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Apeal-183-2015.odt

3. The prosecution story in the nutshell is that one Tanaji Keru Kadam, who was the Police Patil of village Pimpri Louki, Ajampur, Tq. Sangamner, Dist. Ahmednagar gave report with Sangamner Police Station on 19.08.2012 stating that around 5.00 a.m. on the same date, two villagers from his village i.e. Karbhari Ganpat Lawre and Jayram Lahanu Datir went to his house. They told that a boy by name Sunil Arjun Datir told them that his mother Latabai is sleeping in the Veranda (Padvi) of the house, she is not waking up and blood has oozed out of her head. Tanaji along with other two persons had gone to the house of Sunil and saw that Latabai was dead. She had sustained injury to her head and, therefore, on the basis of the said information A.D. under Section 174 of the Code of Criminal Procedure came to be registered. Inquest panchanama was carried out and the dead body was sent for postmortem. The spot panchanama was also carried out. It is the further prosecution story that Medical Officer, Rural Hospital, Sangamner gave MLC on 22.08.2012 stating that person by name Arjun Gajanan Datir (husband of deceased Latabai) was admitted to the said hospital and he is in a position to give statement and, therefore, his statement be recorded. Thereafter, A.S.I. Madhukar Dadar went to hospital and recorded the statement of Arjun Datir. On the basis of the said statement, offence under Sections 302, 309 of Indian Penal Code was Apeal-183-2015.odt registered vide Crime No.137 of 2012. In the said statement, it was disclosed that when Arjun was along with his wife Latabai in the house around 10.00 p.m. on 18.08.2012, they had quarrel on account of character of Latabai and then Latabai had abused. Then when Latabai went asleep around 11.30 p.m., Arjun had picked up pickaxe and assaulted on her head. After killing his wife, he had consumed poison which was used for killing ticks. Even after consuming that poison, he went to village Aashvi by foot and then started vomiting. In the said village, he slept on a raised platform, but in the morning, he boarded a bus from Aashvi to Sangamner and from Sangamner Taluka Police Station where he had gone, he was referred to Rural Hospital, Sangamner for medical treatment.

5. Heard learned Advocate Mr. N. C. Garud for the appellant and learned APP Mr. S. D. Ghayal for the respondent - State.

6. It has been vehemently submitted on behalf of the appellant that the accused has been convicted of committing murder of his wife and attempt to commit suicide. Though prosecution has examined 10 witnesses, the case of the prosecution rests on circumstantial evidence.

Apeal-183-2015.odt P.W.3 - Sunil is the son of the accused and deceased. His testimony would make it clear that he was not present in the house when the alleged incident had taken place. He has specifically stated that there was no dispute earlier between accused and deceased. As per the testimony of P.W.3 Sunil he left the house around 8.00 p.m. and returned at 3.00 a.m. He cannot be said to be a witness on the point of last seen together. Though he has stated that there was some quarrel between the parents, it appears that it was patched up and she was brought to the house. The daughter of the deceased had come for delivery and she had returned to her matrimonial home about 15 days earlier. When there was no quarrel or dispute between the accused and the deceased, there appears to be no motive at all for the deceased to commit any offence. There is no evidence led by the prosecution to see what had happened between 8.00 p.m. to 3.00 a.m. As per the testimony of P.W.3 Sunil, when he saw mother in injured condition, he had gone to the house of his uncle Dinkar Gajanan Datir, however, said uncle has not been examined by the prosecution. P.W.1 - Tanaji, the Police Patil, had only seen the incident after he was informed about the same by two other persons. P.W.6 Navnath is the brother of the deceased and he has also stated in the cross that there was no quarrel between accused and deceased. It has come in the evidence of P.W.7 - P.I. Sampatrao Bhosale, Apeal-183-2015.odt Investigating Officer that the Veranda (Padvi) of the house of the accused is open. The house is surrounded by 7-8 vastis of the brothers and some other persons near the house of the accused, yet no independent witness has been examined. When motive is not proved, circumstantial evidence cannot be considered at all. The weapon that was seized in the matter from the spot is an agricultural implement, which is available in the house of agriculturist. P.W.2 Shankar is the panch to the seizure panchanama, however, he is not reliable. He says that the panchanama was not signed at the spot, but after reaching Sangamner Taluka Police Station, police had told the panchas to sign the panchanama. Accordingly, he had signed it. P.W.4 - Dr. Wankhede is the Medical Officer, who has admitted autopsy as well as he is the Medical Officer attached to Rural Hospital, Sangamner, where the accused was in the hospital. In his cross-examination, he has admitted that as the accused had consumed poison, he was admitted in the hospital. But in the second breath, he has admitted that if a person suffers from food poisoning, then he may feel giddiness. If a person inhales a spray of pesticides, then such person also feel giddiness. Therefore, his testimony cannot be relied upon. The investigating officer has not carried out the investigation properly. The statement/FIR which was recorded by A.S.I. Dadar i.e. Exhibit-35 cannot be taken as admission, as it is barred under Apeal-183-2015.odt Section 25 of the Indian Evidence Act. Under such circumstance, when there was no proper evidence on record and the circumstances which were gathered might have raised at the most suspicion against the accused, yet the suspicion cannot be taken as proved on commission of a crime. The learned trial Judge had not considered all these aspects and wrongly convicted the accused. The appeal, therefore, deserves to be allowed.

