Bombay High Court
Vijay S/O Pandharinath Magar vs The State Of Maharashtra on 6 January, 2022
Author: V. K. Jadhav
Bench: V. K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CRIMINAL APPEAL NO. 629 OF 2014
Vijay s/o Pandharinath Magar,
Age : 28 years, Occu : Agri.,
R/o. Gogalgaon, Tq. Rahata,
Dist. Ahmednagar. ...Appellant
Versus
The State of Maharashtra ...Respondent
.....
Appearance : -
Shri. V. R. Dhorde, Advocate for the appellant
Shri. K. S. Patil, APP for respondent/State
.....
CORAM : V. K. JADHAV &
SANDIPKUMAR C. MORE, JJ.
ARGUMENTS CONCLUDED ON : 04.12.2021
JUDGMENT PRONOUNCED ON : 06.01.2022
JUDGMENT [Per V. K. Jadhav, J.] : -
1. This appeal is directed against the judgment & order of
conviction passed by the learned Additional Sessions Judge,
Kopargaon dated 22nd August, 2014 in Sessions Case No. 4 of 2013.
2. Brief facts giving rise to the prosecution case, are as
under:-
Deceased-Aruna was the wife of appellant-accused.
Accused was working as Watchman with D.Pharmacy College,
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Mahodarigaon, Tq.Sinnar, Dist. Nashik. Deceased-Aruna was working
with Maharashtra State Road Transport Corporation as ST Bus
Conductor at Mandangad Depo, Dist. Ratnagiri. The marriage
between the appellant-accused Vijay and the deceased-Aruna was
solemnized on 11th March, 2012 at Rankhamb, Tq. Sangamner,
Dist.Ahmednagar. Incident had taken place on 28 th June, 2012
between 08:00 to 08:30 pm. It is the case of the prosecution that
from 26th June 2012 to 29th June, 2012 the deceased was assigned
with the duty of conductor of ST bus having route from Mandangad
to Shirdi. On 28th June, 2012 at about 01:30 pm, the said bus left for
Pune and reached Shirdi at 07:00 pm. PW3 - Chandrakant Ashok
Jawale was the driver of the said ST bus and deceased-Aruna was the
conductor. Appellant-accused Vijay had been to Shirdi to fetch
deceased-Aruna. From Shirdi, deceased-Aruna went along with the
appellant-accused on his motorcycle as a pillion rider to her
matrimonial home situated at village Gogalgaon, Tq. Rahata, Dist.
Ahmednagar. PW1-Dnyandeo Ghorpade, who happened to be the
Sarpanch of Pimpri Nirmal then, received a call on his phone
between 08:00 to 08:30 pm intimating him that on Pimpri Nirmal to
Gogalgaon road, one lady is lying on the bund and one person is
crying thereon on the road. Said Dnyandeo Ghorpade had thus
immediately rushed towards the spot. On reaching there, he found
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one lady lying naked on bandh (embankment) and one person crying
for water. He had immediately given information to the Loni Police
Station. The said woman was found dead. It was a dead body of
deceased-Aruna and the person found crying there on the spot was
the appellant-accused.
3. According to the prosecution, deceased-Aruna had
informed her brother PW2-Dagadu that the appellant-accused was
suspecting about her character and further threatened her to kill on
that count. It is the case of the prosecution that the appellant-
accused Vijay had committed the murder of deceased-Aruna by
constricting her neck whereas; it is the defence story that while
proceeding by the road three thieves riding on motorcycle chased the
appellant-accused and deceased-Aruna, stopped them, extended
beating to both of them, taken away forcibly the cash and other
articles in possession of accused and deceased. The prosecution
claims that the deceased-Aruna died due to asphyxia as a result of
strangulation. Deceased-Aruna met with homicidal death. The
appellant-accused has failed to give any explanation about her
homicidal death.
4. Initially, on the basis of the report (Exh.15) submitted by
PW1-Dnyandeo Ghorpade, Sarpanch of the village Pimpri Nirmal, Tq.
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Rahata, Dist. Ahmednagar, the A.D. was registered on 28 th June, 2012
and during the course of the enquiry of the A.D., PW2-Dagdu Gulve,
the brother of the deceased-Aruna, had lodged the complaint
(Exh.17) on 29.06.2012. On the basis of his complaint, Crime No.
92/2012 for the offences punishable under Sections 302, 498A, 323
came to be registered at Loni Police Station against the appellant-
accused.
5. PSI-Shirke was assigned with the investigation, however,
before the trial was commenced, PSI-Shirke died. Police Naik-Deepak
Barde had drawn the inquest panchanama on the dead body as
directed to him by PSI-Shirke. He has also taken into custody the
clothes of the deceased and those articles were scarf, petticoat, nicker
and saree. The said inquest panchanama was carried out at mortury
of the hospital (Exh.31). At about 07:30 pm in the evening, PSI had
called two panch witnesses and accordingly, the seizure memo was
prepred for seizure of those articles. PW14-API-Devidas Pawar has
deposed on behalf of the prosecution on the basis of the entries in the
police diary in respect of the investigation carried out by the PSI-
Shirke. As per the prosecution, after due investigation the charge-
sheet has been submitted against the accused.
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6. The learned Additional Sessions Judge, Kopargaon has
framed charge against the appellant - accused vide Exh.6 for the
offence punishable under Sections 498A, 302, 323 and 201 of the
IPC. The contents of the charge were read over to the appellant-
accused. The appellant-accused pleaded not guilty and claimed to be
tried.
