Bombay High Court
Ranjana @ Changuna Prakash Sonawane And ... vs The State Of Maharashtra on 30 August, 2018
Author: S.S. Shinde
Bench: S.S. Shinde, Mridula Bhatkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No.1480 OF 2011
1) Sou.Ranjana @ Changuna Prakash Sonawane
Age-55 years, Occu-Household,
2) Prakash Sakharam Sonawane
Age-57 years, Occu-Service,
3) Sachin Prakash Sonawane
Age-29 years, Occu-Business
A/R/At: Vadgaon, Near Panchmukhi
Maruti Temple, Tq-Maval,
Dist:Pune
[At present lodged in Yerwada
Central Jail, Pune]
...APPELLANTS
VERSUS
The State of Maharashtra
(At the instance of Vadagaon Maval
Police Station)
...RESPONDENT
...
Mr. Vikas Balasaheb Shivarkar Advocate for
Appellants.
Mrs. M.M.Deshmukh, A.P.P. for Respondent -
State.
...
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CORAM: S.S. SHINDE AND
MRS. MRIDULA BHATKAR, JJ.
DATE OF RESERVING JUDGMENT : 20TH AUGUST, 2018
DATE OF PRONOUNCING JUDGMENT: 30TH AUGUST, 2018
JUDGMENT [PER S.S. SHINDE, J.]:
1. This Appeal is directed against the
Judgment and order dated 1st October, 2011, passed
by the Additional Sessions Judge, Pune in Sessions
Case No.238 of 2007, thereby convicting the
Appellants/accused - Sou. Ranjana @ Changuna
Prakash Sonawane, Prakash Sakharam Sonawane and
Sachin Prakash Sonawane for the offence punishable
under Section 302 read with Section 34 of the
Indian Penal Code [for short 'I.P. Code'] and
sentencing each of them to suffer life
imprisonment and to pay fine of Rs.5,000/- each.
The trial Court also convicted the
Appellants/accused - Sou. Ranjana @ Changuna
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Prakash Sonawane, Prakash Sakharam Sonawane and
Sachin Prakash Sonawane for the offence punishable
under Section 201 read with Section 34 of the I.P.
Code and sentenced them to suffer rigorous
imprisonment for five years each and to pay fine
of Rs.1000/- each, in default of payment of fine
to suffer rigorous imprisonment for 15 days each.
All the sentences were directed to be run
concurrently. Hence this Appeal is filed by all
the three Appellants challenging the conviction
and sentence.
2. The prosecution case, in brief, is as
under:
A) Sheetal Sachin Sonawane [for short "the
deceased"] got married with accused No.3, namely,
Sachin Prakash Sonawane in the Year 2004. Nagesh
Balaji Dhale (for short "the informant") is her
brother. After the marriage, Sheetal started
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residing with the accused at Vadgaon-Maval.
Initially, the accused treated her well.
Meanwhile, Sheetal became pregnant. The informant
fetched her to his house where she delivered a
daughter. 10-15 days after the delivery, accused
No.3, namely, Sachin took Sheetal to Vadgaon-
Maval.
B) When the informant had been to the house
of the accused to meet the deceased, she informed
him that accused No.1 was taunting, harassing and
torturing her on account of petty quarrels. The
accused used to subject her to physical cruelty
also. While at the house of the informant at
Bhivandi, Sheetal told him that the accused had
told her not to return to her matrimonial home.
She also expressed the fear that in case she
returned to the accused, they may finish her. The
informant somehow convinced her and dropped at the
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shop of accused No.1. Eight days prior to the
incident, the deceased had been to the house of
the informant to visit her elder sister, namely,
Priyanka who had delivered a daughter. At that
time also, the deceased complained about the
harassment and torture at the instance of the
accused.
