Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PRASANNA B. VARALE, S.M. MODAK, JJ.
Sandip Baburao Waidande – Appellant
Versus
The State of Maharashtra – Respondent
Criminal Appeal No. 974 of 2019
Decided On : 09-04-2021
Code of Criminal Procedure, 1973 - Section 313 - Indian Penal Code, 1860 - Section 302 - Evidence Reliability - Judgment Of Conviction - Challenged - First informant PW-2 is taken a contract of cutting of sugarcane crop - He has hired persons for that job - Accused and deceased went from duty on account of stomach pain of accused - Both returned and slept - As usual, first informant went for awakening labourers - To his surprise, he saw dead body of Nirmala - He has not noticed accused - Accordingly he lodged complaint with police station - It was registered under Section 302 of IPC - Police arrested accused - Police filed charge-sheet for offence punishable under Section 302 of IPC - Additional Sessions Judge District, was pleased to believe circumstances and draw an inference about guilt of accused for committing murder of his own wife Nirmala - He decided case as per judgment - There was conviction under section 302 of IPC - Findings of trial Court are challenged mainly on grounds that every circumstance is not proved - Evidence is weak and not reliable - Circumstance of last seen together as spoken by PW-2 first informant was not put to appellant under section 313 of Cr.P.C.
Finding of the Court:
As no one has seen assault court do not know how accused has used weapon koyta - Weapon Koyta was found at spot when spot panchanama at Exhibit 11 was carried out - It is clear from evidence of PW-1 and PW-13 - From this court can only infer that culprit after assault has thrown away koyta at spot - Blood of “B” group was noticed on that koyta as per CA report - Blood group of deceased from her blood could not be ascertained - From this court can only infer that seized koyata is weapon of offence - When shown to Medical Officer PW-7 injuries were possible by that koyta - Except that court cannot draw any inference of involvement of accused - Prosecution has sufficiently proved circumstances of last seen together - Court is unable to use that circumstance against accused for want of putting it to accused under section 313 Statement of Cr.P.C. - Court have already opined that circumstance of motive is not proved - Evidence on point of arrest and seizure of clothes is not trustworthy - So what court feel is that chain of circumstances is not established - At most court can say that there is grave suspicion on accused that he has committed murder of his own wife - As everyone knows that suspicion cannot take place of proof - So court is unable to subscribe to the view taken by the trial Court - Court have no alternative but to set aside conviction - Conviction of accused recorded by Additional Sessions Judge, in Sessions Case for offence punishable under section 302 of IPC is set aside.
Result: Appeal Allowed.
JUDGMENT :
S.M. MODAK, J.
1. Issue involved in this appeal is whether the link in between the incident of murder and the accused is established on the basis of proved circumstances? The case is based on circumstantial evidence. The case falls within narrow compass. Even though the circumstances relied upon by the prosecution are not too many, we have to ascertain whether they are proved and whether guilt of the accused is established.
2. Law does not require a particular number of circumstance so as to establish the chain. It altogether depends upon the nature of the transaction. In a particular case there may be few circumstances which are strong enough which leads to guilt of the accused. There may be more circumstances which may be relied upon by the prosecution. It depends upon the facts and circumstances of each case. In the case before us, there were few circumstances relied upon by the prosecution. The Additional Sessions Judge District, Sangli was pleased to believe those circumstances and draw an inference about guilt of the accused for committing murder of his own wife Nirmala. He decided the case as per the judgment dated 2.2.2018. There was conviction under section 302 of IPC. The correctness of the said judgment is challenged before us.
3. We have heard Mr. Amit Mane, the learned Advocate appointed by this Court on behalf of the appellant and Mrs. M.M. Deshmukh, learned APP for the Respondent. First informant PW-2 Bhausaheb Jaywant Patil is taken a contract of cutting of sugarcane crop from Bharat Deshmukh. He has hired persons for that job. They were doing the job near Kurlap village. Accused and his wife Nirmala resident of village Banpuri Tal. Atpadi, District Sangli were the labourers.
4. The incident took place in the intervening night of 29.12.2015 and 30.12.2015. Accused and deceased went from the duty at about 4:00 p.m. of 29.12.2015 on account of stomach pain of accused. Both returned at 9:00 p.m. and slept. As usual on 30.12.2015 at 5:00 a.m. first informant went for awakening the labourers. To his surprise, he saw dead body of Nirmala. He has not noticed accused. Accordingly, he lodged complaint with Kurlap police station. It was registered under Section 302 of IPC. Police arrested accused on 04.01.2016. Police filed charge-sheet for the offence punishable under Section 302 of IPC.
5. In all prosecution examined 13 witnesses. The defence of accused is that of denial. The case is based on circumstantial evidence. The circumstances relied upon by the prosecution are as follows:
(a) Last seen theory.
(b) Motive.
(c) Noticing soaked blood stains on the clothes of the accused.
(d) Absconding himself from the spot of the incident even though his wife is murdered.
6. The findings of the trial Court are challenged mainly on the following grounds:
(a) Every circumstance is not proved.
(b) Evidence is weak and not reliable.
(c) The circumstance of last seen together as spoken by PW-2 Bhausaheb Jaywant Patil the first informant was not put to the appellant under section 313 of Cr.P.C.
7. On the point of circumstantial evidence the Appellant relied upon judgments in case of:
(a) Sharad Birdhichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622
(b) Raj Kumar Singh @ Raju @ Batya vs. State of Rajasthan, AIR 2013 SC 3150
(c) State of Goa vs. Sanjay Thakran and Another, 2007 (3) AIR Bom. R. 552
8. Whereas the learned APP supported the judgment. According to her the trial Court has rightly drawn an inference against the accused it was due to the failure of the accused in giving explanation about unnatural death of deceased Nirmala. According to her even though circumstances are few, they are sufficient enough to draw an inference about guilt of the accused. The learned APP also brought our attention to section 313 of Cr.P.C. and according to her the accused who has failed to participate in the process of recording of the statement as contemplated under sub-section 5 of section 313 of Cr.P.C. cannot take benefit of omission to put certai
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
