Dinesh S/O Ramchandra Thakare (In ... vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 7003 Bom

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

                   CRIMINAL APPEAL NO.89 OF 2016
                                ...


Dinesh s/o Ramchandra Thakare,
Aged about 38 years,
Occupation Teacher,
R/o Murmadi, Tahsil and
District Gadchiroli (In Nagpur Jail)          ..             APPELLANT


                               .. Versus ..

The State of Maharashtra,
Through Police Station Officer,
Police Station Saoli, Chandrapur.             ..          RESPONDENT


Mr. Avinash Gupta, Senior Advocate with Mr. Vishwajeet Singh
Uberoi, Advocate for Appellant.
Mr. N.R. Rode, Additional Public Prosecutor for Respondent.

                               ....


CORAM        : R.K. Deshpande & Manish Pitale, JJ.
RESERVED ON  : September 04, 2017
PRONOUNCED ON : September 12, 2017.



JUDGMENT (per Manish Pitale, J. )

By this appeal, the appellant-accused no.1, has

challenged the judgment and order dated 22.01.2016 passed

by the Sessions Court, Chandrapur, in Special Case No.70 of

2014, whereby the appellant alone has been convicted and

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sentenced under Sections 302, 201, 120-B and 203 of the

Indian Penal Code (IPC), while the other three accused persons

have been acquitted. The appellant has been sentenced to

suffer life imprisonment for offence under Section 302 of the

IPC and shorter sentences of imprisonment for the other

offences, with the substantive sentences running concurrently.

As there is no eyewitness to the incident, this is a case of

circumstantial evidence.

2. The facts of the present case can be summarized as

follows:-

(A) The appellant and his deceased wife Harsha were

married in the year 2001. It was claimed by her father i.e. PW1

Patruji Bhoyar that the appellant and his wife were having

disturbed marital life despite having two sons and they used to

frequently quarrel on the alleged illicit relation of appellant

with one Pushpa. It appears from the material on record that

the appellant and his wife had left from Mokhala for

Chandrapur on 05.01.2014 to visit a doctor leaving behind their

two sons at the house of PW1 Patruji Bhoyar at Mokhala. The

appellant was riding motorcycle while deceased Harsha was

pillion rider. At about 12 in the noon, wife of the appellant

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had called her father i.e. PW1 Patruji Bhoyar stating that she

along with the appellant had reached the doctor at Chandrapur

, who had advised her to get admitted in the hospital, but, as

she had not brought any clothes, she was coming back.

(B) Thereafter, the wife of the appellant again called her

father PW1 at about 4 p.m. and stated that they were leaving

Chandrapur. The appellant has also stated in his oral report

dated 05.01.2014 that he and his wife were on their way back

from Chandrapur on 05.01.2014 and to that extent the events

narrated by PW1 Patruji Bhoyar and the appellant are similar.

It has also come in the oral report of the appellant that when

they were on their way back on the road, at about 10.30 p.m. a

truck with bright headlights came from the front due to which

he applied brakes and at that very moment a truck was

coming from behind, due to which he panicked and the

motorcycle slipped and fell. As a result, both he and his wife

were thrown on the road and the truck coming from behind

struck his wife Harsha on the head, due to which she suffered

serious injuries and died on the spot.

(C) It is claimed by PW1 Patruji Bhoyar that when their

daughter Harsha and the appellant did not return till about 8

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p.m. on 05.01.2014, he tried their mobile numbers. The mobile

phone of Harsha was switched off and that of the appellant

was engaged. It is further claimed by PW1 that, he and his son

PW4 Ujwal Bhoyar went in search on the road and near a field

at Chakpiranji, they saw the appellant showing the torch of his

mobile where the motorcycle was lying and Harsha was lying

dead wrapped in a blanket.

(D) The Police was informed and the appellant as well as

deceased Harsha were taken to the hospital at Saoli where the

appellant was treated for injury on his leg while the dead body

of Harsha was kept in the mortuary.