7. Learned APP supported the reasons given by the learned trial Judge and submitted that the prosecution case is based on circumstantial evidence. P.W.3 Sunil is the son of the deceased as well as accused, who had last seen the appellant and the deceased together at 8.00 p.m. If we consider the postmortem report, it has been stated that the rigor mortis was present in both upper limbs as well as neck and trunk. Further, in the postmortem report it is also stated that the death had occurred within four hours of last meal. P.W.3 Sunil has specifically stated that after taking dinner, he went to poultry farm of Yashwant Datir for work around 8.00 p.m. Though he has not specifically stated that the parents had also taken dinner with him, yet it can be taken as the fact in view of the fact that there were only three persons in the house. Further, from the testimony of P.W.3 Sunil and P.W.7 P.I. Bhosale, who has investigated the matter, it has come on record that the accused Apeal-183-2015.odt was raising suspicion over the character of the deceased. This can also be taken note of from the FIR Exhibit-35, which is in fact confessional FIR. The said FIR is admissible in evidence. Learned APP relied on the decision in Aghnoo Nagesia Vs. State of Bihar, [1966 AIR (SC) 119], wherein it has been held :-

12. Coming to the next point P.W.3 Sunil has stated that his father was addicted to liquor and ganja and he used to raise suspicion over the character of the mother. Even his father was beating his mother during night time. A month prior to the incident, his father has assaulted mother and his mother had gone to her parental house in the same village. She resided at the parental house for about 15 days and, thereafter, P.W.3 Sunil has brought her, as his sister was supposed to come to their house for delivery. After the delivery, his sister had Apeal-183-2015.odt returned back. He has another brother, but then he says that on the day of incident, his brother had gone to village Dhangarwadi, Tq. Rahata at the place of sister. P.W.3 Sunil had gone to college around 7.30 a.m. and returned around 12.00 p.m. His mother had also gone for work and returned around 6.30 to 7.00 p.m. Then, he had dinner and he went to work in the poultry farm of one Yashwant Datir at 8.00 p.m. He has specifically stated that thereafter only parents were at the house. He returned around 3.00 a.m. on 19.08.2012. He found the dead body of his mother lying in the house. There was injury to the head of his mother and left hand was fractured. He found one pickaxe lying under the cot. He also found bottle containing poison to kill ticks lying there. He went to the house of his uncle - Dinkar Datir and informed the incident. Uncle also saw the dead body. Further, he has specifically stated that when he had returned at 3.00 a.m., his father was not in the house. In the cross-examination, nothing has been brought, which could destroy the story told by him. In his cross, he has stated that the relations of his maternal uncle with his father are not cordial. Even if those relations are not cordial, it cannot be said that, that is the motive for the maternal uncle P.W.6 - Navnath to depose against the accused. P.W.3 Sunil has specifically denied that there was no quarrel between his mother and father in his presence, but then he admits that neither he Apeal-183-2015.odt himself nor mother had lodged any complaint against father. But then he also admits that prior to the incident that about a month, there were no quarrels in a family. This might have happened since the daughter had come for delivery, but it cannot be construed that the quarrels those used to take place earlier were resolved completely. Definitely, his evidence would clarify that the accused was still taking suspicion over the character of the deceased. This has been also stated by P.W.6 - Navnath. The fact that about a month prior to the incident Latabai had gone to her parental home and stayed there for 15 days and thereafter, she was fetched by the son, has not been denied in the cross of P.W.3 Sunil. P.W.3 Sunil has further stated that the distance between poultry farm and his Vasti (House) is near about one and half kilometers. He has admitted that there are 5 to 7 Vastis of his brothers and some other persons near his Vasti. In fact, word Vasti is used for the house which is built in the farm, that means all those Vastis were in the farm and it cannot be confused with the house either in village or in town, which are adjacent to each other. When these are in a way farm houses away from each other in their respective farms, we cannot expect that a person will hear the noise and he was rushed immediately. Therefore, this admission cannot be interpreted in the way the learned Advocate appearing for the appellant intends. In the cross, in fact, a death blow Apeal-183-2015.odt has been given by asking a question on behalf of the accused and the answer is that when P.W.3 Sunil reached home around 3.00 a.m. no other person had come to his house prior to him. In fact, it could not have been within the knowledge of P.W.3 Sunil as to whether any person had visited his house in his absence. There was no point in asking this question, yet it was asked. The answer is given and he states that no other persons had come prior to his arrival. For the theory of "last seen together" requires proximity in time. When P.W.3 left house, it was 9.00 p.m. and as per the postmortem report the death had occurred nearly four hours after the last meal. If these two things are read together, then it can be seen that there was sufficient proximity of time to import the doctrine of last seen together. It was not necessary for the prosecution to explain whether anybody else would have come between 8.00 p.m to 3.00 a.m. We can consider that around 8.00 p.m. even the accused and deceased had their dinner. The non confessional part of Exhibit-35 can be now thus considered, wherein it has been stated that on whole day on 18.08.2012 accused was at home. The wife had gone for labour work and returned around 7.00 p.m. She prepared food and then he himself, wife and Sunil had dinner and then Sunil left for poultry farm. He and Latabai went to sleep in the Veranda (Padvi) around 10.00 p.m. and then the quarrel started between them. Thus, the said statement under Apeal-183-2015.odt Exhibit-35 that the accused, his wife and son Sunil had dinner together at 8.00 p.m. has been proved by the prosecution and the death has occurred within 4 hours after 8.00 p.m. That is the sufficient proximity taking into consideration the fact that at the time when Sunil left only the deceased and the accused were the persons in the house. That is the strong circumstantial evidence against the appellant.