Bombay High Court
Vikram vs The State Of Maharashtra on 24 February, 2012
Bench: S.B. Deshmukh, A.M. Thipsay
                                                                          apl185.10
                                       -1-




                                                                        
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                           BENCH AT AURANGABAD




                                                
                     CRIMINAL APPEAL NO. 185 OF 2010




                                               
     Vikram s/o Babasaheb Jadhav
     Age 40 years, Occ. Agriculture,
     R/o. Kharmata, Tq. Kaij,
     District Beed                                       ...Appellant




                                      
           Versus
                      
     The State of Maharashtra
     Through Police station
     Kaij, Taluka Kaij,
                     
     District Beed                                       ...Respondent

                                      .....
     Mr. Satej S. Jadhav, advocate, advocate for the appellant
      

     Mr. S.D. Kaldate, APP for respondent
                                      .....
   



                                        CORAM : S. B. DESHMUKH AND
                                                A.M. THIPSAY, JJ.

DATE OF RESERVING THE JUDGMENT : 18.01.2012.

                                DATE OF PRONOUNCING
                                THE JUDGMENT                     : 24.02.2012





     JUDGMENT (PER A.M. THIPSAY, J.) :-


     1      The appellant and three others were prosecuted on the

allegation that they had committed offences punishable under Sections 302498A323324504 of the I.P.C. r.w. Section 34 of the I.P.C.

The Ad-hoc Additional Sessions Judge-1, Ambejogai, who tried them, apl185.10 held the appellant guilty of offences punishable under Sections 302 and 498A of the I.P.C. He sentenced the appellant to suffer imprisonment for life and also to pay a fine of Rs.1000/- with respect to offence punishable under Section 302 of the I.P.C. and to suffer R.I.

for two years and also to pay a fine of Rs.500/- with respect to offence punishable under section 498A of the I.P.C. The learned Judge found the other accused, who were father, mother and brother of the present appellant, not guilty and acquitted them.

ig The appellant, being aggrieved by his conviction and the sentences imposed upon him, has appealed to this court.

2 The facts of the case may, in brief, be stated as under;-

a) The appellant had married Pushpa some time in the year 1997. The appellant and Pushpa were residing with the other accused, at village Kharmata. Two sons; viz. Sharad (P.W.12) and Saurabh (P.W.10) and a daughter-Priyanka (P.W.11)-were born out of the wedlock between the appellant and Pushpa.

Pushpa was treated well for about 10 years from the marriage, but thereafter, the appellant and the other accused started harassing her. The appellant was intending to perform a second marriage and therefore, he was insisting upon Pushpa to give her consent for the second marriage. The appellant also wanted to purchase a jeep and therefore, the appellant and other apl185.10 accused had started pressurizing Pushpa for bringing an amount of Rs.50,000/- from her parents. Pushpa had told to her parents about the illtreatment, but the parents had persuaded her and sent her back to the matrimonial home. The parents of Pushpa had also told the appellant and other accused not to harass her.

Pushpa was beaten some time in the year 2005 and was sent to her parents’ house. She complained to her parents about the illtreatment given to her by all the accused persons. That, the appellant then came to the house of Pushpa’s parents at Pawarwadi. There also, he picked up a quarrel with Pushpa and beat her with a stick. When mother of Pushpa-Ashabai (P.W.13)

-intervened, she was also beaten by a stick. Pushpa was again persuaded and sent back to matrimonial home, but there was no change in the behaviour of the appellant and the other accused.

b) That, on 17.4.2007, the original accused No.4 Subhash had come to the house of the appellant and Pushpa, at about 7.00 p.m., and had taken Priyanka (P.W.11) and Sharad (P.W.