(E) On the basis of the oral report of the appellant

recorded at about 11.30 p.m. on 05.01.2014, First Information

Report (FIR) No. 1 of 2014 was registered in Police Station

Saoli, district Chandrapur for offences under Sections 279, 336

and 304-A of the IPC against unknown persons. On 06.01.2014

post mortem on the body of the deceased was conducted by

PW8 Dr. Smita Salve. In the post mortem report, the injuries

recorded were as follows:-

"Laceration over left half of skull and skin over

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face surrounding left ear i.e. flap of scalp skin is separated from cranium. Line of separation runs from posteriorly point is 5 cm anterior and 2 cm lateral to lambda on left sides, running vertically downwards upto junction of medial 1/3rd and lateral 2/3rd of eyebrown, running downwards and laterally through upper half of left eyelid and then running vertically downwards from lateral canthus of left eye upto 6 cm lateral to mentum on left side. So the expose part measuring approximately 20 x 20 cm exposing left parietal bone, left frontal bone, left temporal bone, upper half of mastoid bone and lateral 1/3rd of mandibular area including external auditory meatus. Flap is separated from underlying cranium and turn outward with scalp hair. Clotted blood seen over left angle of mouth, nose and right eye without underlying injury."

It was recorded in the post mortem that the cause of death was

intra cranial and extra cranial haemorrhage resulting from

head injury. It was also recorded in the post mortem that as

per the police inquest, cause of death is head injury in road

traffic accident on 05.01.2014 at 10.30 p.m. Thereafter on

09.01.2014, PW1 Patruji Bhoyar i.e. the father of the deceased

Harsha submitted a written complaint before the said Police

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Station claiming that on the next day of the incident, while

discussing about the same, they developed suspicion and

visited the place of the incident. It was claimed by PW1 that

they found blood at the spot of the incident, a pair of black

coloured spectacles, pieces of red bangles, some used

condoms and blood stained bisleri bottle. It was further

claimed by PW1 that when they were standing at the place of

incident, one Narsingh (PW7) came there and gave the

information that while he was travelling on the road he had

seen at about 8.30 p.m. on the date of the incident i.e.

05.01.2014 that a matador was standing at the place of

incident and that a person wearing a black coat was sitting on

a motorcycle near the matador. It was further stated that PW7

Narsingh informed that while on his way back on the same

road, the matador was standing at the place of incident and

that a person was checking its tyre. On this basis PW1

suspected that there was a conspiracy to eliminate his

daughter and therefore, on that basis the written complaint

dated 09.01.2014 (Exh.22) was lodged with the Police Station.

(F) On the basis of the said complaint, on 10.01.2014 at

about 6 p.m. the police seized the aforesaid articles stated by

PW1 in his complaint, from the spot of the incident. Some time

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thereafter, the FIR pertaining to the incident was converted

into offence under Section 302 of the IPC against the appellant

and other three accused. On this basis, on 11.03.2014 the

appellant was arrested at 5 p.m. The other three accused

persons were also arrested between 11.03.2014 and

13.03.2014.

(G) It has come on record that between 13.03.2014 and

18.03.2014, the matador, motorcycle and clothes of the

appellant were seized and on 16.03.2014 a memorandum

under Section 27 of the Evidence Act was prepared, leading to

seizure of a Sattur (Chopper). PW2 Chandrakant is a panch

witness for seizure of all the aforesaid articles seized between

13.03.2014 and 18.03.2014.

(H) On 06.05.2014 a query (Exh.50) was sent to PW8

(Doctor) in respect of the aforesaid weapon i.e. Sattur

(Chopper) inquiring whether the injury suffered by the

deceased could have been caused by the said weapon. On the

same day, PW8 (Doctor) sent a query report (Exh.48) giving an

opinion that the injuries found on the deceased could be

caused by the said weapon i.e. Sattur.

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(I)           On the basis of such investigation and material on

record, the prosecution claimed that the appellant along with

other accused had caused the death of Harsha by using the

said weapon Sattur. On 02.02.2015 the appellant and the

other accused were charged with offences under Sections 302,

201, 120-B read with 34, 203 and 498-A of the IPC.

