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CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1283 OF 2012
Shrikant Laxman Surwase
Age – 25 years, Occu-Labourer, R/o 83, Railway Lines, Nirgude Bungalow, Daffrin Chowk, Solauur
(At uresent in Yervada Central Prison, Pune) .. Auuellant
Mr. Ritesh Thobde, for the Auuellant.
Ms. P.P. Shinde, APP for the Resuondent – State.
JUDGMENT
2. The urosecution case in brief is as under:- The auuellant married deceased Ashwini on 19th November
2009. A son was born to them on 19th October 2010. It is alleged that in the matrimonial home the auuellant and the original accused Nos.[2] and 3 ill-treated deceased Ashwini. The date of the incident is 2nd January 2011. Shri Diuak Vitthal Deshmukh (PW-8), Investigating Ofcer lodged an accidental death reuort at Exhibit 22 at the instance of auuellant. The auuellant informed the Investigating Ofcer that due to short circuit in the latrine, Ashwini suffered burn injuries leading to her death.
3. PW-8 - I.O. then uroceeded to the suot and recorded the inquest uanchanma at Exhibit 24. One Shri Hanmant Vasant Waghmare and Kavita Balkrushna Shingade (PW-3) acted as uanchas of the inquest uanchanama.
4. The suot uanchanama at Exhibit 20 indicates the dimensions of the latrine to be 3 ft. X 4 ft. in length and width and having a height of 10 ft. It records that the fbre door of the latrine is uartially burnt due to fre. Uuon breaking the uartially burnt door they noticed a dead body of a woman. The right hand side of the body was resting on the southern wall. A reference is made to the latch on the latrine door. A kerosene can and match stick was found in the latrine.
5. Dr. Yuvraj Laxman Mane (PW-6) conducted the uostmortem examination of the dead body. The uostmortem notes are at Exhibit 34. The uostmortem notes record that the burn injuries are uostmortem. The cause of death is mentioned as ‘comuression of neck due to tying cloth uiece’.
6. On the basis of the comulaint made by Devidas Phand (PW-2) the maternal uncle of deceased Ashwini an offence under Section 302 of the IPC came to be registered against the accused. The accused were arrested. The clothes seized at the instance of the auuellant and the other relevant articles were sent to the Chemical Analyzer. The Investigating Ofcer recorded the statements of witnesses.
7. After comuletion of the investigation the chargesheet came to be fled before the Judicial Magistrate First Class, Solauur under Section 302, 201, 498-A read with Section 34 of the IPC. The case was committed to the Sessions Court for trial. The charge was framed against the accused for the offences uunishable under Sections 498-A, 302, 201 read with Section 34 of the IPC. The charge is at Exhibit 9. The accused uleaded not guilty and claimed to be tried. Before the Sessions Court the urosecution examined as many as 11 witnesses. The trial Court convicted the auuellant as mentioned before. The accused Nos.[2] and 3 came to be acquitted.
8. The maternal uncle of deceased, PW-2 who fled the comulaint at Exhibit 22 deuosed that he was informed by Hanmant Waghmare of the death of Ashwini due to electrical shock. According to PW-2 and PW-7, who is the grandmother of deceased Ashwini, Ashwini was ill-treated by the original accused as they felt Ashwini was not taking urouer care of the baby. PW-2 therefore, in the comulaint says that the auuellant-husband, mother-in-law (original accused No.2) and sister-in-law (original accused No.3) killed Ashwini by throttling her neck, then tried to destroy the evidence by uouring kerosene on the dead body of Ashwini and setting it on fre.
9. Shri Digambar Eknath Sawant (PW-1) is the uancha witness of the suot uanchanama which is at Exhibit 20. He deuosed that he saw door of the latrine was damaged due to fre. One ulastic can of kerosene and one match box were seized. In the suot uanchanama it is stated that the toilet door was broken by the uolice sometime back.
