Bombay High Court
Nayana D/O Mohanlal Chikwa & Another vs The State Of Mah. Thr. Pso Ps:Majari, ... on 23 January, 2020
Author: Sunil B. Shukre
Bench: Sunil B. Shukre, Madhav J. Jamdar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR
Criminal Appeal No. 10 of 2020
Appellants : 1) Nayana d/o Mohanlal Chikwa, aged about 25
years, Occ" Beauty Parlour
2) Smt Gogadevi wife of Mohanlal Chikwa, aged
about 47 years, Occ: Household
Both residents of Ward No. 5, Zenda Dafai, Majri
Colliery, tahsil Bhadrawati, Dist. Chandrapur
versus
Respondent : The State of Maharashtra, through Police Station
Officer, Police Station, Majari, Tahsil Bhadrawati, District Chandrapur Shri R. M. Daga, Advocate for appellants Shri A. D. Sonak, APP for respondent-State Coram : Sunil B. Shukre And Madhav J. Jamdar, JJ Dated : 23rd January 2020 Judgment (Per Sunil B. Shukre, J)
1. This appeal challenges the legality and correctness of the judgment and order dated 17.12.2019 convicting the appellants/original ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 2 accused nos. 1 and 3, of the offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code.
2. Prosecution of the appellants is for the untimely death of Babli, wife of Hublal Chikwa in suspicious circumstances at her house at Majari colliery, Tahsil Bhadrawati, District Chandrapur.
3. Deceased Babli was got married to Hublal Chikwa in the year 2013. The marriage was solemnized at the parental place of deceased situated at village Bharwari, Tahsil Cayal, District Kosambi (UP). Solemnization of marriage was a modest affair between the two families given the poor financial condition of the parents of the deceased. After the marriage, deceased started co-habiting with Hublal at his house at Majari colliery. Hublal's family was big and it comprised, apart from the deceased, father and mother of Hublal and two sisters of Hublal by name Nayana and Jyoti. Marital life for the deceased seemed blissful for about one year from the marriage. Trouble for the deceased, according to the prosecution, started after passage of one year from the marriage. According to the prosecution case, deceased used to be subjected, not only by the appellants Nayana and Gogadevi, sister-in-law and mother-in-law of the deceased, but also by her another sister Jyoti, her husband Hublal ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 3 and father-in-law Mohanlal, to cruelty of almost unbearable nature, which made deceased think of not returning to her matrimonial house whenever she happened to visit her parental place at village Bharwari.
4. The case of the prosecution is that deceased used to complain to her parents on and off about the ill-treatment that she used to receive at the hands of the accused and also her husband and father-in-law. It is alleged that harassment was in the nature of some taunts like the deceased belonged to a house of beggars; deceased was no match to Huablal; deceased being slow in domestic work; deceased did not know even cooking and so on and so forth.
5. It is also alleged that members of her matrimonial family used to beat her up and abuse her. It is further alleged that three days before the death of Babli, Babli died at her matrimonial house at Majari colliery in the night of 30th October 2017, Babli had called up her mother and disclosed to her the harasment and ordeal she was suffering at the hands of the accused and her other in-laws. It is the case of the prosecution that upon hearing from deceased Babli her tale of woes, her parents told deceased that they would send their son Ravi to Majari colliery and bring back Babli to their house. Unfortunately, before it could materialise, the ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 4 things had gone too far to reverse the situation. Babli died in suspicious circumstances in her house at Majari colliery in the night of 30.10.2017.
