Bombay High Court
Bargalsiddha Dharmanna Padwale ... vs The State Of Maharashtra on 21 February, 2022
Bench: S.S. Shinde, N. R. Borkar
1/37 APPEAL-1026-2017 (J) .doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1026 OF 2017
ALONGWITH
INTERIM APPLICATION NO.1723 OF 2021
IN
CRIMINAL APPEAL NO.1026 OF 2017
1. Bargalsidhha Dharmanna Padwale
Age.23 years.
R/o. Mandrup Tal: South Solapur,
Dist: Solapur.
2. Sou. Sugalabai Dharmanna Padwale
Age: 45 years.
3. Dharmanna Laman Padwale
Age: 55 years.
4. Shivaji Dharmanna Padwale
Age: 28 years.
5. Sou. Kushalabai Bhairappa Kore
Age: 70 years.
Appellant 2 to 5 R/o. Mandrup Tal: South Solapur,
Dist: Solapur
[At present in Solapur Jail, Dist. Solapur] ...APPELLANTS
[Orig. Accused No. 1 to 5]
Versus
The State of Maharashtra ...RESPONDENT
...
Mr. Ritesh Thobde for Applicant/Appellant.
Mr. S.S. Hulke, APP for State.
...
CORAM : S. S. SHINDE &
Digitally signed
by
N. R. BORKAR, JJ.
DNYANESHWAR DNYANESHWAR
ASHOK ETHAPE ASHOK ETHAPE
Date: 2022.02.21
15:21:42 +0530
RESERVED ON DATE : 8th FEBRUARY, 2022.
PRONOUNCED ON : 21st FEBRUARY, 2022.
Bhagyawant Punde, PA
2/37 APPEAL-1026-2017 (J) .doc
JUDGMENT : [PER S.S. SHINDE, J.]
1. The present appeal is directed against the judgment and order
dated 28.11.2017 passed by Additional Sessions Judge, Solapur, thereby
convicting the appellants-original accused for the offence punishable under
under Sections 302, 498-A read with 34 of the Indian Penal Code, 1860 (for
short "IPC').
2. The complainant Sangita Bansiddha Deshmukh is the mother of
deceased Ashwini. Ashwini was the wife of accused No.1 Bargalsiddha
Dharmanna Padwale resident of Mandrup, Taluka South-Solapur. The
accused No.1 married with Ashwini on 29.05.2013 at Mandrup. Their
marriage was performed as per religion rites by giving all honour and gifts.
After marriage, Ashwini went to cohabit at the house of accused. Accused
No.2 Sugalabai is the mother-in-law, accused No.3 Dharmanna is father-in-
law, accused No.4 Shivaji is brother-in-law and accused No.5 Kushalabai is
grandmother-in-law of deceased Ashwini.
All accused were residing together and Ashwini was cohabiting
in their house. After marriage Ashwini was treated well for about one
month. Thereafter, all accused started ill-treating and harassing her on the
ground that, she does not know cooking, household work and work in the
field. Ashwini used to inform her mother and relatives about mental
Bhagyawant Punde, PA
3/37 APPEAL-1026-2017 (J) .doc
harassment and ill-treatment given to her on phone. When Sangita
(Complainant) came to know about ill-treatment and harassment to
Ashwini, she informed said fact to her relatives from both sides. Sangita and
her brother-in-law Amogi Madappa Deshmukh, Limbaji Madappa
Deshmukh, relative Suresh Arjun Khandekar, Rangnath Siddhu Kokare etc.
went to convince the accused for not ill-treating and harassing Ashwini.
However, their efforts went in-vain. Accused No.2 Sugalabai and accused
No.5 Kushalabai told them that, Ashwini does not know the agriculture
work, however her husband has knowledge of driving, therefore, they
should purchase one vehicle called 'Tumtum' for accused No.1. They used to
continuously harass Ashwini for purchasing Tumtum. They also used to beat
her. The complainant and her family members came to know about beating
to Ashwini. The informant and her husband went to the house of accused.
At that time all accused were present in the house, they again made demand
of Tumtum and accused No. 1 threatened them if demand is not fulfilled he
will kill Ashwini.
3. On 05.06.2014 at about 6.00 a.m. complainant Sangita received
information on phone that, Ashwini had sustained burn injuries in the house
of accused No.5 Kushalabai Kore. Informant and her relatives went to the
house of accused No.5, at that time people were gathered in front of the
house. Informant with her relative entered in the house of accused No.5.
Bhagyawant Punde, PA
4/37 APPEAL-1026-2017 (J) .doc
They saw that Ashwini was completely burnt and was lying in dead
condition in bathroom. The informant and her relatives realized that
accused poured kerosene and set her ablaze and killed her for non
fulfillment of their demand of Tumtum for the benefit of Accused No. 1.
Therefore, complainant went to Police Station and lodged complaint which
was registered vide C.R. No.70 of 2014 under section 498-A, 302 read with
34 of the I.P.C. on 05.06.2014.
4. Mr. Prakash Raskar, then API Mandrup Police Station went to
the spot of incident. The victim was completely burnt and lying in dead
condition. He has sent the dead body to Rural Hospital, Mandrup. He has
carried out inquest panchanama at Rural Hospital, Mandrup in presence of
panchas. Thereafter, he went to spot of incident and carried out spot
panchanama in presence of panchas. He seized one plastic can having one
liter kerosene having black cork and jute thread, so also plain soil, soil
contain with kerosene, half burnt match stick. He also seized muddemal
articles under panchanamas. He recorded statements of witnesses. He tried
to search accused, however they were not traced out. He seized ornaments,
and green colour bangles of deceased.