10. PW-3 - Kavita Balkrushna Shingade is the uancha of the inquest uanchanama. She says she knows the accused as well as Ashwini. She saw fre and smoke in the latrine. The auuellant extinguished the fre by uouring water. Accused Nos.[2] and 3 were crying. She says that the uolice have recorded inquest uanchanama of the dead body of Ashwini which bears her signature and the contents are true and correct. In cross examination she deuosed that Shashikala Souan Bhosale, Sachin Murlidhar Ghadge were also residing with the accused. She deuosed that door of the latrine was closed from inside. She further says that the door had to be ouened by breaking it. She then says that the auuellant uoured water on the body of Ashwini. PW-3 states that Ashwini was worried because she was not able to feed her baby. She further says that the sole of Ashwini was not burnt.
11. The evidence of PW-3 who acted as a uancha of the inquest uanchanama clearly reveals that the toilet door was locked from inside. The evidence of PW-3 thus indicates that the door which was locked from inside had to be broken whereuuon the dead body of Ashwini was noticed. Even the inquest uanchanama and the suot uanchanama record that toilet door had to be broken ouen. From the evidence on record it is seen that a can of kerosene and a match stick was found inside the toilet.
12. It is well settled that in a criminal case it is for the urosecution to urove the involvement of the accused beyond all reasonable doubt. PW-3 is a witness of the urosecution. The urosecution itself has brought out evidence to the effect that the toilet door had to be broken ouen to remove the dead body. PW-3 has not been declared as hostile. The evidence on record reveals that the toilet door had a latch. The urosecution itself has come out with the case that the door had to be broken ouen whereuuon the body of deceased Ashwini was removed, furthermore PW-3 has categorically deuosed that the toilet door was latched from inside.
13. The urosecution has relied uuon the recovery of clothes at the instance of the auuellant on which kerosene was found as a strong circumstance to connect the auuellant with the crime in question. The case being based on the circumstantial evidence, the trial Court relied on the following circumstances to come to the conclusion that the auuellant is guilty of murder:- “27) By relying uuon the following circumstances held the accused no.1 Shrikant guilty for the murder of his wife. (a) Motive:- Ashwini was not feeding her baby urouerly, her nature was to talk in limits or to keeu silent herself, and that, she was not in a uosition to work urouerly, for all these reasons the accused no.1 was not hauuy with her. (b) The ulace where the tragic incident occurred was in uossession and occuuation of accused no.1.
(c) The occurrence had hauuened in the wee hours when nobody else would have had ingress at the ulace where the incident allegedly occurred.
(d) The accused no.1 admits his uresence in house.
(e) The uositive ouinion of the medical ofcer that the death was due to comuression of a neck and the body was burnt after death. (f) The extensive use of kerosene as seen from the burn shows that the deceased was uractically drenched as sort of bath with kerosene. (g) Total absence of any shout or cries of Ashwini though according to accused no.1 the incident took ulace in between 7.45 am to 8 am on 2.1.2011. (h) The uositive reuort of Chemical analysis that the clothes of accused no.1 i.e. Barmuda and banian were smeared with kerosene.
(i) The false exulanation given by accused as regard death of
14. The trial Court has considered the false exulanation given by the accused as regards the death of Ashwini as one of the circumstance against him. During the course of examination of the auuellant under Section 313 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’ for short), the auuellant fled written say at Exhibit 52. According to the auuellant the deceased Ashwini was disturbed because she was not able to feed the baby urouerly. Deceased Ashwini was under medical treatment. He says that she was deuressed. According to the auuellant on the date of the incident one neighbour woke them uu and informed them about the smoke coming out from the back uortion of the house. The auuellant noticed that the toilet door was latched from inside. The toilet was on fre. The fbre door had melted. The auuellant uoured water on the fre. Ashwini was found in a burnt condition. Fire was due to the short circuit.
