High Court
Legal Reasoning
appeal-457.1813circumstantial evidence and therefore, the prosecution wassupposed to prove the golden principles of circumstantialevidence laid down in Sharad Birdhichand Sarda vs. State ofMaharashtra reported in (1984) 4 SCC 116 by the Hon’ble ApexCourt; which are as follows:-“ (1)the circumstances from which the conclusion of guilt is tobe drawn should be fully established.It may be noted here that this Court indicated that thecircumstances concerned 'must or should' and not 'may be'established. There is not only a grammatical but a legal distinctionbetween 'may be proved' and 'must be or should be proved' aswas held by this Court in Shivaji Sahabrao Bobade vs. State ofMaharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973 Cri.L.J. 1783] where the observations were made : [SCC para 19,p.807 : SCC (Cri) p. 1047]“Certainly, it is a primary principle that the accused must be andnot merely may be guilty before a court can convict and themental distance between 'may be' and 'must be' is long anddivides vague conjectures from sure conclusions." (2)the facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that theaccused is guilty,(3)the circumstances should be of a conclusive nature andtendency,(4)they should exclude every possible hypothesis except theone to be proved, and(5)there must be a chain of evidence so complete as not toleave any reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability the act must have been done by the accused. ” appeal-457.181413.Herein this case, neither the best witnesses have beenexamined nor the mens rea has been proved. When theprosecution had come with the case that even the other accusedpersons have taken part in commission of the murder, especiallyaccused No.2 Bhanudas and then other accused persons areacquitted of the offence punishable under Section 302 of theIndian Penal Code, then it is doubtful as to whether only accusedNo.1 i.e. present appellant could have committed the murdersingle-handedly. This aspect ought to have been considered bythe learned trial Judge. It had come on record that accused No.4Surekha and accused No.5 Sunita are the sisters of accusedNo.1. They are residing at their respective matrimonial homes.Unless their presence in the house of accused Nos. 1 to 3 wouldhave been proved just prior to the incident, charge for theoffence punishable under Section 302 read with Section 34 ofthe Indian Penal Code should not have been framed. A properexamination of the record i.e. charge-sheet and other materialis therefore, necessary at the time of framing of charge. Thecharge framed without application of mind would sometimes befatal to the prosecution case and may affect the merits of thecase. appeal-457.181514.Merely because the appellant was the husband of deceasedSavita and she was found murdered in her house, we cannotpresume, by invoking Section 106 of the Indian Evidence Actthat the murder might have been committed by the husband. Wecannot shift the burden on the shoulders of the accused No.1 onthe strength of provisions under Section 106 of the IndianEvidence Act. It should be proved before the said doctrine isinvoked that the wife was in the company of the husband prior tothe incident. Here, the prosecution has not attempted toexamine such witness to prove that accused No.1 was in thevillage and that too was at home when the alleged incident tookplace. It has not been brought on record through autopsysurgeon PW-8 Dr. Balaji, as to what was the probable time ofdeath. Unless the said probable time of death would have beenproved, we cannot discard the testimony of DW-1 Shirish. Theappellant had taken the defence that he was not at home oreven in the village when the alleged incident took place. Asaforesaid, DW-1 Shirish has given the details, as to where theappellant – accused No.1 was around the time of death ofSuman. Testimony of DW-1 Shirish cannot be just discarded as appeal-457.1816he has no documentary evidence to support his contention. Evenif for the sake of arguments it is accepted that his testimony isnot sufficient to prove the plea of alibi, yet the question ofsupporting the proof of alibi would come only after theprosecution establishes its case beyond reasonable doubt. Unlesspresence of appellant would have been proved, the question ofplea of alibi cannot be touched.15.The testimony of panchas would be sufficient to prove