5. On 06.06.2014 he received an information that accused have
come in their field, therefore, he went there in the field and arrested
Bhagyawant Punde, PA
5/37 APPEAL-1026-2017 (J) .doc
accused and thereafter under panchnama Exh. 59 to 63 brought them to the
police station. Meanwhile, postmortem was carried out and dead body was
handed over to relatives of deceased. The cause of death of deceased is
death due to 100% burn, however viscera was preserved. The Investigating
Officer sent seized muddemal property, and viscera to Chemical Analyzer,
Pune. He has collected postmortem notes as well as advance death
certificate. After completion of the investigation, he has filed charge sheet
before Chief Judicial Magistrate on 01.09.2014, which was registered as
RCC No. 863 of 2014.
6. As the offence punishable under Section 302 of the IPC is
exclusively triable by Sessions Court, the Chief Judicial Magistrate was
pleased to commit the case to the Court of Session under Section 209 of
Code of Criminal Procedure (for short 'Cr.P.C.') vide order dated 22.09.2014.
7. After a full fledged trial, the trial Court convicted the appellants
by judgment and order dated 28.11.2017, hence this appeal.
8. Mr. Rithesh Thobde, learned counsel appearing for the
appellant submits that the prosecution case is based on circumstantial
evidence and there is no direct evidence against the appellant. The learned
Sessions Court failed to apply cardinal principals laid down by the superior
Bhagyawant Punde, PA
6/37 APPEAL-1026-2017 (J) .doc
Courts in various cases based upon circumstantial evidence viz., the
circumstances from which the conclusion is drawn should be fully proved,
the circumstance should be conclusive in nature, all facts so established
should be consistent only with the hypothesis of guilt and inconsistent with
innocence of the accused and the circumstances should be a certainty and
exclude the possibility of guilt of any person other than the accused. He
submits that the learned trial Court ought to have considered that the
prosecution failed to establish such a chain of circumstances as there was no
motive for the accused to commit the alleged crime. The prosecution
witnesses deposed that there was harrassment. However, what was the
nature of harrassment is not stated by any witnesses. The demand of
tumtum is attributed to accused no. 2- Suglabai and accused no. 5-
Kaushalabai. However, by no stretch of imagination this demand can be
equated with the motive of killing the deceased. He further submits that the
best possible evidence is not brought before the Court by the prosecution.
The report of finger print expert who examined the seized articles viz.,
Kerosene can and match box from the spot of incident would have been able
to throw much light on the perpetrator of the crime, if any. The learned trial
Court grossly erred in convicting the appellants under Section 302, 498A of
IPC based on conjectures and surmises. The learned trial Court ignored the
settled principle of law that the burden to prove the presence of accused at
the spot of offence lies on the prosecution. The burden would not be
Bhagyawant Punde, PA
7/37 APPEAL-1026-2017 (J) .doc
lessened by mere fact that the accused has adopted the defence of alibi. The
prosecution has not brought on record any cogent evidence to show that the
accused persons were present at the spot of incident on the relevant date
and time. The persons who informed PW2 about the body of deceased in
burning condition have also not been examined by the prosecution, despite
their statements under Section 161 Cr.P.C. being recorded by the
investigating officer. Thus, the prosecution has suppressed the best possible
evidence that was available. The circumstances so brought on record do not
conclusively establish the accused persons are the authors of the crime.
There are more than reasonable gaps in the chain of circumstances in the
light of evidence on record.
There is no cogent and reliable evidence on record to
conclusively prove that the accused persons were the perpetrator of the
crime. There is a possibility of death due to 100% burns, however, it can be
either be homicidal, suicidal or accidental. The evidence on record
suggesting the fact that the deceased was an educated lady whereas her
husband was a labourer. Psychological factors such as these and feelings of
hopelessness about the future, anxiety and worry are some of the important
symptoms of an intention to commit suicide. It is submitted that there is also
no cogent evidence on record to show that the deceased was soon before
her death was subjected to cruelty or harassment, for or in connection with
any demand for dowry. An alleged demand of vehicle called tumtum cannot
Bhagyawant Punde, PA
8/37 APPEAL-1026-2017 (J) .doc
be equated with dowry as defined under the Dowry Prohibition Act.
Nonetheless, the said allegations are attributed to only Accused No. 2 and
Accused No. 5. The fact that the accused no. 2 was residing at Mumbai is
also brought on record through the evidence of investigating officer. Accused
No. 1 is in custody since 06.06.2014, and thus he has completed more than
8 years imprisonment. The Accused Nos. 2 to 5 were on bail throughout the
trial and they have been released on bail by suspending their substantive
sentence. Therefore, learned counsel for the appellant submits that the
appeal may be allowed.
9. Learned APP appearing for Respondent-State invites attention
of this Court to the deposition of prosecution witnesses and in particular the
informant who is mother of Ashwini (deceased), and submits that the
prosecution has proved the case against the appellants beyond reasonable
doubt. The informant immediately rushed to the spot on receiving
information and saw that the accused were present at the spot of incident
and body of her daughter was in flames. The evidence of PW2 gets support
from the evidence of other witnesses and also from the medical evidence. It
is submitted that the prosecution has duly proved demand of vehicle
tumtum and further on not fulfilling the said demand ill-treatment and
harassment given by the accused to the Ashwini. All the accused hatched
criminal conspiracy and designed a plan to kill Ashwini (deceased).
Bhagyawant Punde, PA
9/37 APPEAL-1026-2017 (J) .doc
Therefore, relying upon the evidence of prosecution witnesses, learned APP
submits that the findings recorded by the trial Court are in consonance with
the evidence brought on record, and therefore, appeal may be dismissed.
10. We have given careful consideration to the rival submission.
With the able assistance of learned counsel appearing for appellants and
learned APP for Respondent-State, we have perused entire notes of
evidence. It appears that the trial Court framed charge under Section 120-B,
498-A, 302 read with 34 of IPC and held that the appellants conspired with
each other, and shared common intention to kill Ashwini. However, the trial
Court held that the prosecution did not bring sufficient evidence to prove
the charge under Section 120-B of IPC. The said findings are recorded by
the trial Court mainly in Para 85 of the impugned judgment. The trial Court
from Para 73 to 84 has discussed the evidence available on record against
the accused, their role in commission of offence and accordingly recorded its
findings.
