Babu Mahadya Swami C.No.7455 vs The State Of Maharashtra
2017 Latest Caselaw 5172 Bom

                                                   274.2013 Cri.Appeal.odt
                                        1


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                          BENCH AT AURANGABAD

                        CRIMINAL APPEAL NO.274 OF 2013 

          Babu s/o.Mahadya Swami,  
          Age 39 Years, Occ. Labour,  
          R/o. Pokhrani (N), Taluka and 
          District Parbhani.               APPELLANT
                                     [Original accused]
                VERSUS 

          The State of Maharashtra                    RESPONDENT 

                               ...
          Mrs.Sabahat T. Kazi [Appointed], Advocate for 
          the appellant 
          Mr.K.D.Munde, APP for the Respondent/State
                               ...

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

Reserved on : 12.07.2017 Pronounced on : 28.07.2017

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 Ad-hoc

Additional Sessions Judge, Gangakhed, dated

18th December, 2012 in S.T. No.03/2012,

thereby convicting the appellant for the

offence punishable under Section 302 of the

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Indian Penal Code and sentenced to suffer

imprisonment for life and shall also pay fine

of Rs.2000/- [Rs. Two Thousand only], in

default to suffer R.I. for two months.

2. The prosecution case in nutshell is

as under:

A report was lodged by Virbhadra

Shewalkar on 13th September, 2011, at

Gangakhed Police Station, making allegations

that accused Babu Swami had killed his wife

Shivkanya, the sister of the informant.

According to the informant, the marriage of

his sister was performed with the accused

prior to 8 years of the date of the incident.

They had one son, namely Samadhan, who is

residing with his grandmother at village

Wadgaon. The accused and his wife Shivkanya

[hereinafter referred as 'deceased'] were

residing in rented house at Gangakhed. It was

alleged that when the deceased used to visit

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her parental house, she used to make

complaints that her husband is addicted to

liquor, and used to make demand of money, and

also used to beat her. Eight days prior to

lodging of the FIR, she had come to the house

of the informant, and made complaint against

her husband. On 13th September, 2011, the

informant received message from the neighbour

of his sister that Shivkanya is dead, and her

dead body is lying in a pool of blood in her

house. The informant and his parents rushed

to Gangakhed; they saw the dead body of the

deceased in Civil Hospital, Gangakhed. The

informant received information from the

Police that the accused had given blows of

stone crusher [khalbatta] on the head and

face of his wife and killed her. It was also

informed that after death of his wife,

accused went to the Police Station, and made

disclosure about the offence committed by

him.

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3. According to the prosecution case,

the Police Head Constable, Mr. Jawale, was

working as P.S.O. at Gangakhed Police

Station. On 13th September, 2011, at about

6.30 hours, accused went to the Police

Station, he told his name, place of residence

and gave information that he has killed his

wife. In order to ascertain the truth, the

then P.S.O. and other Police Officers went to

the spot, and found dead body of deceased

lying in the pool of blood in the house of

accused. The information was given

immediately to the concerned Police Officers.

They took the accused to his house, which was

situated in Vetal Galli of Gangakhed. The

PSI Mr.Lamture called panchas. After

identification of dead body, the inquest

panchnama was prepared, and the dead body was

sent for postmortem. The brother of deceased

lodged the complaint. On the basis of said

complaint, crime was registered and PSI

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Mr.Lamture was entrusted the investigation of

crime bearing No.169/2011. According to the

Investigating Officer, the accused appeared

before the Police Station, and gave

confession that he had killed his wife. But

he was shouting and talking irrelevant, so he

was sent for medical examination to Sub

District Hospital, Gangakhed, from where he

was referred to Civil Hospital, Ambajogai,

where his sister was taking care of accused.

After receiving relevant papers of

investigation, the Investigating Officer

visited the spot of incident, prepared

panchnama, seized the stone crusher lying on

the spot, and the samples of cement lying on

the ground floor were collected by him. He

called photographer and obtained photographs

of the dead body and situation on the spot.

The Investigating Officer recorded the

statements of the witnesses. The clothes of

deceased were seized. The accused came to be

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arrested and his clothes were seized. All

seized articles were sent to Forensic

Laboratory at Aurangabad. The Investigating

Officer collected necessary documents from

the concerned Hospital. After collecting

sufficient evidence, he filed charge-sheet in

the concerned Court. The offence being

triable by the Court of Session, the case was

committed as per Section 209 of the Criminal

Procedure Code to the said Court.