7. Prosecution has examined in all 14 witnesses to
substantiate the charges levelled against the appellant-accused. After
completion of the prosecution evidence, the statement of the
appellant-accused came to be recorded under Section 313 ofthe
Cr.P.C. (Exh.55). The appellant-accused has filed Written Statement.
It is the defence of the appellant-accused that on the day of the
incident he had been to Shirdi to fetch deceased-Aruna and thereafter
they started proceeding towards village Gogalgaon on the
motorcycle. Appellant-accused was himself driving motorcycle and
the deceased-Aruna was the pillion rider. On the way they were
attacked by theree thieves, who were on motorcycle and the said
thieves chased them and commited the murder of deceased-Aruna.
He has been falsely implicated in the offence in question. The
appellant-accused has examined one defence witness Kishan Kotkar,
Advocate & notary, to prove an agreement (Exh. 61).
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8. The learned Addl. District Judge, Kopargaon by
judgment and order of conviction dated 22 nd August, 2014 in
Sessions Case No. 4 of 2013 has convicted the appellant-accused for
the offence under Section 302 of the IPC, however, acquitted of the
offences under Sections 498A and 323 of the Indian Penal Code. The
learned Addl. District Judge, Kopargaon has convicted the appellant-
accused in the manner as reproduced hereinbelow. The operative
part of the said judgment and order of coviction reads as under :
(1) Accused Vijay Pandharinath Magar is hereby convicted
under section 235 (1) of the Code of Criminal Procedure to
suffer life imprisonment for offence under section 302 of
Indian Penal Code and to pay fine of Rs.2,000/- in default
three months simple imprisonment.
(2) Accused Vijay Pandharinath Magar is hereby acquitted
under section 235 (1) of the Code of Criminal Procedure
for offences punishable under sections 498A and 323 of
Indian Penal Code.
(3) Accused Vijay Pandharinath Magar is under trial prisoner.
(4) Accused Vijay Pandharinath Magar is entitled for set off of
period of his pre-trial detention in prison under section 428
of Code of Criminal Procedure.
(5) Muddemal property comprising wearing clothes, footwear
being worthless be destroyed after the period of appeal.
(6) Muddemal property comprising S.T. Bus ticket machine,
tray, ticket hole maker and amount of Rs.6,400/- be
returned to Manager, Mandangad Bus Depot after period of
appeal.
(7) Muddemal property comprising 14 yellow metal mani and
two ear-rings be handed over to complainant after period
of appeal. (Office to get certificate of Goldsmith for these
articles forthwith within 8 days.)
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(8) Copy of this judgment be furnished to accused free of
charge today itself.
(9) Delivered in open Court."
9. The learned Counsel for the appellant submits that the
prosecution case entirely rests upon circumstantial evidence. There is
no direct evidence in this case. The learned Counsel submits that
there is no chain of circumstantial evidence to point out unerringly
the guilt of the accused leaving no scope to draw any other inference.
The learned Counsl submits that the appellant-accused has raised
defence about the assault by the thieves. The deceased-Aruna had
sustained the impact abrasion and lacerated contusions all over body
indicating that either she had sustained the injuries by fall from the
motorcycle or the struggle with the thieves. The learned Counsel
submits that there are two views of a story, one that was contended
by the accused should be accepted.
10. The learned counsel for the appellant-accused submits
that the motive plays a great role, if the prosecution case rests upon
circumstantial evidence. Deceased-Aruna got married with the
appellant-accused some 03 months 17 days prior to her death. She
was residing at Mandangad (place of job) along with her mother.
Even at the time of incident, the said mother was with deceased-
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Aruna at her job place at village Mandangad. Deceased-Aruna had
stayed in her matrimonial home with appellant-accused for few days
of her marriage leave and thereafter went to the job place at village
Mandangad, a place which is far away from her matrimonial home.
The learned Counsel submits that there are no instances indicating
that deceased-Aruna was subjected to ill-treatment/cruelty by
suspecting about her character by appellant-accused at any point of
time. On the other hand, it has come in the prosecution evidence
that the appellant-accused had been to village Mandangad to meet
his wife and further stayed there for eight days. The prosecution has
not examined the mother of deceased-Aruna. PW2-Dagdu, brother of
the deceased-Aruna, has depoed that deceased-Aruna had informed
him on phone that appellant-accused was suspecting about her
character and threatened to kill her, however, there are no details as
to when those threts were given. Learned counsel for the appellant-
accused submits that it is unbelievable that for such a short span after
the marriage the appellant-accused started suspecting about the
character of the deceased-Aruna. Learned counsel submits that the
prosecution has failed to prove the motive on the part of the
appellant-accused to commit the murder of his wife.
11. The learned counsel submits that there is no chain of
circumstantial evidence. On the other hand, there are suspicious
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circumstances about the recovery at the instance of the appellant-
accused in presence of the highly interested witnesses who acted as
panch witnesses to the said recovery panchanama. The learned
counsel submits that most of the articles of the MSRTC shown to have
been recovered at the instance of the appellant-accused, when those
articles i.e. the tray of ticket and cash bag is necessary to be
deposited at the place of destination. PW3-Chandrakant Jawale,
driver of the said ST bus, has also deposed that deceased-Aruna had
submitted the tray and went along with the husband. The learned
Counsel submits that the prosecution has failed to prove the case
beyond reasonable doubt against the appellant accused. Merely on
the basis of the blood of blood group 'B' appeared on the shirt of the
appellant-accused, is not enough to convict the appellant-accused
especially when the appellant-accused was found near the body of
the deceased on road while crying. The learned Counsel submits that
even the trial Court has not considered the defence evidence. Exh.61
is the agreement executed by PW2-Dagdu, the brother of deceased-
Aruna, wherein he has accepted that the appellant-accused is not
responsible for the death of his sister deceased-Aruna. The learned
counsel submits that the appellant-accused is entitled for the benefit
of doubt.