11. Upon perusal of statement of PW2 and other prosecution
witnesses, it appears that the accused and prosecution witnesses except the
investigating officer and medical officer, all other witnesses are resident of
same village i.e. Mandrup. The house where the incident had taken place
and the house of complainant PW2 are situate on 30 minutes distance by
Bhagyawant Punde, PA
10/37 APPEAL-1026-2017 (J) .doc
road as stated by PW2 in her deposition. PW2 has also stated that the police
station is in center of her house, and the house where the incident had taken
place. It has also come in the evidence of prosecution witnesses that
population of said village is about 15 to 20 thousand. It has also come in the
evidence of PW2 and other witnesses that the house where the incident had
taken place is situate in crowded area and nearby said house one road is
passing through.
12. PW2 in her deposition before the Court deposed that Ashwini
(deceased) was her daughter. Her marriage was performed with accused No.
1 on 29.05.2013 at Mandrup. She was residing at her matrimonial house
with her husband, mother-in-law, father-in-law, brother-in-law and
grandmother of accused no. 1. All accused and her daughter were residing
at Kore wada. Ashwini was treated well about one month after her
marriage, and thereafter, accused started ill treating and harassing her. As
and when she visited house of her parents she stated about ill treatment
given by the accused. She deposed that accused Sugalabai and Kaushalabai
started demanding money for purchasing vehicle 'tumtum' as accused no. 1
had knowledge of driving. On the previous day of 05.06.2014, the
complainant, her husband and relatives went to the house of accused for
convincing them that they should stop ill-treating and harassing Ashwini. At
that time all accused were present in the house. Accused No. 1 was saying
Bhagyawant Punde, PA
11/37 APPEAL-1026-2017 (J) .doc
Ashwini does not know household work and work in the field. Accused No.
1 told her to purchase vehicle 'tumtum' and give it to him. In case said
demand is not fulfilled, he would kill Ashwini and thereafter prefer to stay
in jail.
It is further deposed that on 05.06.2014 accused killed her
daughter by setting her on fire. At about 6.00 am, she received a phone call
from Malsidha Kore, the maternal uncle of Accused No. 1, and he informed
PW2 that Ashwini has sustained burn injuries, and hence they should come
immediately to the spot. They immediately reached to the house of Ashwini,
all accused were present in the house. PW2 saw that Ashwini was burning.
By seeing the said scene PW2 and her husband went to the police station
and lodged complaint. Police recorded her statement. When the police along
with PW2 and her husband arrived at the spot, the body of Ashwini was
burning and police personnel poured water on the body of Ashwini and then
prepared panchnama. The police also seized kerosene can, matchbox,
sample of plain soil and soil with kerosene.
13. PW2 was cross examined by the advocate for accused. In her
cross examination she admitted that Article 1 and Article 2 i.e. Kerosene can
and matchbox are easily available in market. Her parents and brother came
on spot of incident at about 7.00 am. She admitted a suggestion that
Balasaheb Babu Deshmukh had also made a phone call to them on that day
Bhagyawant Punde, PA
12/37 APPEAL-1026-2017 (J) .doc
of incident.
She further stated that she has studied up to 4th standard and
her daughter Ashwini studied up to 12th standard. It requires half an hour
walking from her house to reach to the house of Ashwini. She accepted a
suggestion that between her house and house of Ashwini there is a police
station.
14. She was further cross examined on next day. She stated that in
Kore wada there were two parts, one is at the eastern side of the road and
another is at western side of the road. She accepted the suggestion that the
house constructed to the eastern side of the road is constructed house and it
consist of one room. An arrangement of kitchen was in the room situate to
the eastern side of the road. To the western side of the road there was no
arrangement of kitchen. On the side of road there is constructed wall and on
the other three sides there is wall and above to it there are tin roof. In both
the house situate to the west and east side of the road, only Kushalabai
Kore, from Kore family is residing. However, PW2 volunteers that accused
are also residing in the same house. She admitted in her cross that the place
of incident is situated in the house of Kore. However, she denied the
suggestion that she is deposing false that all accused are residing in the
house of Kore. She further admitted that the house of accused is situate at
Bhandarkavathe road, Vithai Nagar road. She denied the suggestion that the
Bhagyawant Punde, PA
13/37 APPEAL-1026-2017 (J) .doc
house situate at Bhandarkavathe road is consists of six room and having
slab. She denied the suggestion that accused Dharmanna Padwale is serving
at Mumbai since last 20 to 25 years. She did not know whether accused
Dharmanna and Sugalabai were residing at Mumbai. She was aware that
accused Dharmanna and Sugalabai were residing at Karanja, Uran, Dist.
Raigad. She admitted in her cross that Accused No. 4 Shivaji is having a
tailoring shop at Mandrup. She denied the suggestion that Accused No. 1
was doing labour work, whenever it was available. She did not know exactly
the qualification of accused No. 1. She heard that, the Accused No. 1 is
educated up to 9th standard.
15. PW2 denied the suggestion that marriage of Ashwni was
performed with Accused No. 1 against her will. She deposed that she stated
to the police that, at that time her daughter was residing with her husband
Bargalsidha, mother-in-law Sugalabai, father-in-law Dharmanna, brother-in-
law Shivaji and grandmother of accused no. 1 Kushala Kore, all accused and
her daughter were residing at Kore wada. She has stated to the police that
accused Sugalabai and Kushalabi were demanding money for purchasing
tumtum. She has stated to the police that, the efforts were in vain and ill
treatment and harassment was continued. She has also stated to the police
that on the previous day of 05.06.2014 she herself, Amogi Deshmukh,
Limbaji Deshmukh and her husband went to the house of accused for
Bhagyawant Punde, PA
14/37 APPEAL-1026-2017 (J) .doc
convincing them, at that time all accused were present in the house, at that
time accused no. 1 told them that, her daughter does not know household
work and work in field, therefore, they should purchase a tumtum otherwise
the accused will kill her daughter and can prefer to stay in jail. She further
stated before the police that, she immediately reached to the house of
Ashwini, all accused were present in the house. She stated that by seeing the
said scene she herself, her husband went to the police station and lodged the
complaint. She further stated that she herself and police went to the spot of
incident, even at that time body of Ashwini was in burning condition. The
police poured water on the body of Ashwini and then prepared the
panchnama. She stated that all the said facts are not mentioned in her
complaint and she cannot assign any reason why it is not mentioned in her
complaint.
