Bombay High Court
Case Details
-1- ALS-123--2020 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPLICATION FOR LEAVE TO APPEAL BY STATE NO.123 OF 2020 The State of Maharashtra, Through Police Inspector, Sillod Rural Police Station, Tq. Sillod, Dist. Aurangabad. Versus … Applicant Narmada (Renuka) w/o. Krushna Palhal, Age : 19 Years, Occu. : Shepherd, R/o. Asegaon, Taluka – Gangapur, District : Aurangabad. … Respondent … Mr. S. D. Ghayal, APP for Applicant - State ... CORAM : SMT. VIBHA KANKANWADI AND ABHAY S. WAGHWASE, JJ. DATED : 27th JULY, 2023. ORDER (PER ABHAY S. WAGHWASE, J.) : 1. Getting dissatisfed by the judgment and order dated 24.01.2020 passed by learned Sessions Judge, Aurangabad in Sessions Case No.138 of 2018, thereby acquitting respondent from charge under section 302 of Indian Penal Code, State is seeking leave to fle appeal. 2. While seeking leave learned APP highlighted and raised following grounds :- -2- ALS-123--2020
Legal Reasoning
Firstly, there is non appreciation and non application of law while appreciating prosecution evidence and hence judgment is perverse. Secondly, the strong and incriminating circumstances put-forth by prosecution are not correctly appreciated. Thirdly, marriage of respondent-accused was performed with deceased against her wish and therefore he was done away by strangulating and giving blows by hammer. Fourthly, the incident has taken place while the respondent was the sole person in the company of deceased. Fifthly, theory of last seen together has not been correctly appreciated. Sixthly, there is recovery and discovery at her instance. Seventhly, learned trial court failed to apply section 106 of the Indian Evidence Act. Eighthly, medical evidence has confrmed death to be homicidal and it was even affrmed by learned trial Judge, but still surprisingly accused is let off. 3. In the light of above submissions, we have examined the entire evidence on record which shows that present respondent - wife of deceased was put up for trial for the charge of -3- ALS-123--2020 murder of her deceased husband. Evidence on behalf of prosecution comprised of as many as 8 witnesses. PW1 Pandurang, father of deceased seems to have received telephonic message, and thereafter on visiting spot, he seems to have set law into motion vide Exh.18. Apparently, he has not raised any accusation or allegation against respondent daughter-in-law except stating there is quarrel between them. PW2 Dattu, who has acted as panch to inquest, narrated the site of injury and he identifed panchanama (Exh.20). PW3 Raghunath, panch to spot, narrated about panchanama drawn in his presence and articles seized vide Exh.22 in which he identifed the articles. PW4 Shajikh, panch to seizure of clothes of accused (Exh.26) PW5 Pankaj, panch to memorandum of disclosure regarding the spot, but he has apparently not supported the prosecution. PW6 Dr. Vijay - autopsy doctor, who opined about death due to asphyxia due to strangulation. He identifed post mortem report. -4- ALS-123--2020 PW7 Sonaji seems to be the star witness of prosecution as he has employed accused and deceased to take care of his sheeps. He stated that both husband and wife stayed at Wadge and that he used to pay them Rs.6,000/- per month. According to him, he and deceased grazed the sheeps and in the night block kept the sheeps in net at Wadge and he went to his house and returned back around 10.00 to 11.00 p.m. In the morning, he gave call to accused and deceased, but only respondent-accused woke up. According to him, accused told him that, there was some quarrel between her and deceased husband and deceased had allegedly bite her fnger. According to this witness, when he pulled over the Ghongdi from the face of deceased, he found blood near the neck of deceased Krushna and accordingly he informed Sarpanch and thereafter police came on the spot. Dogs was also brought. That dog sniffed the hammer and caught Renuka. He has stated that he had purchased the hammer from one Madhukar Sheth. He identifed the hammer. His cross-examination shows that, on his alleged questioning and asking accused to tell the truth, she allegedly admitted the act. He admitted that, in his statement under section 164 of Cr.P.C. he has stated that he does know who committed the -5- ALS-123--2020 murder and that there is to be quarrel between accused and deceased. PW8 Vishwas is the police offcer. 4. Thus, what can be culled out from the available evidence on behalf of prosecution in trial court is that, prosecution has pressed into service the theory of strained relations between accused and deceased, and deceased to be in the company of accused during the night and deceased found dead in the morning. It is emerging that, there is little, weak or no evidence on the point of quarrel. On what count there were quarrels has not been stated by any of the witness including father. Evidence of PW7 Sonaji employer of accused and deceased merely speaks of their engagement to take care of their sheeps. He claims that there was extra judicial confession given by him, but his cross- examination clearly shows that it is contrary to his statement under section 164 of Cr.P.C. before learned Magistrate, wherein he had informed that he does know who committed the murder and secondly admitted that there were no quarrels between husband and wife. 5. It is true that, death is demonstrated to be homicidal, -6- ALS-123--2020 but except PW7 Sonaji there is no witness seeing accused and deceased retiring to bed that night. There are allegations of injuries to private part. Recovery and discovery is not free from doubt. All so called eight circumstances not being frmly and cogently proved, it is not open for prosecution to invoke section 106 of Indian Evidence Act. Therefore, apparently there being weak evidence, in our opinion, learned trial court was justifed in refusing to accept the case of prosecution. 6. Therefore, in the light of above discussion, in our considered opinion, there is no merit or cogent and full proof evidence on behalf of prosecution. No fruitful purpose would be served by granting leave to fle appeal with such quality of evidence on record. Resultantly, we refuse the relief and proceed to pass following order :
Decision
ORDER The criminal application stands rejected. (ABHAY S. WAGHWASE, J.) (SMT. VIBHA KANKANWADI, J.) Tandale