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12. The learned Counsel for the appellant-accused in order
to substantiate his contention has placed reliance on the following
cases:-
i] Vikramjit Singh Alias Vicky Versus State of Punjab
(2006) 2 SCC 306.
ii] Prakash Versus State of Karnataka
(2014) 12 SCC 133
iii] State of Haryana Versus Ram Singh
(2002) 2 SCC 426
iv] Maruti Rama Naik Versus State of Maharashtra
(2003) 10 SCC 670
13. The learned APP submits that the prosecution has proved
the chain of circumstantial evidence. The appellant-accused was
found at the place of incident near the dead body of the deceased-
Aruna. The appellant-accused had sustained minor simple injuries
less in numbers whereas, the deceased had almost 23 injuries on her
person. The prosecution has proved the homicidal death. The
appellant-accused has not given satisfactory explanation for the
homicidal death of Aruna, as required under Section 106 of the
Evidence Act. The burden of proving the fact especially within
knowledge is on the appellnat-accused, however, the appellant has
not examined himself. Learned APP submits that if the accused fails
to offer his reasonable explanation in discharge of the burden placed
on him, that itself provides an additional link in chain of
circumstantial evidence proved against him. Learned APP submits
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that the incriminating articles came to be recovered at the instance of
the appellant-accused and there is no reason to discard the evidence
of the panch witnesses only on the ground that they are interested
witnesses. There is a satisfatoy evidence about the motive.
Appellant-accused was suspecting about the character of the
deceased-Aruna. The prosecution has proved its case beyond
reasonable doubt against the appellant-accused. The trial Court has
rightly convicted the appellant-accused. There is no substance in the
appeal. The same is liable to be dismissed.
14. We have perused the material exhibits tendered by the
prosecution, the evidence of the prosecution witnesse; the statement
of the appellants-accused recorded under Section 313 of Criminal
Procedure Code and the impugned judgment.
15. Prosecution case entirely rests upon circumstantial
evidence and there is no direct evidence in this case. It is not
disputed that on 28.06.2012, appellant-accused Vijay had picked up
deceased-Aruna from Shirdi bus stand. On way near Pimpri Nirmal
village, incident had taken place at about 08:00 to 08:30 pm. The
prosecution claims that the appellant-accused was suspecting about
the character of his wife deceased-Aruna. Thus, on that day,
appellant-accused had committed the murder of deceased-Aruna by
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strangulating her by means of scarf. It is the defence case that on
28.06.2012, appellant-accused started proceeding towards Shirdi
from Gogalgaon on his motorcycle along with his wife deceased-
Aruna. He had picked up deceased-Aruna from Shirdi bus stand at
about 08:00 to 08:30 pm in the night and on way within the limits of
Pimpri Nirmal road, three thieves came on the motorcycle, extended
beating to both of them and committed the murder of deceased-
Aruna and they took away the golden ornaments and money.
HOMICIDAL DEATH : -
16. So far as the Homicidal Death of Aruna is concerned,
prosecution has examined PW6-Dr. Vikrant Sanjay Kalokhe (Exh.28).
PW6 - Vikrant has conducted the postmortem on the dead body of
the deceased-Aruna on 29.06.2012. PW6-Vikrant has noted near
about 20 abrasions mark on the various parts of the body and also
noted two lacerated wounds below lower margin of lower lip at mid
par and another one is subcutaneous deep present at chin. In
addition to these, Dr. Vikrant has noted a continuous transeverse
ligature mark as pressure abrasion over thyroid cartilage, encircling
all around neck, dark reddish at anterior aspect of mid part of neck
and faint at other part. According to him, the distance of upper
border of ligature mark from chin is 5 cm from right and left mastoid
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7 cm from sternal notch lower borderr is sitauted 6 cm above. He
has given all the details of the said ligature marks.
16.1 On internal examination, PW6 - Dr. Vikrant has found
following internal injuries to deceased-Aruna.
Head : Under scalp contusion present at left frontal
temporal and high parietal of size 6 x 3 c.m., 3 x 2 c.m., 1.5 x 1 c.m.,
respectively and right high parietal, occipital of size 4 x 2 c.m., 5 x 3
c.m., respectively and left occipital 2 x 2 c.m., all are reddish in
colour.
16.2 On neck dissection, PW6 - Dr. Vikrant has noted
extravasation of blood present in subcutaneous tissues, muscles of
neck, posterior wall of trachea, anterior wall of eso phagous larynx.
Fracture of hyoid bone present on right side. No evidence of fracture
of thyroid and cricoid cartilages.
16.3 According to PW6 - Dr. Vikrant Kalokhe, all the injures
are ante-mortem. He has stated that most of the injuries are about
abrasions and there is one fracture to hyoid bone. In his opinion, the
cause of death of Aruna is asphyxia as a result of strangulation. He
has further opined that the injuries of abrasions may be possible by
hard and blunt object or in struggle or fall. The post-mortem report
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bears his signature. The contents of the same are true and correct as
per his evidence. The same is marked as Exh. 28. There is nothing in
the cross-examination to disbelieve the expert's evidence or to draw
any other inference about the death. Thus, considering injury no. 18,
which is a continuous transeverse ligature mark with the
corresponding internal injuries especially the fracture of hyoid bone
on the right side clearly depicts that the deceased-Aruna died due to
asphyxia as a result of strangulation. The abrasions and contusions
may be possible in struggle or fall. PW6- Dr. Vikrant has also
admitted that the injuries no. 1 to 17 are possible if person falls on
ground. According to him, injury no. 19 to 23 are simple injuries,
however, injury no. 18 is the only injury which is grievous in nature.
