Balasaheb Namdeo Bhale vs The State Of Maharashtra
2017 Latest Caselaw 4564 Bom

                                                    94.2001 Cri.Appeal.odt
                                        1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                         CRIMINAL APPEAL NO.94 OF 2001 


          Balasaheb s/o.Namdeo Bhale,  
          Age: 35 Years, Occ. Tailoring Work,  
          R/o. Gade-Pimpalgaon, Tal. Parali,  
          District : Beed.                   APPELLANT

                       VERSUS 

          The State of Maharashtra                     RESPONDENT 

                               ...
          Mr.Satej   S.   Jadhav,   Advocate   for   the 
          appellant
          Mr.S.D.Ghayal, APP for the Respondent / State
                               ...

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

Reserved on : 03.07.2017 Pronounced on : 17.07.2017

JUDGMENT: (Per S.S.Shinde, J.):

1. This Appeal is filed by the

appellant-accused, challenging the judgment

and order of conviction passed by the

Additional Sessions Judge, Ambajogai, dated

15th February, 2001, in Sessions Case

94.2001 Cri.Appeal.odt

No.118/1999, thereby convicting the appellant

for the offence punishable under Section 302

of the Indian Penal Code and sentenced to

suffer life imprisonment and to pay fine of

Rs.10,000/-, in default of payment of fine to

suffer further rigorous imprisonment for one

month.

2. The prosecution case in nutshell is

as under:

Sumanbai w/o.Vishwanath Rupnar, the

informant, is residing at Kauthali, Taluka

Parali. A daughter of the informant, namely

Ashabai [deceased], was married with

Balasaheb Namdeo Bhale i.e. the accused,

sometime in the year 1991.

3. Since 1996, the accused along with

his wife Ashabai [deceased], came to reside

in the house of the informant at Kauthali.

The house of the informant was comprised of

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two rooms. The accused and the deceased were

residing in front room, and the informant was

residing in rear room. Since the accused and

the deceased started residing at Kauthali,

the accused was making allegation against the

deceased that she has illicit relations with

others, and he used to ill-treat her, and

used to give threat that he will kill her by

giving electric shock.

4. On 30th November, 1999, at about 8.00

p.m., the accused came to the house after

consuming liquor. The accused made allegation

against the informant and the deceased about

their illicit relations and started giving

abuses. The accused also beat the deceased by

means of fist blows and slaps. At midnight

also, the accused beat the deceased, the

neighbours were gathered for intervention.

The accused enquired with them, whether they

have illicit relations with the deceased, and

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that's why they came to intervene, hence the

neighbours returned to their house.

5. On 1st October, 1999, at about 5.00

a.m. Ashabai [deceased] shouted for help

hence the informant went in the room of the

deceased. The deceased in coherent speech

told that the electric shock was given to

her, and with the help of hand showed the

place where the shock was given. At that time

the accused, by throwing wire from his hand

in the room, ran away. The informant by

lifting saree of the deceased saw that there

was injury on the left buttock of the

deceased.

6. The informant carried the deceased

in rickshaw for taking her to the Hospital at

Parali. However, on the way the death

occurred, hence returned to Kauthali.

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7. The brother of the informant, namely

Vishnu Hake, filed the A.D. report. Then the

A.D. was registered as A.D. No.37/1999. The

Police visited the spot. The inquest

panchnama and spot panchnama were recorded.

The dead body was sent for the postmortem.

The informant lodged the complaint. On the

basis of said complaint, crime was registered

as Crime No.175/1999 for the offence under

Section 302 of the I.P. Code against the

accused. The accused was arrested. During

investigation, the statements of witnesses

were recorded. The provisional certificate of

cause of death and postmortem report were

collected. The electric wires were discovered

at the instance of the accused. After

completion of the investigation, the charge

sheet was filed against the accused under

Section 302 of the I.P. Code in the Court of

the learned Judicial Magistrate First Class,

Parali.

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8. The learned Magistrate committed the

case to the Court of Session as the offence

punishable under Section 302 of the I.P. Code

is exclusively triable by the Court of

Session. The Sessions Court framed the charge

against the accused for the offence

punishable under Section 302 of the I.P.

Code. The charge was read over and explained

to the accused in vernacular. The accused

pleaded not guilty and claimed to be tried.

9. After full-fledged trial, the trial

Court convicted the appellant for the offence

punishable under Section 302 of the IPC.

Hence this Appeal filed by the appellant-

accused.

10. Heard the learned counsel appearing

for the appellant-accused, and the learned

counsel appearing for the respondent-State.