(J) The prosecution examined 12 witnesses in support of

its case between 27.03.2015 and 07.11.2015 and the

statement of the accused under Section 313 of Cr.P.C. was

recorded on 02.12.2015. On 22.01.2016 the Sessions Court

delivered its judgment holding that only the appellant was

found guilty for the murder of Harsha, on the basis of

incriminating circumstances that had come on record. It was

held that there was no material found against the other

accused and they were acquitted. The judgment of the

Sessions Court does not spell out the chain of incriminating

circumstances leading to the conclusion that the appellant was

guilty. Each individual circumstance forming the chain is not

discernible from the judgment of the Sessions Court, although

it is found that the Sessions Court has rendered the findings

that the death of Harsha was homicidal in nature, that the

appellant had failed to explain as to what happened between 8

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p.m. and 10.30 p.m. on the fateful day, thereby falling foul of

Section 106 of the Evidence Act that the appellant had

intention to eliminate Harsha as he was fed up with her and

that the appellant had failed to give explanation as to why was

the body of the deceased Harsha wrapped in a blanket when

they were found lying on the road by PW1 and PW4. These

were the incriminating circumstances on the basis of which

the Sessions Court concluded that the appellant deserved to be

convicted for the murder of his wife Harsha. Aggrieved by the

said judgment and order of the Sessions Court, the present

appeal has been filed by the appellant.

3. Mr. A.V. Gupta, learned Senior Counsel appearing for

the appellant submitted that the entire approach of the

Sessions Court in the instant case was flawed because the

basic requirement of deciding a case of circumstantial

evidence was not followed by the Sessions Court. It was

submitted that the chain of incriminating circumstances was

required to be identified and it was the duty of the Sessions

Court to have analysed the evidence on record to examine

whether each such incriminating circumstance was proved by

the prosecution and that such chain of circumstances pointed

only towards the guilt of the accused. It was also submitted on

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behalf of the appellant that Section 106 of the Evidence Act

and the burden cast upon the appellant in the instant case was

wrongly applied by the Sessions Court. The appellant had been

medically examined on 11.03.2014 upon his arrest and the

document pertaining to the same recorded that there were

accident injury marks on his body, but, this vital document was

suppressed by the prosecution. The learned counsel submitted

that the appellant was ready to admit the said document,

which clearly pointed towards the truthful nature of the oral

report dated 05.01.2014 submitted by the appellant regarding

the accident which led to the death of his wife Harsha. It was

submitted that such suppression by the prosecution deserved

an adverse inference. It was further submitted that the

Sessions Court adopted a predetermined approach and,

therefore, it looked at the material on record in a defective

manner, only with the approach of some how finding the

appellant guilty. In this process, it was submitted that even the

statement of the appellant under Section 313 of the Cr.P.C.

was also wrongly split and it was sought to be used as an

admission against the appellant. It was also pointed out that

the Sessions Court completely lost sight of the fact that no

blood stains were found on Sattur (Chopper), the weapon

allegedly used by the appellant to cause the death of Harsha.

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The learned Senior Counsel relied upon the judgments of the

Hon'ble Supreme Court in the case of Hanuman Govind

Nargundkar and another .vs. State of M.P. - A.I.R. 1952

S.C. 343; Dwarka Prasad .vs. State of Uttar Pradesh -

1993 (1) Crimes 1975 (SC); Manu Sao .vs. State of

Bihar - (2010) 12 SCC 310 and the judgments of this

Court in The State of Maharashtra .vs. Appasaheb -

2016 ALL MR (Cri) 575 and Janardhan Ramaji @ Ramrao

Bannagare .vs. State of Mahaashtra- 2016 ALL MR

(Cri) 1667.

4. Per contra, Mr. N.R.Rode, learned Additional Public

Prosecutor , appearing on behalf of the respondent-State,

submitted that the evidence and material on record had been

correctly appreciated by the Sessions Court to cull out

incriminating circumstances, while holding the appellant

guilty. The learned APP relied upon the findings of the Sessions

court and prayed for dismissal of the appeal.