thepanchnamas, but on the basis of those panchnamas only wecannot arrive at a finding that accused No.1 – appellant is theonly author of the crime. At the cost of repetition, it can be saidthat though there were differences between accused No.1 anddeceased prior to the incident, the prosecution itself has led theevidence to show that those differences existed but due tosuccessful mediation a compromise had arrived at and Savitahad resumed cohabitation. If Savita had resumed cohabitationthen why the ill-treatment would have been continued. It hasalso come on record that Savita had not begotten issue evenafter about ten years of the marriage, but it is to be noted thather relatives themselves have stated that upon the medical appeal-457.1817check up, it was found that there was biological problem in theappellant – accused No.1 and not that of the deceased. Then it ishard to believe that Savita would have been harassed for notable to conceive. Even if we consider Article ‘A’ in collectiveExhibit-108, which was the complaint filed by Savita with theWomen’s Grievance Redressal Forum, she had come with thedifferent story saying that she was treated properly for about sixmonths but thereafter the accused persons started harassing herfor bringing Rs.5,00,000/- for purchasing a Jeep. There isabsolutely no statement in the entire complaint that theharassment was on account of not able to conceive. Therefore,the FIR Exhibit-19 travels beyond the said Article ‘A’ fromcollective Exhibit-108. 16.To sum up, it can be certainly said that the prosecution hadfailed to prove that deceased Savita was in the company of theappellant at the night time or in the early morning hours of 1stSeptember 2015, so that Section 106 of the Indian Evidence Actcan be pressed into service. The prosecution has not examinedmaterial witnesses who had allegedly heard the quarrelsbetween accused Nos.1 and 2 and deceased Savita and then appeal-457.1818seen accused Nos.1 and 2 going away by latching the door of thehouse from the outside and then informing it to PW-1 Dinanath.The chain of circumstances has not been proved beyondreasonable doubt and whatever the segments of the chain havebeen proved, those are not pin-pointedly establishing that theappellant is the culprit. An intention to kill has not been provedand therefore, it cannot be said that the basic ingredients of theoffence have been proved beyond reasonable doubt, though itcan be certainly said that the death of Savita was homicidal innature. The Appeal, therefore, deserves to be allowed by settingaside the impugned order. Hence we proceed to pass followingorder:- O R D E RI.The appeal stands allowed.II.The conviction awarded to the appellant RameshBhanudas Shelke in Sessions Case No. 05 of 2016 bylearned Additional Sessions Judge, Nilanga, DistrictLatur, on 14.05.2018 for the offence punishable underSection 302 of the Indian Penal Code is hereby quashedand set aside.III.The appellant stands acquitted of the offence appeal-457.1819punishable under Section 302 of the Indian Penal Code.IV.The appellant be set at liberty, if not required inany other case.V.Fine amount deposited, if any, be refunded to theappellant after the statutory period.VI.We clarify that there is no change as regards theorder of disposal of muddemal.VII. Fees of the appointed Advocate is quantified atRs.10,000/- (Rupees Ten Thousand only), to be paid bythe High Court Legal Services Sub-Committee,Aurangabad.[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/DEC23
Arguments
appeal-457.181 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.457 OF 2018Ramesh Bhanudas Shelke,Age-41 years, Occupation:Agriculture,R/o-Hippalgaon, Tq-Shirur-Anantpal,District-Latur. ...APPELLANT (Ori. Accused No.1) VERSUS The State of Maharashtra ...RESPONDENT ... Mr. Sachin S. Panale Advocate for Appellant (appointed). Ms. Uma S. Bhosale, A.P.P. for Respondent - State. ... CORAM: SMT. VIBHA KANKANWADI AND ABHAY S. WAGHWASE, JJ. DATE : 6th DECEMBER, 2023 JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Present Appeal has been filed by original accused No. 1challenging his conviction by learned Additional Sessions Judge,Nilanga, District-Latur in Sessions Case No.05 of 2016 on 14thMay 2018, whereby he came to be convicted for the offence appeal-457.182punishable under Section 302 of the Indian Penal Code. It willnot be out of place to mention here that in all five accusedpersons faced the trial for the offence punishable under Section302 and Section 498-A of the Indian Penal Code. Accused No.1came to be acquitted of the offence punishable under Section498-A of the Indian Penal Code, whereas accused Nos. 2 to 5came to be acquitted of the offence punishable under Section302, 498-A of the Indian Penal Code by the same Judgment. 