The learned counsel appearing for the

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appellant submits that there is absolutely no

evidence to indicate that the accused gave

electric shock to his wife Asha and committed

her murder. The medical evidence indicates

that the death was due to cardio respiratory

and it took place at about 9.00 a.m. on

01.10.1999 while the prosecution case is that

she received electric shock at about 5.00

a.m. on that day. The evidence of Doctor, who

performed the postmortem examination, does

not show that there was any exit entry of the

electricity and he also admitted that in case

of heart attack sometimes symptoms appear

like symptoms of receiving electric shocks.

The prosecution has tried to bring on record

that there were quarrels between the husband

and wife, and the accused gave electric shock

to her, however, no convincing evidence is

there. The two prosecution witnesses i.e.

neighbourers examined by the prosecution are

not giving convincing evidence. The learned

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Judge has disbelieved the evidence of the

prosecution witness no.6 and prosecution

witness no.5, has admitted that the husband

and wife were living happily. In such

circumstances, there is the only evidence of

mother-in-law of the accused but she also

stated that accused was suspecting her

character. It is submitted that merely

because the appellant left the house on the

date of incident cannot be considered as

circumstance against the appellant. He was

residing in the house of mother-in-law,

namely Sumanbai [PW-4], and in case of his

stay after the alleged incident, there would

have been danger to his life. It is submitted

that nobody saw that the appellant gave

electric shock to the deceased Ashabai. It is

submitted that Tukaram [PW-5] stated in his

evidence that they tried to go in the room of

the accused, they sustained electric shock as

there was wet place, and electric wire was

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laid on it. The another prosecution witness

namely Prakash [PW-6] also stated in his

examination in chief that he along with his

wife went to intervene the quarrel of the

appellant and his wife, when wife of Prakash

[PW-6] touched wall of the house of

Balasaheb, she received electric shock. As

electricity wire was kept outside the door

and because of that his wife sustained

electric shock. The said wire was left

outside from the house of accused. He further

stated that Tukaram Kate [PW-5] also

sustained electric shock. Therefore, he

submits that the evidence brought on record

by the prosecution it clearly shows that

Ashabai died accidental death due to electric

shock. It is submitted that as per the

prosecution case the alleged incident had

taken place at 5.00 a.m. however, the FIR was

registered at 7.00 p.m. It is submitted that

the maternal uncle of the deceased Ashabai

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and brother of Sumanbai [PW-4] registered

accidental death in the morning, even

thereafter the Police Officer proceeded to

cause investigation on the basis of the said

A.D. Therefore, registration of the belated

FIR crates serious doubt about truthfulness

of the prosecution case that the accused gave

electric shock to the deceased Ashabai.

11. On the other hand, the learned APP

appearing for the respondent-State submits

that this is a case wherein the accused has

murdered his wife namely Ashabai by giving

electric shock. The prosecution has

unequivocally proved the charge framed

against the appellant-accused by leading

sufficient evidence in the form of medical

evidence as well as circumstantial evidence,

and the same is rightly appreciated by the

Sessions Court while convicting the

appellant, and the said judgment and order of

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conviction, therefore, needs no interference.

It is further submitted that Dr. Paras

Mendlecha [PW-8], Medical Officer, who has

conducted the postmortem on the body of

deceased. In his report and evidence before

the Court, he has specifically stated that

the cause of death is due to cardio

respiratory arrest due to electric shock. The

injury, which has been seen on the hip of the

deceased, was of cylindrical type, possible

by article i.e. wire, which has been

recovered at the instance of appellant-

accused. He fully supported the prosecution

case that death of Ashabai, who was the wife

of the appellant, is not natural and / or

accidental but homicidal one. The part of the

body of deceased i.e. hip which has been

chosen by the appellant-accused for giving

electric shock is also required to be noted

for ruling out case of the accidental shock.

Sumanbai [PW-4] also stated before the Court

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that when she rushed to the deceased, she by

gesture with the help of left hand showed

that electric shock was given to her on her

left buttock. This also strengthen culpable

homicidal death and rules out accidental

shock death.