16. She deposed that Portion mark 'A' in her complaint was not read
over to her. In cross examination again she reiterated that on hearing news
of incident they immediately reached to the house of Ashwini, all accused
were present in the house, and she saw Ashwini was burning, and
thereafter, they went to the police station to lodge the complaint.
17. In order to find out correctness of her deposition before the
Court, we have perused the evidence of Prakash Raskar (PW6), the then
Bhagyawant Punde, PA
15/37 APPEAL-1026-2017 (J) .doc
investigating officer. He stated that the complainant and her husband came
to the police station to lodge the complaint. Upon receiving complaint he
registered FIR at about 7.35 am on 05.06.2014. Then, he went to the spot
and saw that Ashwini was completely burnt and is lying in dead condition.
The body was sent to Rural Hospital. Then he went to the Rural Hospital
and carried out inquest panchnama. Again he came to the spot and carried
out spot panchnama in presence of two panchas. He stated that the spot of
incident was the house of Bahirappa Kore having entrance at eastern side.
The door of the said house was opened. The complainant went inside and
they followed her. The said room consist of tin roof as well as tin walls
having height of four and half feet. In the same room at the eastern corner,
there were two tiles, however, there was no roof above the said tiles. There
was plastic board kept in front of said portion. Beside the said board one
plastic can of kerosene was lying, plastic can was having cpacity to store
quantity of five liters. One liter kerosene was remained in the said can
having black colour cork with jute thread. The kerosene was lying on the
said tiles as well some drops of kerosene spread over the board. One drum
containing water was lying at about two and half feet away from the said
tiles. Near the said drum one matchbox was lying. He collected the sample
of plain soil as well as soil containing kerosene from the spot of incident.
The muddemal was seized in presence of panchas and he prepared
panchnamas in their presence. Then panchas signed the panchnama and he
Bhagyawant Punde, PA
16/37 APPEAL-1026-2017 (J) .doc
also signed the same.
18. He further deposed that he recorded statement of complainant's
family member and came to know the names of accused from them. He tried
to take search of the accused, however, they were not traced out. It appears
that one police constable deposited ornaments of deceased, which were
seized during the visit of investigating officer. The panchnama of seizure of
those ornaments was carried out. He arrested the accused persons from
their field on 06.06.2014. He has stated in detail the manner in which
further investigation was carried out.
19. During his cross examination he stated that the extract of
station dairy was not produced by him on record, neither same was brought
on the date of recording his evidence. He stated that he saw that crowd
about 50 to 100 people gathered near the spot of incident. Therefore, he
shifted dead body somewhere else and inquest panchnama was carried out.
He further deposed that when he reached to the spot there was fire
surrounding the stomach of Ashwini. Before he reached to the spot of
incident the fire was not douse by pouring water on body of Ashwini. He did
not immediately record the statement of witnesses from the crowd.
Bhagyawant Punde, PA
17/37 APPEAL-1026-2017 (J) .doc
20. He deposed that the spot of incident is situate at western side of
main road little inside near Jamadar Hospital. He does not know, whether
the house of Kore is divided into two part one is towards eastern side and
the spot of incident is towards eastern side. He admitted that the spot of
incident consists of kitchen and bathroom and kitchen articles i.e. stove and
other articles were lying in the kitchen. There is gap between two tin sheets
used as wall. He denied the suggestion that western side i.e. back side to the
spot of incident there is agricultural land. He also denied the suggestion that
in the said open space there are bushes. He admitted that on the internal
road there is locality. Surrounding the spot of incident there are houses. To
the southern side of spot of incident, there is house of Balasaheb Deshmukh.
He admitted that Bansidha Kore and Balasaheb Deshmukh informed the
complainant. He recorded their statements. He denied that he is deposing
false that he has not seized plain soil and soil mixed with kerosene seized
from the spot of incident. He also denied that the complainant came to the
police station at about 7.00 am and he recorded her statement.
He further stated that the land of accused is situate two
kilometer away from Mandrup. He admitted in his cross that accused
Dharmanna and Sugalabai made an application for anticipatory bail wherein
it was mentioned that, at the time of incident they were residing at Mumbai,
and he was directed to verify/investigate the said fact. Accordingly, he
visited the spot and brought the extract of muster of Dharmanna. He
Bhagyawant Punde, PA
18/37 APPEAL-1026-2017 (J) .doc
admitted that from the said record it was revealed that Dharmanna was on
duty on 05.06.2014 till 12.30 pm. The travelling distance between Mumbai
to Solapur is about eight hours by railway.
21. In her deposition PW2 did not say that, she herself or her
husband tried to pour water on the body of Ashwini to douse the fire. It is
evident from reading the cross examination of PW6 that, though PW2 claims
she has stated to the investigating officer that at the time of incident
accused were present at the spot of incident. However, in the cross
examination of PW6, he stated that, PW2 while giving complaint has not
stated before him that accused were present at the spot of incident. PW2
also stated in her cross examination that she herself, Amogi Deshmukh,
Limbaji Deshmukh and her husband on 05.06.2014 went to the house of
accused for convincing them, at that time all accused were present in the
house. But, PW6 in his cross examination stated the PW2 has not told said
fact to him at the time of recording of statement under Section 161 of Cr.P.C.
or complaint. Therefore, the contention of PW2 that, when they i.e. she
herself and her husband went to said house, the accused were present in the
said house where the incident had taken place on the relevant date and
time, cannot be accepted and read as evidence. Said portion in PW2's
deposition is by way of omissions, in the light of evidence of the
investigating officer.