C) The informant had been to Sahyadri
Hospital on 11th February, 2007 to pay visit to
ailing mother of his brother in law, namely,
Dhondiba Shinde. At about 11.30 a.m., accused No.3
informed Dhondiba that Sheetal had subjected
herself to immolation and she died. The informant
then went to Primary Health Center, Talegaon-
Dabhade. He saw the dead body of Sheetal. The
dead body was then sent for post-mortem.
D) Accordingly, the informant lodged First
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Information Report [for short 'FIR'] [Exhibit-37]
with the Vadgaon-Maval Police Station. The
offences aforesaid came to be registered vide C.R.
No.19/2007. Prior to lodging the FIR, Accidental
Death No.8/2007 came to be registered with
Vadgaon-Maval Police Station. Head Constable Shri
Tamboli conducted inquest panchnama [Exhibit-42]
of the body of deceased at the house of the
accused. He also conducted spot panchnama
[Exhibit-41]. These papers along with seized
articles were entrusted by him to Police Inspector
Nikam [PW-5]. On the same day i.e. 11th February,
2007, Police Inspector Nikam arrested the accused.
He also seized the clothes on the person of the
accused by conducting panchnamas [Exhibits-56 to
58] in presence of two Panch witnesses.
E) On 12th February, 2007, accused No.1-
Sou.Ranjana gave a memorandum statement [Exhibit-
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59] to discover the weapon used in the commission
of offence, in presence of two panch witnesses.
She then guided Police Party and panch witnesses
to her residence. She discovered a wooden batten
from the slab of the toilet in her house. The
said wooden batten was seized by the Police
Authorities. A panchnama [Exhibit-60] in respect
of discovery was drawn by the Investigating
Officer. The Investigating Officer thereafter
recorded statements of the witnesses. On 26th
February, 2007 he referred the seized material for
Chemical Analysis to Regional Forensic Science
Laboratory, Pune [Exhibit-61]. Thereafter on 31 st
October, 2006, a report [Exhibit-47] was submitted
by the Chemical Analyzer. The same was included in
the investigation papers. After completion of the
investigation, Police Inspector Nikam filed
charge-sheet in the Court of Judicial Magistrate,
First Class, Vadgaon-Maval, District Pune, who
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committed the said case to the Court of Sessions,
as the offence punishable under Section 302 of the
I.P. Code is exclusively triable by the Court of
Sessions.
F) A charge for an offence punishable under
Sections 302, 201, 498-A r/w. 34 of the I.P. Code
was framed against the accused and the same was
explained to them. The accused pleaded not guilty
and claimed to be tried.
3. After recording the evidence and
conducting full-fledged trial, the trial Court
convicted the appellants - accused, namely, Sou.
Ranjana @ Changuna Prakash Sonawane, Prakash
Sakharam Sonawane and Sachin Prakash Sonawane for
the offence punishable under Section 302, 201 r/w.
Section 34 of the I.P. Code and sentenced them to
suffer the imprisonment and to pay fine, as afore-
stated. Hence this Appeal is preferred by the
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accused - appellants challenging the conviction
and sentence.
4. Heard learned counsel appearing for the
appellants and learned APP appearing for the
respondent-State, at length. With their able
assistance, we have carefully perused the entire
notes of evidence so as to find out whether the
findings recorded by the trial Court are in
consonance with the evidence brought on record or
otherwise.
5. The prosecution examined PW-4 Dr. Madhav
Adelu Waghmare. He deposed that on 11th February,
2007, he was on duty at Primary Health Center,
Talegaon-Dabhade. Head Constable Shri H.K.Tamboli
brought dead body of Sheetal Sachin Sonawane on
11th February, 2007. He conducted the autopsy on
the same day. It was dead body of a female aged
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about 20 years. Her clothes were burnt. Upon
examination he noticed the following injuries on
her person :
1. Contusion on parietal scalp region. Size
3 "3 x 3".
2. Deep burn injury to the face and head
region size 8" x 6", the percentage of
burns are 20%.
3. Deep burnt injury to chest and abdomen
region 12" x 10", the percentage of burns
are 20%.