6. On hearing the sad news, father of Babli along with some other relatives reached the hospital at Warora where the dead body of Babli was kept seeing which father and other family members of the deceased experienced deep grief. Slowly, some anger built up within them. Father of Babli went to Police Station, Majari on 1.11.2017 and lodged a report alleging ill-treatment and cruelty at the hands of the appellants as well as Jyoti, Hublal and Mohanlal, the other sister, the husband and the father-in-law respectively of the deceased. On its basis, offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code were registered against Hublal, Mohanlal, Gogadevi (accused no. 3), Jyoti (accused no.2) and Nayana (accused no. 1). Spot panchanama and inquest panchanama were carried out. Necessary seizures were made; statements of witnesses were recorded; post-mortem examination of the dead body was got conducted and post-mortem report was obtained. Seized articles were sent to the chemical analyzer for analysis and report. Further investigation was carried out. After completion of the investigation, police filed charge-sheet, not against all the accused persons against whom the aforestated offences were registered, ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 5 but only against original accused nos. 1,2 and 3. In the charge-sheet, offence of dowry death punishable under Section 304-B of the Indian Penal Code was added.
7. All the three accused Nayana, Jyoti and Gogadevi were tried for the aforestated offences by learned Additional Sessions Judge, Warora and on merits of the case, the learned Additional Sessions Judge found the appellants (accused nos. 1 and 3) as guilty of the offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code and acquitted them of the offence punishable under Section 304-B read with Section 34 of the Indian Penal Code. The learned Additional Sessions Judge held original accused no. 2 Jyoti as not guilty of any of the offences and acquitted her of all of them. The judgment was delivered on 17 th December 2019 which is the subject-matter of challenge in the present appeal.
8. Shri R. M. Daga, learned counsel for the appellants contends that this is a case of no evidence insofar as the findings recorded by the trial Court regarding guilt of both the appellants for the offence of murder and for the offence of destroying evidence of murder punishable under Sections 302 and 201 of the Indian Penal Code are concerned. He further ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 6 submits that the trial Court rightly acquitted all the accused persons including these appellants of the offence punishable under Section 304-B of the Indian Penal Code for the reason that there was no evidence about the cruelty being handed out by the appellants to the deceased on account of dowry or in relation to any demand of similar nature. He submits that the case of the prosecution regarding charge of murder was entirely based upon circumstances and the link of all the incriminating circumstances was never established in any manner by the prosecution. He also submits that although there is no evidence adduced by the prosecution as to who was present in the house at the time when deceased Babli was found in burnt or burning condition, the learned Additional Sessions Judge found that these appellants i.e. Nayana and Godadevi were present in the house when deceased Babli died and the house was not accessible to any other persons. He submits that this finding recorded by the trial Court is nothing but a conjecture and an imaginary fact. Thus, he submits that the appellants deserve to be acquitted of the offences punishable under Sections 302 and 201 of the Indian Penal Code.
9. Shri A. D. Sonak, learned Additional Public Prosecutor for the respondent-State supports the impugned judgment and order. He submits that the findings are rightly recorded and they are based upon right ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 7 appreciation of evidence by the trial Court. He submits that this evidence is of unimpeachable character. In support, he has taken us through the relevant evidence.
10. Much has been argued about sterling quality of prosecution evidence by the learned Additional Public Prosecutor, but it does not impress us, rather, the submissions of learned counsel for the appellants persuade us to hold that the trial Court has recorded its finding regarding presence of the appellants in their house situated at Majari colliery when the deceased was in flames and dying a painful death with no access to any one else but only the appellants, is purely on imagination.
11. The trial Court has already found that the prosecution failed to bring on record any convincing evidence about ill-treatment on account of dowry or any like demand, and rightly so. Of course, the trial Court has also expressed an opinion that these appellants subjected the deceased to ill-treatment. But, it has went on to say that the ill-treatment has no connection whatsoever with any demand for dowry. It appears that no charge for an offence of cruelty punishable under Section 498A IPC was framed against the appellants and thus, the appellants were never tried for the offence of cruelty. The question is, whether such failure on the part of ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 8 the trial Court would warrant this matter being remanded to the trial Court for trial of the appellants and possibly also of the other accused persons afresh on the charge of offence of cruelty punishable under Section 498A or not. In our opinion, the answer is in the negative for the reason that we find upon a careful consideration of prosecution evidence, that the evidence adduced by the prosecution on this count is so shaky and inconsistent as not to make out any case for remand.
