Radhakisan @ Radhakrushna S/O. ... vs The State Of Maharashtra
2022 Latest Caselaw 12654 Bom

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                                                      criappeal439.18.odt

         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                      CRIMINAL APPEAL NO. 439 OF 2018

Radhakisan @ Radhakrushna s/o Anna Bankar
Age 31 years, occ. Labour
R/o Rajwada, Werul, Tq. Khultabad
Dist. Aurangabad                                            Appellant

       Versus

The State of Maharashtra                                    Respondent

Mr. N. S. Ghanekar, Advocate for the appellant.
Mr. S. P. Deshmukh, APP for the State.


                                  CORAM : R. G. AVACHAT &
                                           R. M. JOSHI, JJ.

RESERVED ON : 29th NOVEMBER, 2022.

PRONOUNCED ON : 6th DECEMBER, 2022.

JUDGMENT : ( PER R. M. JOSHI, J.)

1. This appeal is preferred by accused Radhakisan on being

convicted by learned trial Court in Sessions Case No. 291/2010 for

the offences punishable under Sections 302 and 498A of the Indian

Penal Code.

2. The present appellant and his parents were arrayed in

this prosecution holding them responsible for death of deceased

Vandana. Except the appellant, both co-accused were acquitted by

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the trial Court and against said order, no appeal is preferred by the

State.

3. On 2nd June, 2010, Balu Divekar gave report to the police

stating that his daughter Vandana was married to accused

Radhakishan prior to two years and after marriage for about a

month, she was properly treated by her inlaws. It is alleged that

thereafter accused used to abuse and beat her for not performing day

to day work properly. It is further contended by the informant that

accused were demanding Rs. 20,000/- for purchasing camera and

Vandana was harassed for not fulflling the said demand. On 1st

June, 2010, his nephew called him to the matrimonial home of

Vandana where he found Vadana dead and her dead body was kept in

the house of accused. He suspected that his daughter is killed by

the accused and lodged report to police accordingly. On the basis of

said report, offence came to be registered vide Crime No. 74/2010

with Khultabad Police Station.

4. During the course of investigation, spot panchanama was

drawn in the presence of panch witness and inquest was conducted

on the dead body. The corpse was sent initially to Primary Health

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Center, Khultabad for conducting autopsy and thereafter the same

was forwarded to Government Medical College and Hospital,

Aurangabad. The Medical Offcer therein opined cause of death as

"strangulation". Statements of witnesses were recorded. On

conclusion of investigation, charge-sheet was fled and on committal

thereof, case was registered being Sessions Case No. 291/2010.

5. Prosecution examined in all eight witnesses in order to

bring home guilt of the accused. The trial is culminated in the

conviction of present appellant and acquittal of co-accused.

6. Heard learned counsel for the appellant and learned APP.

Carefully considered the evidence on record and case laws fled by

both the sides.

7. Pertinently, Balu Divekar (PW 2), father of the deceased,

has not supported the prosecution. According to him, the marriage

was performed prior to two years and thereafter deceased started

cohabiting with her husband and inlaws at Werul. He denied that

accused made any demand of Rs. 20,000/- from Vandana for

purchasing camera.

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8. Appasaheb Divekar (PW 3) who is the cousin brother of

deceased claims that Vandana had complained him about she being

harassed by accused No. 1 by demanding Rs.20,000/- for purchase

of camera. In this regard, Kalpana Divekar (PW 4), mother of the

deceased, in her evidence has stated that all accused were

demanding Rs.20,000/- for the aforesaid cause. In her cross-

examination however, she has candidly admitted that in fact, they

had obtained an amount of Rs.10,000/- as handloan from accused

No. 1 and the said amount had remained to be repaid to him before

occurrence of the incident. She has also accepted the fact that her

fnancial condition is not sound and in the marriage of deceased,

accused No. 1 had given ornaments to her. These admissions of

mother of deceased rules out the possibility of deceased being

harassed for not meeting the demand of Rs.20,000/- for purchase of

camera. Considering evidence of parents of deceased, no importance

can be attached to evidence of cousin of deceased. Therefore, the

offence charged against accused No. 1/appellant herein punishable

under Section 498A of the Indian Penal Code, must fail.

9. The present case is based on circumstantial evidence and

the burden lies on the prosecution to prove that deceased died

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homicidal death and all the circumstances unerringly indicate that

accused/appellant is preparator of crime in question, leaving no

scope for the offence being committed by anyone else.

10. Dr. Mahesh Jambure (PW 5) who conducted post mortem

on the dead body of deceased Vandana on 2nd June, 2010 along with

Dr. Varma, Dr. Bhalerao and Dr. Tasgaonkar noticed ten surface

injuries on the dead body. It is opined by him that the cause of

death is strangulation. In the cross-examination however, it is

admitted that in inquest panchanama (Exhibit 38) only two external

injuries are recorded and that no attempt was made to get the

reinquest done. He accepted that the Medical Offcers instructed the

Investigating Offcer to arrange visit to the scene of the incident

immediately, which indicates that even Medical Offcer could not

opine cause of death on the basis of autopsy and perusal of spot and

circumstances appearing therein were needed to be observed. There

is however no evidence on record to show that infact Medical Offcers

paid visit to the spot before giving opinion about cause of death.