12) to his village Neknoor on his motorcycle, for watching a Powada programme. Pushpa, the appellant, their youngest son Saurabh (P.W.10) and the original accused No.2 Babasaheb-

father of the appellant as also the original accused No.3 apl185.10 Prayagabai-mother of the appellant, were at Kharmata. That, Pushpa and the appellant slept in the courtyard. The accused No.2 Babasaheb slept in the farm house and the accused No.3 Prayagabai slept in the gallery. That, the appellant who was having a grudge against Pushpa since she had refused to give her consent for the second marriage and had also not brought an amount of Rs.50,000/-, assaulted Pushpa by an axe and stick and caused injuries on her head, neck and limbs. This was seen by Saurabh (P.W.10) who had been sleeping in the house.

c) Somehow, the original accused No.4 Subhash, who was at Neknoor, learnt about the said assault and rushed to Kharmata alongwith Priyanka and Sharad. Pushpa was found lying in an injured condition. She was unconscious. The original accused No.4 Subhash went to Pushpa’s parents at Pawarwadi and informed Pushpa’s brother Krishna (P.W.1) and father Sarjerao (P.W.14) that the appellant had assaulted Pushpa by an axe and that Pushpa was admitted in the hospital at Neknoor.

Krishna (P.W.1) alongwith his uncle Bapu went to the hospital.

Pushpa had sustained serious injuries on her head. She was unconscious. On medical advise, she was shifted to Government Hospital at Beed, by the original accused No.3 Prayagabai and original accused No.4 Subhash. Krishna (P.W.

1) followed them. The Medical Officer, Government Hospital at apl185.10 Beed, gave an intimation to the Inspector of Police, Beed police station informing that Pushpa had been admitted in casualty ward that she had sustained injuries on account of an assault and that she was unconscious. Krishna lodged a report in the police Chowki at the Government Hospital, Beed, which was reduced to writing (Exh.51) by A.S.I. B.B. Jadhav (P.W. 15).

This report was forwarded by A.S.I. B.B. Jadhav, to the police station, Kaij, with a covering letter (Exh.29) for further investigation, which was received at the said police station on 18.4.2007 at 15.00 hours. It is on that basis, that a case in respect of offences punishable under Sections 307 of the I.P.C.

and 498A of the I.P.C. r.w. Section 34 of the I.P.C. and Section 4 of the Dowry Prohibition Act, was registered vide C.R. No. 86 of 2007, by P.S.I. Mahapure (P.W.17).

d) P.S.I. Mahapure visited the spot at 16.00 hours and drew a spot panchnama (Exh.57). A sample of blood stained earth was collected. The house of the appellant was searched. The statements of neighbours viz. Shivaji (P.W.2), Laxmibai Jadhav (P.W.3) were recorded. The appellant and the original accused Nos. 2 and 3 were arrested immediately. The clothes of the appellant were seized. They were found stained with blood.

e) That, on 21.4.2007, at about 13.00 to 14.00 hours, apl185.10 Pushpa succumbed to the injuries. The dead body was sent for post mortem examination which was done by Dr. C.S. Wagh (P.W.16). He opined the death to have been caused due to haemorrhagic shock with haemo peritorium with head injury with subdural haemorrhage. The accusation of an offence punishable under section 302 of the I.P.C. was added. The statements of several persons including that of the children of Pushpa, were recorded. The clothes of Pushpa were taken charge of on 21.4.2007.

f) On 22.4.2007, the appellant gave some information in the presence of Panchas, pursuant to which, an axe was recovered.

All the incriminating articles were sent to Chemical Analyzer for analysis and opinion. On examination, the Chemical Analyzer found blood stains on the clothes of the appellant and also on the blade and handle of the axe.

3. On completion of investigation, a report under Section 173(2) (i) of the Code of Criminal Procedure, was submitted to the Magistrate, pursuant to which, the appellant and other accused were prosecuted, as aforesaid.

4. The prosecution examined totally 17 witnesses during the trial, some of whom have been referred to earlier. The others are apl185.10 Babasaheb Kharade (P.W.4), Laxman Shinde (P.W.5), Sanjivan Pawar (P.W.6) and Sanjay Mhaske (P.W.7) who all, are panch witnesses. Ravindra Solunke (P.W.8) and Satish Solunke (P.W.9) are also panchas in respect of the recovery of an axe, pursuant to the information disclosed by the appellant.

