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2014 DIGILAW 43 (BOM)

Ashok Rambhan Gaikwad v. State of Maharashtra

2014-01-09

A.S.GADKARI, P.V.HARDAS

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Judgment P.V. Hardas, J. 1. The Appellant who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay a fine of Rs.500/- in default of which to under go rigorous imprisonment for three months, by the II Ad hoc Additional Sessions Judge, Nashik, by a judgment dated 5 November 2004, in Sessions Case No.69 of 2004, by this Appeal questions the correctness of his conviction and sentence. 2. Facts in brief as are necessary for the decision of this Appeal may briefly be stated thus: P.W. 3 P.S.I. Ramesh Bawiskar who on 8 January 2004 was attached to the Panchavati Police Station, recorded the report of the Appellant at Exhibit 16. Since the report of the Appellant is inculpatory in nature, we do not refer to the confessional part of the said report. On the basis of the said report, an offence vide Crime No.9 of 2004 was registered. P.W.3 P.S.I. Bawiskar proceeded to the house of the Appellant and noticed a woman lying in pool of blood in one of the rooms of house. He noticed that she had sustained an injury to her head and was alive. The injured lady was admitted in the hospital. The investigation was thereafter transferred to another police officer of the Panchavati Police Station. 3. P.W.8 P.S.I. Balasaheb Hire who on 8 January 2004 was attached to the Panchavati Police Station, was entrusted with the investigation of Crime No.9 of 2004. On being entrusted with the investigation, P.W.8 P.S.I. Hire proceeded to the scene of the incident and in the presence of the panchas drew the scene of the incident panchanama. From the scene of the incident, he seized one wooden dumbbell, a log of wood resembling a cricket bat and some clothes having blood stains. He recorded the statement of one Poonam and arrested the accused. The clothes on the person of the accused were seized under the arrest panchanama Exhibit 20. The clothes of the deceased were seized under seizure memo at Exhibit 25. The seized clothes were thereafter forwarded to the Chemical Analyzer along with the requisition Exhibit 28. Further to the completion of investigation, a charge-sheet against the Appellant was filed. 4. Postmortem on the dead body of deceased Pushpa was conducted by P.W. 6 Dr. Shripal Lunawat. P.W. 6 Dr. The seized clothes were thereafter forwarded to the Chemical Analyzer along with the requisition Exhibit 28. Further to the completion of investigation, a charge-sheet against the Appellant was filed. 4. Postmortem on the dead body of deceased Pushpa was conducted by P.W. 6 Dr. Shripal Lunawat. P.W. 6 Dr. Lunawat noticed the following external injuries: “1. CLW on right parental region, having size 5x2x1/2 cms. 2. CLW on occipital region. size 6x2x1/2 cms. 3. Contusion on neck, Ant. 5x1 and ? cms. 4. Multiple lineer abrasions over neck Anteriorly. 5. Abrasion on left mandible 2x1 cm. 6. Abrasion below chin 1x1/2 cm. 7. Contusion forehead 5x4 cm 8. Contusion on Rt. parietal region 3x4 cm.” He opined that all the injuries were ante- mortem in nature. 5. On internal examination, he noticed that the brain was pale and found fracture in the third and fourth costochondral junctions. Pleura was also found to be pale and the viscera was collected and preserved. P.W. 6 Dr. Lunawat found that Pushpa had died because of haemorrhagic shock due to haemoperitoneum due to fracture of rib. The postmortem report is at Exhibit 22. 6. On committal of the case to the Court of Sessions, Trial Court vide Exhibit 5 framed charge against the Appellant for offence punishable under Section 302 of the Indian Penal Code. The Appellant denied his guilt and claimed to be tried. Prosecution in support of its case examined 11 witnesses. The Trial Court upon appreciation of the evidence convicted and sentenced the Appellant as afore stated. 7. This Appeal had been called out repeatedly since 6 January 2014. Counsel appearing on behalf of the Appellant was absent. With the assistance of the learned Additional Public Prosecutor, we had perused the evidence and since we find that the evidence for sustaining the conviction of the Appellant was wanting, we have decided the Appeal. 8. Prosecution has examined P.W. 1 Namdeo Pagare, father of deceased Pushpa. P.W. 1 Namdeo speaks about certain instances which would indicate that the relations between the Appellant and his wife deceased Pushpa were strained. According to P.W.1 Namdeo, he had received information that Pushpa was serious and was admitted in the hospital and therefore had gone to the hospital. On reaching the hospital, he was informed that Pushpa was no more. He had thereafter performed the funeral of Pushpa. According to P.W.1 Namdeo, he had received information that Pushpa was serious and was admitted in the hospital and therefore had gone to the hospital. On reaching the hospital, he was informed that Pushpa was no more. He had thereafter performed the funeral of Pushpa. Prosecution has also examined P.W. 2 Poonam, a neighbour, but unfortunately P.W.2 Poonam did not support the prosecution and was declared hostile. Prosecution has examined P.W.4 Sagar Pagare, brother of deceased Pushpa. He too deposes that the relations between the Appellant and Pushpa were strained as the Appellant was addicted to liquor and was not providing money for household expenses to Pushpa. P.W.4 Sagar also deposes that on 8 January 2004 he had received information that Pushpa was serious and was admitted in the Civil Hospital. On reaching the hospital, he was informed that Pushpa was no more. 9. Prosecution has examined P.W. 5 panch to the seizure of the clothes of the accused which were found to be bloodstained. The said clothes came to be seized under seizure memo under Exhibit 20. Report of the Chemical Analyzer at Exhibit 12 discloses that the blood group of the Appellant was AB, while the blood group of Pushpa was A. The clothes of deceased Pushpa were stained with blood of A group. The clothes of the Appellant as per the CA report at Exhibit 14 were also found stained with blood of A group. 