5. We have heard the learned counsel for the appellant

and the respondent and we have perused the appeal paper

book along with the record. The present case is one of

circumstantial evidence and there are rival versions of the

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same incident. On the one hand is the version of the appellant

wherein it is claimed that a road accident occurred on

05.01.2014 at about 10.30 p.m. leading to the death of the wife

of the appellant. On the other hand, is the version of the

prosecution that the appellant used a weapon, Sattur

(Chopper), to kill his wife Harsha, being fed up with her and

that he gave it a colour of accidental death. The evidence and

material on record has to be analysed to find out as to whether

the version of the prosecution is proved beyond reasonable

doubt, in order to sustain the conviction and sentence imposed

by the Sessions Court by the impugned judgment and order.

6. Before we proceed to do so, it would be beneficial to

take into account the principles laid down by the Hon'ble

Supreme Court while dealing with cases concerning

circumstantial evidence. In the case of Sharad Birdhichand

Sarda .vs. State of Maharashtra - (1984) 4 Supreme

Court Cases 116, the Hon'ble Supreme Court has laid down

classic principles in this context, which have been followed

consistently. These five principles are embodied in paragraph

153 of the aforesaid judgment, which reads as follows:

"153. A close analysis of this decision would

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show that the following conditions must be

fulfilled before a case against an accused can

be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra ((1973) 2 SCC 793), where the following observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."

(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except

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that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

7. The Hon'ble Supreme Court has held in the case

Sujit Biswas .vs. State of Assam - (2013) 12 Supreme

Court Cases 406 that suspicion, however, grave, cannot take

place of proof and that the Court must dispassionately

scrutinize the evidence on record, so as to ensure that its

findings regarding guilt of a person are not based on

conjectures or suspicion. In the said judgment, in paragraph

13, it has been held as follows:-

"13. Suspicion, however grave it may be,

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cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be

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given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343; State v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., (2012)5 SCC 777. "

8. In this context, it would be apposite to refer to the

judgment of the Hon'ble Supreme Court in the case of

Hanuman Govind, Nargundkar .vs. State of M.P. (supra)

strongly relied upon by the learned Senior Counsel appearing

for the appellant, wherein it has been stated that in cases of

circumstantial evidence, there is always a danger that a

conjecture or suspicion may take the place of legal proof. In

paragraph 10 of the said judgment, the Hon'ble Supreme Court

has held as follows:-

"10. Assuming that the accused Nargundkar had taken the tenders to his house, the prosecution, in order to bring the guilt home to the accused, has yet to prove the other facts referred to above. No direct evidence was adduced in proof of those facts. Reliance was placed by the prosecution and by the courts

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below on certain circumstances, and intrinsic evidence contained in the impugned document, Exhibit P-3A. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore ,it is right to recall the warning addressed by Baron Alderson, to the jury in Reg v. Hodge ((1838) 2 Lewin 227), where he said :-

"The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to from parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead ,itself to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."

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

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nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned Advocate-General on behalf of the State we have not been able to discover any such evidence either intrinsic within Exhibit P- 3A or outside and we are constrained to observe that the courts below have just fallen into the error against which, warning was uttered by Baron Alderson in the above mentioned case. "

9. Keeping the said principles in mind, when the

impugned judgment and order passed by the Sessions Court is

perused, it becomes clear that there has been a failure on the

part of Sessions court to even identify incriminating

circumstances forming a chain, which point towards the guilt of

the appellant. As the incriminating circumstances have not

been clearly identified, there is no chain of circumstances

evident from the impugned judgment and order, which can be

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discerned and appreciated, for analysing its correctness or

otherwise.

10. The learned APP appearing for the respondent-State

was unable to demonstrate any such chain of incriminating

circumstances discernible from the judgment of the Sessions

Court. Even otherwise, on the basis of the evidence and

material on record, the learned APP was unable to identify and

establish any such chain of incriminating circumstances

pointing towards the guilt of the appellant. The learned Senior

Counsel appearing for the appellant vehemently contended

that this was a fundamental flaw in the impugned judgment

and order of the Sessions Court and that only on this count it

deserves to be set aside. But, he further contended that if at

all any incriminating circumstances could be culled out from

the impugned judgment and order of the Sessions Court, they

were not proved beyond reasonable doubt and in any case,

they do not form a chain of circumstances pointing only

towards the guilt of the appellant.