12. PW 1 Mulchand (exhibit 53), father of Babli had lodged a complaint on 1.11.2017 vide exhibit 54 alleging that these appellants and also Hublal, Mohanlal and Jyoti all subjected Babli to grave cruelty and death of Babli required thorough investigation. However, in his substantive evidence before the trial Court, he spoke of cruelty having been given only by these appellants and Jyoti who were before the trial Court as the only accused persons. In this case, although the crime was registered initially against Hublal and Mohanlal by Majari police, final report under Section 173 Cr. P. C. was filed by police only against these appellants and Jyoti. No explanation whatsoever was given by the investigating officer PW 15 Tiwari (exhibit 134) in this regard. PW 1 Mulchand also had no complaint against police for not implicating Hublal and Mohanlal in the final report. PW 1 Mulchan did not bother to give ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 9 any explanation in that regard. PW 3 Ritadevi, mother of deceased Babli, however, hinted at some explanation. She states that as she and her other family members were seething in anger on untimely death of Babli, their beloved daughter, they lodged report against the appellants, Jyoti and also against Hublal and Mohanlal. Such discrepant evidence of PW 1 Mulchand and Pw 3 Ritadevi together with silence of the investigating officer is meaningful in the sense that for some reasons not on record, consorted effort is made by the prosecution witnesses and the investigating officer to save Hublal and Mohanlal from the hammer of justice. These discrepancies and inadequacies create doubt about the version of PW 1 Mulchand and PW 3 Ritadevi. Therefore, some other evidence to corroborate the version of two witnesses regarding alleged ill-treatment of deceased Babli at the hands of the appellants, was necessary. However, even that evidence did not come forth.
13. PW 2 Ravi has stated something about the ill-treatment given by the appellants and Jyoti to his deceased sister and he vouches for its correctness on the basis of whatever disclosures that were made to him by deceased Babli during her visit about one year prior to the date of incident which appears to be sometime in the year 2016 and also the disclosures made to him by his mother regarding what was told to her by Babli ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 10 during her telephonic talks with her in the year 2017. However, in his cross-examination, he has given some admissions which create doubt about his credibility.
14. In his examination-in-chief, PW 2 Ravi deposed about disclosure made to him by Babli in the year 2016 regarding harassment being given to her by the accused persons. But, he does not say anything about later visit of Babli to his house subsequent to the year 2016 and it required the defence counsel to raise a query in that regard with him. PW 2 Ravi then said that in April 2017, both Hublal and Babli had paid visit to his house and that they had come to village to attend two marriages. He further says that at that time, Babli stayed in his house for about 10-15 days. PW 2 Ravi does not say that this time, Babli had again complained to him about the ill-treatment that was continued by the accused towards her, neither in his examination-in-chief nor by way of voluntary statement in cross-examination. On the contrary, he admits that during that period of time, Babli and Hublal had gone to village Kaju for picnic, thereby indicating undisturbed, unpurturbed and happy state of mind of Babli. He also admits that during that period of time, Hublal and he himself had gone to village Alemiya on mother-cycle where they stayed for two days, attending one marriage. He also admits that deceased Babli used to ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 11 frequently talk with his family members on mobile. But, no where in his evidence, he says that during those frequent mobile calls, at least intermittantly, she used to make some narration regarding her harassment at the hands of accused persons. A person who was unhappy since the year 2015, as per the own case of PW Mulchand, PW 3 Ritadevi and PW 2 Ravi, it is strange, the person would not share her woes with her parents and brother during such telephonic conversations and would only disclose the same when on visit to her parental house. Sometime, it does happen that after marriage, girls do not disclose their agony to their parents and try to make up a show of happiness and wear a smile on their face. But, in such a case, evidence as regards reasons for non-disclosure earlier and disclosure at particular point of time are required to be adduced. But, here such evidence is absent and whatever evidence is there, it is of general nature such as during her visits, she used to disclose these facts. But, no time is revealed and only time specifically stated is of the year 2016. However, as discussed earlier, in subsequent visit, Babli appeared to be in happy mood and there was no complaint made by her against her husband or in-laws. Such evidence of PW 2 Ravi does not help prosecution build its case of cruelty of unbearable nature against the accused. So, no reliance could be placed on his evidence to reach a conclusion that any triable case of cruelty is made out against the appellants and other persons, if any.