4. The trial Court framed the charge

under Section 302 of the Indian Penal Code.

It was read over to the accused in

vernacular. He pleaded not guilty and claimed

to be tried. His defence was of total denial.

5. The prosecution examined in all 17

witnesses. After full-fledged trial, the

trial Court convicted the appellant for the

offence punishable under Section 302 of the

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IPC. Hence this Appeal filed by the

appellant- accused.

6. Heard the learned counsel appearing

for the appellant-accused, and the learned

APP appearing for the respondent-State. The

learned counsel appearing for the appellant

submits that it has come in the evidence of

PW-1, Virbhadra Maroti Shewalkar, brother of

deceased i.e. the informant, that there was

dispute between the accused and the deceased

on account of demand of money, and the

accused used to suspect her chastity, but

PW-1, Virbhadra, has failed to point out any

specific incident of the ill-treatment.

PW-1, Virbhadra, has stated in his

examination in chief that the marriage of the

deceased was performed with the accused prior

to 8 years, it means the couple by that time

might have settled in their life. In his

cross-examination, he has admitted that he

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did not lodge any complaint/FIR in the Police

Station about the ill-treatment at the hands

of the accused. There is delay in lodging the

FIR. The FIR is lodged on 13th September,

2011, at 12.30 p.m., and the incident has

occurred at 4.00 a.m.

7. It is further submitted that PW-2,

Maroti Swami, father of the deceased, has

admitted in his cross examination that he

never lodged any complaint to the Police

about the harassment caused to the deceased,

and he did not make enquiry with neighbours

of the deceased, in respect of the incident

of killing of her daughter. He did not make

any enquiry with the neighbour, who had given

the information on phone about the incident.

It is submitted that the prosecution has

failed to prove that there is motive behind

committing the murder of deceased. The law

contemplates that motive plays vital role in

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the case rests upon circumstantial evidence.

It is submitted that the accused has made

extra-judicial confession before PW-3 Sachin

Bhadarge, PW-4 Kailash Javale, PW-9 Ramkishan

Mundhe and PW-17 Vithal Lamture. The extra

judicial confession is very weak piece of

evidence, and if it is made before the Police

Officer then it is not admissible in law. It

has come in the evidence of PW-3 Sachin

Bhadarge and PW-4 Kailash Javale that only

Constable Bhadarge and Mundhe went to the

spot along with the accused. PW-17,

Mr.Lamture, stated in his deposition that he

went to Vetal Galli where the house of the

accused is situate, along with ASI Mundhe. It

means there is contradiction in the version

of these two witnesses on the point of visit

to the house of accused. It is submitted that

PW-3 Sachin Bhadarge, PW-4 Kailash Javale,

PW-9 Ramkishan Mundhe and PW-17 Lamture, all

are the Police Officers, who have stated in

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their depositions that they found blood

stains on the shirt and trouser of the

accused. Still they did not seize the clothes

of the accused. They seized the clothes of

accused at the time of arrest i.e. on 4th

October, 2011. PW-15, Kondiba Musale, is the

panch witness of the panchanama of seizure of

clothes of the accused. He has been declared

as hostile. It appears from the seizure

panchnama that the clothes of accused have

been seized on 4th October, 2011, and

thereafter, on 16th October, 2011, it was sent

to Chemical Analyzer at Aurangabad. The

incident occurred on 13th September, 2011, and

they have sent the clothes for analysis on

16th October, 2011. Thus, there is delay of

more than one month. The prosecution has

failed to establish the complete chain of

circumstantial evidence.

8. It is further submitted that it has

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come in the evidence of PW-17 i.e.

Investigating Officer, that there is delay of

10 days in recording the statement of the

Police Constables i.e PW-3-Sachin Bhadarge

and PW-4-Kailash Javale. PW-17, Lamture, has

admitted in his cross examination that he

prepared panchnama about the seizure of

stone, stone crusher and scabs of cement

plaster before he received the copy of FIR.

It appears from the inquest panchnama that

the inquest panchnama is also drawn before

filing of the FIR. The FIR is lodged at 12.30

p.m. and inquest panchnama is drawn at 9.00

a.m. to 10.00 a.m. Even PW-7, Umakant

Ganacharya, is the panch of the inquest

panchnama. He turned hostile, and did not

support the prosecution case. As such, the

link in the chain of circumstantial evidence

is missing. It is submitted that it has come

in the evidence of PW-17, Lamture, that he

arrested the accused on 4th October, 2011.