11. We have given our thoughtful consideration to the

contentions raised on behalf of the appellant as well as the

respondent-State. We find that considering the manner in

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which the judgment and order of the Sessions Court has been

delivered, we are called upon to analyse the entire evidence

and material on record to find whether there is any chain of

circumstances that emerges and whether it proves the guilt of

the appellant beyond reasonable doubt.

12. It would be necessary to consider the oral and

documentary evidence on record to appreciate as to whether

the prosecution has been able to prove its case. An analysis of

the evidence of 12 prosecution witnesses would be necessary.

PW1 Patruji Bhoyar and PW4 Ujwal Bhoyar are the father and

brother of the deceased. Their evidence shows that on the

date of the incident, when they reached the spot they found

the appellant and the deceased lying on the road with the

appellant in injured condition and the body of the deceased

lying nearby. It is also admitted by them that the Police took

the appellant for treatment to the hospital. On the basis of the

oral report dated 05.01.2014 submitted by the appellant, the

FIR concerning the accident was registered. Thereafter, the

conversion of the offences to that of Section 302 of the IPC

against the appellant is entirely based on the complaint dated

09.01.2014 submitted by PW1. In this complaint the allegation

that the appellant had caused the death of the deceased

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Harsha, is based solely on the facts communicated to PW1 by

PW7 Narsingh, who claimed to have passed the spot of the

incident thrice between 8 p.m. and 11 p.m. on the fateful

night.

13. Thus, the complexion of the prosecution case

changed dramatically on the basis of the claims made by PW7

Narsingh. The Sessions Court also found the said PW7 to be the

only link for the allegation of murder to be sustained against

the appellant and, therefore, in paragraph 18 of the impugned

judgment, the Sessions Court has stated that PW7 Narsingh is

"star witness" to the prosecution. In this situation a

threadbare analysis of the evidence of PW7 Narsingh becomes

necessary. A perusal of the examination-in-chief and the cross-

examination of the said witness, which runs into only five

paragraphs, shows that the following facts emerged:-

(i) PW7 saw a matador at the spot of the incident at

about 8 p.m. when he was proceeding from Vyahad to Mul on

his motorcycle;

(ii) PW7 again saw the said matador standing near

the spot of the incident at about 9 p.m. when he was

proceeding in his car from his house towards Gadchiroli. He

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also saw a person sitting on a motorcycle near the matador

and that another person was watching the wheel of the

matador;

(iii) PW7 was on his way back from Gadchiroli to Mul

at about 11 to 11.30 p.m. when he did not see any vehicle near

the spot of the incident.

14. PW7 claimed that when the Police told that an

accident had taken place at the spot, he stated that he did not

feel that any accident had taken place because the matador

and the motorcycle were standing at the spot at the relevant

time. Apart from the aforesaid facts that emerge from the

evidence of PW7 Narsingh, there is nothing else that comes on

record and we fail to understand how the said evidence of PW7

Narsingh shows any incriminating circumstances pointing

towards the guilt of the appellant for the murder of his wife

Harsha.

15. In this situation, it becomes necessary to consider as

to what factors persuaded the Sessions Court to hold that the

appellant was guilty and that he was responsible for the

murder of his wife Harsha. As we have observed hereinabove,

the incriminating factors found by the Sessions Court in the

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impugned judgment against the appellant are homicidal death

of Harsha, as opposed to accidental death claimed by the

appellant, the failure of the appellant to explain as to what

happened between 8 p.m. and 10.30 p.m. on the fateful night,

evidence on record that the appellant was "fed up" with his

wife Harsha and that he had intention to eliminate her and his

failure to explain as to why the body of deceased Harsha was

found wrapped in a blanket at the spot of the incident when

PW1 and PW4 reached the spot.