12. It is further submitted that the

prosecution, by examining Sumanbai [PW-4],

mother of deceased, Tukaram [PW-5] and

Prakash [PW-6], who are neighbourers, has

proved that the appellant - accused was

suspecting chastity of the deceased and the

informant as well. It has also been stated by

the witnesses that immediately before main

incident of giving electric shock, the

accused has quarreled with the deceased and

beat her during night time also i.e. at 8.00

p.m. and midnight. The prosecution by

examining Sumanbai [PW-4], Tukaram [PW-5] and

Prakash [PW-6] has sufficiently established

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that the deceased was in the room with the

accused on the day of incident. It is also

established that on 30th September, 1999 at

8.00 p.m. and 12.00 p.m. there was quarrel

and the accused beat deceased. It is also

brought on record that the deceased shouted

at 5.00 a.m. on 1st October, 1999 and when

PW-4 to PW-6 went into room; they recorded

the presence of the accused in the room. In

this scenario, it is incumbent upon the

accused / appellant to explain as to how the

death of Ashabai occurred and how she

suffered electric shock injury on her person

that too on her hip. Sumanbai [PW-4] in her

evidence stated that the deceased by gesture

with the help of left hand informed her that

the electric shock was given to her on her

left buttock. This aspect of the matter is

also required to be taken into consideration

while deciding the appeal.

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13. It is further submitted that Laxman

Kishanrao Gaikwad [PW-3] in his evidence

proved the spot panchnama and memorandum of

recovery of wire which has been taken place

at the instance of the appellant - accused.

The inquest panchnama drawn during 14.00 to

15.00 hours. The spot panchnama drawn during

15.15 to 16.00 hours and the postmortem

conducted during 05.00 to 06.00 p.m. on

01.10.1999. After conducting the postmortem,

when it was revealed that the death was

caused due to cardio respiratory arrest due

to electric shock, the accused on 03.10.1999

has made statement in presence of panchas

[PW-3] that he is ready to produce wire which

has been used in giving electric shock to the

deceased. So only after statement of the

accused that wire was recovered. Only because

Laxman [PW-3], the spot panch in his cross

examination admitted that the wire was there

in the room at the time of drawing the spot

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panchnama, recovery of wire at the instance

of the accused connecting him with the crime

cannot be discarded. The use of recovered

wire for the purpose of giving electric shock

to the deceased is the fact within special

knowledge of the accused. At the time of

drawing the spot panchnama, the Investigating

Officer might not have suspected the wire as

incriminating article of crime and therefore

might not have seized that wire. Sumanbai

[PW-4] identified the wire article 1 before

the Court.

14. It is further submitted that in the

complaint Exh.18, Sumanbai [PW-4], mother of

deceased, simply noted that she took deceased

to the Government and Private Hospital and in

next breath she explained that since her

daughter died on the way, she returned with

her dead body to village Kauthali. So she

never intended to note that she actually

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admitted her daughter to any hospital. The

portion marked 'A' in the complaint Exh.18

has to be read with sentence written

thereafter. It is also pertinent to note

that, PW-4 in her deposition she deposed that

her daughter died on the way of Parli and

hence they returned. So factually, there is

no any omission or contradiction in her

deposition to that effect as claimed by

defence. However, by taking aid of so called

reason stated by one Vishnu Shankarrao Hake,

whose company at the time of lodging of the

complaint itself has been denied by the

informant Sumanbai, it was suggested to

Sumanbai [PW-4] that the deceased died due to

vomiting and decentry. The falsity of defence

as suggested in cross examination is also an

additional circumstance against the accused -

appellant. Taking into consideration over all

view of the matter, trustworthy consistent

evidence of prosecution witnesses, the

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evidence of the Medical Officer who conducted

the postmortem, the judgment and order of

conviction for the offence punishable under

Section 302 of the IPC, may kindly be

confirmed by dismissing the appeal of the

accused.

15. We have given careful consideration

to the submissions of the learned counsel

appearing for the appellant, and the learned

APP appearing for the respondent-State. With

their able assistance, perused the entire

evidence brought on record of the prosecution

witnesses, medical evidence and also findings

recorded by the trial Court. In order to

prove whether the death of Ashabai is

homicidal or otherwise, the prosecution

examined Paras Harakchand Mandlecha as PW-8.

In his evidence he stated that, since 1996 he

is serving as Medical Officer at Rural

Hospital, Parali. On 1st October, 1999, the

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dead body of Ashabai Balasaheb Bhale was

referred to the Hospital, Parali, for

postmortem by Rural Police Station, Parali.

He examined the said dead body. The

postmortem was done between 5.00 to 6.00 p.m.

He found following external injuries on the

dead body:

Evidence of electric burn was present on left gluteal region of size 2" x ½" central area of injury is seen congested and peripheral area of wound burnt and fibrosed.