The prosecution has proved that the deceased Aruna met with a
homicidal death with no other possibility.
LAST SEEN : -
17. So far as the prosecution evidence under the caption of
'last seen' is concerned, it is not disputed by the defence that on
28.06.2012 appellant-accused had picked up deceased-Aruna from
Shirdi bus stand. In fact, appellant-accused Vijay had gone to Shirdi
to fetch deceased-Aruna. Though the matrimonial home of deceased
Aruna is situated at village Gogalgaon, Dist. Ahmednagar, she was
serving as a Conductor in State Transport and posted at Mandangad,
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Dist. Ratnagiri. She was on duty as a Bus Conductor from
26.06.2012 to 29.06.2012. PW3- Chandrakant Jawale was the driver
and deceased-Aruna was the conductor of the ST bus having route
from Mandangad to Shirdi. Probably, deceased-Aruna had taken the
said duty so as to visit her matrimonial home at Gogalgaon, which is
not far away from Shirdi. On 28.06.2012, the said ST bus started
from Pune at about 1.30 pm and reached Shirdi at about 07:00 pm in
the evening. On reaching there, after completing the necessary
formalities, deceased-Aruna joined the company of appellant-accused
Vijay and went along with him. At about 08:00 to 08:30 pm, incident
had taken place on the road from Shirdi to Gogalgaon within the
limit of Pimpri Nirmal. It is also not the case of the prosecution that
the appellant-accused Vijay had chosen some different route for
proceeding to village Gogalgaon. In the backdrop of these facts, it is
necessary to see as to what is the motive in this case.
MOTIVE : -
18. It is well settled that if the prosecution case rests upon a
circumstantial evidence, motive plays the great role. In the instant
case, PW2-Dagdu Salba Gulve, who is the brother of deceased-Aruna,
has deposed about the motive. According to him, he was intimated
by his sister deceased - Aruna on phone number 9011819217 that
the appellant-accused Vijay is taking doubt on her character. There is
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no date or time mentioned in respect of the said phone call. PW2-
Dagdu further deposed that he had called deceased-Aruna and
appellant-accused Vijay at village Rankhamb. He further deposed
that the appellant-accused Vijay had expressed his no-objection for
carrying out service by deceased-Aruna as Conductor with MSRTC
and accordingly, they left for Gogalgaon. Deceased-Aruna went to
Mandangad from Gogalgaon. PW2-Dagdu has further deposed that
three days thereafter, the appellant-accused Vijay went to
Mandangad. The said fact was intimated to him by deceased-Aruna
on phone. After eight days, the appellant-accused Vijay returned
back to Gogalgaon. PW2-Dagdu has deposed that he had received a
phone call of his siter Aruna intimating him that the appellant-
accused Vijay had threatened to kill her. Even deceased-Aruna told
him that the accused Vijay asked her to take duty and came to Shirdi.
18.1 In order to appreciate the evidence of PW2-Dagdu, it is
necessary to repeat here certain dates. The marriage of deceased-
Aruna with appellant-accused Vijay was solemnized on 11.03.2012
and the alleged incident had taken place on 28.06.2012. Thus,
within 03 months and 17 days of the marriage, deceased-Aruna died.
PW2-Dagdu has admitted in his cross-examination that deceased-
Aruna had been serving as ST Bus Conductor in MSRTC three years
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prior to her marriage. It thus appears that the appellant-accused
Vijay and deceased-Aruna got married when the appellant-accused
was knowing that the deceased-Aruna was serving as a Bus
conductor. The appellant-accused Vijay was also serving in a D.
Pharmacy College as Watchman. The marriage had taken place with
the consent of both. PW2-Dagdu has further admitted that the
marriage was solemnized in a common marriage sammelan in their
village. He had further admitted that the deceased-Aruna, at the
time of her marriage, had availed a month's leave commencing eight
days prior to her marriage. After marriage, deceased-Aruna went to
Gogalgaon at her matrimonial home and remained there for three
days and thereafter she was taken to her parents house at village
Rankhamb where she stayed for three days. Thereafter she was again
taken to her matrimonial home at Gogalgaon. PW2-Dagdu has
further stated in his cross-examination that deceased Aruna stayed at
Gogalgaon for 8 to 10 days. PW2-Dagdu went to Gogalgaon one day
before Padva festival to bring Aruna. Generally, Padva festival comes
in last week of March or first week of April of every year. PW2-
Dagdu further deposed that after Padva festival, deceased-Aruna
went to Mandangad along with her mother. It thus appears that
deceased-Aruna had hardly stayed in her matrimonial home not more
than ten to twelve days after her marriage. PW2-Dagdu has further
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admitted that before going to Mandangad, appellant-accused and
deceased-Aruna had visited village Rankhamb on motorcycle and
after having meals, both of them again went back to Gogalgaon.