Bhagyawant Punde, PA
19/37 APPEAL-1026-2017 (J) .doc
22. The prosecution has examined Dr. Nilam Ghogare (PW4), who
was at the relevant time attached to Kandalgaon, Primary Health Center. In
her examination-in-chief she deposed that on the day of incident, she
received information from police station as well as Rural Hospital Mandrup
about said incident and that she has to perform post mortem of dead body
and they are in need of lady Medical Officer for conducting post mortem.
Accordingly, she went to Rural Hospital Mandrup. Along with her another
Dr. N.M. Bhosale was also present. They started postmortem at 1.00 pm,
and completed the same at 2.00 pm. The dead body was received along with
inquest panchnama. It was body of Ashwini Bargalsidha Padwale. On
examination she noticed that, the dead body was completely burnt i.e.
100%. There was no evidence of any bone fracture. In larynx and trachea
mucos membrane congested contain. Ash particles were found therein. She
found semi digested food in the stomach, therefore, she opined that death
must have been caused within six hours after the last meal. As per Rule 09
of relevant Rules specifications are given pertaining to burn injury in column
no. 17. All injuries were ante- mortem. In her opinion cause of death was
due to 100% burn. The postmortem was prepared by herself and Dr. Bhosale
and they signed the same.
23. During cross examination, PW4 stated that she herself and Dr.
Bhosale were present at the time of postmortem. Simultaneously, Dr.
Bhagyawant Punde, PA
20/37 APPEAL-1026-2017 (J) .doc
Bhosale was taking note. Rigor mortis, food particles in the stomach and
cooling of body, post mortem lividity are important factors to ascertain the
time of death. She admitted that merely writing rigor mortis present is not
sufficient to ascertain the time of death. From the status of food in stomach
time of death cannot be ascertained as it depends upon the type of food
consumed and aged of the victim. She also admitted that semi digested food
found in the stomach. She denied the suggestion that the finding on point
no. 11 and 21 are contradictory with their opinion in respect of the time of
death. She further stated that there is smell in burn substance. She denied
that, it is true to say that shock can be caused due to fear. She further stated
that due to the smoke, and asphyxia a death can be caused.
24. Upon careful perusal of evidence of PW4, cause of death of
Ashwini is due to 100% burn. However, she has not stated any injuries or
marks or assault on body except burn injuries. Though, the trial Court has
expressed possibility of strangulation by accused, nevertheless the finding
recorded by the medical officer does not support the said finding. It can not
be gathered from the evidence of PW 4 that the death of Ashwini was
homicidal. As already observed though PW2 has stated that she saw accused
no. 1 to 4 in the house where the incident had taken place, nevertheless, the
investigating officer in his cross examination stated that, PW2 did not tell
him the said fact while recording complaint that she saw accused no. 1 to 4
Bhagyawant Punde, PA
21/37 APPEAL-1026-2017 (J) .doc
in the house. In case five accused persons were involved in alleged
commission of offence of setting Ashwini ablaze, naturally some injuries
caused by them at least abrasions ought to have been appeared and noticed
by PW4. It has come in the evidence of PW6, the investigating officer that
when accused Dharmanna and Sugalabai filed an application for
anticipatory bail, he was directed by the Court to find out, whether as stated
by those accused, they are residing in Mumbai or somewhere else or at the
place where the incident had happened. In his cross examination he stated
that on inquiry he found that accused Dharmanna and Sugalabai were
residing at Mumbai. If those two accused are residing in Mumbai, therefore,
their presence in the said house on that date is ruled out. If their presence is
ruled out, the entire prosecution case that five accused were present in the
house where the incident had taken place and prosecution witnesses saw
those accused in the said house when they visited the said house wherein
alleged incident had taken place, will have to be considered as totally false
and witnesses are not speaking truth. Ultimately, the evidence of witnesses
has to be tested and considered in its entirety and in case, if the witnesses
have falsely deposed that they have seen accused Dharmanna and Sugalabai
in the said house, though they are resident of Mumbai, the testimony of
such witnesses cannot be believed and deserves to be rejected outright.
Bhagyawant Punde, PA
22/37 APPEAL-1026-2017 (J) .doc
25. From the evidence of PW2 it can be safely gathered that no
specific instances of ill-treatment or harassment has been stated in her
deposition. There are vague allegations of harassment and ill-treatment
roping in all five accused persons in the alleged commission of offence.
There is no complaint prior to the said incident filed by the parents of
Ashwini (deceased) against any one of the accused for alleged ill-treatment
or harassment. The contention of PW2 that, prior to the date of incident she
alongwith others went to the house of accused and accused no. 1 stated that
Ashwini does not know household and field work and threatened to kill her
in case vehicle tumtum is not given to accused no. 1, does not get support
from the evidence of investigating officer (PW6). The investigating officer in
his deposition has stated that the specific date of their visit to the house of
accused has not been told by the PW2 or any other witnesses while
recording the complaint and statement under Section 161 of Cr.P.C.
Therefore, it will have to be seen and appreciated that within proximity of
time and date of said incident, whether there are any overt acts attributable
qua accused persons?
26. Upon scrutiny of evidence of prosecution witnesses, we are of
the opinion that, there are no specific instances or material collected by the
prosecution which would specifically indicate the involvement of the
accused in the alleged commission of offence soon before the death i.e.