16. We proceed to evaluate each of these circumstances

or factors that led the Sessions Court to hold the appellant

guilty. The Sessions Court reached the finding that the death

of Harsha was homicidal mainly on the basis that the evidence

of the Doctor i.e. PW8 showed that the death of Harsha was

caused by blow of Sattur as the blow resulted in cut skin of

skull and fracture of left parietal bone. The Sessions Court

reached the said finding of homicidal death also on the basis

that if Harsha had fallen on the road and the truck coming from

behind had caused the injury, the tyre of the truck would have

injured her head and further that there was no corresponding

injury to other parts of the body of Harsha. We find that both

these factors relied upon by the Sessions Court are untenable

24 Appeal89-16.odt

because a perusal of the evidence of the Doctor (PW8) shows

that all that she has stated is that the Sattur (Chopper) is

capable of causing the injuries found on the body of the

deceased. But, it is also admitted by PW8 in her cross-

examination that there were no blood stains on the chopper

and further that the injuries suffered by the deceased could be

caused due to dash and being run over by speeding vehicle. It

was also clearly stated by PW8 that intra cranial and extra

cranial haemorrhage suffered by the deceased could be

caused in a motor accident. Thus, there is nothing in the

evidence of PW8 to connect the Sattur (Chopper) with the

death of the deceased Harsha and in fact there is enough

material in the evidence of PW8 to show that the death could

be attributed to a motor accident. Therefore, it is evident that

the Sessions Court has completely misread the evidence of the

Doctor (PW8). The Sessions Court has also erred in holding

that it could not be accidental death because injury by tyre of

the truck would have been caused because the deceased

Harsha had fallen on the road. There is no evidence on record

in support of this finding. We cannot appreciate this approach

of the Sessions Court in holding that the death of Harsha was

not accidental and that it was homicidal.

25 Appeal89-16.odt

17. The Sessions Court has also erred in applying Section

106 of the Evidence Act and holding that the appellant had

failed to discharge the burden of giving a reasonable

explanation as to what happened on the fateful night between

8 to 10.30 p.m. We find that the appellant had stated in his

oral report about the manner in which the accident took place

at about 10.30 p.m. in the night of 05.01.2014 to the Police, on

the basis of which the first information was initially registered

on 05.01.2014 under Sections 279, 336 and 304-A of the IPC

against unknown persons. The evidence of PW1 (father of the

deceased) and PW4 (brother of the deceased) also shows that

they found the appellant in an injured condition lying on the

road, that the motorcycle and the dead body of his wife Harsha

were also lying on the side of the road. Apart from this, in his

statement under Section 313 of the Cr.P.C., the appellant had

clearly given the details and the manner in which the accident

took place on the fateful night and that his father-in-law (PW1)

reached the spot and the Police admitted him to the hospital.

But, the Sessions Court has read the statement of the appellant

under Section 313 of the Cr.P.C. against him on the ground that

when he claimed that he and his deceased wife Harsha had

fallen on the road and that truck had given the dash on the

head of deceased Harsha, the injury ought to have been

26 Appeal89-16.odt

caused by the tyre of the truck, as they were lying on the road

and the deceased was not in sitting or standing position. In

other words, the Sessions Court did not take into account the

explanation of accident given in the statement under Section

313 of the Cr.P.C. and only chose to misinterpret the part of the

statement about the appellant and the deceased having fallen

on the road, to conclude that the explanation given by the

appellant was not believable.

18. Such part rejection and splitting of the statement of

the accused under Section 313 of the Cr.P.C. cannot be

permitted, as laid down by the Hon'ble Supreme Court in the

case of Dwarka Prasad .vs. State of Uttar Pradesh

(supra). In fact, in the judgment in the case of Manu Sao .vs.

State of Bihar (supra), the Hon'ble Supreme Court has held

that even if the Courts rely upon a portion of the statement of

the accused under Section 313 of the Cr.P.C. , it cannot be

used to hold the accused guilty without considering the entire

evidence in conjunction with such portion of statement and

that such portion should not be considered in isolation.

Applying the aforesaid principles, it is evident that the finding

of the Sessions Court in this regard against the appellant is

wholly erroneous and unsustainable.