PW2-Dagdu has further admitted that his mother was residing with
deceased-Aruna prior to the marriage and even after marriage
mother had stayed with deceased-Aruna for one month. He has also
admitted that when the incident had taken place, his mother was at
Mandangad. PW2-Dagdu never went to Mandangad after the
marriage of deceased. PW2-Dagdu has only given reference in his
examination-in-chief that after appellant-accused Vijay and deceased-
Aruna had been to his home, deceased-Aruna went to join duty at
Mandangad and three days thereafter, appellant-accused Vijay also
went to Mandangad and stayed there near about eight days. It is
pertinent that there are no allegations about any ill-treatment being
extended to deceased-Aruna by suspectig about her character by
appellant-accused Vijay. Deceased-Aruna had never complained
about it. PW2-Dagdu has given a vague reference of the phone call
without giving the details of date, time and place. Even though PW2-
Dagdu had called appellant-accused Vijay and deceased-Aruna at
Rankhamb, there is no further reference as to whether PW2-Dagdu
has questioned the appellant-accused Vijay about it. On the other
hand, the appellant-accused Vijay had expressed himself that he has
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no objection if his wife deceased-Aruna carries on her service in
MSRTC as ST Bus Conductor. Even though deceased-Aruna had been
to her parents' house at village Rankhamb after the threat allegedly
given to her by appellant-accused Vijay, PW2-Dagdu when personally
met her at that time, did not ask her as to what is the reason that the
appellant suspecting about her character. In the backdrop of these
facts, in our considered opinion, the mother of deceased-Aruna who
was staying with her at Mandangad would have been the best witness
since the appellant-accused Vijay on one occasion had stayed at
Mandangad for eight days. PW2-Dagdu has also admitted that at the
time of death, Aruna was carrying pregnancy of two months. Her
sonography was carried out at P.M.T. Hospital by appellant-accused
Vijay and his grandmother. PW2-Dagdu came to know about the said
pregnancy from the appellant-accused and also from deceased-Aruna.
18.2 PW2-Dagdu has made material improvements to
substantiate his contention about his allegations against the
appellant-accused that he was suspecting about the character of
deceased-Aruna. PW2-Dagdu has stated thus :
"I have told to police that I have call Aruna and Vijay at
Rankhamb my village. I have told to police at that time Vijay
had no objection for service of Aruna and they return back to
Gogalgaon. I have told to police that thereafter Aruna went to
Mandangad for her duty. I have told the police that thereafter
accused went to Mandangad after three days according phone
call intimation of Aruna. I have told the polcie that after eight
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days accused return back to Gogalgaon. I have told to police
that my sister Aruna told that accused Vijay ask her to take duty
at Shirdi. I cannot assign reason why above fact not mentioned
in my complaint."
18.3 Thus, considering the entire aspect, it appears to us that
PW2-Dagdu has stretched the things only after deceased-Aruna died
otherwise than under normal circumstances. In our considered
opinion, the prosecution has failed to establish the motive. It is
needless to say that if the prosecution case rests upon circumstantial
evidence, the motive is also required to be established or proved by
the prosecution like any other circumstance.
19. There are two witnesses examined by the prosecution,
who have rushed to the spot after little gap on the day of the
incident. PW1-Dnyandeo Ghorpade had received a phone call from
somebody of N.T. Nirmal Vasti on 28.06.2012 between 08:00 to
08:30 pm intimating him that one lady was lying on bund and one
person is crying there on the road. PW1-Dnyandeo Ghorpade went to
the spot and saw one lady lying in naked position and one person
crying for water. He had made a phone call to Loni Police Station for
giving report. He had orally informed the police which was reduced
into writing. The said report is marked as Exh.15.
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19.1 PW9-Balasaheb Nirmal has deposed that he is the owner
of land Gut No. 443/1 at Pimpri Nirmal and his land is situated on
Pimpri Nirmal to Gogalgaon road. On 28.06.2012, there was Haldi
program of daughter of his cousin maternal uncle at Pimpri village.
He was present for that program since morning. After completion of
said program, when he was proceeding towards his village from
Gogalgaon at 08:00 pm, he met one Rajendra Nirmal. Said Rajendra
Nirmal informed him that one motorcycle is lying in the agricultural
land of PW9-Balasaheb Nirmal. He further informed him that some
untoward incident took place. PW9-Balasaheb thus rang up Ramnath
Nirmal. Thus, Ramnath Nirmal and Santram Nirmal came to him and
all of them four in numbers went towards the spot and on reaching
there, PW9-Balasaheb found one motorcycle lying on northern side of
road in side gutter and one lady lying at soutern side of that road.
He further found one man making hue and cry seen in the light of
focus of his motorcycle. The said lady was on blouse and petticoat
only and her saree was lying besides her and there was scarf around
her neck. He further stated that the said man was wearing baniyan.
The said man was shouting and saying that thieves have beaten
them. The said man came on road making hue and cry. Some more
people who had attended the Haldi program also gathered on the
spot. Thereafter, they have sent the said person in Maruti Car to
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P.M.T. hospital at Loni. The police arrived on the spot and took away
that lady in the ambulane.
19.2 PW1-Dnyandeo Ghorpade had exaggerated the things in
the cross-examination. He has gone to the extent by saying that the
hands and legs of appellant-accused Vijay found tied by means of
saree before arrival of the police. He has also deposed that one khaki
shirt, box of ticket and purse found in the southern side of ditch of
motorcycle and in his presence, police has seized the same.
According to him, the said seizure had taken place in the night of
28.06.2012 itself. However, it appears to us that PW1-Dnyandeo has
won over by defence and thus he has given certain admissions to that
effect.
19.3 However, we find the evidence of PW9-Balasaheb is
trustworthy and reliable. He has admitted in his cross-examination
that the said man means the appellant-accused Vijay told them that
three persons came on Discover motorcycle and beaten them. He has
also admitted that he has not told to the police that there was scarf
around the neck of the lady.