Bhagyawant Punde, PA
23/37 APPEAL-1026-2017 (J) .doc
within proximate time and date of the incident. It can be gathered from the
evidence of panch witnesses that all of them have seen kerosene can having
one liter kerosene available in the said can and smell of kerosene on the
floor of bathroom and on surrounding area. It has also come in the evidence
of panch witnesses that the said house is situate in crowded area, and
nearby one road is passing through and also there is one hospital. Keeping
in view the attending circumstances so also, the evidence of witnesses the
possibility of committing suicide by Ashwini (deceased) cannot be ruled out.
In so far as test laid down for appreciating circumstantial
evidence including theory of last seen together is concerned, a useful
reference could be made to the judgment of Supreme Court in the matter of
Sharad Birdhichand Sarda v/s. State of Maharashtra 1 the Apex Court in
paragraphs 153 and 154 has observed as under :-
"153. A close analysis of this decision would 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 where the following observations were
made.
"Certainly, it is a primary principle that the accused must
1 (1984) 4 SCC 116
Bhagyawant Punde, PA
24/37 APPEAL-1026-2017 (J) .doc
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 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.
154. These five golden principles, if we may say so, constitute the
panchsheel of the proof of a case based on circumstantial
evidence."
In paragraph 143 of the said Judgment, the Supreme Court observed that it
is important that any circumstance adverse to the accused must be put to
him in his statement under Section 313, CrPC 1973; otherwise it must be
completely excluded from consideration because the appellant did not have
any chance to explain them.
27. In aforesaid Sharad Birdhichand Sarda's case (supra) in
paragraphs 162 and 613 the Supreme Court has also considered the aspect
as to when the benefit of doubt can be given to the accused. In the said
Bhagyawant Punde, PA
25/37 APPEAL-1026-2017 (J) .doc
paragraphs 162 and 163 it is observed thus :-
"162 Moreover, in M.G. Agarwal's case (supra) this Court
while reiterating the principles enunciated in
Hanumant's case observed thus:
If the circumstances proved in the case are consistent
either with the innocence of the accused or with his
guilt, then the accused is entitled to the benefit of
doubt.
"In Shankarlal's (supra) this Court reiterated the same
view thus:
"Legal principles are not magic incantations and their
importance lies more in their application to a given
set of facts than in their recital in the judgment".
163. We then pass on to another important point which
seems to have been completely missed by the High
Court. It is well settled that where on the evidence
two possibilities are available or open, one which
goes in favour of the prosecution and the other which
benefits an accused, the accused is undoubtedly
entitled to the benefit of doubt. In Kali Ram v. State of
Himachal Pradesh, this Court made the following
observations.
"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 where
in the guilt of the accused is sought to be established
by circumstantial evidence."
In the concluding paragraph 218, the Supreme Court observed as under :-
"218 In view of the fact that this is a case of circumstantial evidence and
Bhagyawant Punde, PA
26/37 APPEAL-1026-2017 (J) .doc
further in view of the fact that two views are possible on the evidence on
record, one pointing to the guilt of the accused and the other his innocence,
the accused is entitled to have the benefit of one which is favourable to him.
In that view of the matter I agree with my learned brothers that the guilt of
the accused has not been proved beyond all reasonable doubt."
28. The prosecution has examined Amoghi Deshmukh (PW3). She
in her deposition stated that deceased Ashwini was her niece. After one and
half month of marriage, accused started ill-treating Ashwini saying that she
does not know cooking , household and field work. They used to beat her
and abuse her. She herself, her brother, brother's wife and other relatives
went to the house of accused and convinced them for not ill-treating and
harassing Ashwini. Even thereafter, accused no. 2 to 5 were harassing
Ashwini and told her parents to purchase vehicle tumtum for accused No. 1.
On 4th June, 2014 again they went to the house of accused and tried to
convince them, not to harass Ashwini. On 5th June, 2014 between 5 to 6 am,
her brother received phone call from Malsidhna Bhairappa Kore. He
informed that Ashwini sustained burn injuries and he should immediately
come to the house of Kushalabai i.e. accused no. 5. All three brothers and
sister-in-law immediately went to the house of Kushalabai. When they
reached their, they saw Ashwini in burning condition in bathroom, and there
was little fire under her stomach. Ashwini was in dead condition.
Bhagyawant Punde, PA
27/37 APPEAL-1026-2017 (J) .doc
Immediately, they went to the police station and lodged the FIR.
29. PW3 was extensively cross examined by the defence counsel.
She deposed that, she narrated to the police that, Ashwini used to tell about
ill-treatment and harassment to her whenever, she used to go to market.
This fact is not mentioned in her statement and she cannot assign any
reason why the said fact is not mentioned in her statement. She further
stated to the police that on previous day of incident they went to the house
of accused. However, she does not know why word 'previous day' is not
mentioned in her statement recorded before the police. She denied the
suggestion that on 05.06.2014 she received phone call from Malsidhappa
Kore and Balasaheb Deshmukh. It appears that during cross examination
portion mark 'A' from police statement was read over to her, and she stated
to the police that they went house of Kushalabai, all accused were present in
the house, but this fact is not mentioned in her statement. She admitted in
her cross examination that they did not try to extinguish fire by pouring
water as Ashwini was dead. There was crowd gathered in front of house.
They reached to the house of Kushalabai at 6.10 am. She had taken
complainant to the police station, and thereafter police came to the spot.
She cannot tell whether police tried to douse the fire or not. She denied the
suggestion that accused Dharamana and Sugalabai were residing at Mumbai
at the relevant time.