5. We have heard Mr. Satej Jadhav, the learned advocate for the appellant and Mr. S.D. Kaldate, the learned Additonal Public Prosecutor for the State.

6. The case against the appellant was based on direct evidence as well as circumstantial evidence. It may be recalled that, Saurabh (P.W.10), son of the appellant and Pushpa, is said to be an eye witness to the incident of assault. Apart from this direct evidence, there is evidence of Krishna (P.W.1), Ashabai (P.W.13) and Sarjerao (P.W.

14), brother, mother and father, respectively, of Pushpa, with respect to the cruel treatment, allegedly given to Pushpa by the appellant and the other accused. Additionally, there is circumstantial evidence against the appellant, such as finding of stains of blood on his clothes, the recovery of an axe containing blood stains at his instance, etc.

7. It is contended by Mr. Jadhav, the learned advocate for the appellant that there was no satisfactory evidence to show that the appellant had committed the offences in question. According to him, the evidence of Saurabh (P.W.10) – a child of about 5 years at the timeapl185.10 of incident and of about 7 years when he gave evidence in the court-

has wrongly been relied upon by the trial court. He submitted that there was every possibility of Saurabh having been tutored by the brother and the parents of Pushpa, inasmuch as, admittedly, he had been staying with them after the death of Pushpa. It was submitted that there were several missing links in the circumstantial evidence adduced by the prosecution and it was not possible to come to the conclusion that the appellant had committed the offences in question.

He thus, submitted that the impugned judgment and order is liable to be interfered with by acquitting the appellant.

8. Mr. Kaldate, the learned APP, on the other hand, submitted that the evidence of Saurabh itself was sufficient to hold the appellant guilty of having committed the murder of Pushpa. It is submitted that the evidence of Saurabh is trustworthy and reliable and that no child would involve his own father falsely, in any offence. He also submitted that the appellant was addicted to liquor and there was sufficient evidence that he used to illtreat Pushpa, constantly. The substance of his arguments is that the appellant, who had a motive for killing Pushpa, had undoubtedly committed the offences in question.

9. Since the major charge which the appellant faced, is of murder and the accusations with respect to his having committed the other offences, are basically levelled so as to support the theory that the apl185.10 appellant had, indeed, a reason and motive for committing the murder of Pushpa, it would be proper to first examine the evidence in respect of the offence of murder, as was adduced during trial.

10. That, Pushpa died a homicidal death is not in dispute. Even otherwise, that is satisfactorily established by the evidence of Dr. Wagh (P.W.16), Dr. Wagh found the following injuries on the dead body of Pushpa :-

i) Sutured CLW size 9 cm an length oblique left side oblique left sale of chin up to angle of mandible.

ii) Sutured CLW size 3 cms. left half of upper lip Iii) Sutured CLW size 1 cm just over the chin

iv) Fracture mandible evidence of segmental compound fracture of mandible Candle tooth of lower jaw 1, 2, 3 of right side and 1, 2, 3, 4 of left side were found fractured.

v) Linear contusion 6 x 1 cms over left clevcular area.

vi) Sutured CLW on posterior lateral surface of right elbow 1 cm.

Vii) Evidence of fracture shaft humerous right and level of lower 1/3rd and middle 1/3rd junction apl185.10

viii) Bedsome were present. Venesection left leg 3 cms x 1 cms.

He found that all the injuries were ante-mortem.

11. That the assault on Pushpa took place outside her house in the midnight, is also not in dispute and even otherwise, is satisfactorily established from the evidence on record.

12. The only question therefore, is whether it was the appellant who assaulted Pushpa.

13. It would be appropriate to come to the direct evidence of murder, which is available in the testimony of appellant’s son Saurabh (P.W.10), who, it may be recalled, claims to have seen the incident.

Saurabh was of 7 years of age when he gave evidence before the Court i.e. on 11.11.2009. The incident had taken place on 17.4.2007.