19.4 It is the defence of the accused that as per his written
statement (Exh.56) during his examination under Section 313 of the
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Cr.P.C., that on 28.06.2012, three persons came on the spot on a
Discover motorcycle. They were 30 to 35 years' age group wearing
Jeans and T-shirts. They have committed the murder of his wife. On
perusal of Exh.50, it appears that the statement of appellant-accused
came to be recorded on 29.06.2012 when he was admitted in the
hospital. The appellant-accused has explained as to how they were
chased by three thieves on Discover motorcycle, aged 30 to 35 years,
wearing Jeans and T-shirts and one of the said thieves had slapped
below the ear of deceased-Aruna and thus she fell down on the
ground. He was also caught hold of by them. The appellant-accused
Vijay was caught hold by his neck and hence he could not raise any
hue and cry. He has further explained in Exh.50 that his wife-
deceased Aruna was lying unconscious. Those three thievs removed
her saree and tied his hands and legs. However, it appears that,
except recording his statement, nothing has been done on the basis of
his complaint.
19.5 The appellant-accused Vijay has also examined DW1-
Kishan Kotkar, Advocate and Notary. One agreement in writing was
produced befor the Court. The said agreement is said to have been
executed by PW2-Dagdu in favour of Pandharinath Magar. This
agreement is titled as 'Supurdnama', executed on 100/- rupees bond
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(Exh.61) and notarized before DW1-Kishan Kotkar, Advocate and
Notary. The said agreement is executed in presence of two witnesses.
It was executed on 10.07.2012 and on perusal of the said document
(Exh.61), it appears that PW2-Dagdu has accepted that none ofthe
family members including the appellant-accused Vijay is responsible
for the death of deceased-Aruna. In fact, such an agreement is not
enforceable, however, we have given reference of the said document
for the reason that the appellant-accused Vijay has examined said
Notary to substantiate his defence to the effect that he has been
falsely implicated in the present crime.
19.6 On the basis of the evidence discussed above, two views
are possible. As per the prosecution story, the appellant-accused Vijay
had created a scene of robeery and the said crime that has been
committed by the thieves and atually he has committed the murder of
deceased-wife. The second view is also possible that some thieves
have committed murder of the deceased-Aruna. We have already
discuccsed while recording our opinion regarding homicidal death
that there were number of abrasions on the person of deceased-
Aruna. PW6 - Dr.Vikrant has also stated that said injuries are possible
either by fall or struggle. Even assuming for the sake of discretion,
the deceased-Aruna while resisting the attempt of the thieves
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sustained the injuries or deceased-Aruna had sustained the injuries to
save herself from the appellant-accused Vijay. However, prosecution
has examined PW5-Dr. Tayyab Tamboli, who has examined the
appellant-accused for the injuries on his person. He has noted
following three injuries on the person of the appellant-accused.
i] Scratch (linear abrasion) bright red in colour, size 9.5 x 0.3
c.m., on left arm flexor aspect (anteriorly).
ii] Scratch (linear abrasion) bright red in colour, size 7 x 0.3
c.m., on left forearm upper half of flexor aspect.
iii] Scratch (linear abrasion) bright red, size 6.5 x 0.3, on left
forearm upper half flexor aspect.
19.7 If appellant-accused Vijay has sustained those injuries as
a result of struggle with his wife and even assuming that the
appellant-accused had used the scarf to constrict the neck of
deceased-Aruna and though deceased Aruna had sustained number of
abrasions on her person, however, comparatively the accused had
sustained the less injuries. However, in that event if injury no. 18 on
the person of the deceased-Aruna is considered, the same is a
continuous transeverse ligature mark as pressure abrasion present
over thyroid cartilage encircling all around neck. There are no
multiple ligature marks. It is thus difficult to reach out any
conclusion or inference.
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19.8 In view of the discussion above, we have searched for
other evidence. PW3-Chandrakant Jawale, who is a ST driver, has
deposed in his examination-in-chief itself that when they reached to
Shirdi at about 07:00 pm in the evening on 28.06.2012 and when he
parked ST bus and submitted log-sheet to the control room,
deceased-Aruna also submitted the tray and went along with her
husband.
19.9 Prosecution has examined PW10-Manohar Gholap, who
is a panch witness on the panchanama (Exh.35). According to him,
on 02.07.2012, the appellant-accused Vijay had shown them MSRTC
ticket machine, tray, purse, ticket hole maker, wearing clothes of
deceased, khaki shirt with broken buttons, saree and accordingly
these articles came to be seized in the recovery panchanama
(Exh.35). There is no reference in his evidence as to whether the
police has drawn the memorandum panchanama as per the
disclosure made by the appellant-accused before proceeding towards
the spot to seize these articles. As per the arrest panchanama
(Exh.9), the appellant came to be arrested in connection with the
present crime on 29.06.2012. This panchanama (Exh.35) came to be
drawn on 02.07.2012. It is also pertinent to note that even though
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PW3-Chandrakant has deposed that the deceased-Aruna had
submitted tray and went along with husband, the said tray along with
some other articles shown to have been seized on 02.07.2012 under
the panchanama (Exh.35). On careful perusal of the panchanama
(Exh.35), it appears that one ticket machine, tray, purse, ticket hole
maker, wearing clothes of deceased, khaki shirt with broken buttons,
cash amount, watch and the shirt of the accused shown to have been
seized under the panchanama (Exh.35). It further appears that the
said articles shown to have been seized from the spot. It appears that
the said articles were kept behind one Neem tree. We have carefully
gone through the contents of the spot panchanama (Exh.37). On
perusal of the same, it appears that the incident had taken place near
one Babul tree. Various articles were seized from that place. We
have minutely seen the map drawn on the spot panchanama
(Exh.37). It appears that at a short distance from Babul tree, one
standing neem tree is shown. As per the seizure panchanama
(Exh.35), on 02.07.2012, the appellant-accused had shown certain
articles lying near the neem tree. We are unable to understand as to
when those articles were kept beneath the said neem tree which is at
a short distance and the said neem tree is also shown in the map of
the spot panchanama, what prevented the Investigating Officer to
seize those articles immediately on 26.08.2012.