4. Deep burn injury to upper right and left
extremities, size 24" x 2-1/2", the
percentage of burns are 20%.
5. Deep burn injury to back size 12" x 10",
the percentage of burns are 20%.
6. Deep burn injury to Iliac to knee region
12" x 2", the percentage of burns are
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10%.
. PW-4 Dr. Madhav further deposed that
there was also fracture of skull involving
parietal bone. The above all injuries are ante-
mortem.
6. PW-4 Dr. Madhav further deposed that upon
examination, he noticed following internal
corresponding injury on the person of dead body:
1. Contusion partial scalp region.
2. Fracture skull involving partial bone
3. Congested manengia, laceration to brain
7. PW-4 Dr. Madhav further deposed that the
injuries referred above collectively were the
cause of the death. The death was caused on
account of shock and hemorrhage, grievous injury
to vital organs, fracture of skull involving
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partial bone with laceration to brain and
suffocation due to 90% burn injuries. He further
deposed that pursuant to post-mortem he prepared a
report [Exhibit-46], dated 11th February, 2007 and
the same is in his handwriting and bears his
signature. He further deposed that the fracture to
the skull of the deceased can be on account of
assault by a cricket bat.
8. During the course of cross-examination,
PW-4 Dr. Madhav stated that on account of
sustaining 90% burns, the patient must have been
in pain. Such a person can become wild and run for
help. PW-4 Dr.Madhav further stated that injury
No.1 contusion on parital region and scalp may be
caused by hitting on edged surface of cupboard,
cot or any edgy surface. The injury No.1
corresponds with injury mentioned in clause No.18
and 19. He further stated that he was not shown
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any weapon. When the head is hit with a cricket
bat, the hair bulbs may be crushed along with
skull fracture. He further stated that he has not
mentioned about crushing of the hair bulbs in his
report. He denied the suggestion put to him that
there is no possibility of causing injury No.1 by
hitting a cricket bat on the head. He further
stated that the burn injuries at serial Nos.2 to 6
in clause No.17 can either be suicidal or
homicidal.
9. Upon careful perusal of the entire
evidence of PW-4 Dr. Madhav, it is clear that the
cause of death as opined by PW-4 Dr.Madhav is
"shock and hemorrhage, grievous injury to vital
organs, fracture of skull involving partial bone
with laceration to brain and suffocation due to
90% burn injuries". PW-4 Dr.Madhav has not
conclusively opined that Sheetal died homicidal
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death. On the contrary, during the course of cross
examination, PW-4 Dr. Madhav has stated that the
burn injuries at serial Nos.2 to 6 in clause No.17
of the post-mortem report can either be suicidal
or homicidal. During the course of cross
examination by the defence, a question was put
and PW-4 Dr. Madhav has specifically admitted that
on account of sustaining 90% burns, the patient
must have been in pain and such a person can
become wild and run for help.
10. The prosecution has examined PW-1 Nagesh
Balaji Dhale, who is informant. He deposed that
at the time of occurrence of the incident they
were residing at Bhivandi. Dhondiba Rangnath
Shinde is his brother in law who was also residing
at Bhivandi at the relevant time. PW-1 further
deposed that he was working as a salesman in Jai
Mataji Agency, Bhivandi. He further deposed that
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their native is Kopara, Taluka Ahmedpur, District
Latur. His parents and uncle were residing at
Kopara. His mother Laxmibai expired in 1997.
Priyanka and Sheetal [deceased] are his sisters.
He further deposed that two years prior to the
incident, Sheetal married with Sachin Prakash
Sonawane, accused No.3. Sheetal was residing with
accused Nos.1 to 3 at Vadgaon-Maval. He further
deposed that initially, Sheetal was treated well
by the accused. After the marriage, Sheetal was
pregnant and he fetched her to Kopara, where
Sheetal delivered a girl child. Accused Nos.1
and 3 came to visit and see the child.