Thus, Saurabh was only of about 5 years of age at the time of incident, and on this aspect, there is no dispute at all. Saurabh being a child witness of extremely tender age, his evidence needs to be subjected to careful scrutiny and accepted with a caution. Since the evidence of Saurabh, as recorded in the examination in chief, is extremely brief, it would be, perhaps, easier to have a proper and complete appreciation thereof, if the whole of his evidence recorded in the examination-in-

apl185.10 chief is reproduced here :-

“Vikaram Jadhav is my father, Pushpabai was my mother. Sharad is my elder brother. Priyanka is my elder sister. My mother was killed. At the relevant time we were residing at Kharmata. On the date of incident I was under sleep. I awoke from the sleep as I heard noise of weeping. I saw my mother was being beaten. She was beaten by my Pappa (father). The witness started weeping. My Pappa beat my mother. I saw while beating. (Witness is sleeping).

My mother became unconscious. Mother was then taken to hospital. Mother died in the hospital”.

It, at once, becomes noticeable that his evidence is remarkable in several aspects. He does say that his mother was being beaten and that she was being beaten by Pappa i.e. the appellant but does not state with what Pappa beat her. He does not state what the mother was doing or saying at that time. He does not state in what manner his mother was being beaten by his father, though he states that the mother became unconscious and that she was taken to Hospital. He is totally silent about what Pappa did after the beating was over or after the mother became unconscious. Whether Pappa was available on the scene of offence after the mother had fallen unconscious or that he had left earlier or that he had left thereafter, is something, which is not touched at all by this witness. Ordinarily, a person, who observes someone beating another, would state the manner of beating, the apl185.10 weapon, if any, used for beating and what happened after the beating.

These factors being missing in the evidence of Saurabh, his evidence cannot be considered as normal.

14. In the cross examination, it was revealed that the witness had come to the court with all his maternal uncles, grand father and grand mother and that they were sitting in the court Hall when the evidence of this witness was being recorded. It was suggested to him, in the cross examination, that he had been giving false evidence at the instance of his maternal grand parents and maternal uncles, but he denied the same as ‘false’. I find that a number of preliminary questions were asked by the learned Judge to Saurabh in order to test his general understanding and knowledge and the record of such questions and the answers given thereto was made. The learned judge came to the conclusion that Saurabh had ‘brilliantly answered’ each and every question, put to him and, therefore, the learned Judge was satisfied that the witness knew the importance of telling truth.

15. Undoubtedly, a child is competent to testify if he can understand and rationally answer the questions put to him. However, it is well settled that the children are often unable to distinguish between what is true and what is imaginary. They can easily be taught stories, and once they have learnt a story by heart, it would be difficult for them to distinguish it from real happenings. The child witnesses are apl185.10 susceptible to tutoring. The appreciation of their evidence is a difficult task, as any mistake or discrepancy in their statements, can easily be ascribed to innocence or failure to understand and undue weight is often given to what can merely be a well taught lesson. It is therefore, well settled that the evidence of a child witness should be accepted with great caution.

16. Considering the infirmities in the evidence of Saurabh, such as non disclosure of the manner of beating, method of beating, weapon, if any, used during the beating, the reaction of the victim i.e. Pushpa, while the beating was going on, the reaction of the appellant after the assault was over, and the reaction of the witness himself during and after the assault, it is difficult to believe that Saurabh is narrating something, from his memory of what he had seen. If he had seen the incident, he would be expected to reveal some of the details with respect to the incident, as have been mentioned above. When his testimony is so brief and incomplete, it would be difficult to conclude that he had actually seen the incident. Though the prosecution case was that the appellant had assaulted Pushpa with an axe and a stick, no efforts were made by the Assistant Public prosecutor to get the necessary details from Saurabh during his examination in chief. This creates a suspicion that Saurabh would not have been able to say anything more than what he said viz. he saw that his mother was being apl185.10 beaten by his Pappa and that mother became unconscious and that she was taken to the Hospital and that she died there. The narration of these facts, therefore, it is quite likely, was not based on what was observed by Saurabh but on the basis of his knowledge of the happenings which he might have derived subsequently from others. It is remarkable that the statements, such as ‘mother was taken to hospital’ and ‘mother died in the Hospital’ are found in his evidence, which, obviously, are not based on his personal knowledge.

ig It is nobody’s case that he was taken to the Hospital alongwith the mother or that he was present in the Hospital when his mother died there.