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Though the accused was easily available

before the Police for arrest, still there was

delay of 22 days occurred in arresting the

accused/appellant. It is submitted that PW-5

Vanita Yeshwantkar, PW-8 Kalawati Tak, PW-12

Arunabai Kumale and PW-13 Manorama Menkudle

are the neighbours of the deceased. These

witnesses have turned hostile. It has come in

the evidence of PW-5 Vanita Yeshwantkar that

the portion marked 'A', 'B', 'C', 'D' and 'E'

are not recorded as per the say. During her

cross examination, she stated that she cannot

assign any reason as to why the Police

recorded such portion in her statement. It is

submitted that PW-7, Umakant Ganacharya, also

stated that portion marked 'A' in his

statement is not true and correct. He cannot

assign any reason as to why the police had

recorded said portion in his statement. It is

submitted that PW-12, Arunabai Kumale, also

stated that portion marked 'A' in her police

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statement is not correct. She cannot assign

any reason as to why it is written in her

statement by the police. In her cross

examination, PW-12 Arunabai stated that the

Police did not record her statement, only her

signature was obtained on the document. It is

submitted that PW-13, Manorama, also stated

that portion marked 'A' and 'B' in her

statement was not correct. Therefore, there

are omissions in the statements of these

witnesses. During the cross examination of

PW-17, he has stated that as per the say of

the witnesses, he recorded their statements.

The prosecution has failed to examine the

Medical Officer, who had conducted the

postmortem. It appears from the postmortem

report; the cause of death is stated by the

Medical Officer due to head injury. However,

viscera and blood was preserved, final

opinion was supposed to be given after

receipt of C.A. report of viscera and blood.

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Still the prosecution has not taken any

efforts to examine the important witness i.e.

Medical Officer.

9. It is further submitted that as per

the record of Analyzer, the blood detected on

Exhibit Nos.1, 2, 4, 5 and 6 is human.

Exhibit Nos.4, 5 and 6 are stained with blood

of group 'B'. The blood of deceased was also

sent for analysis, and it shows that her

blood group is 'B'. However, the prosecution

did not send the blood sample of the accused

for analysis, and for finding out blood group

of accused. It is submitted that PW-14, Suhas

Pathak, photographer, has admitted in his

cross examination that at the time of taking

the snap, he was not aware whether other

photographers are present or not. He has

admitted in his cross examination that the

photographs are used to be corrected or

altered with the help of photo-shop software

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if there is demand of customer. Such kind of

corrections or alterations can be done. He

has failed to produce the memory card before

the Court. It has come in the evidence of

PW-14, Suhas Pathak that he was called for

snapping photographs by the Investigating

Officer. When he was asked to produce the

receipts and bill, he failed to produce the

same before the Court. The prosecution case

rests upon the circumstantial evidence. But

it appears from perusal of the entire record

that the circumstantial evidence as well as

documentary evidence is not sufficient to

prove the prosecution case. The panch of an

inquest panchnama and seizure panchnama,

turned hostile. The photographer admitted in

his cross examination that at the request of

the customer, he can easily alter or change

the photographs with the help of software.

10. Learned APP appearing for the

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respondent-State invites our attention to the

findings recorded by the trial Court, and

also the notes of evidence, and submits that

the prosecution has proved the case beyond

reasonable doubt. All the circumstances are

brought on record by the prosecution in the

nature of proving the spot of the incident,

the fact that during night of the alleged

incident, the appellant and deceased

Shivkanya were only present in the house.

There is evidence of PW-5 Vanita Yeshwantkar,

PW-8 Kalawati Tak, PW-12 Arunabai Kumale and

PW-13 Manorama Menkudle on record, through

which the prosecution has proved the presence

of appellant in the house at the time of

incident. The clothes of the appellant were

seized. Those were sent to the Chemical

Analyzer. The C.A. report clearly shows that

human blood was detected on those clothes.

Hence, the learned APP appearing for the

respondent-State submits that the appeal may

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be dismissed.