Thereafter, the accused took the deceased with
them.
11. PW-1 Nagesh further deposed that he then
went to the house of the deceased after 3-4
months. At that time Sheetal told her that accused
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No.1 used to taunt her. The girl child was named
as Sakshi, at the house of the accused. PW-1
Nagesh further deposed that they were not invited
for the said ceremony. On the occasion of Diwali,
they had been to the house of the accused and they
had taken with them a gold ring for Sakshi. He
further deposed that the deceased visited them
twice after her delivery at Bhivandi. On one
occasion, she had been to see child of Priyanka.
Sheetal was dropped by accused No.3 and she stayed
for about 10 days. At that time, Sheetal told
that accused No.1 used to taunt her and harass
her, on account of domestic work. They convinced
Sheetal and sent her back to matrimonial house. He
dropped Sheetal at the shop of accused No.3 at
Vadgaon-Maval.
12. PW-1 Nagesh further deposed that on 11 th
February, 2007, he had been to Sahyadri Hospital
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to meet ailing mother of Dhondiba Shinde and at
that time he received call on mobile of Dhondiba
from accused that Sheetal sustained burn injuries.
He therefore went to Talegaon-Dabhade along with
Dhondiba. He saw dead body of Sheetal at Primary
Health Center, Talegaon. She was burnt. He saw
injury to the head of deceased Sheetal. Blood was
oozing from the said injury. She was partly
burnt. The accused were not present at the
Hospital. He was at the Hospital for half an hour.
On the same day he approached Vadgaon-Maval Police
Station and lodged FIR [Exhibit-37] dated 11th
February, 2007, which bears his signature.
13. During the course of cross-examination,
PW-1 Nagesh admitted that accused No.3 owns a
Footwear Shop at Vadgaon-Maval. Accused No.3 alone
looks after the shop. The timings of the shop are
from 9.00 a.m. to 9.00 p.m. He further admits that
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accused No.2 is employed at Bajaj Tempo and he
works in shifts. He further admits that the last
rites of Sheetal were performed by the accused.
He further admitted that Sakshi [daughter of
deceased] stays with the accused. He further
admits that there used to be quarrels amongst the
deceased and accused No.1 on account of household
matters. He was unable to tell exact amount which
was spent in the marriage. He was not read over
the contents of the FIR. He is not aware about the
contents of the same.
14. The prosecution examined PW-2 Ganesh
Abaji Gavhane. This witness was examined to prove
the memorandum given by the accused No.1 and also
discovery panchnama of the alleged weapon, at the
instance of accused No.1, which was used in the
commission of crime. However, this witness turned
hostile and did not support the prosecution case.
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With the permission of the trial Court this
witness was cross-examined by the prosecution,
however nothing useful to the prosecution has been
elicited from this witness. It is the case of the
prosecution that during the scuffle between
accused No.1 and Sheetal, accused No.1 got annoyed
and she hit a wooden batten on the head of
Sheetal. However, the discovery of the said wooden
batten at the instance of accused No.1 is not at
all proved by the prosecution.
15. The prosecution has examined PW-3 Sanjay
Atmaram Panzade. He deposed that informant is his
nephew and deceased Sheetal was his niece. He was
the mediator in the marriage of Sheetal. The
marriage was arranged with accused No.3. It was
agreed to pay a dowry of Rs.25,000/- to the
accused. The expenses of the marriage were to be
borne by them. After the marriage, the deceased
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went with the accused at Vadgaon-Maval. After
some days, the deceased conceived and therefore
the informant fetched her to village Kopara for
delivery. Sheetal delivered a female child. After
a month, accused No.2 fetched the deceased to her
matrimonial home. Accused No.1 started ill-
treating and subjecting the deceased to cruelty on
account of delivering a female child. Accused
No.1 used to beat the deceased. Accused No.3
dropped the deceased at the residence of the
informant at Bhivandi as he was not willing to
cohabit with her. After about eight days,
informant Nagesh again brought her at the house of
the accused. By somehow convincing her, he dropped
Sheetal at the shop of accused No.3, as accused
No.1 used to ill-treat her. He further deposed
that he never visited the house of the accused as
accused No.1 used to ill-treat the deceased upon
visit of the relatives. Sheetal used to meet him
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in his shop. After about eight days when Sheetal
was dropped by the informant, she committed
suicide. The maternal uncle of accused No.3 Umesh
Lavangare informed that the deceased sustained
burn injuries at about 12.00 noon on 11 th February,
2007. When he reached the home of the accused, the
corpse was sent for autopsy. When he reached to
Primary Health Center, Talegaon, he saw the dead
body. The blood was oozing from her head.