17. The learned Judge has discussed the evidence of Saurabh in details. The learned Judge, inter alia, observed that since the date of incident, Saurabh was in the custody of maternal grand parents and maternal uncle, it was necessary to confirm whether he had been tutored and that on such confirmation, the learned Judge was satisfied that he was not tutored. The learned Judge was convinced of the ability, understanding and truthfulness of this witness because of the way in which he answered the preliminary questions put to him. The learned Judge was greatly influenced by the answer given by Saurabh to the preliminary question put by the learned Judge as to what happened if one lies, which was to the effect God makes him blind.

The learned Judge was also impressed by the fact that the witness apl185.10 burst in tears, while giving evidence.

18. It is impossible to agree with the appreciation of evidence of Saurabh, as has been done by the learned Judge. The observation that his testimony had remained un-shattered, is not quite right because, all that the witness said was his father beat his mother, that the mother fell unconscious, that she was taken to Hospital and that she died there. Since he stated only this much, which did not make it clear at all, as to how the incident took place, there was perhaps insufficient material which could be ‘shattered’ Had he given the normal and obvious details of the incident, as one who has witnessed an incident is expected to do, there would be a possibility of testing the veracity of this witness by questioning him with respect to those details. When the details, which are normally expected to be given by an eye witness, are missing in the testimony of Saurabh and when the testimony consists only of two sentences, it is difficult to understand the observations of the learned Judge that his testimony was not shaken in the cross examination. The observations made by the learned Judge, in para 10, of the impugned judgment, suggest that he was of the view that the witnesses should have been questioned by the cross examiner with respect to the details, which are not found in his examination in chief. This view is not proper. The testimony, even without being ‘shattered’ by cross-examination, is not worth relying apl185.10 upon, as it does not give any picture of what had happened and fails to create a confidence that Saurabh was indeed an eye witness to the incident.

19. We have given our anxious consideration to the evidence of Saurabh. Keeping in mind the cryptic nature of his evidence, the fact that he was residing with his maternal uncle and maternal grand parents, at whose instance, the appellant came to be accused, since the time of the incident and well settled principles regarding the evaluation of evidence of a child witness, we are unable to hold the evidence of Saurabh can be safely relied upon. In our opinion, the learned Judge was not right in treating this evidence, as absolutely reliable and convincing.

20. There is also another aspect of the matter, which leads us to doubt the version of Saurabh. Apparently, the case against the appellant was registered on the basis of first information report lodged by Krishna, brother of Pushpa. Now, Krishna learnt about the incident from the original accused No.4 Subhash. The case of the prosecution is that on 17.4.2007, original accused No.4 Subhash came to the house of Krishna at Pawarwadi and informed him that the appellant had assaulted Pushpa by an axe. That, the assault on Pushpa had taken place at Kharmata, while Subhash was at Neknoor. Subhash apl185.10had learnt about the assault while he was at Neknoor and then he had gone to Kharmata and had seen Pushpa lying in an injured condition.

The F.I.R. (Exh.51) proceeds, not on the basis that there was any eye witness to the incident and, that this is so, has been clearly admitted by the Investigating Officer, Mahapure (P.W.17). Mahapure had also admitted that he did not record the statements of the children of Pushpa – including that of Saurabh-immediately and further admitted that their statements came to be recorded only after the parents and brother of Pushpa had brought the children to the police station for recording their statements. This shows that even the parents and brother of Pushpa had not told to the Investigating Officer about having learnt from Saurabh that he had witnessed the assault on his mother. The whole investigating machinery was set on motion on the basis of F.I.R. which itself was based on the information given to the first informant Krishna by the original accused No.4 Subhash. Under these circumstances, when Krishna and parents of Pushpa had already levelled an accusation against the appellant, the possibility of what Saurabh has been telling, being based on what he learnt from others and believed it as a fact, cannot be ruled out.

