot derive any strength
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 her
innocence, the accused is entitled to have the
9 (1984) 4 SCC 166
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benefit of one which is favourable to her.
30. In the light of discussion in foregoing
paragraphs, an inevitable conclusion is that the
Appellant is 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 26th June, 2001, passed by the
Sessions Judge, Dhule in Sessions Case
No.121 of 1998, convicting the
Appellant - Mankarnabai w/o Shankar
Patil for the offence punishable under
Section 302 of the Indian Penal Code
and sentencing her to suffer
imprisonment for life and to pay a fine
of Rs.2000/- and in default of payment
of fine to suffer further rigorous
imprisonment for three months, is
quashed and set aside.
(III) The Appellant - Mankarnabai w/o
Shankar Patil is acquitted from the
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offence with which she was charged.
Fine amount if deposited as per
impugned Judgment and order, be
refunded to the Appellant.
(III) The bail bond of the Appellant
shall stands cancelled.
[S.M. GAVHANE, J.] [S.S. SHINDE, J.]
asb/JUL17
