Criminal Appeal No.99 of 2003

4th May, 2011

Petitioner Counsel: Mr. M. B. NAIDU,Mr. R. M. DAGA
Respondent Counsel: Mrs. S. S. JACHAK

Cases Cited:
Subramanian Vs. State of Tamil Nadu, 2009 ALL MR (Cri) 2118 (S.C.) [Para 9]
Sharad Birdhichand Sarda Vs. State of Maharashtra, 2009 ALL SCR (O.C.C.) 281 : (1984)4 SCC 116 [Para 12]
Shivaji Sahebrao Bobade Vs. State of Maharashtra, 2010 ALL SCR (O.C.C.) 339 : (1973)2 SCC 793 [Para 13]

JUDGMENT

U. V. BAKRE, J.:- This appeal is filed by the accused persons who were tried in Sessions Trial No.207/2001, and convicted for offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

2. The accused No.1 Sau. Gita and the accused No.2 Lata are the real sisters of the deceased Vimal, who is the wife of the accused No.4 Uttam. The accused No.3 is the brother of the deceased, whereas accused No.5 is her father.

3. It was alleged by the prosecution is as follows :

(a) Deceased Vimal was not keeping well since 03/8/2001. She had therefore gone to her parental house i.e. the house of accused No.5.

(b) The deceased was allegedly treated for her illness by way of black magic since 10/8/2001 till 12.8.2001 at the place of the accused No.5 and certain Pooja ceremony was performed. On 12/8/2001 at about 8.00 p.m. also the Pooja ceremony was performed which according to the prosecution was a part of the black magic.

(c) The ailment of Vimal aggravated which compelled the accused persons to take her to the hospital on 13/8/2001, where she was declared dead.

(d) As per the doctor, who performed the post-mortem examination of the dead body of Vimal, the cause of death was haemorrhage and shock as a result of wound through vaginal canal into pelvic and abdominal cavity causing tear of bladder and part of intestine leading to haemorrhage into pelvic cavity and abdominal cavity caused by hard and long object.

(e) The accused persons have caused the death of Vimal by inserting an iron rod in her vagina.

4. The prosecution has examined fourteen witnesses who may be classified as follows :

A) Eye-witnesses regarding alleged black magic performed in the house of accused No.5 and for seeing the deceased in custody of accused persons. :-

(1) P.W.-1 Manohar Deogirkar, who lodged complaint Exh.19.

(2) P.W.-5 Surekha Deogirkar, wife of P.W.-1.

(3) P.W.-6 Raju Shelke.

(4) P.W.-7 Devidas Dambhare.

(5) P.W.-9 Prashant Ghungarud, who has turned hostile.

(6) P.W.-10 Dipak Made, who has turned hostile.

B) Medical Evidence. :-

(1) P.W.8 Dr. Bipinchandra Tirpude, who performed post-mortem examination.

C) Panch Witnesses. :-

(1) P.W.-2 Ashok Ganjare for inquest panchanama (Exh.32) has turned hostile.

(2) P.W.-3 Bhaurao Nandgawali for seizure memos (Exhs.34, 35, 36, 37, 38, 39, 40, 41 and 42). He has turned hostile.

(3) P.W.-4 Madan Ghungarud for panchanama of spot of occurrence (Exh.44) and seizure memo (Exh.45). He has turned hostile.

D) Miscellaneous witnesses. :-

(1) P.W.-11 Patiram Dhoble, A.S.I., who brought the post-mortem examination report of Vimal to Hinganghat police station from Sevagram College Hospital.

(2) P.W.-14 Vinod Nimohkar, Medical Superintendent of College Hospital, Hinganghat.

E) Investigating Officers :-

(1) P.W.-12 Devid Raghwarsingh, P.S.I., Hinganghat Police Station.

(2) P.W.-13 Suresh Narnaware, P.S.I., Hinganghat Police Station.

5. The learned Ad-hoc Additional Sessions Judge, Wardha has held all the accused persons guilty of the offence punishable under Section 302 read with Section 34 of I.P.C. and has convicted and sentenced them to suffer imprisonment for life and to pay fine of Rs.500/- each, in default to suffer rigorous imprisonment for 15 days.

6. The reasons which according to the Trial Judge were sufficient for conviction are as follows :

(a) The evidence of P.W.-8 Dr. Tirpude read with the post-mortem examination report (Exh.50) proves that the death of Vimal was homicidal.

(b) The deceased was in custody of the accused persons during the relevant period.

(c) The accused persons have not given any explanation as to how Vimal sustained injuries on her body.