21. We may now proceed to examine the other evidence against the appellant.

apl185.10

22. The evidence of Krishna (P.W.1), who is first informant, gives details of the alleged cruel treatment meted out to Pushpabai by the appellant and other accused. In his evidence, he stated that, after the marriage, Pushpabai resided with the appellant happily for about 9 to 10 years. According to him, the harassment had started about three years before the incident. The harassment is stated to be by way of abuses and beating by fist and kick blows. The reasons for the harassment, according to this witness were two, viz :-

i) The first was that the appellant wanted to Pushpa to bring an amount of Rs.50,000/- from her parents for purchasing a jeep and that Pushpa was unable to bring that amount.

ii) The second reason was that the appellant and the other accused wanted that the appellant should perform a second marriage, but Pushpa was not giving her consent or permission for such second marriage by the appellant.

23. Now, it would be difficult to instantly believe the theory of Pushpa having been tortured after a happy married life of about 10 years. The evidence of Krishna does not show why suddenly the appellant and other accused felt necessity of purchasing a jeep and that too by demanding Rs.50,000/- from Pushpabai. As regards the allegation that, all the accused wanted that the appellant should perform the second marriage, it may be observed that there is no case apl185.10 that the appellant wanted to marry any particular woman. It would be difficult to believe that without there being any particular woman in mind, with whom the appellant wanted to marry, the appellant had a general desire to marry someone else after having lived a happy married life with Pushpa and after three children had been born out of the wedlock; and that such general desire was so strong so as to subject Pushpabai to severe cruelty. Moreover, in such a situation, the appellant and other accused were not likely to expect that Pushpabai would bring an amount of Rs.50,000/-.

24. Though this witness made general allegations of cruelty against all the accused, in the cross examination, he admitted that Pushpabai and the appellant were staying separately from other accused. He admitted that the father and mother of the appellant were residing separately in an old house, while Pushpa and the appellant were residing in a newly constructed RCC house. Admittedly, the original accused No.4 Subhash had been residing at a different village i.e. at Neknoor. That, the accused persons were insisting on the second marriage of the appellant, or that the accused persons were abusing Pushpa and beating her by kicks and blows, has not stated by this witness in the F.I.R. (Exh.51) and when confronted with this omission, he was unable to assign any reason for the same.

apl185.10

25. We may now consider the evidence of Ashabai (P.W.13), mother of Pushpa and Sarjerao (P.W.14), father of Pushpa. These witnesses have also spoken about the harassment of Pushpa by the appellant and other accused. In the cross examination, Ashabai admitted that Pushpa and the appellant were getting high yield from their land. The evidence of Sarjerao is also similar and consistent with the version of Krishna and Ashabai.

26. We may also consider the evidence of other two children of the appellant and Pushpa i.e. Priyanka (P.W.11) and Sharad (P.W.12).

Both these witnesses were at Neknoor with original accused No.4 Subhash, when the alleged incident took place. According to them, they had been there for attending Powada programme and after the same was over, they went to the house of original accused No.4 Subhash, took dinner and were about to sleep. That, at that time, a telephone call was received from Kharmata, which was answered by the original accused No.4 Subhash and that Subhash was told that “ofguhyk dq&gkMhus rksMys-” Immediately, Subhash, Priyanka and Sharad went to Kharmata by car and saw that Pushpa was lying unconscious.

In Priyanka’s evidence, she stated that “my mother was murdered by an axe because of harassment”. The evidence of Sharad shows that the original accused No.4 Subhash received a message on telephone to the effect that Pushpabai was assaulted by Vikram i.e.apl185.10 the appellant by an axe. Thus Sharad speaks about the message disclosing the involvement of the appellant, though Priyanka did not say so in her evidence.