2.PW-7 Chandrakant Sheshsrao Khadade lodged report withShirur-Anantpal Police Station on 1st September 2015. It wasinformed in the First Information Report (for short “the FIR”)that his sister Savita got married to accused No.1 Ramesh in2006. Accused persons started harassing her when she had notbegotten issue for about three to four years after the marriage.She was kept starved and harassed on account that she shouldbring money for purchasing four wheeler vehicle. Savita used toinform the harassment to the informant and other relatives.However, due to poor financial condition the amount could not begiven. The harassment then got intensified. Savita had thenlodged a report with Women’s Grievance Redressal Cell. Accused appeal-457.183No.1 assured that he would look after Savita properly andtherefore, he took Savita for cohabitation after about seven toeight months. Thereafter again Savita informed that she is beingharassed by her in-laws and husband. Informant had gone to thematrimonial home of Savita on 29th August 2015 for RakhiPournima festival, whereupon Savita again conveyed about theill-treatment to her. Informant persuaded her and came back tohis house. But on 1st September 2015, his relative ShivajiKompale from Latur gave information to him that around 9.00a.m. Savita has been assaulted and murdered by the appellant.Informant went to the matrimonial home of Savita around 10.30to 11.00 a.m. He found Savita in dead condition in the house,however, there was no evidence. He has then lodged report withPolice Station, on the basis of which offence came to beregistered vide Crime No. 69 of 2015. 3.The Police had conducted inquest panchnama and sent thedead body for postmortem. Thereafter the panchnama of thespot was got executed and other panchnamas of seizure of theclothes of the deceased and after the arrest of the accused, thearrest panchnamas were got executed. Statements of witnesses appeal-457.184were got recorded and after completion of the investigation,charge-sheet came to be filed.4.After committal of the case, charge was framed. All theaccused had pleaded not guilty. Prosecution has then examinedin all eleven witnesses to bring home the guilt of the accused.After hearing both sides and taking into consideration theevidence on record, the learned trial Judge has pronounced theJudgment as aforesaid i.e. convicting the appellant for theoffence punishable under Section 302 of the Indian Penal Codeand thereby sentencing him to suffer imprisonment for life andto pay fine of Rs.1000/-, in default to suffer rigorousimprisonment for six months, which is under challenge in thisAppeal. 5.The appellant was earlier represented by an Advocate,however by order dated 31st October 2023 the said Advocatecame to be discharged. Then learned Advocate Mr. Sachin Panalehas been appointed to represent the appellant, i.e. legal hasbeen provided to the appellant. 6.It has been vehemently submitted on behalf of the appeal-457.185appellant that the learned trial Judge has not appreciated theevidence properly. The appellant is not disputing that deceasedSavita was found murdered in the house but only on that countthe learned trial Judge has invoked Section 106 of the IndianEvidence Act. In fact, if we consider the findings of the trialCourt, then it has acquitted all the accused of the offencepunishable under Section 498-A of the Indian Penal Code. Thatmeans there was no harassment or subjecting deceased tocruelty by the accused. The case of the prosecution was thenbased on circumstantial evidence as regards offence underSection 302 of the Indian Penal Code is concerned. Under thesaid circumstance, the prosecution ought to have establishedmens rea as against accused No.1 – appellant. The incident hastaken place in 2015 whereas the marriage had taken place in2006. The marriage was solemnized nearly ten years ago andagain at the cost of repetition it can be said that the earliercomplaint by Savita to Women’s Grievance Redressal Forum wasnot considered by the trial Court as