No other injury was seen all over

the body. The injury was ante-mortem. Both

lungs were congested. Brain matter was

congested. Stomach was empty. Mucosa of

stomach was normal. No any abnormal smell

found. Immediately after the postmortem, he

issued provisional certificate about cause of

death. The cause of death was due to cardio

respiratory arrest due to electric shock.

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The certificate now shown to him is the same.

It is in his handwriting. He put his

signature on it. The contents of the same are

correct. Afterwards, he issued the postmortem

report. The postmortem notes now shown to him

are the same. It is in his handwriting and it

bears his signature. Its contents are

correct. There was no evidence of oozing

anything from nose. The injury which he found

on the dead body is possible by article no.1.

If the high voltage passes through the said

wire and the contact of the said wire on the

body is more than 30 seconds, then it may

cause death. But he cannot tell specific

duration of contact of electric wire with

the body.

During his cross examination, he

stated that the injury which he noticed on

the dead body is not possible by spark.

In case of a cloth on the body, it may burn.

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No burn was seen on the clothes of dead body.

He has not noted in the postmortem notes

about the presence of faeces matter on

clothes of the dead body. If he would have

seen, he would have noted. While conducting

P.M., it cannot be predicted whether the

death occurred immediately after electric

shock. Fibrose tissue are seen after 2-3 days

of injury. Witness added that in case of

injury by electric shock, fibrose is seen

immediately around the wound. He did not

refer the said injury to Pathology

Department. Witness added that it was not

necessary. The electric wound having

peripherial portion is burnt and fibrosed and

central part of wound is seen, congested.

The age of injury cannot be said. Exit wound

was not present over the dead body. It is not

necessary that exit wound is necessary in

burn injury. The internal appearance of

organs in electric burn injury and gastro

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entrities is not exactly similar. In

poisoning, presentation of stomach is totally

different than electric shock injury. In case

of heart attack, some organ show changes like

injury by electric shock. The injury which

was seen by him was of somewhat cylindrical

type. He denied suggestion that the injury

noted by him on the dead body was not due to

electric shock. He further denied suggestion

that the death was not occurred because of

electric shock and the death was natural

death. He further denied suggestion that only

because in inquest panchnama it is mentioned

as death due to electric shock, he has

mentioned that the death is due to electric

shock. Viscera was not preserved. He denied

suggestion that he has given wrong opinion

about cause of death.

16. The prosecution examined Sumanbai

Vishwanath Rupnar as PW-4. In her evidence,

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she stated that deceased Ashabai was her

daughter. The incident took place one year

and three months prior. Her daughter married

with Balu Bhale i.e. the accused, seven years

prior to her death. Her daughter and son-in-

law i.e. the accused were residing with her

at village Kauthali. The accused is from

village Bhale-Pimpalgaon. The accused and her

daughter were residing in front room of her

house and she was residing in a rear room.

The accused was doing tailoring work. Her

daughter has one son and two daughters. The

accused and her daughter were residing in

her said room since three years prior to the

incident. The accused was suspecting

character of her daughter and also her

character. The accused also used to ask them

by suspecting their character. The accused

was giving threat to her daughter Asha that

he will kill her by giving shock.

94.2001 Cri.Appeal.odt

17. She further stated that

the incident took place on Thursday. On that

day at 8.00 p.m., the accused beat her

daughter by suspecting her character as

having illicit relations with somebody. At

midnight accused again beat her daughter.

Tukaram and Prakash, who are their

neighbourers, came to their house, for

intervening their quarrel. The accused asked

her daughter that she must be having illicit

relations with those persons who had come to

intervene. Then those persons went to their

house. At about 5.00 a.m., her daughter

shouted. On hearing the shouts, she went in

the room of her daughter. Her daughter, with

the help of left hand, showed that electric

shock was given to her on her left buttock.

Her daughter did not talk anything. When she

went to the room of her daughter, her son-in-

law i.e. the accused ran away. While running,

the accused was having wire in his hand. The

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accused threw the wire in the room itself and

ran away. She saw the buttock of her daughter

by lifting up her sari and there was injury

on her buttock. Faeces matter was also in the

sari. Prakash and Tukaram came to the room of

her daughter because of shouts of her

daughter. She was carrying her daughter in

auto rickshaw to Parali, however, on the way

her daughter died and hence they returned.

Then she lodged the complaint. She put her

thumb impression on the said complaint. The

contents of the complaint now read over to

her, and same are as per her narration. The

accused before the court is her son-in-law.

Article no.2 before the Court is the wire

which was in the hand of the accused and

which was thrown by him in the house.