27. In the cross examination, both Priyanka and Sharad admitted that Pushpa and the appellant used to go for work together in the field.

The evidence of this witness, however, shows that the appellant was addicted to liquor and used to come home under the influence of liquor, intermittently. Sharad had admitted in the cross examination that Pushpa used to sleep in the courtyard during summer seasons. In his evidence, Sharad also stated that the appellant was compelling Pushpa to work hard on empty stomach, but that he failed to state the same before the police when his statement was recorded in the course of investigation, has been proved. He stated that the appellant used to consume liquor occasionally.

28. The evidence of these witnesses i.e. Ashabai, Sarjerao, Priyanka and Sharad is not relevant in determining whether Pushpa was murdered by the appellant, it would be relevant only in the context of the allegations of cruelty and in that context it shall be discussed a little later.

29. As regards the accusation of murder, the other evidence against apl185.10 the appellant is of the evidence of recovery of an axe, (which is stated to be the weapon of offence), by the Investigating Officer pursuant to the information disclosed by the appellant. In that regard, the evidence of Ravindra Solunke and Santosh Solunke, (P.W.8) and (P.W.9), respectively, who are panchas in respect of panchnama (Exh.19) regarding the disclosure by the appellant and the recovery of axe pursuant thereto, as also the evidence of the Investigating Officer, Mahapure (P.W.17), is relevant. Now neither Ravindra Solunke nor Santosh Solunke supported the prosecution version and both were declared as hostile. That, both categorically stated that on 20.4.2007, the police simply asked them to make signatures, which they did and that no statement was made by the appellant in their presence and no axe was recovered in their presence. The evidence of these witnesses is therefore, not of any assistance to the prosecution.

30. The Investigating Officer, Mahapure did speak about the disclosure statement made by the appellant and pursuant to recovery of the axe, from the field known as Pandhari. It would be better, however, to consider his entire evidence rather than only the evidence, which relates to the recovery of the weapon of offence.

31. The Investigating Officer, Mahapure speaks of visiting the spot and drawing the spot panchnama (Exh.57) and recording statement of apl185.10 witnesses. He speaks of arresting the accused No.2 Babasaheb and the appellant, without giving any date or time of such arrest. He also said that he seized the clothes of the appellant, which were having stains of blood, under a panchnama (Exh.63). According to him, on 20.4.2007, the appellant made a disclosure statement in the presence of panchas and that pursuant to the information disclosed by him, the police party and the panchas went to the field known as Pandhari, within sugarcane crops. That, as per the directions of the appellant, the jeep by which, the police party and the accused had gone, was stopped and the accused led the police party and the panchas to the spot, where the axe (Article 4) was found. That, the axe was having blood stains.

32. Now, the evidence of recovery is not supported by the evidence of panchas. Moreover, the recovery is from an open place i.e. :- from sugarcane field. Thus, it would be difficult to place reliance on this evidence.

33. The seized articles – including the axe – were sent to Chemical Analyzer for analysis and opinion, and it was revealed that stains of blood were found on the axe as well as on the clothes of the accused.

The group of the blood however, could not be determined though the blood was revealed to be human.

apl185.10

34. We have considered this evidence. The seized articles were sent to the Chemical Analyzer only on 12.7.2007 i.e. after about three months. There is no explanation of such inordinate delay in sending the articles to the Chemical Analyzer. Interestingly, though the articles were received by the Chemical Analyzer in a sealed condition, there is no evidence as to when and by whom, they were sealed. Neither the evidence of the Investigating Officer, nor the panchnama shows that these articles were sealed at the time of their seizure. Under these circumstances, the finding of human blood, without group being detected on these articles, cannot advance the prosecution case.

35. The prosecution also examined some other witnesses to show the presence of the appellant at the time of the incident on the spot.