This assumes utmost relevance in view of the fact that initially the

dead body was sent to Primary Health Center, Khultabad, and along

with letter (Exhibit 38) the dead body was sent to Government

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medical College, Aurangabad, with a remark that the Medical Offcer

is unable to opine the cause of death for absence of external injuries.

From the said correspondence made by the Medical Offcer, Primary

Health Center, Khultabad, and in view of the inconsistency injuries

noted in the inquest panchanama and noticed at the time of autopsy

a serious doubt is created not only as to the actual injuries

appearing on the person of the deceased but also about the opinion

of cause of death. It therefore cannot be said with certainty as to

how deceased must have died.

11. Balu Divekar (PW 2) had found on his visit to the house

of the deceased that her dead body was kept in the living room. Spot

panchanama also indicates about the said place however, careful

perusal of the spot panchanama (Exhibit 48) shows that two spots of

incident are mentioned therein; one is the place where a saree and

rope were found which is near custard apple tree and the second is

the spot where dead body was kept. The presence of dead body

inside house gets explained from the testimony of Dr. Patni (PW 7).

He claims that on 1st June, 2010, Bankar had brought their

daughter-in-law at about 6.00 am to his dispensary which is

situated in his own house. He found the patient to be pulseless. It is

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thus clear that the dead body was removed from the spot of incident

and after it was brought back home it was kept in the living room. It

leaves no room for doubt that living room is not the spot of incident

and the spot of incident is near a tree which is outside four walls of

the house of the accused.

12. Prosecution seems to have been banking upon the

evidence of Dr. Patni in order to connect accused with the death of

deceased. According to this witness, husband and inlaws of the

deceased had brought her to him. In the cross-examination,

however, he was not able to give the names and details of the persons

who had brought the said lady to him. Furthermore, no entry is

taken about the said fact in his record. The evidence of Dr. Patni,

therefore, only establishes the fact that the deceased was brought to

him in the morning at 6.00 am on 1 st June, 2010 but not that

accused brought her. Even if, it is accepted for sake of arguments

that the accused were persons who brought her to Dr. Patni, the said

conduct of the accused would be contrary to their intention to kill

deceased as it can be seen that they attempted to provide medical

treatment to her and which indicates their innocence.

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13. It is the contention of learned APP that the death is

caused in the house of the deceased and therefore, the burden is on

the accused to show the circumstances in which the deceased died.

To support the said contention, he placed reliance on the case of

Trimukh Maroti Kirkan vs. State of Maharashtra reported in 2007(1)

AIR Bom R 357. Learned advocate for the accused countered the

said argument with the help of judgment of the Hon'ble Supreme

Court in the case of Satye Singh and another vs. State of

Uttarakhand reported in 2022 LiveLaw (SC) 169.

14. No doubt, in case the deceased is in exclusive custody of

the accused, then on establishing the fact of homicidal death of the

deceased, there would be burden on the accused to explain the

circumstances in which the deceased died. In order to attract the

said provision, at the frst instance, it must be established that death

of deceased is homicidal and that deceased was in exclusive custody

of accused and the fact relating to death was within the exclusive

knowledge of the accused. In the instant case, appellant/accused

was not the only person staying with the deceased but his parents

too were sharing the same dwelling house. Since charge is framed

against all the accused for killing the deceased pursuant to their

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common intention, it is case of prosecution that accused No. 1 was

not alone residing with deceased. Once such charge is framed, it is

now not open for the prosecution to attribute any exclusive

knowledge of the appellant/accused in respect of the circumstances

in which the deceased died. Even otherwise, unless prosecution

discharges the initial burden of proving guilt of the accused beyond

reasonable doubt, accused cannot be called upon to explain any

circumstances with aid of Section 106 of the Evidence Act. In the

instant case, when co-accused who were also sharing residence with

deceased are acquitted by trial Court and that part of judgment has

attained fnality, appellant/accused only because he is husband of

deceased cannot alone be called upon to explain death of deceased

nor can be convicted on same evidence on the basis of which co-

accused are acquitted.

15. Considering the facts on record, it cannot be held

conclusively that deceased died homicidal death and for want of

establishing any motive for the accused to kill deceased, guilt of

accused cannot be held to have been proved beyond reasonable doubt

and his conviction cannot sustain. Hence the following order :-

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ORDER

i) Appeal is allowed.

ii) Impugned judgment to the extent of conviction of appellant Radhakisan @ Radhakrushna s/o Anna Bankar is set aside. He is acquitted of the offence punishable under Sections 302 and 498A of the Indian Penal Code.

iii) Appellant be released forthwith if not required in any other crime.

         iv)      Refund of fne paid, if any.


         v)       His bail bonds stand cancelled.




( R. M. JOSHI)                                       ( R. G. AVACHAT)
     Judge                                                  Judge

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