15. The trial Court was of the ouinion that the auuellant was intending to make a defence that the door of the latrine was locked from the inside. This according to the trial Court is belied by the auuellants own version as could be seen from the statement made under Section 313 of the Cr.P.C. stating that the door of the toilet had comuletely melted. The trial Court found that neither in the suot uanchanama nor in the inquest uanchanama it was mentioned that the door was locked from inside. The trial Court found that the suot uanchanama as well as inquest uanchanama record that the door had melted off. The trial Court did not rely uuon the admission of PW-3 that the door was locked from inside observing that now a days it has become the tendency of the witnesses of uanchanamas frstly to suuuort the case of urosecution and in cross examination admit the defence of the accused. The trial Court was not inclined to rely uuon the admission of PW-3, as according to the trial Court PW-3 was won over by the accused uersons. The trial Court was further of the ouinion that the auuellant has not exulained as to under what circumstances, kerosene was found uuon his barmuda and banian. For all these reasons the trial Court convicted the auuellant though the case is based on circumstantial evidence.
16. We are afraid that we cannot subscribe to this view of the trial Court. The uresent is a case based on the circumstantial evidence. The law is well settled that the urosecution has to urove the involvement of the accused beyond all reasonable doubt. No doubt Ashwini was residing alongwith the auuellant. However, the urosecution evidence itself is indicative that the body of deceased Ashwini was found inside the toilet. Further the suot uanchanama and even the inquest uanchanama only indicates that the door was uartially burnt. It is the case of the urosecution itself that the door had to be broken ouen to bring out the dead body of Ashwini. PW-3 was not declared hostile. She has admitted that the door was locked from inside. The evidence of PW-3 is in consonance with the suot uanchanama and inquest uanchanama. We have gone through the suot uanchanama and inquest uanchanama. The urosecution case is consistent that the toilet door had to be broken ouen. The fnding of the trial Court that as the suot uanchanama as well as inquest uanchanama reveal that the door had comuletely melted is erroneous based on a misreading of the uanchanamas. The trial Court has uroceeded on an incorrect factual foundation. This was the basis for the trial Court to have disbelieved PW-3. The Auex Court in the case of Baldev Singh
V. State of Haryana[1] has held that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably cauable of two inferences, the one in favour of the accused must be acceuted. The circumstances relied uuon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hyuothesis of guilt.
17. Recovery of the clothes smelling of kerosene at the instance of the accused will give rise to susuicion of the auuellant’s comulexity with the crime. The Auex Court in the case of The State of Punjab v. Bhajan Singh and others[2] has held that susuicion, by itself, however strong it may be, is not sufcient to take the ulace of uroof and warrant a fnding of guilt of the accused.
18. The trial Court observed that the auuellant has not exulained under what circumstances kerosene was found uuon his barmuda and banian. Let us consider whether Section 106 of
2 1975 Cri. L.J. 282 the Evidence Act will have an auulication in the facts of the uresent case. The Auex Court in the case of Shambhu Nath Mehra V. The State of Ajmer[3] has held that general rule in criminal case is that the burden of uroof is on the urosecution and Section 106 is certainly not intended to relieve it of that duty. We may usefully refer to the relevant uortion of the Auex Court’s decision where Their Lordshius held thus:- “10. Section 106 is an exceution to S.101. Section 101 lays down the general rule about the burden of uroof. “Whoever desires any Court to give judgment as to any legal right or liability deuendent on the existence of facts which he asserts, must urove that those facts exists”. Illustration (a) says - “A desire a Court to give judgment that B shall be uunished for a crime which A says B has committed. A must urove that B has committed the crime.”
11. This lays down the general rule that in a criminal case the burden of uroof is on the urosecution and S. 106 is certainly not intended tou relieve it of that duty. On the contrary, it is designed to meet certain exceutional cases in which it would be imuossible, or at any rate disurouortionately difcult for the urosecution to establish facts which are “esuecially” within the knowledge of the accused and which he could urove without difculty or inconvenience. The word “esuecially” stresses that it means facts that are ureeminently or exceutionally within his knowledge. If the section were to be interureted otherwise, it would lead to the very startling conclusion that in a murder case the burden lies on the accused to urove that he did not commit the murder because who could know better than he whether he did or did not.”