27 Appeal89-16.odt

19. The circumstances regarding appellant being "fed up"

with his wife and having intention to eliminate her are also not

forthcoming from the evidence on record. The Sessions Court

has relied on the evidence of PW11 Dinesh to hold against the

appellant in this regard. But a perusal of the evidence of the

said witness, at worst, shows that the appellant intended to

divorce his wife Harsha and that PW11 Dinesh tried to dissuade

him from doing so. Thus, the finding of the Sessions Court on

this score is also not sustainable.

20. The only remaining incriminating circumstance held

by the Sessions Court against the appellant is his failure to

explain as to why the body of deceased Harsha was found

wrapped in a blanket at the spot of the incident. We fail to

understand as to how merely because the body of the

deceased Harsha was found wrapped in a blanket, could be a

circumstance to conclusively hold against the appellant for the

death of his wife Harsha. Only this circumstance in isolation

cannot be said to be enough to point towards the guilt of the

appellant.

21. Apart from the aforesaid incriminating circumstances

28 Appeal89-16.odt

or factors as enumerated in the judgment of the Sessions Court

being unsustainable, we have also analysed the evidence of

other witnesses and the material on record. An analysis of the

same shows that PW6 Tulshidas has turned hostile. He was the

witness produced by the prosecution to prove the alleged illicit

relation between the appellant and one Pushpa, which was one

of the factors that allegedly led to the appellant having an

intention to eliminate his wife Harsha. We find that PW2

Chandrakant has been a panch witness for all the

panchanamas i.e. the spot panchanama and the seizure

panchanamas executed between January 2014 and March

2014. The recovery of the weapon Sattur (Chopper), allegedly

used by the appellant, vide Exhs. 33 and 34 is also not of much

consequence because there is no material on record to connect

the said weapon with the injuries suffered by the deceased.

The absence of blood stains and the failure on the part of the

prosecution to send the said Sattur (Chopper) for chemical

analysis shows that there is nothing on record to link the said

weapon with the injuries found on the person of the deceased.

22. The evidence of PW3 (the owner of the matador),

PW9 (Police Official who conducted initial investigation into the

accident), PW10 (Photographer) and PW11 (the person to

29 Appeal89-16.odt

whom appellant allegedly confided about desire to seek

divorce) is also not of any consequence because their evidence

does not bring on record any incriminating circumstances

pointing towards the guilt of the appellant.

23. The evidence of PW12 (the investigating officer) also

does not advance the case of the prosecution. The evidence

and material on record, therefore, completely falls short of

bringing home the guilt of the accused. In fact, the Sessions

Court has acquitted the other three accused by simply stating

in paragraph 38 of the impugned judgment that the

prosecution has not brought any incriminating evidence to

show that the other three accused were part of any conspiracy

to commit the murder of Harsha.

24. We are of the opinion that in cases of circumstantial

evidence, the golden principles laid down by the Hon'ble

Supreme Court in the case of Sharad Birdhichand Sarda

(supra) have not been taken into consideration at all by the

Sessions Court while delivering the impugned judgment and

order. The warning against conjecture or suspicion taking the

place of legal proof, indicated in the judgment of the Hon'ble

Supreme Court in the case Hanuman Govind Nargundkar

30 Appeal89-16.odt

(supra) has not been heeded to by the Sessions Court. There

has been no attempt to systematically analyse the evidence

and material on record to cull out incriminating circumstances

and to see whether a chain is formed by such circumstances

pointing towards the guilt of the appellant. The Sessions Court

has reached findings in an abrupt manner, on the basis of

misreading of the evidence and material on record and by

giving a complete go by to the principles on the basis of which

the cases of circumstantial evidence are to be decided.

Hence, we find that the impugned judgment and order,

convicting and sentencing the appellant under Sections 302,

201, 120-B and 203 of the IPC, is wholly unsustainable and

deserves to be set aside.

25. Accordingly, we allow this appeal and set aside the

judgment and order of the Sessions Court dated 22.01.2016

and we acquit the appellant of the charges levelled against

him. The appellant be released from custody forthwith if not

required in any other case. The amount of fine, if any paid, be

refunded to the appellant.

(Manish Pitale, J. ) (R.K. Deshpande, J.) ...

halwai/p.s.