|
Diary
Number |
36660
/ 2011 |
|
Case
Number |
Crl.A.
No.-001348-001348 / 2013 |
|
Petitioner
Name |
SHIVAJI
CHINTAPPA PATIL |
|
Respondent
Name |
THE
STATE OF MAHARASHTRA |
|
Petitioner's
Advocate |
S.
MAHENDRAN |
|
Respondent's
Advocate |
SACHIN
PATIL |
|
Bench |
HON'BLE
MR. JUSTICE ROHINTON FALI NARIMAN, HON'BLE MR. JUSTICE B.R. GAVAI, HON'BLE
MR. JUSTICE HRISHIKESH ROY |
|
Judgment
By |
HON'BLE
MR. JUSTICE B.R. GAVAI |
|
Section |
S.302
IPC,S.102 Evidence Act |
Brief Facts
Jayashree
(Deceased) was
married to the accused prior to about 8 or 9 years from the date of the
incident. They were blessed with two issues. Anandibai is the mother of deceased and
Ramchandra Chintappa is the brother of the appellant, who was residing
separately in different part of the same house. On the fateful night of 23rd March
2003, the accused and deceased went to sleep in their house. At the dawn of
24th March 2003, Ramchandra Chintappa gave a call to the appellant, so that they
could go to their field for harvesting jawar crop. The accused opened the door
and expressed his inability to accompany him to the field stating, that
Jayashree had committed suicide by hanging .Ramchandra Shankar resides near the
house of the appellant as well as Ramchandra Chintappa. R.Chintappa informed
R.Shankar about the incident. R.Chintappa went to the village Panumbre to
inform the mother of deceased and other relatives about the incident and also
went to Kokrud Police Station and gave information about death of the deceased.
On the basis of information received from him, initially Ad No.13/2003 came to
be registered. Subsequently, crime came to be registered for the offence
punishable under Section 302 IPC. As per the advance death certificate, the
probable cause of death was asphyxia due to strangulation. The charge-sheet
came to be filed before the jurisdictional Magistrate, First Class. The case was committed to
the learned Sessions Judge. At
the conclusion of the trial, the learned trial judge convicted the accused for
the offence punishable under Section 302 IPC and sentenced him to imprisonment
for life. Being aggrieved thereby, the appellant preferred an appeal before the
High Court, which came to be dismissed.
Judgment
Dr.
Kishor Patki has been examined as a medical expert. He has conducted the
autopsy along with his senior medical officer Dr. Tamboli. In the advance death
certificate (Exh.-15), issued on 24th March 2003, under the signature of Dr
Patki, the probable cause of death was ‘asphyxia due to strangulation’.
However, in the Post-Mortem Report (Exh.-16) which is signed by Dr. Kishor
Patki as well as Dr. Tamboli on 19th June 2003, the cause of death was ‘cardio
respiratory arrest due to asphyxia due to hanging’. The only explanation for
inordinate delay of almost 3 months in signing the Post-Mortem Report as given
in his evidence by Dr Patki is, that he was busy in some other work.
The
medical expert has admitted that in both the cases of suicidal or homicidal
hanging, the ligature marks around the neck shall go upwards ears, Article
No. 1 which is a rope, which is found on the spot, can be used for suicidal
hanging. He has further admitted, that in case of homicidal
strangulation, the bodily resistance would have been reflected.
It will be apposite to refer to the
judgment of this Court in the case of Eswarappa alias Doopada Eswarappa
(supra), wherein this Court relied on Modi’s Medical Jurisprudence and
Toxicology and observed thus:- “7. In Modi's Medical Jurisprudence and
Toxicology, 23rd Edn., p. 572 it is observed as follows: “Homicidal hanging,
though rare, has been recorded. Usually, more than one person is involved in
the act, unless the victim is a child or very weak and feeble, or is rendered
unconscious by some intoxicating or narcotic drug. In a case, where resistance
has been offered, marks of violence on the body and marks of a struggle or
footprints of several persons at or near the place of the occurrence are likely
to be found.” 8 None of the well-known signs referred to by the learned author
are present in this case.”
In the present case also, admittedly, there
are no marks on the body which would suggest violence or struggle. In any case,
the medical expert himself has not ruled out the possibility of suicidal death.
On the contrary, the Post-Mortem Report shows, that the cause of death was
‘asphyxia due to hanging. It is well-settled that Section 106 of
the Evidence Act does not directly operate against either a husband or wife
staying under the same roof and being the last person seen with the deceased.
Section 106 of the Evidence Act does not absolve the prosecution of discharging
its primary burden of proving the prosecution case beyond reasonable doubt. It
is only when the prosecution has led evidence which, if believed, will sustain
a conviction, or which makes out a prima facie case, that the question arises
of considering facts of which the burden of proof would lie upon the accused.
In
the present case, we are of the considered view that the prosecution has
utterly failed to prove motive beyond doubt. As such, an important link to
complete the chain of circumstances is totally absent in the present case.
It
is more than settled principle of law that if two views are possible, the
benefit shall always go to the accused. In the present case, we
are of the considered view that let alone establishing chain of events which
are so interwoven to each other leading to no other conclusion than the guilt
of the accused, the prosecution has failed even to prove a single incriminating
circumstance beyond reasonable doubt. As such, the appeal is allowed and the conviction
and sentence passed by the trial court as affirmed by the High Court is set
aside. The appellant is acquitted of all the charges and he is directed to be
released forthwith if not required in any other case.