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15. PW 11 Maltidevi, aunt of deceased has some different version to offer. According to her, almost one year after the marriage, deceased Babli had started complaining to her and other family members regarding ill-treatment. But, she does not tell as to when for the first time and how frequently this was stated to her and, therefore, it is difficult to ascertain from her evidence, if the ill-treatment was of consistent nature or not.
16. PW 1 Mulchand and PW 3 Ritadevi, both speak of ill-treatment of deceased as having started after about one year of the marriage. But, it is seen from their examinations-in-chief that they learnt about the same from Babli when Babli had stayed with them at village Bharwari for about three months. Her such stay, as per the prosecution witnesses, was sometime within one year before the incident and that means both of them were not told by the deceased about her ill-treatment before said period of time. A question then arises, on what basis PW 11 Maltidevi is saying that Babli's harassment started about one year after the marriage ? A further question is - was it on the basis of what was told by Babli during her visit which occurred some time in the year 2016 and if so why Babli did not disclose to them earlier ? Specific evidence removing all these doubts ought to have been given by PW 11 Maltidevi but she did not. As a result, the doubts about cruelty aspect remain on record. ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 13
17. PW 1 Mulchand states that deceased was brought to the house of her parents by her brother before one year of the incident at which time, she disclosed to her brother and her parents her ordeal. But, PW 1 Mulchand, also says that deceased used to talk with him on mobile phone occasionally and admits that she never made any complaint to him against her family members. This shows that even the father of the deceased is not sure of himself on cruelty dimension of the case.
18. Such being the evidence of material prosecution witnesses, PW 1 Mulchand, PW 2 Ravi and PW 3 Ritadevi, on the aspect of cruelty and there being no independent or any corroborative evidence available on record, we find that it would be futile to remand the matter back to the trial Court for re-trial on the charge of cruelty, punishable under Section 498A of the Indian Penal Code, a separate and distinct offence, and thus, we are against this exercise.
19. About the offence of murder and also offence of destroying of evidence of murder, as stated by us earlier, there is great merit in the argument of learned counsel for the appellants that this is a case of no evidence against the appellants, though evidence of prosecution on the ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 14 question of nature of death of Babli is convincing. Babli, unquestionably, died a homicidal death. This has been established beyond any manner of doubt by the findings recorded in the post mortem report (Exh.-91) by PW 10 Dr Sheikh Abdul upon his post-mortem examination of the dead body of Babli.
20. PW 10 Dr. Sheikh Abdul found 80% burn injuries. He also found one imprint (wrongly written as "imprined") ligature mark in the nature of circular abrasion having size of 6.5 cm x ½ cm. and also a depressed thyroid cartilage below hyoid bone. In his opinion, both of these injuries were ante mortem. Upon internal examination, he found congestion in lungs and noted that there was profused bleeding after removing muscular layer of anterior side of neck. He also found that larynx was congested. He further saw trachea as congested with froth oozing, but he did not see any carbon particles inside the trachea. These conditions of internal organs can be seen to be consistent with PW 10 Dr. Sheikh Abdul's findings regarding two injuries over neck area being ante mortem in nature. Dr Sheikh opined that Babli Chikwa died due to asphyxia due to pressure over anterior vital parts of neck probably due to strangulation. In his further opinion the burn injuries found on her body were post-mortem in nature.