16. During the course of cross-examination,
PW-3 Sanjay admitted that he knew the accused
prior to the marriage of the deceased. He further
admits that the shop of the accused and his shop
are adjacent to each other. He carries on his
business by the side of the road. He attends
weekly bazar of different villages. He further
stated that pursuant to death of his first wife,
he got remarried, but his wife does not stay with
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him. He further admits that his wife left him for
the reason that he consumes liquor. He further
stated that he does not possess any documentary
evidence in respect of giving dowry of Rs.25,000/-
to the accused. He further admitted that it was
decided to pay Rs.25,000/- to the accused and that
they would perform the marriage. He did not know
the expenses incurred by the accused in the
marriage. There were no complaints in respect of
performing marriage. Initially, the deceased was
treated well by the accused. He further stated
that Nagesh [informant] informed about delivery of
the daughter to the accused. Accordingly, accused
Nos.1 and 3 visited her. He did not visit. He
got the information about the deceased from
Nagesh. He told Police while recording the
statement that dowry was demanded and paid. He
was unable to assign any reason as to why there is
no mention of "dowry" in his statement. He
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further stated that he told the police while
recording statement that the expenses of the
marriage were incurred by them. He was unable to
assign any reason as to why the same does not
appear in his statement. He stated while giving
statement that accused No.1 used to beat the
deceased. He was unable to assign any reason as
to why the same does not appear in his statement.
He did not tell police that Nagesh dropped Sheetal
at the shop of accused No.3 as accused No.1 used
to ill-treat her. He did not tell police that he
had never been to the house of the accused as
accused No.1 used to ill-treat the deceased upon
visit of the relatives. He did not tell police
that Sheetal used to meet him in his shop. He did
not tell police that blood was oozing from the
head injury of the deceased when he saw her dead
body at Primary Health Center, Talegaon-Dabhade.
Deceased Sheetal never informed him in respect of
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ill-treatment, hence, he did not arrange for any
meeting of the relatives. He further stated that
deceased and accused No.3 had a daughter namely
Sakshi, who resides with the accused. Naming
ceremony of Sakshi was performed at the house of
the accused. Sakshi studies in English Medium
School. PW-3 Sanjay denied various suggestions put
to him by the defence.
17. Though it is the case of the prosecution
that Sheetal died homicidal death, PW-3 Sanjay,
the witness examined on behalf of the prosecution,
has stated in unequivocal terms in his
examination-in-chief itself that Sheetal committed
suicide. Several contradictions, omissions and
improvements are brought on record in the cross-
examination of this witness. Further, it is
significant to note that this witness has deposed
about the alleged ill-treatment given to Sheetal
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by the accused persons. However, the trial Court
has acquitted all the accused persons from the
offence punishable under Section 498-A of the I.P.
Code.
18. PW-5 Sanjay Wamanrao Nikam, Police
Inspector attached to Talegaon-Dabhade Police
Station at the relevant time, was the
Investigating Officer. He deposed about the manner
in which he has carried out the investigation in
the crime.