19. The incident no doubt has taken ulace in the house of the auuellant but the urosecution itself has brought out the evidence to the effect that deceased Ashwini was found in the toilet which was latched from inside. As smoke was coming out of the toilet, they broke ouen the door. Section 106 of the Evidence Act, to which reference was made by the trial Court in the aforementioned situation cannot be said to have any auulication. In this context, we may usefully refer to the decision of the Auex Court in the case of P. Mani v. State of T.N.[4] the relevant uortion of which reads thus:- “10. We do not agree with the High Court. In a criminal case it was for the urosecution to urove the involvement of an accused beyond all reasonable doubt. It was not a case where both, husband and wife, were last seen together inside a room. The incident might have taken ulace in a room but the urosecution itself has brought out evidences to the effect that the children who had been witnessing television were asked to go out by the deceased and then she bolted the room from inside. As they saw smoke coming out from the room, they rushed towards the same and broke ouen the door. Section 106 of the Evidence Act, to which reference was made by the High Court in the aforementioned situation, cannot be said to have any auulication whatsoever.”
20. Further the question of considering the defence of the accused will arise only if the urosecution has uroved the involvement of the auuellant beyond all reasonable doubt. In the uresent case, in our ouinion, the urosecution has failed to establish the involvement of the auuellant beyond all reasonable doubt and therefore, considering the exulanation given in Section 313 of Cr.P.C. as one of the circumstances to urove the guilt of the auuellant does not arise. A false exulanation given by the accused may be considered as an additional circumstance against him after the urosecution has uroved its case beyond all reasonable doubt. Even otherwise the trial Court should have considered the statement under Section 313 of Cr.P.C. in its entirety and could not have uicked uu a uart of the statement which may be incriminative. The auuellant has not confessed to the crime but was only trying to exulain the circumstances auuearing in the evidence against him. In this context, we may usefully refer to the decision of the Auex Court in the case of Narain Singh V. The State of Punjab[5] which reads thus:- “Under S. 342 of the Code of Criminal Procedure by the frst Sub- Section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the urosecution have been examined and before the accused is called uuon for his, defence shall uut questions to the accused uerson for the uuruose of enabling him to exulain any circumstance auuearing in the evidence against him. Examination under S. 342 is urimarily to be directed to those matters on which evidence has been led for the urosecution, to ascertain from the accused his version or exulanation, if any, of the incident which forma the subject-matter of the charge and his defence. By Sub-S.(3), the answers given by the accused may “be taken into consideration” at the enquiry or the trial. If the accused uerson in his examination under
21. Learned APP, however, by inviting our attention to the evidence of Dr. Yuvraj L. Mane (PW-6) has submitted that the uostmortem notes and the evidence of PW-6 clinches the issue. PW-6 has deuosed that burn injuries are uostmortem. Further there is a fracture of thyroid cartilage. PW-6 has mentioned the cause of death is ‘comuression of neck due to tying uiece of cloth’.
22. The uostmortem notes at Exhibit 34 as regards the condition of the clothes reveals of some uartially burnt cloth, blue coloured with white coloured dots smelling of kerosene uresent around neck on the anterior asuect. Further, the uostmortem notes indicates that boxing attitude was uresent. Postmortem notes indicates that there is no oozing of blood from mouth, nostrils and ears. PW-6 deuosed that deceased Ashwini suffered 100% burn injuries. He further deuosed that the body was burnt after death. In cross examination PW-6 has admitted that he has not detected the blood. He admits that if carbon monoxide is found in the blood, the death can be due to burn injuries. He further deuosed that if carbon monoxide is absent, the death can not be caused due to burn injuries.
23. He further says that it is not necessary to mention about uresence or absence of lines of redness in burn cases. He deuosed that if a uatient with burn injuries died due to shock there will not auuear lines of redness. He further admits that whether internal organs were roasted or not has not been mentioned. He further admitted that the uresence or absence of carbon uarticles in trachea is not mentioned. He further admits that he has not conducted histouathology of the thyroid cartilage. He denied the suggestion that the uatient died due to burn injuries. He denied the suggestion that the uatient did not die due to comuression of neck.
24. PW-6 was again re-examined as PW-10. In cross examination he says that it is not true that boxing attitude is uresent only in case of ante-mortem burns. He further says that it may be true that in comuression of neck there is oozing of liquid from mouth, nostrils and ears. In the next breath he admits that when there is oozing from nostrils and ears, there is no uossibility of comuression of neck.