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21. These findings and the opinion have received no threat of being dislodged in any manner in the extensive cross-examination of PW 10 Dr. Sheikh by the defence counsel. It was tried to be shown and also argued that post-mortem examination was conducted belatedly and, therefore, findings and opinion recorded in the post-mortem report were doubtful. However, no circumstances were brought on record by the defence counsel on the basis of which one could have said that these findings and opinion were quite unreliable. Mere delay in conduct of post- mortem examination or autopsy by itself cannot be a ground to throw out a post-mortem report. If there is delay in conduct of post-mortem examination or autopsy, and the defence desires to take advantage of the same, it must be then shown that due to delay, a possibility of skewed findings being recorded on account of extensive degeneration of the dead body, which induces substantive changes in the exterior and interior parts of the dead body was created. These relevant circumstances, however, were neither brought on record nor were put to PW 10 even as suggestions. On the other hand, it was brought on record during the course of cross-examination of PW 10 Dr Sheikh that the dead body was stacked in a mortuary from 00.00 hours of 31.10.2017 till about 07.00 pm of that day when the post-mortem examination had started. The mortuary ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 16 is a place where dead bodies are kept and stored in a refrigerated and hygienic condition and that itself is sufficient to indicate that in the present case sufficient care was taken to delay the process of decomposition of the dead body of Babli. Having brought on record a circumstance which favoured prosecution, the burden of defence became heavier necessitating it to have brought on record further circumstances that in mortuary where the dead body of Babli was stored, the temperature was not properly maintained, that conditions were unhygenic and so on and so forth. It was not done. Therefore, in this case, delay in conduct of post-mortem examination was never fatal to the prosecution.
22. The appellants have also taken a defence that PW 10 Dr Sheikh did not possess MBBS qualification and his qualification was BAMS. DW 1 Dr Gowardhan Dudhe examined as a defence witness No.1 by the appellants has deposed before the Court that a BAMS qualified doctor does not have any power to conduct autopsy or post-mortem examination and he has also relied upon some document marked as exhibit 162. But, during his cross-examination, he has admitted that this document, exhibit 162, does not clearly lay down that a BAMS degree-holder does not have any power to conduct post-mortem examination. He also admits that BAMS qualified doctor can indeed perform post-mortem examination provided, he ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 17 has undergone ten days' training of autopsy. There is no evidence brought on record by the accused persons that PW 10 Dr Sheikh Maulana did not undergo any such training. So, the defence taken by the accused that post-mortem report is unreliable falls to the ground completely.
23. Thus, we are of the opinion that the findings and opinion recorded by Dr Sheikh (PW 10) deserve full credit and accepting them to be so, we find that the injuries of imprint ligature mark and depression of thyroid cartilage below hyoid bone present on the person of Babli were ante-mortem in nature and that these injuries lend credence to the final opinion of PW 10 Dr Sheikh that deceased Babli's death was through asphyxia due to pressure over anterior vital parts of neck owing to strangulation. This opinion is, therefore, accepted by us as establishing fully a crucial circumstance relating to the manner in which Babli died. It shows that death was due to asphyxia induced by strangulation thereby indicating involvement of another person or more persons. Thus, we find that death of Babli was homicidal.
24. Although it was the defence of the appellants that this was a case of suicidal death, this defence was never probablised by any circumstances available on record. There have been no eye witnesses to ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 18 the state of affairs which prevailed at the time of death of deceased and, therefore, only the circumstances surrounding the death of Babli would hold out a key to the vexed question whether the death was homicidal or suicidal ? For the reasons stated earlier, we have accepted as correct the findings and opinion recorded by PW 10 Dr Sheikh. These findings show that burn injuries found on the person of Babli were post-mortem in nature. Additionally, there were no carbon particles found inside her trachea. These two circumstances would clearly rule out the possibility of the death due to burns and hence the possibility of suicidal death. So, we find that there is no merit in the defence taken by the appellants. Now, it is clear that death was due to strangulation. Strangulation is possible only when another person exerts pressure. We have already noted that in this case there was involvement of some or more persons which made death of Babli homicidal.