Bhagyawant Punde, PA
28/37 APPEAL-1026-2017 (J) .doc
30. Upon perusal of evidence of PW2 and PW3, there are
substantial discrepancies inasmuch as PW2 in her evidence stated that, they
went to the house of accused, where the incident had taken place at 7.00
am, however, this witness i.e. PW3 says that they went to the house of
accused at about 6.10 am. PW2 has no where referred that PW3 also
accompanied them and present when they came to the spot of incident, and
when they went to the police station. However, PW3 claims that all of them
went to the spot of incident, so also the police station. Though, she stated
that they saw accused no. 1 to 4 in the house where the incident had taken
place, however, said fact has not been mentioned in her police statement. It
is clearly revealed during the cross examination that the investigating officer
i.e. PW6 wherein he stated that PW3 has not stated before him that Ashwini
used to tell about ill-treatment and harassment to her, whenever PW3 used
to go to the market. So also, it is stated by PW6 that, PW3 has not stated to
him that on previous day of incident they went to the house of accused for
convincing them not to ill-treat and harass Ashwini. PW3 has not stated that
they went to the house of Kushalabai and all accused were present in the
house to the PW6 while recording her statement. Therefore, in the light of
discussion herein above, the evidence of PW2 and PW3 that, they visited
house of accused on previous day of the incident and they saw accused in
the house where incident had taken place on relevant date in the morning
has to be discarded and consequently cannot be relied upon.
Bhagyawant Punde, PA
29/37 APPEAL-1026-2017 (J) .doc
31. Both the witnesses to whom PW3 has named in her statement
before the police has not been examined by the prosecution. Though, PW3
stated in her deposition that the accused no. 1 to 4 were present when they
went to the house of Kushalbai in the morning on the date of incident, but
no any other prosecution witnesses have stated about presence of PW3 at
the spot in the morning where the incident had happened or thereafter at
the police station.
32. While summarizing the judgment, the trial Court in Para 80
held as under:-
"80 While summarizing this judgment, I
would like to repeat again that the
prosecution has proved its case against all
accused. As far as Sections 302 and 498A of
the Indian Penal Code is concern.
1 The prosecution has proved the basic
facts i.e. death of Ashwini is homicidal. It is
neither suicidal or accidental Ashwini died
in the house of accused No. 5.
that they used to keep Ashwini at the house
of accused No. 5.
3 The incident took place between 4 to 6
am when most of the people are in deep
sleep.
4 PW-2 and 3 have stated that there was
quarrel on the previous day and there is no
plausible reason to disbelieve their
testimony.
5 Another strong circumstance against
accused is that they have not come forward
Bhagyawant Punde, PA
30/37 APPEAL-1026-2017 (J) .doc
to take the dead body. Neither they attended
the funeral.
6 They have not given any convincing
reason as to why they ran away. This
conduct of the accused is unnatural because,
deceased was the wife of accused No. 1 and
and sister-in-law of accused No. 4.
7 All accused were found together in
their field at the time of their arrest.
8 And lastly that the death occurred
within a period of 7 years of marriage and
within the custody of accused for which
accused have not offered any plausible,
convincing, just and satisfactory reason."
33. The trial Court in Para 80 in Clause 1, held that the death of
Ashwini was homicidal and Ashwini died in the house of accused No. 5. So
far finding of fact recorded by the trial Court that Ashwini died in the house
of accused No. 5 is concerned, the said fact is not denied by the defence.
34. So far fact stated in para 80 (2) in the trial Court judgment is
concerned, the same can not be considered as incriminating circumstance,
since it is not in dispute that the alleged incident had taken place in the
house of accused no. 5. It is mentioned in para 80 (3) of the trial Court
judgment that the incident took place between 4 to 6 am when most of the
people are in deep sleep and further it is stated that PW 2 and PW3
deposed that, there was quarrel on previous day and there was no plausible
reason to disbelieve their testimony.
Bhagyawant Punde, PA
31/37 APPEAL-1026-2017 (J) .doc
Upon careful perusal of evidence of all prosecution witnesses in
its entirety, there is no cogent, convincing and reliable evidence has been
brought on record by the prosecution to accept that there was quarrel
between accused and Ashwini. As already observed that PW2 and PW3
claimed in their deposition that one day prior to the date of incident all of
them went to the house of accused, nevertheless said version that one day
prior to the date of incident i.e. 04.05.2014, they went to the house of
accused is not mentioned in the complaint and in their statements recorded
under Section 161 of Cr.P.C. before PW6, as it is evident from the evidence
of PW6 the investigating officer. Therefore, the finding that
circumstance/fact which PW2 and PW3 have stated in their deposition that
there was quarrel on previous date and there was no plausible reason to
disbelieve their testimony, by the trial Court, appears to be contrary to the
evidence brought on record by the prosecution.
35. Another circumstance relied upon by the trial Court is that the
accused persons have not come forward to take the dead body, neither they
attended the funeral and they have not given any convincing reason as to
why they ran away. In this respect, it has come in the evidence of
prosecution witnesses that 50-100 people gathered near the house where
the incident had taken place, and therefore, there was tense atmosphere and
due to possibility of breach of peace, the investigating officer was required
Bhagyawant Punde, PA
32/37 APPEAL-1026-2017 (J) .doc
to remove dead body from said house and take somewhere else, accordingly
dead body was taken at some other place and at the said place the
investigating officer carried out inquest panchnama and thereafter body was
sent to the postmortem. That itself shows that the accused/appellants might
be apprehensive of attack by the mob. Importantly, the parents of Ashwini
and some other relatives reside in same town where the matrimonial house
of Ashwini is situate, and therefore, merely because, accused did not come
forward to take the dead body or attended the funeral, cannot be considered
as incriminating circumstance, in the aforestated facts of the present case.
36. The trial Court has relied upon another circumstance that, all
the accused were found together in their field at the time of their arrest. The
accused persons found together in their field that itself, cannot be
considered as incriminating circumstance in relation to actual participation
in the alleged incident. As already observed the prosecution has failed to
prove that the accused persons were present in the house on the relevant
date and time of the incident. Although, PW2 and PW3 have deposed that,
they saw accused in the said house where the incident had taken place in
the morning when they went to the said house upon knowing that Ashwini
was burnt, the said portion appeared in their deposition will have to be
treated by way of 'omission', as the investigating officer i.e. PW6 stated in
his deposition that the PW2 and PW3 in their complaint statement before
Bhagyawant Punde, PA
33/37 APPEAL-1026-2017 (J) .doc
the police have not stated that, on the previous day of incident they went to
the house of accused for convincing them and there were quarrel between
the accused and Ashwini and accused persons were ill-treating and
harassing Ashwini.