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19.10 It is also pertinent to note that the panchanama (Exh.35)
is a simple panchanama without there being any memorandum
panchanama attached to it. Even PW10-Manohar Gholap has also
not deposed anything about the disclosure statement made by the
appellant-accused before leading to this place. However, the trial
Court in paragraph no. 50(2)(b) has observed that "it may be the
mistake of learned APP who has not referred separate memorandum
as page No.77 to the witness P.W.10 Manohar Shivram Gholap and
thus accepted the panchanama (Exh.35) without any further
discussion on it".
19.11 It is again pertinent that PW3-Chandrakant, who is a
driver of the ST bus, was not shown those seized articles belonging to
the deceased-Aruna. Those are the articles of the MSRTC and the
PW3-Chandrakant would have been the best witness to identify the
said articles as being the property of the MSRTC.
19.12 Thus, the aspect of seizure of the property of certain
incriminating articles appears to be doubtful. In view of the
discussion above, we are not inclined to rely upon the seizure of
those articles including the blood stained shirt of appellant-accused
Vijay. The appellant-accused Vijay was found on baniyan immediately
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after the incident. However, the Investigating Officer has not taken
pains to find out as to where his shirt was lying near the spot though
the said neem tree is at a short distance approximately 10 to 15 ft.
20. Prosecution has relied upon the CA report (Exh.81). The
clothes of the deceased-Aruna including the scarf and the full shirt of
the appellant-accused was found stained with the human blood of
blood group 'B', however, the blood group of deceased-Aruna could
not be determined as the results were inconclusive. Even assuming
that as per the blood stains found on the clothes of the deceased, her
blood was of group 'B', however, this circumstance is not helpful for
the prosecution on two counts (i) the possibility cannot be ruled out
that after the incident was over and till the arrival of the villagers, if
the appellant-accused has looked after his wife who was lying
unconscious, the blood stains may appear on his shirt. (ii) this
important circumstnce about having blood stains of blood group 'B'
on the shirt of the accused was not put to him in his examination
under Section 313 of the Code of Criminal Procedure. Further, there
is no reference about the articles seized at the time of drawing of spot
panchanama (Exh.37). One pair of shoes of red colour was found
near the spot, however, there is no reference as to whether the said
pair of shoes belonged to the accused or some other persons.
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21. In the case of Vikramjit Singh Alias Vicky Versus State of
Punjab reported in (2006) 2 SCC 306 relied upon by the learned
Counsel for the appellant-accused, the Hon'ble Apex Court in
paragraph nos. 13 and 14 made the following observations :
13. In the instant case, there are two versions. The learned
Sessions Judge proceeded to weigh the probability of both of them
and opined that the appellant having not been able to prove its case,
the prosecution case should be accepted. In our opinion, the approach
of the learned Sessions Judge was not correct. The High Court also
appeared to have fallen into the same error. It invoked Section 106 of
the Indian Evidence Act although opining:
"The section 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 the
prosecution has succeeded in proving facts from which a
reasonable inference can be drawn regarding the existence of
certain other facts, unless the accused by virtue of his special
knowledge regarding such facts, failed to offer any explanation
which might drive the court to draw a different inference."
14. 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.
22. 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. In the instant case, the prosecution has not
succeeded in proving the facts from which a reasonable inference can
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be drawn regarding the existence of certain facts. Thus, the ratio laid
down in the case of Vikramjit (supra) is squarely applicable to the
facts and circumstances of the present case. In the instant case, there
are also two views and in view of the ratio laid in the aforesaid case,
the view which is in favour of the accused, should be accepted.
23. In a case of Sharad Birdhichand Sarda Vs. State of
Maharashtra reported in 1984 SC 1622, the Supreme Court has laid
down the following principles to appreciate the evidence when the
prosecution case rests upon the circumstantial evidence.
The following conditions must be fulfilled before a case against an
accused can be said to be fully established on circumstantial
evidence.
1. The circumstances from which the conclusion of guilt is to be
drawn must or should be and not merely 'may be' fully
established.
2. The facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the
accused is guilty;
3. The circumstances should be of a conclusive nature and
tendency;
4. They should exclude every possible hypothesis except the one to
be proved; and
5. There must be a 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."
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. In the instant case, the facts so established by the
prosecution are not consistent only with the hypothesis of the guilt of
the accused. We do not think that the circumstnces brought on
record by the prosecution are conclusive in nature and tendency.
Unfortunately, there is no chain of circumstantial evidence. On the
other hand, most of the circumstances that are discussed above are
consistennt with the innocence of the accused.
24. The learned counsel for the appellant has placed reliance
on the judgment in the case of State of Haryana Versus Ram Singh
reported in (2002) 2 SCC 426 relied upon by the learned Counsel for
the appellant-accused, wherein it is observd that if the discoveries
and arrets made in presence of three interested witnesses, the same
creates doubt of suspicion which must go to the benefit of the
accused.
25. In the case of Prakash Versus State of Karnataka reported
in (2014) 12 SCC 133, the Supreme Court has, in paragraph nos. 42
to 44, made the following observations.