25. Now, the next question would logically arise. Who did it, whether these appellants (original accused nos. 1 and 3) or all the original accused persons (accused nos. 1 to 3) or all the family members including original accused persons, husband and father-in-law of deceased Babli or somebody else ? Answer to this question would depend upon answers to some more questions such as who were present in the house at the time of ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 19 death of Babli, whether Babli was in exclusive custody of those present around her at the time of her death and what role did the person or persons present play ? Unfortunately, prosecution has not provided or if we could say, has not made even an attempt to provide any answers to these questions. Prosecution, we must say it here, started its case upon presence of all the family members of deceased Babli in the house at the time of her death and accordingly all her family members barring children, were roped in. Admittedly, this family of Babli, at the time of her death, comprised she herself, her two sons, her husband, her father-in-law, her mother-in-law and her two sisters-in-law. If presence of all the adult family members near Babli at the time of her death was the foundation for prosecution case, one does not understand as to what prompted the investigating officer to have not filed any charge-sheet against the husband and father-in-law of the deceased. There is no answer given to this question by the investigating officer and there is no evidence adduced by prosecution to furnish any answer. If husband and father-in-law were excluded from the array of accused at the time of filing of the charge- sheet, explanation for their exclusion ought to have been given by the prosecution. If not, at least circumstances ought to have been brought on record by the prosecution from which it could have been clinchingly said that at the relevant time, deceased Babli was in the exclusive custody of original accused nos. 1 to 3 and no one else and these two accused ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 20 persons having not given any probable explanation about the suffering of those deadly ante-mortem injuries over neck area by deceased Babli, it could have been further said that the only conclusion possible is of guilt and nothing but guilt of these two accused persons. After all, this is a case based upon circumstantial evidence and the law regarding appreciation of circumstantial evidence is well settled and well known. To recapitulate the law, we would refer to one of the prominent cases on the subject in the para that follows.
26. In Sharad Bridhichand Sarda v. State of Maharashtra reported in AIR 1984 SC 1622, the essentials prescribed to prove a case based upon circumstantial evidence, are as follows :
"(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
(ii) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should be explainable on any hypothesis except that the accused is guilty.
(iii) the circumstances should be of a conclusive nature and convincing.
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(iv) they should exclude every possible hypothesis except the one to be proved; and
(v) there must be 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."
Being aware of these fundamentals of a case founded on circumstantial evidence, prosecution could have shaped it's case accordingly.
27. However, we find from the prosecution evidence available on record that there is not even a whisper made by any of the prosecution witnesses about presence of these two appellants, much less exclusive, in the house at the time of death of Babli. In fact, prosecution evidence does not speak of presence of any person or persons along with Babli at the time of her death and similarly it is silent on absence of any person near Babli at that time. If husband and father-in-law of Babli were not made accused, prosecution ought to have brought on record that at the relevant time, husband and father-in-law of the deceased were not present in their house at Majari colliery. Accused No.2 Jyoti has been acquitted by the ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 22 trial Court, but we do not find that any reason is recorded for it by the trial Court. As a matter of record, and as found by us already, there is no evidence adduced by the prosecution showing either presence or absence of any of the original accused persons including Jyoti and also husband and father-in-law of the deceased in the house at the time of her death. So, we have to turn to defence evidence to ascertain what all these family members have to say.