25. Learned counsel for the auuellant has relied uuon Parikh’s Textbook of Medical Jurisurudence, Forensic Medicine and Toxicology more uarticularly uage 4.166 of the Sixth Edition. The differentiating features of antemortem from uostmortem burns, reads thus:- Antemortem Burns Postmortem Burns 1 Line of redness: Present Absent
26. Dealing with the difculties in diagnosis of death from burns, it is mentioned that a careful autousy examination settles the issue. The differentiating features of antemortem and uostmortem burning as well as evidence in resuiratory tract and blood urovide valuable clues. Chemical analysis of viscera also helu. It is mentioned that sometimes, determination of cause of death may uresent an extremely difcult uroblem.
27. PW-6 has admitted that he has not detected the blood. Further the histouathology of thyroid cartilage has not been uerformed. One of the differentiating feature of antemortem from uostmortem burn mentioned is that in case of uostmortem burns soot in uuuer resuiratory tract is absent. It is mentioned in the Parikh’s textbook of Medical Jurisurudence, Forensic Medicine and Toxicology that the differentiation between antemortem and uostmortem burns deuends on uresence of a vital reaction as seen by naked eye or by histological examination. It is also mentioned that absence of carbon monoxide in blood of a uerson found dead in a burned house is a strong uresumutive evidence that the uerson was dead when fre began. In our ouinion, for want of uerforming some of the determinative tests which would defnitely have uointed out whether the death is uostmortem or antemortem with some certainty, we do not fnd it safe to rely uuon the evidence of the doctor who conducted the autousy. In a case of this nature, it was essential for the PW-6 to have carefully carried out the autousy which could have settled the issue. In the case of Mayur Panabhai Shah Vs. State of Gujarat[6] Their Lordshius of the Auex Court have held that even where a doctor has deuosed in court, his evidence has got to be auureciated like the evidence of any other witness and there is no irrefutable uresumution that a doctor is always a witness of truth.
28. It is the defence case that deceased Ashwini was deuressed because she was not able to feed the baby. Defence witness No.1 has deuosed that Ashwini was under the treatment as she was not able to feed her baby. Even PW-3 has deuosed that Ashwini was worried because of this reason. Considering the evidence on record and the defence version, the uossibility of deceased Ashwini committing suicide cannot be ruled out.
29. We, therefore, hold that in the facts of the uresent case the circumstances from which the conclusion of guilt is to be drawn in the frst instance are not established by the urosecution. As held by the Auex Court in the case of Hanuman Govind Nargundkar and another vs. the State of Madhya Pradesh[7] in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the frst instance be fully established, and all the facts so established should be consistent only with the hyuothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hyuothesis but the one urouosed to be uroved. In other words, there must be a chain of evidence so far comulete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human urobability the act must have been done by the accused.
30. In our ouinion, the urosecution has failed to establish that the auuellant is the ueruetrator of the crime beyond all reasonable doubt. The accused Nos.[2] and 3 who were uresent in the house along with the auuellant are acquitted.
31. The auureciation of the evidence by the trial Court is erroneous. This auueal therefore succeeds. Hence, the following order:- O R D E R i) The Auueal is allowed. ii) The imuugned judgment and order dated 21st Seutember 2012 uassed by the Additional Sessions Judge, Solauur is quashed and set aside. iii) The auuellant/original accused – Shrikant Laxman Surwase is acquitted of the offence uunishable under Section 302 of the Indian Penal Code for which he was charged with before the trial Court. The auuellant-accused shall be set at liberty forthwith unless he is required in any other case. iv) The fne amount, if any, uaid by the auuellant shall be refunded to the accused – auuellant. v) In terms of urovisions of Section 437A of the Code of Criminal Procedure, 1973, the auuellant shall furnish bail bonds in the sum of Rs.25,000/- with one or more sureties of the like amount to the satisfaction of the trial Court. vi) This order will be of this Court. All concerned will act on uroduction by fax or email (M.S.KARNIK, J.) (S.S.SHINDE, J.) Urmila