7. Heard arguments. Learned Advocate Shri. M. B. Naidu argued on behalf of the accused Nos.1 and 2, whereas learned Advocate Shri. R. M. Daga argued on behalf of the accused Nos.3 to 5. On the other hand, learned A.P.P. Mrs. S. S. Jachak argued on behalf of the State.

8. It is contended by the learned Advocates for the accused persons that :-

(a) The deceased was residing with the accused persons who are related to her by blood, except the accused No.4, who is her husband, at the relevant time.

(b) The deceased was ill and Pooja ceremonies and alleged black magic were performed for curing of her ailment.

(c) In the circumstances above, where motive is not proved, the circumstance that the deceased was residing with accused persons cannot be clinching to prove guilt of the accused persons.

9. Learned Advocate Shri R. M. Daga has relied upon following citation. :-

Subramanian Vs. State of Tamil Nadu & another [2009 ALL MR (Cri) 2118 (S.C.)].

Preposition :-

When husband and wife are living together in one house and the death is proved to be homicidal, it is for husband to explain circumstances in which she might have died however absence of explanation though a strong circumstance against husband, it cannot per se be taken to mean that he alone was responsible therefor.

10. Perused the record.

11. Admittedly, in the present case, there is no direct evidence and the case wholly rests on circumstantial evidence.

12. In the case of "Sharad Birdhichand Sarda Vs. State of Maharashtra" [(1984)4 SCC 116] : (2009 ALL SCR (O.C.C.) 281), the Hon'ble Apex Court has laid down the conditions to be fulfilled for arriving at a opinion in regard to proof of a prosecution case on the basis of the circumstantial evidence. Those conditions are as follows. :

(1) The circumstance from which the conclusion of guilt is to be drawn should 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.

13. In the case of Shivaji Sahebrao Bobade Vs. State of Maharashtra [(1973)2 SCC 793] : (2010 ALL SCR (O.C.C.) 339), the Apex Court has observed that :

"......Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict, and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions..."

14. Absence of proof of motive may not be vital in every case even when it is based on circumstantial evidence but when the case is based on circumstantial evidence, the motive becomes one of the strongest link to connect the chain unless the other circumstance on record would complete the chain and connect the accused with the commission of the offence. Admittedly, in the present case all the accused persons are very close relatives of the deceased and there is evidence on record suggesting that the deceased was not keeping well and was being treated by the accused persons by performing Pooja ceremony and some black magic, as it is called. No motive for the accused persons to do away with the deceased has come on record.

15. The evidence of P.W.-8 Dr. Bipinchandra Tirpude and his post-mortem examination report (Exh.50) reveals that externally the deceased had sustained the following injuries. :-

"(1) There was dermo epidermal burn injury present on the eye lids, both sides. Upper lip. On right side it was measuring 1.6 x 1.5. cm. In size and on left side it was 1.5 x 1.8 cm in size with singing of eye-brow on left side of medial aspect.

(2) There was dermo epidermal burn injury on both sides of face starting from the angle of the mouth up to the cheek. On right side it was 5 x 2 cm and on left side it was 4 x 1.8 cm.

(3) There was contused abrasion present transversely placed just above the chin, size 5 x 0.5 cm in length.

(4) Area of multiple abrasion present over the anterior and lateral aspect of the neck both the side with few cresentic abrasion mark.

(5) Multiple small abrasion present over right side elbow joint on lateral and posterior aspect."

16. The doctor had also found that the deceased had sustained fracture of 5th rib on right side.

17. As far as external genitals are concerned, there was Dermo-epidermal burn injury present over the external genitals involving mon's pubis labia major and labia minor and perineum with blacking and singeing of pubic hair. There was bleeding through vagina. Penetrating injury was there on the right lateral aspect of the vaginal wall.

18. The probable cause of death, according to the doctor, was haemorrhage and shock as a result of penetrating wound through vaginal canal, into pelvic and abdominal cavity causing tear of bladder and part of intestine leading to haemorrhage into pelvic cavity and abdominal cavity by some hard and long object.

Thus, according to this witness, the death of Vimal is homicidal.

19. The house of the accused No.5 is just in front of the house of P.W.-1 and P.W.-5. Though, the above medical evidence proves that various injuries like burn injuries, fracture to rib and penetrating wound through vaginal canal were sustained by the deceased, neither P.W.-1 nor P.W.-5 says that he/she heard any shouts or screams due to pain or resistance, etc..

20. The record indicates that :-

(a) Initially the deceased was taken to the Primary Health Centre on 12/8/2001.

(b) Thereafter she was taken to Cottage Hospital. The Medical Superintendent of the Cottage Hospital, Hinganghat has been examined as P.W.-14, but he had not examined the deceased and in fact he was on leave. The doctor, who had examined Vimal on 12/8/2001 at 8.45 p.m. namely Dr. Nisha Lalwani, has not been examined. The doctor who might have treated Vimal in the Primary Health Centre has not been examined.