19. Upon careful perusal of the additional
written statement [Exhibit-63] given by the
accused under Section 313 of the Code of Criminal
Procedure, it is the defence of all the accused
that at the time of incident they were not present
in the house. The accused stated that accused No.3
had left to his shop in the morning on 11th
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February, 2007, accused No.2 had been out of the
house to attend the marriage of the relative and,
in the afternoon accused No.1 had been to the shop
of accused No.3 with a tiffin containing lunch.
Admittedly, the entire prosecution case is based
upon the circumstantial evidence and there is no
eye witness to the incident. The prosecution has
not established that at the time of incident the
accused were present in the house.
20. According to the prosecution, the spot of
the incident is the house of the accused. Even if
prosecution case is taken as it is, that death of
Sheetal occurred in the house of the accused, in
order to invoke the provisions of section 106 of
the Evidence Act, the prosecution has to discharge
burden under section 101 of the Evidence Act. In
the present case, there are three accused. The
prosecution has not brought on record any
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circumstantial evidence or direct evidence to show
that all the three accused or anyone of them was
present in the house at the relevant time. In
order to invoke the provisions of section 106 of
the Evidence Act, the prosecution ought to have
brought on record the evidence in the nature of
last seen together or any other evidence which
would suggest that the accused persons were
present at the relevant time in the house.
21. The Supreme Court in the case of Sohel
Mehaboob Shaikh Vs. State of Maharashtra1, while
explaining scope and ambit of section 106 of the
Evidence Act, held that in case of circumstantial
evidence, if there is no evidence to show that
accused was present in the room when occurrence
took place, chain of circumstances is not complete
and accused is entitled to be acquitted. The fact
1 AIR 2009 S.C. 2702
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that accused has not given any explanation about
unnatural death of wife is not material.
22. In the case of Vikramjit Singh @ Vicky
Vs. State of Punjab2, the Supreme Court held that
suspicion, however, grave may be, cannot be a
substitute for proof. The same would lead to only
conclusion that the prosecution has not been able
to prove its case beyond all reasonable doubt.
23. The Supreme Court in the case of Joydeb
Patra & ors V/s State of West Bengal 3, in the facts
of that case in paras 7 to 9 held thus :-
"7. Learned counsel for the State, Mr. Bijan
Ghosh, vehemently submitted that since the death
took place in the house of the appellants,
burden was on the appellants to prove as to how
the death of the deceased actually took place.
He submitted that the death of the deceased
obviously took place under very mysterious
2 2007 All. S.C.R. 2094
3. 2013 Cri.L.J. 2729
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circumstances and when the medical facilities
were very near to the place of occurrence, the
appellants should have availed the medical
facilities but have not done so and this conduct
of the appellants has given scope to the
prosecution to believe that they were guilty of
the offence under Section 302/34, I.P.C.
8. We are afraid, we cannot accept this
submission of Mr. Ghosh. This Court has
repeatedly held that the burden to prove the
guilt of the accused beyond reasonable doubt is
on the prosecution and it is only when this
burden is discharged that the accused could
prove any fact within his special knowledge
under Section 106 of the Indian Evidence Act to
establish that he was not guilty. In Sucha Singh
v. State of Punjab,(2001) 4 SCC 375 : (AIR 2001
SC 1436 : 2001 AIR SCW 1292), this Court held:
"We pointed out that Section 106 of the
Evidence Act is not intended to relieve the
prosecution of its burden to prove the guilt
of the accused beyond reasonable doubt, but
the section would apply to cases where
prosecution has succeeded in proving facts for
which a reasonable inference can be drawn
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regarding the existence of certain other
facts, unless the accused by virtue of special
knowledge regarding such facts failed to offer
any explanation which might drive the court to
draw a different inference."
Similarly, in Vikramjit Singh v. State of
Punjab, (2006) 12 SCC 306 : (2006 AIR SCW 6197),
this Court reiterated:
"Section 106 of the Indian Evidence Act does
not relieve the prosecution to prove its case
beyond all reasonable doubt. Only when the
prosecution case has been proved the burden in
regard to such facts which was within the
special knowledge of the accused may be
shifted to the accused for explaining the
same. Of course, there are certain exceptions
to the said rule, e.g., where burden of proof
may be imposed upon the accused by reason of a
statute."