11. We have given careful consideration

to the submissions of the learned counsel

appearing for the appellant-accused, and the

learned APP appearing for the respondent-

State. With their able assistance, we have

perused the entire evidence. The prosecution

relied upon as many as 6 circumstances, which

are appreciated by the trial Court, and

ultimate conviction of the appellant has been

recorded. The said circumstances are as

under:

i] Accused was residing with his wife in the house of Menkudale, situated in Vetal lane at Gangakhed when the incident occurred.

ii] except the accused and his wife, nobody was present in the home in fateful night;

iii] The incident occurred in the house of accused in early morning at or

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before 4.00 a.m. so there is least possibility of any eye witness.

iv] The dead body of wife of accused found lying in the pool of blood in the house;

v] The deceased had injuries on vital part of her body and it has been brought on record that the crush injury observed on her head, face, nose, dislocation of tooths, had occurred due to assault by stone crusher, which was easily available in the house of accused;

vi] The panchnama of spot, seizure of weapon and reports of chemical analysis are pointing out the guilt of accused.

12. So far aforesaid circumstance nos.

(i) and (ii) are concerned, it has been

brought on record by the prosecution through

PW-13 Manorama Menkudale that she has her own

house in Vetal Galli. Her son and daughter-

in-law resides with her. She stated that

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prior to 6 months before the incident,

Shivkanya Swami [deceased] came to her for

asking the premises on rent basis. She had

given part of the portion of her house on

rent basis to the accused and deceased

Shivkanya. She stated that they started

residing at first floor. The appellant was

addicted to liquor. She got message at about

8.00 O'clock that Shivkanya died. However,

she deposed that she does not know how

Shivkanya died. She deposed that it did not

happen that the accused beat to his wife, and

Shivkanya started crying at about 4.00 a.m.

It appears that the said witness was declared

hostile, and thereafter, the learned APP

cross-examined her. During her cross

examination, she stated that she did not tell

that the accused was addicted to liquor and

he used to beat Shivkanya. She further stated

that she saw the dead body of Shivkanya was

lying in the pool of blood. However, she

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denied that she heard cries of Shivkanya or

that she saw the accused going out from the

house. She stated that stone crusher was

lying near the deceased. On the day of

incident, children of accused were not at

home. The deceased and accused were at home

at the time of incident. Shivkanya was good

in nature. She used to do labour work and

family members were dependents upon her. She

further stated that she does not know whether

accused was in his house or not, on the day

of incident.

Upon careful perusal of the evidence

of this witness, and in particular her cross

examination, wherein she stated that she saw

the dead body of Shivknaya lying in the pool

of blood, and on the day of incident the

children of accused were not at home. It has

been proved by the prosecution that the

nature of Shivkanya was good. However, so far

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as the presence of the accused in the house

at the relevant time has been denied by her.

Though at one breath she stated that the

deceased and accused were at home at the time

of incident; however, she stated in her cross

examination that she did not know whether the

accused was in his house or not on the day of

incident. Therefore, the dead body of

Shivkanya was lying in the pool of blood and

the children were not at home during that

night, has been brought on record by the

prosecution.

13. The prosecution examined Arunabai

Nilesh Kumale as PW-12. She stated in her

evidence that she was residing in the room at

ground floor, and the deceased Shivkanya was

residing on first floor. The neighbours

awaken her, and thereafter, she went to the

house of deceased. She saw the dead body of

Shivkanya and the blood fallen on the ground.

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Accused Babu was residing with Shivkanya.

However, she specifically denied that at

about 4.00 a.m. on the day of incident, she

heard shouts of woman on the first floor of

her house. But she felt that it was usual

quarrel of deceased and her husband Babu, who

always used to beat her under the influence

of liquor and after sometime when she was

grooming, she saw the accused Babu going out

from the house.

14. It appears that this witness was

declared hostile, and the learned APP cross

examined her. She stated that after incident

the Police made enquiry with her. She stated

that it is not true that when in the morning

the accused was going out of his house, she

asked him as to what happened, then he told

that he had killed his wife by means of stone

crusher. She stated that it is not true that

accused told in the presence of police that

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he was suspecting character of Shivkanaya and

he committed her murder. She further stated

that the children of accused were sent to his

village and on 12th September, 2011, only the

accused and his wife were present in the

house. She further stated that it is not true

that the accused is addicted of bad vices and

due to his pressure, she is deposing false.

She stated that the police did not record her

statement and only her signature was obtained

on the document. Therefore, it appears that

her evidence before the Court is the

improvement inasmuch as her statement was not

recorded by the Police as per her narration,

and only her signature was obtained on the

blank paper.