10. The evidence against the Appellant therefore comprises of the following circumstances: i) The conduct of the Appellant in lodging an inculpatory report; ii) Death of deceased Pushpa being homicidal in the house occupied by the Appellant and deceased Pushpa; iii) The clothes of the Appellant were found stained with blood of A group which matches the blood group of deceased Pushpa. 11. In cases resting on circumstantial evidence, it is incumbent on the prosecution to establish and prove each and every circumstance on which the prosecution proposes to rely. The circumstances so established should be of a conclusive nature that is they should have a definite tendency of implicating the accused. The circumstances so proved should form a complete chain which should exclude every hypothesis of the innocence of the accused and should unerringly point to the guilt of the accused. The circumstances so established should be of a conclusive nature that is they should have a definite tendency of implicating the accused. The circumstances so proved should form a complete chain which should exclude every hypothesis of the innocence of the accused and should unerringly point to the guilt of the accused. In other words, the circumstances should be capable of only one inference and that is, that the accused and the accused alone had committed the offence. 12. In the present case, the First Information Report lodged by the accused cannot be read in evidence as it is an inculpatory report. The other exculpatory portion is of no assistance to the prosecution. The conduct of the Appellant in going to the police station and lodging the inculpatory report is the only circumstance which can be presumed on the basis of the report lodged by the Appellant. The second circumstance viz. the death of deceased had occurred in the house of the Appellant is by itself not an incriminating circumstance. There is no evidence on record to indicate that the Appellant was present in the house at the time when the offence was committed. Thus, the evidence of the prosecution does not exclude the possibility of any intruder or stranger committing the crime. In other words, the circumstances are incapable of an inference that it is the accused and the accused alone who has committed the offence. Since the dead body of Pushpa was in the house, presence of blood of blood group A on the clothes of the Appellant by itself would not be an incriminating circumstance as the Appellant was the husband of deceased Pushpa and therefore every possibility that blood of A group may have adhered to his cloth as Pushpa was lying in the house in a pool of blood cannot be ruled out. 13. A reference at this juncture may usefully be made to the judgment of the Supreme Court in SohelMehaboob Shaikh v. State of Maharashtra (2009) 12 SCC 588 ). The Supreme Court at paragraphs 5, 6 and 7 has held thus: “5. 13. A reference at this juncture may usefully be made to the judgment of the Supreme Court in SohelMehaboob Shaikh v. State of Maharashtra (2009) 12 SCC 588 ). The Supreme Court at paragraphs 5, 6 and 7 has held thus: “5. The three circumstances brought on record by the prosecution and highlighted by the trial court and the High Court are as follows: “(i) Deceased Sofiya met with an unnatural death; (ii) Deceased Sofiya had died in the room which was solely and exclusively occupied by her and her husband i.e. Accused 1; (iii) The appellant has not offered any explanation in respect of the I incident in which deceased Sofiya had sustained burns.” 6. We have gone through the evidence on record and we find that the High Court has arrived at some conclusions which, in our opinion, are based on surmises and conjectures, without there being any evidence to support the conclusions. That being so, we find that the charge against the appellant has not been established. 7. The first and third circumstances cannot be considered to be relevant either separately or collectively. So far as the second circumstance is concerned, there is no evidence to show circumstantially that the accused was present in the room at the time of occurrence. The time of occurrence, even by approximation has not been established by the prosecution. We, therefore, set aside the judgment of conviction recorded by the trial court and upheld by the High Court. The appeal is allowed.” 14. In the light of what has been stated by us above, we find that the prosecution has failed to prove the offence against the Appellant beyond reasonable doubt and the Appellant, in our opinion, would be entitled to be given the benefit of doubt. 15. Accordingly Criminal Appeal 1527 of 2004 is allowed and the conviction and sentence of the Appellant is hereby quashed and set aside and the Appellant is acquitted of the offence with which he was charged and convicted. Fine, if any, paid by the Appellant be refunded to him. Since the Appellant is in jail, he be released forthwith, if not required in any other case.