9. As the prosecution has not been able to
discharge its burden of establishing beyond
reasonable doubt that the deceased died due to
poisoning, in our view, the trial court and the
High Court could not have held the appellants
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guilty just because the appellants have not been
able to explain under what circumstances the
deceased died."
24. As already observed the prosecution has
not discharged its burden of proving that at the
time of incident the accused were present in the
house. In the present case, the investigating
officer has not carried out the investigation in
proper manner. The statements of the neighbourers
of the accused were not recorded by the
investigating officer. It is the case of the
prosecution that the investigating officer has
seized the articles from the spot of incident on
11th February, 2007, so also the clothes on the
person of the accused at the time of alleged
incident were also seized on the same day i.e. 11 th
February, 2007, by the investigating officer.
Panchas to the seizure panchnama have not been
examined by the prosecution to prove the seizure
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panchnama. It is pertinent to note that the
investigating officer has specifically stated in
his examination in chief itself that the seized
articles were sent to the office of the Chemical
Analyzer on 26th February, 2007 for Chemical
Analysis. The investigating officer has admitted
during the cross examination that till the time of
dispatching muddemal for C.A., it was in his
custody. Thus, it is clear that from 11 th February,
2007 till 26th February, 2007 the seized material
was in the custody of the investigating officer.
The prosecution has not brought on record whether
the said articles were properly sealed or
otherwise. Further, the prosecution has not
examined the carrier who carried out the muddemal
articles to the Chemical Analyzer. Therefore, we
find considerable force in the argument advanced
by learned counsel for the Appellants that
muddemal articles were in the custody of the
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investigating officer for about 15 days and during
the said period possibility of tampering with the
muddemal articles cannot be ruled out. Considering
the over all evidence and the circumstances
brought on record, explicit reliance cannot be
placed upon the chemical analysis report.
. As already observed, the Investigating
Officer has carried out the investigation in a
perfunctory manner. The Hon'ble Supreme Court in
recent Judgment in the case of Suresh and Anr.
Versus State of Haryana in Criminal Appeal No.(s).
1445-1446 of 2012 along with Criminal Appeal
No.1458 of 2012, decided on 21st August, 2018, has
seriously viewed the conduct of the prosecuting
authorities for not showing seriousness during the
investigation. Para 52 of the said Judgment reads
thus:
"52. We may note that every acquittal
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34
in a criminal case has to be taken with
some seriousness by the investigating
and prosecuting authorities, when a case
of this nature is concerned. We are
aware of the fact that there has been a
death of a person in this incident and
there is no finality to the aforesaid
episode as it ends with various
unanswered questions, which point
fingers at the lack of disciplined
investigation and prosecution. Although
Courts cannot give benefit of doubt to
the accused for small errors committed
during the investigation, we cannot
however, turn a blind eye towards the
investigative deficiencies which goes to
the root of the matter."
25. We have perused the Judgment and order
passed by the trial Court. The trial Court has not
appreciated entire evidence brought on record in
its proper perspective. The trial Court has
acquitted all the accused from the offence
cria1480.11 Judgment.doc
35
punishable under Section 498-A of the I.P. Code.
However, on the same set of evidence, the trial
court has convicted the accused for the offence
punishable under Section 302, 201 of the I.P.
Code. Since the Appellants are acquitted from the
offence punishable under Section 498-A of the I.P.
Code, the motive as per the prosecution case, for
the commission of alleged offence by the
Appellants, punishable under Section 302, 201 of
the I.P. Code, is not at all established, and the
motive assumes much importance in the case based
upon the circumstantial evidence.
26. Admittedly, in the present case there is
no eye witness and the prosecution case is
entirely based upon the circumstantial evidence.