18. The prosecution examined Tukaram

Vaijinath Kate as PW-5. In his deposition, he

stated that the accused was residing in his

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neighbourhood, adjacent to his house on

eastern side. The accused, his wife and his

mother-in-law Sumanbai were residing in his

neighbourhood. The accused was doing work of

tailoring. The incident took place on

30.09.1999. On that day at 8.00 p.m., he

heard shouts from the house of accused. He

went up to the house of accused. The accused

was beating to his wife. The accused was

telling his wife that he will kill her giving

shock. Prakash Yadav also came to the said

spot along with him. They tried to go in the

room of accused, however, they sustained

electric shock as there was wet place and

electric wire was laid on it. As they went to

intervene, the accused asked them that they

must have illicit relations with his wife,

that's why they came to intervene. At 12.00

night, he again heard shouts which were

coming from the room of the accused. He again

came out of his house and saw that accused

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was beating his wife. The accused also

uttered words that he must have illicit

relations with his wife and that's why he

came to intervene. Aba Ashruba Hake also came

to intervene at 12.00 night. Because of those

allegations of accused against them, they

went to their house, as they became nervous.

At about 5.00 a.m., he again heard shouts

from the room of the accused. He heard shouts

as "Dhava, Mele". He went out of his house.

He went to the room of the accused. The

accused came out of the said room when he

went to his room. The mother of Ashabai was

in the room. Ashabai with the help of her

hand showed that she sustained shock. Ashabai

also uttered some words and told that some

heated substance was touched to her buttock.

Ashabai was carried to the Hospital. In the

morning, he came to know about death of

Ashabai.

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19. The prosecution examined Prakash

Sopanrao Jadhav as PW-6. In his deposition,

he stated that on the west side of Kauthali,

he is residing in new area. On western side

of his house, there was house of Balasaheb

i.e the accused. Since two years prior to

him, the accused was residing in the said

adjacent house. He was residing alongwith his

wife and his children. On 30.09.1999, he

returned to his house at 8.00 p.m. from his

field. He was sitting in his house after

taking dinner. He heard the quarrel between

Balasaheb and his wife. When he went outside

of his house, he saw that Balasaheb was

beating his wife, Ashabai, by means of fist

blows. He went to intervene. So many persons

were gathered there. Balasaheb lifted a stone

for beating and this witness snatched it from

his hand. The said stone was lifted by

Balasaheb for beating his wife. Balasaheb

enquired with this witness whether he has any

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relation with his wife, that's why he came to

intervene and hence he returned to his house.

When he was sleeping in his house at about

midnight, he heard the quarrel. He himself

and his wife went to intervene the quarrel.

When his wife touched wall of the house of

Balasaheb, she received electric shock. As

electricity wire was kept outside the door

and because of that his wife sustained

electric shock. The said wire was left

outside from the house of accused. Tukaram

Kate also sustained electric shock.

Balasaheb, the accused, was giving threat to

his wife that he will kill her by giving

electric shock. They went to their house as

his wife had sustained electric shock. At

about 5.00 a.m. they heard shout which was

coming from the house of accused Balasaheb.

Then he alone went to see what has happened.

When he was going to the house of Balasaheb,

he saw that Balasaheb going out of his house

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and he went on bicycle. When he went to the

house of Balasaheb, mother of Ashabai was

weeping by the side of Ashabai. Ashabai was

unconscious and she did not talk anything.

Mother of Ashabai told them that Balasaheb,

the accused, gave electric shock to his wife.

The said Balasaheb is present in the Court as

an accused.

20. The prosecution examined Rukhmini

Bhagwan Shelke as PW-1. In her deposition,

she stated that she was called by the Police

at the house of Ashabai at Kauthali. There

was one injury on the left hip of deceased

Ashabai Bhale. They have also seen that the

deceased has done latrine in the saree. The

nose and mouth were dry. The police has drawn

the panchnama. The panchnama was read over to

them. Ashabai was another panch. She put her

thumb impression on the said panchnama.

Ashabai also put her thumb impression on the

panchnama.

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21. The prosecution examined Balasaheb

Shankarrao Hake as PW-2. In his deposition,

he stated that on 01.10.1999, he was called

by the Police at the house of Balasaheb Bhale

at Kauthali. Rukhminibai and Ashabai were

also panch with him. They saw the dead body

of Ashabai. Nose of dead body was dry. They

saw one injury on the left hip. The skin from

the said part of injury was removed. There

was faeces matter in the saree. The inquest

panchnama was recorded. He signed on the

said panchnama and Ashabai and Rukhminibai

put their thumb impressions. The panchnama

now shown to him is the same. The contents of

the panchnama are correct. It bears his

signature. The contents of the panchnama were

read over to them.

