2012 Supreme(Bom) 190

2012 (1) ALL MR 423
In the High Court of Bombay at Goa
A.P. LAVANDE & U.V. BAKRE
Smt. Angela Diniz
Versus
State
CRIMINAL APPEAL NO. 42 OF 2008
Decided on : 25-01-2012

Headnote:Criminal Procedure Code, 1973 - Section 378 - Appeal against conviction of sentence - Accused tried for offence under Sections 302 and 201, IPC - Trial Court convicted and sentenced accused to undergo life imprisonment with fine judgment and order dated 18.7.2008 - Cause of death of deceased - Deceased died due to various injuries sustained by him - Homicidal - No direct evidence against accused - Persecution’s case entirely based on circumstantial evidence - Doctrine of "Last seen together" not available to prosecution - Conduct of accused not a sufficient circumstance to hold accused guilty of murder of her husband - Alleged recovery of burnt pieces of clothes, blood stained stones and woodendandaat instance of accused not proved beyond reasonable doubt - Nexus of said articles with accused and also with crime not established - Injuries on accused cannot be a circumstance which can lead any where towards guilt of accused.

       No evidence on record to show motive for accused to cause death of deceased - Acquittal of co-accused for same offences - Prosecution failed to establish guilt of accused beyond all reasonable doubt - Accused entitled to benefit of doubt - Impugned judgment and order dated 10.7.2008 and sentence dated 18.7.2008 quashed and set aside -Accused acquitted for offences punishable under Sections 302 and 201, IPC - Appeal allowed.

       The circumstantial evidence of "last seen together" would be relevant if the prosecution establishes that the accused was last seen in the company of the deceased- and that the time gap between the said company of the deceased with the accused and his death was so small that possibility of any other person being with the deceased could completely be ruled out. It would also be relevant, even if there is a long time gap, If the prosecution establishes that in intervening period there was no possibility of any other person meeting or approaching the deceased, at the place of Incidence or before the commission of crime. From the above, it is clear that there is no evidence on record to say that the doctrine of "last seen together" is available to the prosecution.

       No doubt, the medical evidence of PW 19 reveals that the deceased had sustained injuries to the penis and also scrotal sac and there was haematomma at both testes and surrounding area and in the substance of testes. Without any supporting evidence, it would be very harsh to hold that the conduct of the accused in pulling the underwear of the deceased upward and downward proves that it was she who had caused the injury to the testicles of her husband. Even otherwise, the above witnesses have not fully corroborated each other. The circumstance about the alleged conduct of the accused in pulling the underwear of the deceased upward and downward is rendered doubtful by the version of PW 10 who says that the same was done in order to put it in proper place.

       The conduct of the accused in pulling the underwear of the deceased up and down and telling witnesses that the deceased had banged his head against a tree, no doubt, raises a suspicion. Suspicion, however strong, cannot substitute proof. Therefore this conduct of the accused, in itself, would not be a sufficient circumstance to hold the accused guilty of murder of her husband.

       The evidence of PW 11, as well as the Panchanama which is at Exhibit 48 reveals that the accused had volunteered only to show the place where she had burnt the clothes. Insofar as, the two stones with blood stains are concerned, there was no disclosure statement made by the accused. Therefore, the said two stones with blood stains could not be said to be recovered at the instance of the accused under Section 27 of the Evidence Act. It is pertinent to note that as per the examination report of CFSL, Hyderabad, no blood was detected in the burnt pieces of clothes as well as in the ash. Though, blood was detected on the two stones, however, it was not confirmed to be human blood. The said stones were recovered from the open place near a nallaand the possibility of the animal blood falling on them, cannot be ruled out.

       Thus, it cannot be said that the alleged recovery of burnt pieces of clothes and blood stained stones and wooden dandaalong with wooden pieces, at the instance of the accused, have been proved by the prosecution beyond reasonable doubt. Even otherwise, since the nexus of the said articles with the accused and also with the crime is not established, this circumstance is of no use to the prosecution.

       Doctor had examined the accused on 20.12.2003 and he found the following injuries :

       (i) abrasion on right forearm;

       (ii) abrasion of left hand;

       (iii) bruises on the right forearm;

       (iv) bruise on left cheek;

       Doctor has stated that all the said injuries were simple in nature and caused by hard and blunt object. The hurt certificate issued by PW 16 is at Exhibit 62. In his cross-examination, Doctor has stated that he did not mention the duration of the above injuries. Therefore, it is not known as to when prior to 20.12.2003, the accused had sustained the said simple injuries. Even otherwise, these are negligible type of minor injuries which cannot be related to the incidence in which various injuries with different kinds of weapons were caused to the deceased. Hence, this cannot be a circumstance which can lead anywhere towards the guilt of the accused.

       According to another Doctor all the above injuries were simple In nature and caused by hard and blunt object having duration of 10 to 15 days. Thus, the injuries sustained by the juvenile were also minor and cannot be related to the various serious injuries sustained by the deceased. Besides the above, the juvenile was not before the trial Court, to defend his case and to give any explanation about the said injuries. Even otherwise, the juvenile has been acquitted by the Competent Court. This circumstance, cannot, therefore, help the prosecution to prove the guilt of the accused.

       Motive does play an important role in a case where there is only circumstantial evidence on record and if the said circumstances are not very strong enough to lead to the conclusion that it is only the accused who has committed murder. In the present case, the motive has not been established and this fact goes to the benefit of the accused.

       The fact remains that in respect of the same incidence, the juvenile in conflict of law (name withheld) has been already acquitted by the Juvenile Justice Board, Apna Ghar, Merces, Goa for offence punishable under Sections 302, 201 read with Section 34 of IPC. In the present case, though the charge-sheet was filed for offence punishable under Sections 302 and 201 read with Section 34 of IPC, however the charge was framed only in respect of Sections 302 and 201 of IPC. Second point for determination, framed by the trial Judge is whether the prosecution had established that the accused along with the minor (name withheld) had inflicted injuries on the vital parts of the body of the deceased in the near vicinity to the house in the late evening hours on 16.12.2003 with knowledge and intention to cause his death. The said point is answered by the trial Judge in the affirmative vis-à-vis the accused saying that the minor (name withheld) is tried by the another Court. Therefore, the acquittal of the co-accused, for the same offences, though it is by some other Court, affects the case of the prosecution, in respect of the present accused also.

       The prosecution has failed to establish the guilt of the accused beyond all reasonable doubt. The accused is entitled to be given benefit of doubt and acquitted. The judgment and order of conviction and sentence by the trial Judge cannot therefore be sustained. The accused is, therefore, entitled to acquittal.