15. The prosecution examined Vanita

Chandrakant Yeshwantkar as PW-5. She knows

Shivkanya. Shivkanya was her neighbour.

Shivkanya was residing in the house of

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Menkudale. Her husband was residing with her.

PW-5, Vanita, stated that Shivkanya died,

however, she does not know as to cause of her

death. She was declared hostile. During her

cross examination, she stated that she saw

Shivkanya lying in the pool of blood in dead

condition. She did not see mobile lying near

deceased. She stated that she did not inform

the relatives of deceased Virbhadra about her

death. She also did not give information to

neighbours. She further stated that it is not

true to say that she saw stone crusher having

stained with blood lying near the dead body.

Many persons were gathered near the dead

body. She stated that portion marked 'A', 'B'

and 'C' in her police statement, is not true

and correct. She cannot assign any reason as

to why the police recorded such portion in

her statement. She denied that she told

before the Police that she heard noise of

shouting of Shivkanya when her husband was

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assaulting her by stone crusher. Therefore,

her evidence, at the most, can be useful to

the prosecution to the extent that Shivkanya

was residing in the house of Menkudale with

appellant, and she saw the dead body of

Shivkanya lying in the pool of blood.

16. The prosecution examined Kalawati

Subhash Tak as PW-8. She stated that she

knows the accused Babu. However, she does not

know, where the accused was residing in the

year 2011. She knew Shivkanya by face. She

used to talk with her while passing through

road. Shivkanya told her that 'Maze sakwan

bagha'. She did not know that, Shivkanya

died. She does not know about cause of death

of Shivkanya. It did not happen that the

accused had called this witness in his house,

at that time Shivkanya told her that accused

always used to make quarrel with her, and he

was addicted to drink liquor and suspect

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about her character. She was declared

hostile. The learned APP cross-examined her.

During her cross examination, she stated that

the portion marked 'A' in her statement was

not stated by her.

17. PW-5 Vanita, PW-8 Kalawati, PW-12

Arunabai and PW-13 Manorama are the

prosecution witnesses, on which the

prosecution had placed heavy reliance to

prove the circumstance nos.(i) to (v)

mentioned herein above. If the evidence of

these witnesses is considered carefully, so

far circumstance no.(ii) that except the

accused and his wife, nobody was present in

the home in fateful night is not proved by

the prosecution beyond reasonable doubt.

There is evidence of only PW-12 Arunabai

Kumale wherein she stated that during morning

hours of the alleged incident she felt that

it was usual quarrel of deceased and her

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husband Babu, who always used to beat

Shivkanya under influence of liquor and after

sometime when she was grooming, she saw the

accused Babu going out from the house. There

is no corroboration to her evidence that 'she

saw the accused Babu going out from the

house'. Though she reiterated in her cross

examination that only the accused and his

wife were present in the house. Her version

in the cross examination is not consistent

with her evidence in the examination in

chief. She stated that the Police did not

record her statement, and only her signature

was obtained on the document. Therefore, in

absence of any corroboration to her evidence,

it is not safe to rely upon her evidence.

18. Though PW-13, Manorama, stated in

her cross examination at one breath that on

the day of incident, the accused was at home;

however, further in her cross examination she

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stated that she did not know whether accused

was in his house or not, on the day of

incident. There is no any other evidence,

which would suggest that prior to the said

incident or after the said incident, some

witnesses have seen the accused in the house

or going out of the house. Therefore, though

the prosecution is successful in proving that

the appellant with his wife Shivkanya was

residing in the house of Menkudale on the

fateful night; children were not in the house

and the dead body of Shivkanya was lying in

the pool of blood, nevertheless the evidence

brought on record by the prosecution is not

sufficient, and cogent, which can inspire

confidence to accept the case of the

prosecution that the accused was present

during night of the said incident in the

house, and the possibility of assaulting

Shivkanya by any other person was completely

ruled out by the prosecution. Therefore, so

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far circumstance nos.(i), (iii), (iv) and (v)

are concerned, though those circumstances are

proved by the prosecution to some extent,

however, the prosecution is not able to

connect the accused with the commission of

crime. Therefore, so far circumstance nos.

(ii) and (iii) i.e. except the accused and

his wife, nobody was present in the home in

fateful night, and that the incident occurred

in the house of accused in early morning at

4.00 a.m. are concerned, those have not been

proved by the prosecution beyond reasonable

doubt.