22. The prosecution examined Laxman

Kisanrao Gaikwad as PW-3. In his deposition,

he stated that on 01.10.1999, he was called

94.2001 Cri.Appeal.odt

by the Police in front of the house of

Balasaheb Bhale, the accused, at Kauthali.

Khandu was another panch. There was one board

having holders and buttons and electricity in

the house of Balasaheb, the accused. There

was one tube and wire. The said wire was

connected to the said board. There was no

electric meter in the said room. The electric

connection was taken with the help of hook

from hanging power-line on the road. The

police recorded panchnama accordingly. The

panchnama now shown to him is the same. He

identified his signature and signature of

Khandu. He stated that the contents of the

panchnama were read over to them. On

03.10.1999, he was called by the Police of

Parali Rural Police Station. Bhaskar Zinzurde

was another panch. Accused Balaji Bhale was

present in the police station. The accused

made statement that he is ready to produce

the wire with the help of which he has taken

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electric connection in his house. Memorandum

of the statement of accused was recorded by

the police. That was read over to them. The

contents were as per statement of the

accused. Then they both panch, accused and

police signed on the said memorandum. The

memorandum shown to him, bears his signature,

signature of another panch, police and of

accused. Then they both panch, police and

accused went to Kauthali in police jeep. The

accused led them to his house. The accused

showed the wire with a hook in the powerlines

on the road, in the backside of the house of

the accused. The accused showed another wire

which was fixed in the board in his house.

The police recorded panchnama. The contents

of the panchnama were read over to them.

Then he signed on the said panch and another

panch also signed on the said panchanama. By

the said panchnama, the police seized those

wires. The panchnama now shown to him is the

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same. It bears his signature, signature of

another panch, PSI and also of the accused.

The contents of the panchnama are correct.

Article Nos.1 and 2 before the Court are the

articles which were seized by the Police

under panchnama. The labels on article nos.1

and 2 bear his signatures. The photographs of

the wire with hook were taken by the police.

The photographs were also taken inside the

house of the accused. The accused before the

Court is the same.

23. We have made extensive reference to

the evidence of all the witnesses in the

foregoing paragraphs. PW-8, Medical Officer,

namely Paras Mandlecha, stated the cause of

death was due to cardio respiratory arrest

due to electric shock. He further stated that

if the high voltage passes through the wire

by which shock was given, and the contact of

the said wire on the body is more than 30

94.2001 Cri.Appeal.odt

seconds, then it may cause death. The

prosecution has not brought on record any

specific evidence to suggest that the high

voltage was passing through the said wire.

PW-8 further stated that he cannot tell

specific duration of contact of electric wire

with the body. PW-8, Medical Officer,

admitted that while conducting postmortem, it

cannot be predicted whether the death

occurred immediately after electric shock. He

further stated that he cannot state the age

of injury. The exit wound was not present

over the dead body. He also stated that in

case of heart attack, some organ shows

changes like injury by electric shock.

However, upon perusal of the postmortem

report, it is mentioned in column 20 [g] i.e.

Thorax - [g] Heart with wight. The remark is

given that N.A.D. i.e. nothing abnormal

detected.

94.2001 Cri.Appeal.odt

The meaning of words 'cardiac arrest'

as stated in Mosby's Medical Dictionary, is

as under:

cardiac arrest, a sudden cessation of cardiac output and effective circulation, usually precipitated by ventricular fibrillation and, in some instances, by ventricular asystole. When cardiac arrest occurs, delivery of oxygen and removal of carbon dioxide stop, tissue cell metabolism becomes anaerobic, and metabolic and repiratory acidosis ensue.

Immediate initiation of cardiopulmonary resuscitation is required to prevent heart, lung, kidney, and brain damage. Also called cardiopulmonary arrest. See also cardiac standstill, cardiopulmonary resuscitation.

The meaning of word 'arrest' as

stated in Mosby's Medical Dictionary is as

under:

94.2001 Cri.Appeal.odt

arrest, to inhibit, restrain, or stop, as to arrest the course of a disease. See also cardiac arrest.

The meaning of word 'arrest' as

stated in Dorland's Pocket Medical

Dictionary, 24th Edition, is as under:

arrest (ah-rest) cessation or stoppage, as of a function or a disease process. cardiac a., sudden cessation of cardiac function. developmental a., a temporary or permanent cessation of development. epiphyseal a., premature interruption of longitudinal growth of bone by fusion of the epiphysis and diaphusis. maturation a., interruption of the process of development, as of blood cells, before the final stage is reached. sinus a., a pause in cardiac rhythm due to a momentary failure of the sinus node to initiate an impulse.