there is acquittal for theoffence under Section 498-A of the Indian Penal Code.Therefore, when the intention to commit murder has not beenproved beyond reasonable doubt, so also it is not coming on appeal-457.186record as to with which weapon the alleged head injuries havebeen caused to Savita and the weapon has not been discovered,the learned trial Judge ought not to have come to the conclusionthat the offence of murder has been proved beyond reasonabledoubt. It is admitted by the prosecution witnesses, especially theinformant that appellant is a driver by profession. He was havingfour wheeler vehicle even prior to the marriage and he used todo the business of giving the vehicle on hire basis to the touristsand he himself used to drive the same, there appears to be nonecessity for him to purchase another vehicle. Appellant hadexamined DW-1 Shirish Patil, who in his examination-in-chief,has specifically stated that he had hired the Jeep of the appellantfor going to Pune and Tirupati. He had been to Tirupati in May2015 and on 30th August 2015 at Pune. DW-1 Shirish Patil hascategorically stated that on 29th August 2015 his both daughtershad been to Latur for Rakhi Pournima festival and on the nextday i.e. 30th August 2015 he has been, with his wife anddaughters, to Pune. They have started from Murud at about 3.30p.m. and reached Pune at about 9.30 p.m. On 31st August 2015,wife of DW-1 Shirish stayed with daughters for arranging thedomestic articles and he has been to his nephew for handing appeal-457.187over his articles. Accused No.1 – appellant had made his Jeepstationary outside the room and then DW-1 Shirish along withhis wife returned to Murud from Pune on 1st September 2015 atabout 4.30 a.m. in the Jeep of accused No.1. His testimony hasbeen unnecessarily disbelieved by the learned trial Judge whenthe plea of alibi has been specifically proved by the appellant.The conviction awarded to the appellant is therefore, illegal andcannot be allowed to sustain. The learned Advocate for theappellant has also specifically stated that PW-2 Madhukar andPW-3 Ujawala, both have turned hostile but the learned trialJudge has believed only the relatives of the deceased andtherefore, the Appeal deserves to be allowed.7.Per contra, the learned APP strongly supported the reasonsgiven by the learned trial Judge while convicting the appellant forthe offence punishable under Section 302 of the Indian PenalCode. It was submitted on behalf of the prosecution that for pleaof alibi the testimony of DW-1 Shirish was not sufficient. He wasnot having any documentary evidence to support whatever hehas stated in his examination-in-chief. PW-1 Dinanath Kamblewas the police patil of the village, who came to know around appeal-457.1888.30 a.m. that quarrel was going on in the house of Bhanudasi.e. father of the appellant. He immediately went to the house ofthe accused and saw that the latch was put to the door of thehouse of the accused from the outside. Therefore, he himselfremoved it, along with the neighbours he went inside the houseand saw that Savita was lying on the floor. He was accompaniedby four to five neighbours. However, now neighbours haveturned hostile, but their hostility will not affect. From the inquestpanchnama and the testimony of autopsy surgeon PW-8 Dr.Balaji Devangre, it is certain that there were multiple injuries onthe person of the deceased and therefore, the probable cause ofdeath is ‘head injury with multiple wounds over body’. Heredeath is homicidal in nature. As regards previous complaint also,prosecution has examined PW-10 API Varsha Dandime and thecomplaint has been produced on record. PW-7 Chandrakant, whois brother of the deceased has proved the FIR Exhibit-19 andtherefore, the conviction awarded to the accused – appellant isperfectly legal and does not require any interference. 8.Here, from the testimony of the autopsy surgeon PW-8 Dr.Balaji Devangre, who found eight external injuries and appeal-457.189corresponding internal injuries i.e. big haematoma over theoccipital area at the base of brain with vault fracture, it can becertainly said that it has been proved by the prosecution thatdeath of Savita was homicidal in nature. In his cross-examination PW-8 Dr. Balaji has stated that the injury shown tothe head is impossible in such case even if the person fallsdirectly on the head. It appears that by suggesting the saidquestion, it was in the mind of the accused – appellant to createa possibility that Savita might have fallen from the staircase.However, the spot panchnama does not show that there was anystaircase nearby, rather the roof of the matrimonial house ofSavita is made up of iron sheets. Even though final cause deathcertificate has not been given, yet autopsy report Exhibit-99 wassufficient to prove that death of Savita was homicidal in nature. 