19. So far circumstance no. (vi) i.e.

the panchnama of spot, seizure of weapon and

reports of chemical analysis is concerned,

the alleged incident had taken place on 13th

September, 2011, and the accused was arrested

on 4th October, 2011, and the alleged seizure

of clothes and actual sending of clothes was

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done by the police on 16th October, 2011.

Admittedly, the blood of accused was not sent

so as to determine his blood group. Such type

of belated recovery of clothes, seizure of

clothes and sending of such clothes without

taking any precaution, looses its

significance and such recovery cannot be

believed. The prosecution has not examined

the Medical Officer, who conducted the

postmortem of the deceased Shivkanya.

Therefore, the prosecution case to connect

the appellant with the commission of offence

i.e. murder of Shivkanya, based upon the

circumstantial evidence shall necessarily

fail.

20. The trial Court placed reliance upon

the alleged confessional statements by the

appellant-accused before the various Police

Officers, and to that effect there is

discussion in para no.30 of the impugned

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judgment, and the trial Court concluded that

the evidence adduced by PW3, PW-4, PW-9,

PW-16 and PW-17 is sufficient to hold that

accused gave extra judicial confession in

their presence and in accordance with

information given by him, the dead body of

his wife was found lying in the home. It is

unfortunate that, the aforesaid findings

recorded by the trial Court are against

settled principles of law. The Supreme Court

in the case of Indra Dalal Vs. State of

Haryana1 placing reliance on earlier

pronouncements of the Supreme Court, held

that the conviction cannot be based upon

confessional statements given by the

appellant-accused before the Police Officer

when he is in police custody.

21. In the present case, no reasons are

placed on record by the prosecution

explaining that why the accused was not 1 2015 ALL SCR 2836

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arrested even after 20 days of the incident

though he was available. Therefore, no

reliance can be placed whatsoever on the

confessional statements given by the

appellant before the said Police Officers.

22. So far appreciation of the

circumstantial evidence is concerned, the law

is well settled. The Supreme court in the

case of Hanuman Govind Nargundkar and another

Vs. State of M.P.2, 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

2 AIR 1952 SC 343

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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.

23. The Supreme Court in the case of

Sharad Birdhichand Sarda Vs. State of

Maharashtra3 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

3 (1984) 4 SCC 166

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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.

24. The Supreme Court in the case of

Shankarala Gyarasilal Dixit Vs. State of

Maharashtra4 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 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 4 AIR 1981 SC 765

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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 that

the crucial link in the chain of

circumstances is the 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

274.2013 Cri.Appeal.odt

4th circumstance, part of the 5th circumstance

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

Court acquitted the appellant therein.

In the present case also, the

prosecution has not proved beyond reasonable

doubt that the appellant was seen during

night in the house by the prosecution

witnesses or while committing the alleged

incident or that soon after the incident, he

left the house. In absence of such cogent,

sufficient and convincing evidence, the

crucial link in the chain of circumstances,

the presence of the appellant in his house at

the time of incident is snapped, and

therefore, the benefit of doubt in favour of

the appellant deserves to be extended.

25. In the light of discussion in the

foregoing paragraphs, an inevitable

conclusion is that the appellant is entitled

274.2013 Cri.Appeal.odt

for the benefit of doubt. Hence, we pass the

following order:

ORDER

i] The Criminal Appeal is allowed.

ii] The impugned judgment and order dated 18th December, 2012, passed by the Ad-hoc Additional Sessions Judge, Gangakhed in S.T.No.3 of 2012, convicting and sentencing the accused-Babu Mahadya Swami, for the offence punishable under Section 302 of the Indian Penal Code, is quashed and set aside.

iii] The appellant-Babu Mahadya Swami 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.

iv] The appellant-Babu Mahadya Swami is in jail, he be set at liberty forthwith, if not required in any other case.

274.2013 Cri.Appeal.odt

v] The appellant-Babu Mahadya Swami shall furnish the bail bonds of Rs.15,000/- and surety of like amount under Section 437-A of the Criminal Procedure Code before the concerned trial Court at Gangakhed.

vi] Since Mrs. Sabahat T. Kazi, the learned counsel is appointed to prosecute the cause of the appellant, namely Babu Mahadya Swami, we quantify her fees Rs.7000/-.

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