37. Lastly, the trial Court held that death occurred within a period
of 7 years of marriage and within custody of accused for which accused have
not offered any plausible, convincing, just and satisfactory reason.
It is true that death of Ashwini occurred within a period of 7
years of marriage. However, the prosecution has utterly failed to prove that
at the relevant time of incident, the accused No. 1 to 4 were present in the
house of accused no. 5, wherein in bathroom of the house the alleged
incident had taken place.
38. It is well established that, the presumption under Section 113A
and 113B of Indian Evidence Act, is rebutable presumption. The
prosecution, before onus would shift on defence, is obliged to discharge its
burden to bring on record cogent, satisfactory and convincing evidence
showing that within proximity of time and date there were positive overt
acts attributable to the accused in commission of crime. In the present case,
as already observed, so far alleged demand of vehicle tumtum is concerned,
neither the prosecution has led any specific evidence by quoting specific
Bhagyawant Punde, PA
34/37 APPEAL-1026-2017 (J) .doc
instances, nor they brought on record any earlier complaint filed about
alleged ill- treatment and harassment at the hands of accused to Ashwini, on
account of non fulfilling their demand of purchasing vehicle tumtum for the
benefit of accused No. 1. The prosecution has failed to bring on record the
presence of accused no. 1 to 4 on the relevant date and time of incident. In
absence of such evidence merely because death has occurred within 7 years
of marriage would not automatically fasten criminal liability on accused.
39. On the whole, the prosecution has utterly failed to bring on
record sufficient, satisfactory, clinching and specific evidence to prove that
Ashwini was ill-treated and harassed by the accused for not fulfilling alleged
demand of vehicle tumtum for the benefit of accused no. 1. When the
investigating officer himself admitted in the cross examination that at the
time of considering anticipatory bail application, the concerned court asked
him to find out where accused Dharmanna and Sugalabai are residing. On
inquiry he found that accused Dharmanna and Sugalabai are residing at
Mumbai. Therefore, the prosecution case that Accused No. 2 and 3 along
with other co-accused were present at the time of incident does not get
support from the evidence available on record, and therefore, as a corollary,
it will have to be concluded that the prosecution failed to prove presence of
accused within proximity of time and date of the incident.
Bhagyawant Punde, PA
35/37 APPEAL-1026-2017 (J) .doc
40. As already observed, the prosecution has failed to prove the
presence of accused No. 1 to 4 at the spot of incident on the relevant date
and time and further, it has come in the evidence of PW2 that accused no. 1
to 4 are separately residing and accused no. 5 was residing in the house
where alleged incident had taken place. She has categorically deposed about
two parts of Kore wada. Therefore, merely, because accused have not given
explanation that, at the relevant date and time they were at which place,
would not relieve prosecution from bringing on record the evidence to show
the presence of accused within proximity of time and date of incident. The
trial Court has observed in paragraph 82 that accused did not bring on
record the place where they were at the relevant time and date of incident,
and therefore, said ambiguity gets strong suspicion about their presence at
the spot of incident.
In the present case admittedly there is no eye witness to the
actual incident. In the case based upon circumstantial evidence an accused
can not be convicted merely on the basis of suspicion. The Supreme Court in
the case of Sharad Birdhichand Sarda (supra) taking into consideration
exposition of law in earlier judgment of the Supreme Court in the case of
Shivaji Sahabrao Bobade Vs. State of Maharashtra2, wherein the Supreme
Court has observed that, "certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court can convict and the
2 1972 AIR 2622
Bhagyawant Punde, PA
36/37 APPEAL-1026-2017 (J) .doc
mental distance between 'may be' and 'must be' is long and divides vague
conjectures from sure conclusions."
In the case based upon circumstantial evidence, the Court is
legally obliged to record definite findings in conformity with the evidence
brought on record by the prosecution and defence. There is no scope for
recording findings merely on the basis of suspicion. It is true that accused
no. 5, a old lady, admitted that she was in the house, however, the
prosecution failed to attribute any overt act qua said accused no. 5.
41. Therefore, upon re-appreciating the entire evidence brought on
record, an inevitable conclusion is that the impugned judgment and order
passed by the trial Court, cannot legally sustain and same deserves to be
quashed and set aside.
42. It appears that during the pendency of Trial and present Appeal,
keeping in view the chain of evidence, the accused No. 2 to 5 were released
on bail by the concerned Courts. As on date only Accused No. 1 is in jail.
43. In the light of detail discussion and reasons recorded by us in
foregoing paragraphs, we pass the following order:-
Bhagyawant Punde, PA
37/37 APPEAL-1026-2017 (J) .doc
ORDER
a] Criminal Appeal is allowed.
b] The impugned judgment and order dated
28.11.2017 passed by Additional Sessions Judge,
Solapur in Sessions Case No. 285 of 2014 is set
aside.
c] The appellants are acquitted of the offence
punishable under Section 302 and 498A read with
34 of the Indian Penal Code, 1860.
d] The appellant no. 1 is in jail. He shall be released
forthwith, if not required in any other case.
e] The bail bonds, if any, of appellant no. 2 to 5 stands
cancelled.
f] The appellants shall, within 4 (Four) weeks from
release, furnish a bail in terms of Section 437-A of
Code of Criminal Procedure, 1973 in the sum of Rs.
15,000/- (Rupees Twenty Five Thousand) each
with one surety in the like amount before the
concerned Trial Court.
g] In view of disposal of appeal, nothing survives for
consideration in Interim Application No. 1723 of
2021, accordingly same stands disposed of.
(N. R. BORKAR, J.) (S. S. SHINDE, J.)
Bhagyawant Punde, PA