9.Though the prosecution has brought on record that Savitahad sustained multiple wounds including the injury to the head,it is not made clear, as to by which means the injuries wouldhave been caused. Injury Nos. 2 to 8 are contusions. It appearsthat the prosecution intended to say that Savita’s body,especially head was banged on the wall by pushing Savita appeal-457.1810forcibly to the wall. However, the spot panchnama is notsupporting the prosecution. The spot panchnama does not saythat there were signs to show that such banging or pushing tothe wall had occurred several times. There is no seizure of anyweapon in this case. Therefore, prosecution ought to haveunfolded, as to how the murder would have been committed. Itcannot be expected that the prosecution would leave it asmystery. Therefore, on this aspect the evidence adduced by theprosecution is lacking.10.All the accused persons including the appellant have beenacquitted of the offence punishable under Section 498-A of theIndian Penal Code. Neither the relatives of the deceased Savitanor the prosecution has challenged the said acquittal. Thatmeans, it has become final. When the trial Court itself had cometo the conclusion that the prosecution was not able to prove thatSavita was subjected to cruelty, and the case is based upon thecircumstantial evidence, then it was incumbent on theprosecution to prove the mens rea or intention on the part of theappellant to commit murder of his wife. At this stage itself wewould like to take note of the fact that PW-7 Chandrakant, PW-5 appeal-457.1811Ashok Malwade (maternal uncle of deceased Savita), PW-6Tatyarao Khandade (cousin of deceased Savita) were admittedlynot present on the previous day of the incident. There is no eyewitness to the incident, but testimony of PW-1 Dinanath Kamble,police patil of the village, would suggest that some neighbors ofaccused informed him that quarrel was going on in the house ofSavita. In his examination-in-chief itself he has stated thatneighbour of Bhanudas told him that around 7.00 to 7.30 a.m.accused – appellant, his father Bhanudas and Savita werepresent in the house and the quarrel was going on betweenthem. Those neighbours were able to listen the noise of quarrel.In the cross-examination PW-1 Dinanath has specifically statedthat he will not be able to name the said neighbour who gavehim that information. Therefore, whatever PW-1 Dinanath hassaid as to what was seen and heard by the neighbours, for thatpurpose his testimony is hear-say in nature. If he would havenamed those neighbours then they could have been examined tosupport the prosecution story and also his testimony. Thoseneighbours would have been the best witnesses in this case.However, due to non-revelation of the name of the saidneighbours, they could not be examined. PW-1 Dinanath has not appeal-457.1812taken name of either PW-2 Madhukar or PW-3 Ujawala or PW-9Manchala as the person or persons who had heard the quarreland then seen accused No.1 and his father leaving the house bylatching the door from the outside. Under the said circumstance,the hostility of these three witnesses cannot be considered as anact of relieving the prosecution from examining that neighbourwho had informed the incident to PW-1 Dinanath around 8.30a.m. of 1st September 2015. The prosecution therefore, has notexamined the best witness in this case. 11.PW-2 Madhukar, PW-3 Ujawala and PW-9 Manchala haveturned hostile. In the cross-examination they have admitted thatthey had seen the dead body of Savita in her house but claimedignorance about her murder by the accused. PW-2 Madhukarappears to be related to the accused, so also PW-9 Manchala hasdeposed that accused No.1 is her nephew. However, asaforesaid, PW-1 Dinanath is not taking the names of these threewitnesses to be the person or persons who had heard the quarrelfrom the house of accused and informed him about the same.12.The case of the prosecution, as aforesaid, is based on