42. Learned counsel for Prakash contended that the report of
the serologist was not put to him when he was examined under
Section 313 of the Code of Criminal Procedure. The High Court
dealt with this issue in a rather unsatisfactory manner. This is
what the High Court had to say:
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"Even assuming that the report of the Serologist had not
been put to the accused in his statement recorded under
Section 313 Cr.P.C. the same cannot be said to be fatal to
the prosecution, more so, when the same had not
prejudiced the accused in any way. In fact, we put the said
Serologist's report Ex.P29 to the learned counsel appearing
for the respondent and sought for their explanation in this
regard and it is submitted that they have nothing to say in
that matter. That means, the respondent has no
explanation to offer in this regard."
43. It is one thing to say that no prejudice was caused to
Prakash by not affording him an opportunity to explain the
serological report. It is quite another thing to put the report to
his learned counsel in appeal and give him (the learned counsel)
an opportunity to explain the report of the serologist. The course
adopted by the High Court is clearly impermissible. The law on
the subject was laid down several decades ago by the
Constitution Bench in Tara Singh v. State[24] and is to the effect
that an accused must be given a chance to offer an explanation
if the evidence is to be used against him and the conviction is
intended to be based upon it. It follows that if the accused is not
given an opportunity to explain the circumstances against him in
the testimony of the witnesses, then those circumstances cannot
be used against him, whether they prejudice him or not. This is
what the Constitution Bench said:
"It is important therefore that an accused should be
properly examined under Section 342 [25] and, as their
Lordships of the Privy Council indicated in Dwarkanath v.
HYPERLINK "https://indiankanoon.org/doc/1009337/"
HYPERLINK
"https://indiankanoon.org/doc/1009337/"Emperor, [26] if a
point in the evidence is considered important against the
accused and the conviction is intended to be based upon it,
then it is right and proper that the accused should be
questioned about the matter and be given an opportunity
of explaining it if he so desires. This is an important and
salutary provision and I cannot permit it to be slurred over.
I regret to find that in many cases scant attention is paid to
it, particularly in Sessions Courts. But whether the matter
arises in the Sessions Court or in that of the Committing
Magistrate, it is important that the provisions of section
342 should be fairly and faithfully observed."
44. This was more clearly spelt out in Ajay Singh v. State of
Maharashtra[27] when this Court held:
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"A conviction based on the accused's failure to explain
what he was never asked to explain is bad in law."
. In the instant case also, CA report (Exh. 81) was not put
to the appellant-accused during his examination under Section 313 of
Cr.P.C. for giving him an opportunity to explain the incriminating
circumstance of having blood stains on his shirt. Thus, the ratio laid
down by the Hon'ble Apex Court is squarely applicable to the facts of
the present case.
26. Learned APP has relied upon the following cases :
i] In Dhanaji Bhagwan Madne Versus State of Maharashtra,
reported in 2014 All.M.R. (Cri) 2837, the Division Bench of
this Court has considered the fact that the accused has
failed to offer a reasonable explanation in discharge of
burden placed on him by Section 106 of the Evidence Act.
In the instant case, however, the accused has offered his
reasonable explannation in discharge of the burden placed
on him. Further, the prosecution has not succeeded in
discharging its own burden to prove the case against the
appellant-accused beyond doubt.
ii] So far as case State of Punjab Versus Karnail Singh reported
in 2003 AIR (SC) 3609 is concerned, the same pertains to
the appeal against acquittal wherein the issue of partition
witnesses has been considered.
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However, this case may not be applicable to the facts of the
present case.
iii] In State of Rajasthan Versus Thakur Singh reported in 2014
(12) SCC 211, the Supreme Court has considered the
provisions of Section 106 of the Evidence Act. In this case,
by referring the case of Trimukh Maroti Kirkan v. State of
Maharashtra, the Supreme Court has considered the
provisions of Section 106 of the Evidence Act on the
ground that the incident had taken place in the secrecy
inside the house and thus it is incumbent upon the accused
to explain circumstances appearing agaisnt him.
The ratio laid down in this case may not be applicable to
the facts of the present case, which are very peculiar in
nature.
iv] In the case of Sucha Singh Versus State of Punjab reported
in 2001 AIR (SC) 1436, the Supreme Court has considered
the provisions of Section 106 of the Evidence Act with the
observations 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.
27. In our considered opinion, the prosecution has failed to
establish the chain of circumstantial evidence. The circumstances
against the appellant-accused are not fully established. In the facts of
the present case, it is difficult to say that the accused is guilty. At the
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most, it can be said that the accused may be guilty. However, it is
well settled that the suspicion however strong may be, the same
cannot take the place of proof. In our considered opinion, the
prosecution has failed to prove the case beyond reasonable doubt and
the appellant-accused thus entitled to the benefit of doubt. Hence,
we proceed to pass the following order :
ORDER
i] The Criminal Appeal is hereby allowed.
ii] The impugned judgment & order of conviction passed by the learned Additional Sessions Judge, Kopargaon dated 22nd August, 2014 in Sessions Case No. 4 of 2013, thereby convicting the appellant for the offence punishable under Section 302 of the Indian penal Code and sentencing him to suffer imprisonment for life and to pay fne of Rs.2,000/- (Rs Two Thousand only), in default of payment of fine to undergo simple imprisonment for a further period of three months, is hereby quashed and set aside. The appellant- accused is hereby acquitted of the offence punishable under Section 302 of the Indian Penal Code.
iii] The fine amount if deposited by the appellant shall be refunded to him.
iv] The Appellant/accused be released forthwith from the jail if not required in any other case or crime.
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vi] The order regarding return/disposal of the muddemal property stands confirmed.
vii] Record and Proceedings be sent to the trial Court with the special messenger forthwith.
vii] Criminal Appeal is accordingly disposed of.
[ SANDIPKUMAR C. MORE ] [ V. K. JADHAV ]
JUDGE JUDGE
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