These witnesses are Shivaji (P.W.2) and Laxmibai (P.W.3). These witnesses, have spoken that they heard cries from the house of the appellant in the midnight and that when they went there, they saw that Pushpa had been lying on the cot, in an injured condition, and that the appellant was not seen there at that time. They, however, denied that they had seen the appellant running away from spot – a fact, which the prosecution expected them to depose. They were therefore, declared hostile and the questions in the nature of cross examination were permitted to be put to them. However, nothing could be elicited in apl185.10 favour of the prosecution, inspite of such questioning.

36. We have carefully considered the entire evidence. We do find that there is some suspicion against the appellant, in as much as, the appellant was not present in the house when the others gathered and assembled there after the incident. However, there is no evidence that prior to the incident, the appellant was present on the spot. The evidence indicates that the appellant was addicted to liquor. In the absence of any evidence to indicate that the appellant was present with Pushpa before the incident, his absence, soon after the incident, cannot be a conclusive circumstances to hold him guilty.

37. To sum up, we find that the evidence of the so called eye witness Saurabh cannot be relied upon. Further, there is no evidence to indicate that the appellant was present with Pushpabai immediately before the incident or soon after that. The evidence of the seizure of the clothes of the appellant on which human blood stains were found is not satisfactory. In the first place, when and in what manner, the clothes were seized is not free from doubt and in the second place, the delay caused in sending them to the Chemical Analyzer, has remained unexplained. There is no evidence as to when and by whom the clothes were sealed. Further, the evidence of recovery of the axe at the instance of the appellant is also not satisfactory. In the first place, apl185.10 the panchas have not supported the version of the prosecution in that regard. In the second place, the recovery seems to be from an open place and therefore, the evidentiary value thereof would be almost nil.

In the third place, it is not satisfactorily established that the axe, that was allegedly recovered was, indeed, the weapon of the offence.

Though that it was a weapon of offence has not been disproved – as attempted by the accused persons – the fact also remains that, that it was weapon of offence is also not satisfactorily proved. There is no evidence as to when and by whom axe was sealed and there is no explanation as to why it was sent to the Chemical Analyzer after more than 2 ½ months from its seizure. The other weapon of assault- viz :-

a stick has not been recovered.

38. If the entire evidence is carefully seen, it is apparent that the investigating machinery was set in motion by Krishna on the basis of what original accused No.4 Subhash allegedly told him. The version of Subhash has not been brought on record, as he was made an accused, apparently, for no satisfactory reason. The first informant Krishna, or Ashabai, or Sarjerao, or Sharad and Priyanka have no personal knowledge as to what exactly had happened. When the evidence of Saurabh could not be relied upon and where the circumstances sought to be relied upon against the appellant were not satisfactorily proved and further when they, by themselves, were not apl185.10 sufficient to conclude that the offence in question had been committed by the appellant and by none else, it follows that the accusation against the appellant of his having committed murder could not have held as proved.

39. We find that the learned Judge did not appreciate the evidence properly and objectively. He ignored the circumstances, which created a doubt about truth of the prosecution version and proceeded to appreciate the evidence by believing the appellant to be guilty. He even did not take into consideration the case law relied upon by the appellant, seriously.

40. As regards the allegations of cruelty, the same are vague and general. They have been made for the first time only after the death of Pushpabai. The cruelty, as reflected in these allegations cannot be said to be of such a gravity, as has been made punishable underSection 498A of the I.P.C. Moreover, there were general and common allegations of cruelty against the appellant and the other accused; and these allegations have not been believed by the learned Judge with respect to the other accused. Obviously, therefore he did not believe that the witnesses were wholly reliable or that they were telling truth in that regard.

apl185.10

41. Under the circumstances, we are not able to hold that the respondent is proved to have committed an offence punishable under Section 498A of the I.P.C.

42. In our opinion, this was a case where, certainly a reasonable doubt about the guilt of the appellant arose. The appellant was entitled for the benefit of such doubt and ought to have been acquitted.

43. We, therefore, allow the appeal and set aside the impugned judgment and the sentences imposed upon the appellant.

44. The appellant stands acquitted.

45. He be set at liberty forthwith, unless required to be detained in connection with some other case.

46. Fine, if paid, be refunded to him.

*****

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