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2014 Supreme(Bom) 1277
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B.P. DHARMADHIKARI & C.V. BHADANG, JJ.
Ramkisan Ramratan Dhotre
Vs.
The State of Maharashtra
Criminal Appeal No. 150 of 2011
Decided On: 1st July, 2014
Dr. U.K. KALSI, Advocate for Appellant.
Shri S.S. DOIFODE, APP for Respondent.
Headnote:Criminal Procedure Code, 1973 - Section 228 - Indian Penal Code, Sections 302 and 306 - Alternate charge under Section 306. - In absence of any evidence on record to show that accused abetted deceased to commit suicide, no recourse can be taken to alternate change as framed against accused. - Insofar as alternate charge under Section 306 of the Indian Penal Code is concerned, it may be mentioned that the prosecution did not come with a case of the deceased having committed suicide and of the appellant having abetted the same. The Court can not justifiably invent a entirely different case/story in the place of the one put-forth by the prosecution. At any rate, there is no evidence on record, to show that the deceased met with a suicidal death and the appellant abetted the same. In that view of the matter, no recourse can be taken to the alternate charge as framed against the appellant.
Indian Penal Code, 1860 - Sections 201 and 302 - Conviction under. - Since chain of circumstantial evidence pointing towards guilt of accused is not complete hence connection of accused under Sections 201 and 302, IPC improper. - There is evidence on record to show that the appellant was seeking help while in the well saying that he and his wife be saved. It would be further significant to note that the prosecution has not examined Guddubai, who had allegedly informed about both the appellant and the deceased being in the well. It is not known, whether her statement was recorded. She would have been a witness to state as to her source of information or the circumstance under which both the appellant and the deceased landed themselves in the well. That is not forthcoming in this case.
Motive alone would be insufficient to bring home the guilt against the appellant. As noticed earlier, there is evidence on record that the well was having iron angles and the base for fitting water motor pump fitted in the well and the Medical Officer has opined that injuries found on the dead body of Lalita could be caused, if the person while falling into the well hits the iron angles. Thus, the fact about the death being homicidal in nature also cannot be said to be conclusively established.
It is trite that while the prosecution is obliged to prove its case beyond reasonable doubt, the accused can discharge the burden on preponderance of probability. That merely on the basis of a motive, the burden cannot be said to have shifted on the appellant for explaining the circumstances as required under Section 106 of the Evidence Act. As noticed earlier, the prosecution case as to under what circumstances the appellant was also found in the well is not clear. In that view of the matter, that, at any rate, this would be a case where two views are equally possible and the one favouring the appellant would obviously prevail. Thus, the conviction under Sections 302 and 201 of the Indian Penal Code cannot be sustained.
C.V. BHADANG, J.
The appellant was prosecuted in Session Case No. 76/2008 on the file of the learned Additional Sessions Judge-1, Achalpur for offences punishable under Sections 302, 201, 498-A and 306 of the Indian Penal Code. By a judgment and order dated 17.1.2011, the appellant came to be convicted for the offences punishable under Sections 302 and 201 of the Indian Penal Code and has been sentenced to suffer life imprisonment and to pay a fine of Rs.5,000/- in default to suffer rigorous imprisonment for two years for the offence punishable under Section 302 of the Indian Penal Code and to suffer rigorous imprisonment for two years and to pay a fine of Rs.2,000/- in default to suffer rigorous imprisonment for six months for the offence punishable under Section 201 of the Indian Penal Code.
2. The prosecution case may be briefly stated thus :
The appellant was married with deceased Lalita in the year 2001 and both of them were staying at village Diya, Tahsil-Dharni, District-Amravati. The appellant was working as a cleaner on the private truck. According to the prosecution, sometime after the marriage, the appellant started ill-treating the deceased on the suspicion of her character. Initially both of them were staying jointly with other family members of the appellant. After one year of the marriage, the appellant and the deceased started residing separately. On account of occupation of appellant, he was required to be away from home for a period of eight days or more. The appellant was suspecting that this gave an opportunity to deceased to indulge into her illicit relationship.
3. The deceased used to inform about ill-treatment meted out to her on phone and personally whenever she used to visit her parental home. The maternal relations of deceased used to pacify her with a hope, that eventually behaviour of appellant would improve. It is specific case that two days prior to incident in question, the deceased had informed her father PW4 Madhukar Ramu Umarkar, who is complainant in this case, that there was a threat to her life and asking her to fetch back to her matrimonial home.
4. On 4.4.2008 at about 7.00 am, PW4 Madhukar received a telephonic message that the dead body of his daughter Lalita was found in a well. The complainant along with others went to village Diya and found that the dead body of his daughter was lying in a Government well. It appears that PW2 Shailesh Malviya had already reported the matter to Police Station, Dhami, on the basis of which, a case of accidental death was registered and the police had visited the spot. The dead body was taken out and inquest panchanama was prepared. The dead body was sent for postmortem examination and, thereafter, it was handed over to complainant and the family of appellant as well as maternal relations of deceased were present at the time of funeral rites. The complainant PW4 Madhu, thereafter, lodged a complaint Exh.28 with Police Station, Dharni on 7.4.2008, on the basis of which, offence under Sections 302, 201 and 498-A of the Indian Penal Code was registered against the appellant. During the course of investigation, Investigating Officer PW9 PSI Abdul Sadik recorded the statements of the witnesses. The appellant came to be arrested. It is said that while in custody the appellant gave a confessional statement offering to produce a stick which was allegedly used as a weapon of offence in causing the death of deceased. The investigating officer raised a query referring the stick to Medical Officer and opinion was obtained. Prior to this, the clothes of deceased were also seized. The said clothes and wooden stick were sent for report of Chemical Analyser and the report inter alia showed absence of any blood on the stick which was Article 5. On completion of investigation, a chargesheet came to be filed in the Court of Judicial Magistrate, First Class at Achalpur, which was then committed to the Court of Session at Achalpur. At the trial, the prosecution examined