(c) The deceased was taken to Sevagram hospital on 13/8/2001, where she was declared dead.

21. The iron rod (Article P-1) which has been identified by P.W.-8 Dr. Tirpude to be a possible weapon to cause injuries to the deceased was alleged to have been recovered from the house of the accused No.5. However, P.W.4 Madan, who acted as one of the panch witnesses for the spot of occurrence (Exh.44) and the seizure memo (Exh.45) pertaining to the said iron rod, has stated that nothing was seized from the spot in his presence.

22. P.W.-4 Madan has given contradictory version. At one stage he says that in the kitchen room in the house of Ramesh Thakre of Hinganghat there was iron rod but on the other hand he says that nothing was seized by the police in his presence. In his cross-examination, P.W.-4 has stated that initially the police entered the house and came out and thereafter asked them to enter the house and verify the item. He has further admitted that the police did not seal the article. Therefore, attachment of iron rod from the house of accused persons is not proved beyond reasonable doubt.

23. The other panch witness namely P.W.-3 Bhaurao who allegedly acted as panch witness for seizure of the blood samples of the accused persons and the clothes of the deceased, and P.W.-2 Ashok who allegedly acted as panch witness for inquest panchanama, have not supported the prosecution case.

24. P.W.-1 Manohar had not lodged the report (Exh.19) regarding the alleged murder of Vimal, but he lodged the report because he suspected that black magic was being performed in the house of accused No.5.

25. In his examination-in-chief, P.W.-1 has not stated about the presence of Bhaskar, the accused No.3. P.W.-1, in his cross-examination, has stated that he had told the names of all the accused persons to the police in his report. However, the names of Lata and Uttam are not stated in that oral report. In his cross-examination P.W.1 has stated that the accused Uttam, husband of the deceased Vimal, was not present at the house of Ramesh Thakre for Pooja on Friday.

26. The deposition of P.W.-5 Surekha reveals that the accused Gita and deceased Vimal were both performing 'Aarti' in front of the house of Ramesh Thakre on 10/8/2001 at about 2.00 a.m. to 2.30 a.m.. P.W.-4 has not taken name of any other accused persons except that of Gita and has specifically stated that she does not know as to who were present in the house of Ramesh Thakre (accused No.5) during that period.

27. P.W.-6 Raju Shelke who is an independent witness has deposed that on 10/8/2001 at about 2.30 p.m. to 3.00 p.m. the deceased Vimal was performing "Aarti" in the house of the accused Ramesh Thakre and that as per the direction of Vimal, a hen was cut by Ramesh Thakre and thereafter Vimal was taken in Auto-rickshaw by Ramesh Thakre and Uttam Kambali. The above is a version, which is not stated by any other witness.

28. According to P.W.-7 Devidas Dambhare, on 10th or 11th day of August, 2001 at about 8.30 p.m. to 9.00 p.m. he noticed that in the house of Ramesh Thakre, 'Aarti' of Lord Nagoba was being sung. But, he does not speak about the presence of any of the accused persons.

29. The evidence on record is not consistent about the presence of all the accused persons on the relevant dates in the house. In such circumstances, the finding of the learned Trial Judge that the deceased was in the custody of all the accused persons at the time of her homicidal death, cannot at all be accepted. As regards the many injuries referred to in the post-mortem report, who could be the author of those injuries is not known.

30. Even otherwise, when the circumstances on record show that the accused persons wanted to treat the illness of the deceased, then their mere presence in the house and non-explanation about the grievous injury sustained by the deceased, will not prove beyond reasonable doubt that the accused persons were responsible for the death of Vimal.

31. The fact that Vimal was alive when she was taken to Primary Health Centre is not disputed. The case of the prosecution is that while Vimal was being taken to the Sevagram Hospital from General Hospital, Wardha, she died on the way. The failure to examine doctors, who treated Vimal in the Primary Health Centre and in the General Hospital, Wardha, created doubt about the case of the prosecution.

In any case, the accused persons would certainly be entitled for benefit of doubt.

32. The impugned judgment and order, therefore, is not in accordance with the settled principles of law and it is also not based on the correct appreciation of the evidence on record. The accused persons could not have been convicted on the basis of the said circumstantial evidence on record which do not complete the chain of evidence for proving the guilt of the accused persons beyond reasonable doubt. Hence, interference of this Court is warranted.

33. In the result,

1) The appeal is allowed.

2) Impugned judgment, order and sentence is quashed and set aside.

3) All the accused persons are acquitted of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

4) Bail bonds of the accused persons shall stand cancelled.

5) Muddemal property shall be destroyed.

Appeal allowed.