94.2001 Cri.Appeal.odt

24. It is mentioned in the FIR/

complaint by the informant, namely Sumanbai

[PW-4], that Ashabai died at 9.00 a.m. She

stated in her evidence that her daughter was

not in a position to talk but by gesture with

the help of left hand she showed that

electric shock was given to her on her left

buttock. If really the cause of death was due

to cardio respiratory arrest due to electric

shock, and in absence of any immediate

medical treatment, in that case in all

probabilities the deceased Ashabai would

have immediately died, because of failure of

heart functioning, and therefore, there would

not have been possibilities of telling by

gesture by Ashabai [deceased] to Sumanbai

[PW-4], that the electric shock was given to

her on her left buttock by the accused. The

prosecution has not brought on record the

evidence showing what happened to Ashabai

[deceased] from 5.00 a.m. to 9.00 a.m., and

94.2001 Cri.Appeal.odt

about the condition of her health and whether

any treatment was given to her in the said

period.

During her cross examination,

Sumanbai [PW-4] admitted that the business of

tailoring of her daughter and son-in-law was

going well. She further stated that since

inquest till cremation, her brothers and

police were at her village with her. She

further admitted that her brother was knowing

the details of the incident. She further

stated in the cross examination that though

she stated in the complaint that Prakash and

Tukaram arrived at the spot at 5.00 a.m., she

cannot tell any reason why the said fact is

not appearing in the complaint/FIR. She

further stated that children of accused are

with his father, who is aged 70 years. It has

come on record that the FIR/complaint given

by Sumanbai [PW-4] was registered at 7.00

p.m.; in fact brother of Sumanbai [PW-4]

94.2001 Cri.Appeal.odt

filed A.D. at 9.00 a.m. In case brother of

Sumanbai [PW-4] was knowing about the

incident, there was no question of filing the

A.D. We find considerable force in the

argument of the learned counsel appearing for

the appellant that there was no explanation

brought on record by the prosecution in

respect of delay in lodging the

FIR/complaint.

25. It has also come in the evidence of

Sumanbai [PW-4] that Ashabai died at 9.00

a.m., therefore, there is complete mismatch

in the medical evidence, and the evidence of

Sumanbai [PW-4]. If the cause of death is

correct, in that case the deceased Ashabai

would have died immediately. Therefore, the

prosecution case is surrounded by the

suspicious circumstance.

26. It has also come in the evidence of

94.2001 Cri.Appeal.odt

Tukaram [PW-5] that when they tried to go in

the room of accused, they sustained electric

shocks as there was wet place and electric

wire was laid on it. It has also come in his

evidence that Ashabai also uttered some words

and told that some heated substance was

touched to her buttock. He also stated in his

cross examination that the accused and his

wife were happily cohabiting. He further

stated that he had no knowledge whether

Ashabai had illicit relations with anybody.

He further stated that it is not true that at

5.00 a.m. he did not hear any shouts and he

did not go to the room of the accused and did

not see any burn injury on the person of

Ashabai. Therefore, this vital admissions

given by Tukaram [PW-5] creates dent to the

prosecution case inasmuch as there is no

cogent and convincing evidence brought on

record to conclude that it is the accused,

who gave electric shock to the deceased

94.2001 Cri.Appeal.odt

Ashabai, and possibility of accidental death

is completely ruled out.

27. The fact that the appellant

absconded from the spot itself cannot be

incriminating circumstance inasmuch as he has

offered explanation that out of fear he ran

away from the spot. The Supreme Court in the

case of Sk.Yusuf v. State of W.B.1 held that

it is well settled that absconding by itself

does not prove the guilt of a person. A

person may run away due to fear of false

implication or arrest.

28. Prakash [PW-6] also stated in his

evidence that when his wife touched wall of

the house of the accused-Balasaheb, she

received electric shock. He further stated

that out of two rooms, one room is for

tailoring work, and another room is for

residence. He stated in his cross examination 1 [2011] 11 SCC 754

94.2001 Cri.Appeal.odt

that he did not state before the Police that

he went to the house of Balasaheb as he heard

the quarrel. Therefore, the evidence of

Prakash [PW-6] also clearly shows that when

his wife touched wall of the house of

Balasaheb, she received electric shock.