The Supreme Court in the case of Shankarala
Gyarasilal Dixit Vs. State of Maharashtra4 in para
13 held thus :
4 AIR 1981 SC 765
cria1480.11 Judgment.doc
36
"13. Since this is a case of circumstantial
evidence, it is necessary to find whether
the circumstances on which the prosecution
relies are established by satisfactory
evidence, often described as `clear and
cogent' and secondly, whether the
circumstances are of such a nature as to
exclude every other hypothesis save the one
that the appellant is guilty of the
offences of which he is charged. In other
words, the circumstances have to be of such
a nature as to be consistent with the sole
hypothesis that the accused is guilty of
the crime imputed to him."
. After discussing the circumstances
brought on record and the evidence available
therein, in the case of Shankarala Gyarasilal
Dixit (supra), the Supreme Court observed that
though 12 circumstances have been relied upon by
the prosecution, the important circumstance is
that the appellant therein was present in the
house, was not proved by the prosecution.
cria1480.11 Judgment.doc
37
Therefore, in the facts of that case, Supreme
Court held in Para-26 of the Judgment that the
crucial link in the chain of circumstances is the
presence of the appellant in his house at the time
when the dead body of Sunita was discovered. Once
that link snaps, the entire case would have to
rest on slender tit-bits here and there. This
discussion disposes of the second part of the 4th
circumstance, part of 5th circumstance and
circumstances (6) and (7). The Supreme Court
acquitted the appellant therein.
27. In the present case also the crucial link
in the chain of circumstances is the presence of
the Appellants in the house at the time when the
incident took place. However, in the present case
the prosecution has utterly failed to prove that
at the time of incident all the accused or anyone
of them was present in the house. Thus, crucial
cria1480.11 Judgment.doc
38
link in the chain of circumstances that at the
time of incident the accused were present in the
house is not proved by the prosecution. Therefore,
benefit of doubt in favour of the Appellants
deserves to be extended.
28. In the light of discussion in foregoing
paragraphs, we are of the considered view that the
entire prosecution case rests upon the
circumstantial evidence and the evidence brought
on record by the prosecution is not cogent,
sufficient and convincing so as to prove the
offence against the Appellants beyond
reasonable doubt. Therefore, an inevitable
conclusion is that the Appellants are entitled
for the benefit of doubt. Hence we pass the
following order:
cria1480.11 Judgment.doc
39
O R D E R
(I) The Criminal Appeal is allowed. (II) The Judgment and order dated 1 st October, 2011, passed by the Additional Sessions Judge, Pune in Sessions Case No.238 of 2007, thereby convicting and sentencing the accused/Appellants - Sou. Ranjana @ Changuna Prakash Sonawane, Prakash Sakharam Sonawane and Sachin Prakash Sonawane for the offence punishable under Section 302 read with Section 34, Section 201 read with Section 34 of the Indian Penal Code, is quashed and set aside.
(III) All the Appellants are acquitted of the offence punishable under Section cria1480.11 Judgment.doc 40 302 read with Section 34, Section 201 read with 34 of the Indian Penal Code. Fine amount, if deposited as per the impugned Judgment and order, be refunded to the Appellants. (IV) The order passed by the trial Court to the extent of acquitting the accused-Appellants of the offence punishable under Section 498-A of the Indian Penal Code is hereby confirmed. (V) The Appellants are in jail, they be set at liberty forthwith, if not required in any other case.
(VI) All the Appellants shall furnish Personal Bond of Rs.15,000/- each and surety in the like amount each, under Section 437-A of the Code of Criminal cria1480.11 Judgment.doc 41 Procedure, before the concerned trial Court at Pune.
[MRS. MRIDULA BHATKAR, J.] [S.S. SHINDE, J.] Digitally signed by Maria Luiza Maria Luiza Nicholas Nicholas Sequeira Date: 2018.08.30 Sequeira 15:56:54 +0530