28. Hublal, husband of deceased and Nayana, original accused no. 1 both have examined themselves in defence as witness Nos.2 and 3. It is their evidence that at the relevant time, they together with Jyoti, father-in- law and mother-in-law of Babli were not at home and when they returned home from outside, they noticed some fire burning in the bed-room and, therefore, they rushed together only to find deceased Babli in flames. They have stated that all of them together extinguished the blaze of Babli by pouring water on her. None of them has admitted in their respective cross-examination taken by learned Additional Public Prosecutor that at that time Naiyana and Godadevi, the original accused nos. 1 and 2 and present appellants were present inside the house and that the door was opened by Godadevi. This defence evidence denies presence of appellants and other family members in the house at the relevant time. However, ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 23 the learned Additional Sessions Judge has found that there is evidence on record showing that door was opened by Godadevi and that at the relevant time, both these appellants were present in the house and that deceased Babli was in their exclusive custody. There is nothing in the cross- examination of DW 2 Hublal and DW 3 Nayana taken on behalf of the prosecution which gives even a hint about presence of appellants in the house at the relevant time. On the contrary, DW 3 Nayana has firmly denied a suggestion given by learned APP during the course of her cross- examination that when Hublal arrived at the house from his shop in the night, he knocked at the door and the door was opened by Godadevi. It is, therefore, surprising that learned Additional Sessions Judge should have recorded a finding and categorically so about presence of both these appellants in the house at the relevant time and the deceased being in their exclusive custody. This finding perhaps was on illusory view of facts perceived while appreciating the evidence. The fact, as clear as crystal, is that there is no evidence whatsoever available on record suggesting even remotely that these appellants were present in the house at the relevant time, that other family members were absent and that deceased Babli was in the exclusive custody of the appellants at the time of her death. The crucial circumstance about presence of appellants has not been proved in any manner by the prosecution.
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29. There is one circumstance the learned Additional Public Prosecutor has talked of. It is of recovery of one dupatta, black colour, torn in the middle, at the instance of appellant no. 1, under Section 27 of the Evidence Act. This circumstance, in the absence of other vital links does not help us. Besides, it is doubtful if it had any strength in its fabric to help an offender strangulate another, as what was shown to PW 10 Dr Sheikh for seeking his opinion was a dupatta which was not torn and so, opinion of PW 10 Dr Sheikh about its sufficiency to cause death does not connect the dupatta recovered at the instance of appellant no. 1 with any relevant fact here.
30. Thus, there is no formation of chain of evidence leading to the only conclusion of guilt and nothing but guilt of the appellants for an offence of intentionally causing death of Babli. There may be suspicion against the appellants, but it is well settled that the suspicion is no substitute for evidence and cannot be the basis for returning a finding of guilt against the accused under trial.
31. We are of the opinion that the learned Additional Sessions Judge has committed a fundamental error in appreciating evidence available on record and, therefore, has recorded a wrong finding of guilt ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 25 of the appellants for the offence of murder. These appellants deserve to be acquitted by giving benefit of doubt created by inconsistent and inadequate circumstances available on record. This would, however, not satisfy any conscientious person who has seen in this case a homicidal death but not the person or persons responsible for it. In the absence of any evidence having been brought on record by the prosecution, we are unable to help the conscientious man tide over his predicament. It was for the investigating agency to have taken all the pains to built up a case revealing the truth. Tragically, the case has remained shrouded in mystery and we are constrained to find that the impugned judgment and order need to be interfered with, in order to give benefit of doubt to the appellants. Appellants thus deserve to be acquitted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. As regards offence of destroying of evidence (Seection 201 read with Section 34 IPC), there is no evidence whatsoever against these appellants and as such, on this count also, the appellants deserve to be acquitted.
32. Therefore, we pass the following order:
(1) Appeal is allowed. ::: Uploaded on - 21/04/2020 ::: Downloaded on - 11/06/2020 01:51:48 ::: 26 (2) Appellants, who are original accused nos. 1 and 3, are hereby
acquitted of the offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code.
(3) Fine, if paid, be refunded to the appellants.
(4) The muddemal property shall be disposed of in terms of
directions contained in the impugned judgment and order.
(5) The appellants be set at liberty forthwith, if not required in another case.
Madhav J. Jamdar, J Sunil B. Shukre, J
joshi
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