29. The Investigating Officer, namely

Shankar Kharale [PW-7], stated in his

deposition that A.D.No.37/1999 was registered

and investigation was given to him. It has

come on record that the information of A.D.

was given by the brother of Sumanbai [PW-4].

The brother of Sumanbai went to the Police

Station, and A.D.bearing No.37/1999 under

Section 174 of the Criminal Procedure Code

was registered by the Police on his

information. Upon perusal of the evidence of

the Investigating Officer, there is no

explanation given why there was delay in

lodging the FIR. PW-7, Investigation Officer,

94.2001 Cri.Appeal.odt

also stated in his cross examination that the

investigation of A.D. was made over to him at

1.00 p.m. He further stated that it was

transpired during the investigation that when

Ashabai was being taken to the Private

Hospital, she died. Therefore, it is clear

that the death of Ashabai was not spontaneous

or immediately when she received electric

shock. During his cross examination, he

stated that A.D. was given by the brother of

Sumanbai [PW-4]. In his cross examination, he

stated that, portion marked 'A' in the

complaint at Exh.18 was written as per the

narration of Sumanbai [PW-4]. At this

juncture, it would be relevant to reproduce

portion marked 'A' from the complaint/FIR is

as under:

R;kuarj lnjph ?kVuk eh ek>s Hkkokauk dGfoyh R;kauh o eh ijGhyk [kktxh o ljdkjh nok[kk.;kr usys-

True translation of the afore-

mentioned portion is as under:

94.2001 Cri.Appeal.odt

Thereafter, I informed the said incident to my brothers. They and myself took to the Private and Government Hospital at Parali.

28. Therefore, it clearly appears that

Sumanbai [PW-4] immediately informed her

brothers about the incident, and she herself

and her brothers took Ashabai to the

Hospitals. As already observed, A.D. was

registered after receiving the information

from the brother of Sumanbai [PW-4].

Therefore, it was possible to the brother of

Sumanbai or Sumanbai herself [PW-4] to lodge

the FIR immediately, and not the A.D.

Therefore, the delay in lodging the FIR

belatedly at 7.00 p.m. about the incident

which had taken place at 5.00 a.m. creates

serious doubt in the mind about truthfulness

of prosecution story, and particularly when

the A.D. was registered after receiving the

94.2001 Cri.Appeal.odt

information about the incident from the

brother of Sumanbai PW-4.

29. Therefore, in the light of the

discussion in the foregoing paragraphs, it

will have to be held that the prosecution has

not proved beyond reasonable doubt that, the

appellant gave electric shock to Ashabai and

he was responsible for the death of Ashabai.

Therefore, taking over all view of the

matter, it clearly reveals that there is no

chain of circumstance proved by the

prosecution so as to sustain the conviction

of the appellant. The Hon'ble Supreme Court

in the case of Toran Singh Vs. State of M.P.2

held that the case of the prosecution should

rest on its own strength and not on the basis

of absence of explanation or plausible

defence by the accused. In the case of State

of Punjab V/s Bhajan Singh and others3, the

2 AIR 2002 SC 2807 3 AIR 1975 SC 258

94.2001 Cri.Appeal.odt

Supreme Court held that, suspicion, by

itself, however strong it may be, is not

sufficient to take the place of proof and

warrant a finding of guilt of the accused.

The Supreme Court, in case of Kali Ram V/s.

State of Himachal Pradesh4 observed as

under :

"Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought to be established by circumstantial evidence."

30. The Supreme Court in the case of

4 AIR 1973 SC 2773

94.2001 Cri.Appeal.odt

Sharad Birdhichand Sarda Vs. State of

Maharashtra5 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 his innocence, the accused is entitled

to have the benefit of one which is

favourable to him.

31. In the light of discussion in

foregoing paragraphs, an inevitable

conclusion is that the appellant is entitled

5 (1984) 4 SCC 166

94.2001 Cri.Appeal.odt

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 15th February, 2001, passed by the Additional Sessions Judge, Ambajogai in Sessions Case No.118 of 1999, convicting and sentencing the accused - Balasaheb Namdeo Bhale for the offence punishable under Section 302 of the Indian Penal Code, is quashed and set aside.

(III) The Appellant - Balasaheb Namdeo Bhale is acquitted of the offence punishable under Section 302 of the Indian Penal Code. Fine amount if deposited as per impugned Judgment and order, be refunded to the Appellant.

94.2001 Cri.Appeal.odt

(IV) The bail bonds, if any, shall stand cancelled.

              [S.M.GAVHANE]             [S.S.SHINDE]
                  JUDGE                     JUDGE  
          DDC